As you’ve read here before, DWI law in Minnesota is a complicated topic. One of them is aggravating factors and the various degrees of DWI in Minnesota law. To help unravel the confusion behind this, an overview of the topic might be useful.
Minnesota law recognizes four different degrees of DWI – 1st through 4, with 1st being the most serious. 4th Degree DWI is a misdemeanor, 3rd and 2nd Degree DWIs are both gross misdemeanors, and 1st Degree DWI is a felony, which carries with it the possibility of a prison sentence. But how does the law determine what degree of DWI can be charged?
DWIs are charged based on the number of “aggravating factors” involved in a given case. There are three different types of aggravating factors – having a prior DWI within the previous ten years, having an alcohol concentration of .16 or more, and having a child present in the car at the time of the offense.
Note that “child” in this case is defined as someone under the age of 16, who is also more than 3 years younger than the driver. So an 18 year old driving impaired with his 16 year old friend in the passenger’s seat would not experience an aggravating factor, while a 24 year old man with his 5 year old son in the car would.
Of these three types of aggravating factors, only the first (prior DWIs) can be used multiple times in a case. If a person has two prior DWIs within the previous ten years, that would count as two aggravating factors. But having two children in the car would still only count as one.
The general rule is that to determine the degree of DWI, we count the number of aggravating factors present in a case. Each one bumps the case up to the next most severe charge. For example:
- A person driving alone in their car is arrested and found to have an alcohol concentration of .14. They have no prior DWIs. This person would be charged with 4th Degree DWI because there are no aggravating factors in their case.
- A person driving alone in their car is arrested and found to have an alcohol concentration of .17. They have no prior DWIs. This person would be charged with 3rd Degree DWI because the alcohol concentration of .17 is an aggravating factor.
- A person driving their 5 yr old child home is arrested and found to have an alcohol concentration of .14. They have a prior DWI from 7 years ago. This person would be charged with a 2nd Degree DWI because the prior DWI and the child in the car are both aggravating factors.
There are two important exceptions to this. First, adding up the number of aggravating factors can only get you to 2nd Degree DWI. Three aggravating factors do not automatically make for a 1st Degree DWI. There are only two ways to be charged with 1st Degree DWI in Minnesota – a person must have 3 or more prior DWIs in the previous ten years or have a prior felony conviction for DWI or Criminal Vehicular Operation. This means that once a person is convicted of felony First Degree DWI, any later DWI will always be a felony for the rest of that person’s life.
I’ve glossed over a lot of detail and nuance here (in particular, the concept of a “prior DWI” is far more complicated than I’m making it seem here), so it’s important that anyone with questions on this topic speak with a qualified criminal defense attorney.