Why Have I Been Charged With Two Counts of DWI?

This might be the single most common question I get from people calling about DWI cases. DWI offenses come in all shapes and sizes (I’ve seen some pretty bizarre cases), but the most common example involves someone on their way home after, say, a sporting event, social gathering, or happy hour.  They make the unfortunate choice to drive after having a bit too much to drink, get pulled over, do some tests on the side of the road, and ultimately are arrested for DWI.  The officer takes them to the local police station, where they provide a breath sample that shows they’re over the legal limit.  For our example, let’s say they test at .14.  They have no prior DWI offenses and are polite and cooperative with the officer.  After the officer finishes the testing process and fills out a mountain of paperwork, he or she will often issue a citation to the driver who calls for a ride home.  Sometime later, they look more closely at the citation the officer gave them and are shocked to find that they’ve been charged with two counts of DWI!

But how can this be?  Was the officer just being a jerk and stacking on extra charges?  How can someone receive two DWIs for one incident?  The answer is that no, the officer wasn’t adding extra charges in your case, and no, you cannot be convicted of two DWIs based on one incident.

The reason you’ve been charged with two counts of DWI is because of the way Minnesota’s DWI laws are written.  Most people know that you can get a DWI in Minnesota for driving with an alcohol concentration of .08 or more, but very few people realize that there are also seven other ways someone can be charged with DWI!  Here’s the statute (one of the seven is DWI Test Refusal, which is listed in another statute):


Subdivision 1.Driving while impaired crime; motor vehicle.

It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, within this state or on any boundary water of this state when:

(1) the person is under the influence of alcohol;

(2) the person is under the influence of a controlled substance;

(3) the person is under the influence of an intoxicating substance and the person knows or has reason to know that the substance has the capacity to cause impairment;

(4) the person is under the influence of a combination of any two or more of the elements named in clauses (1) to (3);

(5) the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more;

(6) the vehicle is a commercial motor vehicle and the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the commercial motor vehicle is 0.04 or more; or

(7) the person’s body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.

The reason you’ll often see two DWI charges from the same incident is that often more than one of these 7 paragraphs applies.  In our example, which is the most common scenario, the driver would have likely been charged with violating paragraphs 1 and 5.  But what’s the difference?

In plain language, paragraph 1 makes it a crime to drive a vehicle when you’re under the influence of alcohol.  Basically, if you can feel the effects of the alcohol you’ve consumed, you’re under the influence.  Evidence that the prosecutor will use to support this charge will be things like poor balance, slurred speech, swerving while driving, etc.

Paragraph 5 ignores all those subjective signs of alcohol impairment and just focuses on the test result.  To prove this charge, the prosecutor will rely solely on the breath test results.

There are a few reasons the law makes this distinction, but one of the biggest ones is that it takes a person’s alcohol tolerance out of the equation.  For example, someone who very rarely drinks might experience significant impairment even when their alcohol concentration is under .08.  That person would still commit a DWI if they drove a vehicle because they would be violating paragraph 1.  On the other hand, a seasoned drinker might not appear to be impaired even with an alcohol concentration above .08.  Nonetheless, that person would still be committing a DWI if they drove a motor vehicle because they would be violating paragraph 5.

So, the driver in our example received two charges on their citation because the officer believed he or she had evidence to support charges under both paragraph 1 (meaning that the driver showed signs of impairment) and paragraph 5 (because the alcohol test showed they were over the legal limit).  This is common and the way most DWI cases are charged.  However, at the end of the day, in the worst-case scenario, our driver can only be convicted of one of the charges.  There’s still only one DWI here; the citation just uses two different legal ways to describe it.

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