Refusal to Submit to Breath Test: a Review of the Penalties

Refusing to submit to a breathalyzer test can carry steep penalties including impoundment of the vehicle and license suspension. Many states, including Minnesota, adopt these penalties to deter driving while intoxicated. Driving while intoxicated is a serious offense and a successful conviction can result in both criminal and civil penalties.

An Overview of the Breathalyzer

The breathalyzer test is administered by police who suspect a particular driver of driving while impaired. The breathalyzer is a small device that the suspect blows into. The device measures the person’s blood-alcohol content (BAC). The officer then relies on those readings to assess if the driver was intoxicated while operating a vehicle.

Minnesota, like every other state, automatically requires the police to arrest and charge the driver if her BAC is above 0.08 percent. Furthermore, even if the driver’s BAC is below 0.08 percent, the officer may still charge her with impaired driving depending on the circumstances of the stop.

Minnesota adopted a zero tolerance approach for driving while impaired for underage drivers (under 18). It is still up to the discretion of the officer but in theory this could result in a DUI/DWI charge for a 16-year-old whose BAC was 0.01 percent.

Additionally, commercial drivers must maintain a BAC below 0.04 percent. Commercial drivers are truck, delivery, and other professional drivers.

Administrative vs. Criminal Penalties

The difference between an administrative and penal sanction is, essentially, the nature of the punishment. Criminal penalties typically include some threat of incarceration, fines paid to the government, or in the extreme, execution.

By contrast, administrative (or “civil”) penalties only result in fines or administrative suspensions, for example, an impounded car or suspended license. Administrative penalties never result in incarceration or execution. In Minnesota, the Department of Public Safety, Office of Traffic Safety (DPS-OTS) is responsible for levying administrative penalties

Criminal Penalties

For first time offenders, Minnesota imposes a variety of punishments based on the level of the driver’s BAC. For BACs that exceed 0.16 percent, the driver is charged with a gross misdemeanor and can face up to one year in jail and/or a $3,000 fine.

A BAC below 0.16 percent results in a misdemeanor and the driver may face up to 90 days in jail and/or a $1,000 fine.

These charges will be enhanced if anyone was injured or if a child was present in the vehicle. Conversely, if a driver refuses to submit to the breathalyzer, he may be charged with a gross misdemeanor and could face up to one year in jail and a $3,000 fine.

For repeat offenders, the punishments are gradually increased with longer jail times, higher fines, and longer license suspensions.

Administrative Penalties

Similar to the criminal penalties, the OTS-DPS imposes two variations of punishment for drivers above and below a 0.16 percent BAC.

Drivers with a BAC below 0.16 percent lose their license for 90 days. The driver loses all driving privileges for 15 years and may, with a limited license, operate their vehicle for the remaining 90 days. The limited license permits the driver to operate the vehicle only for essential activities like driving to work, picking up children, and purchasing groceries.

Drivers may enjoy full driving privileges if they submit to an ignition interlock device for the full 90 days.

If the driver has a BAC that exceeds 0.16 percent, their license is suspended for one year. The driver may either (1) submit to the ignition interlock device for the entire year and enjoy restricted driving privileges or (2) face one year with a suspended license.

Similarly, drivers that refuse to submit to the breathalyzer test may face one year of restricted driving with an ignition interlock device or a full year with a suspended license.

Ignition Interlock Devices

The ignition interlock device attaches to the steering column in a car and “locks” the ignition system until the driver blows into the attached breathalyzer which releases the vehicle if the driver is below the limit. Ignition interlock devices are required for:

  • First time DUI offenders with a BAC over 0.16 percent;
  • Second time DUI offenders; and
  • Third or more DUI offenders within ten years.

The ignition interlock device can remain in place for up to six years, depending on the severity of the offense.

Reinstating the Driver’s License

The driver’s license may be reinstated after the driver completes both the criminal and administrative requirements. That may include driving full time with an ignition interlock device, paying all fines, serving time in jail, and attending alcohol abuse classes. Once all of the requirements are met:

  • The driver must pay a $680 reinstatement fee;
  • Pass the DWI knowledge test;
  • Complete the Minnesota driver’s application and pay the fee; and
  • Complete a chemical health assessment program.

He has won jury trial cases in misdemeanor and felony cases and in DWI’s and non-DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. He is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

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