How Can the State Charge You With Two DWIs For the Same Incident?

Posted On June 28, 2010 by Charles Ramsay

Anyone will be upset after being arrested for DWI. They are usually put in handcuffs, transported in the back of a squad car to a nearby (or not-so nearby) police station, and then told to submit a sample of blood (ouch) urine (embarrassing) or breath (inaccurate). After that, many are thrown in jail; others post as much as $12,000 in bail, while others need to find a ride home and a way to get their car out of an impound lot.

After this incident has robbed them of their dignity, many are then even more shocked to discover that they are being charged with not one crime, but two, based off of this arrest. While this seems illegal, it's actually common, and a good defense attorney can work this to your advantage.

There are two types of DWI Crimes in Minnesota: 1) "driving while impaired| and 2) |per se intoxication.| There is only one real difference between these two crimes, and that is what type of evidence the State can use to prove guilt.

Driving while impaired means just that: the State must prove beyond a reasonable doubt that you were impaired by alcohol or drugs while you were driving. The type of evidence in this type of case ranges from performance on field sobriety tests to the arresting officer's |opinion| of your level of impairment to the reason the police office stopped your vehicle. Note that for this type of offense, it's not necessary to prove an alcohol concentration above a .08 - sometimes a driver's alcohol test result isn't even relevant.

Per se intoxication, on the other hand, doesn't mean that a driver was a danger to anyone on the road. In fact, someone who is per se intoxicated might not even feel the effects of what they drank. Instead, per se intoxication just means that someone's alcohol concentration was at or above .08, as measured anytime within two hours of driving. You can perform perfectly on a field sobriety test and enunciate every word flawlessly, and still be guilty of per se intoxication - if the State has a test result that |proves| you were above a .08.

Back in the day, the only offense drivers could be charged with was |driving while impaired.| These are the types of drivers that can be the most dangerous. However, in close cases, they are also the types of drivers that are hardest for a prosecutor to convict.

Because it can be hard to convict an otherwise safe driver of driving while impaired, the legislature chose to pass a per se law and create a level of alcohol concentration that automatically renders someone |drunk.| This use of |science| makes it far easier for prosecutors to get convictions. Obviously, any prosecutor would rather just flash a test result in front of a jury, say |this number is higher than .08," and get a conviction, than actually prove that someone was impaired!

Of course, these per se laws were both a blessing and a curse for prosecutors. A blessing, because now it's so much easier to convict people who otherwise do not appear impaired - just look at the test result! However, it's also a curse, because if they don't have a test result to rely on, most prosecutors won't even bother to litigate a driving while impaired case.

That's where we come in: we often gear our defensive strategy towards getting that test result suppressed, which forces the prosecutor to try their case the |old fashioned| way. Whether that test result is an example of junk science, flawed logic, or the secretive workings of the incomprehensible Intoxilyzer 5000 breath test machine, if there is a way for us to get it suppressed, we will get it suppressed. And without a test result, the vast majority of prosecutors will lose interest in gaining a conviction, and seriously consider settlement or dismissal.

You can feel stone sober and still commit the crime of driving while per se intoxicated. Winning your case means hiring an attorney who knows every possible way to attack the State's best evidence - a test result - and get it suppressed. If you've been charged with driving while impaired, driving while over a .08, or both, contact Ramsay Law Office as soon as possible. We'll carefully explain the legal process to you and answer your questions.