Lee Orwig 2013-12-04 10:56:12
DWI Basics for Civil Attorneys Occasionally, when I’m in the courtroom I see a civil attorney appearing with a client on a DWI case. It usually becomes apparent that this attorney has no idea what he or she is doing. Don’t be that attorney. There seems to be a consensus in the civil bar that DWIs are simple and straightforward and can be handled by any ol’ attorney. This is far from the truth. A DWI, in the colloquial sense, is a multifaceted beast. If Joe Drinker gets pulled over and tests over a .08, he will face criminal penalties and administrative penalties. The administrative penalties can be the loss of driving privileges, the forced use of special registration plates – aka whiskey plates – and in some cases vehicle forfeiture. The type and severity of the penalties can be affected by Joe’s alcohol concentration, the number prior offenses, Joe’s age, whether there was an accident and whether Joe had any children in the car. In criminal court Joe will likely be charged with two separate criminal charges. He will be charged with being impaired by alcohol (i.e., did the amount of alcohol he consumed impair his ability to safely drive a motor vehicle—was he Driving Under the Influence?). Separately, if he takes a test and his alcohol concentration is .08 or more, he will be charged with a separate charge of driving with an alcohol concentration of .08 or more (Driving While Impaired). If Joe refuses to take the test he will also be charged with the crime of refusal. If convicted of one of the charges and if Joe has no prior offenses, he is facing possible jail time, community service, sentence to service (STS), alcohol education courses, a fine and probation. DWI’s never go away, so the conviction will be on his record forever. Such a conviction makes Joe’s conviction enhanceable for 10 years. So, if Joe gets another DWI in the next 10 years those new charges will be enhanced by the prior conviction. Joe is looking at a mandatory minimum of 30 days in the county jail for a second offense, 90 for a third and prison time for a fourth. These times can vary significantly from county to county and are largely dependent on the specific facts of Joe’s situation (and the competence of Joe’s attorney, of course). If Joe has no prior offenses and his alcohol concentration is a .15 or less, he faces a 90-day driver’s license revocation and will be eligible for a work permit after the first 15 days. Depending on how Joe’s case is resolved, he may be eligible for a reduced driver’s license revocation period. In some situations Joe’s license can be reinstated while his case is pending. The ignition interlock program may be an option too. After three offenses in a 10-year period the state of Minnesota will cancel Joe’s license (cancellation is different from revocation or suspension) and Joe will have to go to alcohol treatment before Minnesota will let him back on the road without restrictions. If Joe wants to fight about whether or not Minnesota should have taken his license in the first place, he (generally) has to file a petition for judicial review within the first 30 days from when he is revoked. This is one place I often hear of civil attorneys committing malpractice; they miss this deadline. If all of this sounds confusing, you’re not alone. The statutes that govern the crime of DWI (Minn. Stat. § 169A) take up 40 pages. By comparison, our murder statutes take up less than two pages. There are a multitude of other DWI issues: physical control of a motor vehicle, out-of-state convictions, mandatory bail and electronic alcohol monitoring, DWI court, controlled substance DWIs, right to counsel issues and refusal. Don’t underestimate the complexity of DWI defense work. Lee Orwig is an attorney with Halberg Criminal Defense, Minnesota’s largest criminal defense firm. He was voted Attorney of the Year and is one of the youngest members to be invited to the Minnesota Society for Criminal Justice, an elite group of criminal defense attorneys in the Twin Cities. He co-chairs the criminal law section and the bench and bar committee of the Hennepin County Bar Association. Lee received his law degree from William Mitchell College of Law and his undergraduate degree from the University of Wisconsin-Madison. He and his wife live in downtown Saint Paul. Lee loves to travel and golf.
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