Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2004, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 283-S.F.No. 58
An act relating to crimes; reducing from 0.10 to 0.08
the per se alcohol concentration level for impairment
offenses involving driving a motor vehicle, criminal
vehicular homicide and injury, operating recreational
vehicles or watercraft, hunting, or operating military
vehicles while impaired; requiring the purging of
certain driving records; requiring a report; amending
Minnesota Statutes 2002, sections 97B.065, subdivision
1; 97B.066, subdivision 1; 169A.20, subdivision 1;
169A.51, subdivision 1; 169A.52, subdivisions 2, 4, 7;
169A.54, subdivision 7; 169A.76; 171.12, subdivision
3; 192A.555; 609.21; Minnesota Statutes 2003
Supplement, section 169A.53, subdivision 3.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 2002, section 97B.065,
subdivision 1, is amended to read:
Subdivision 1. [ACTS PROHIBITED.] (a) A person may not
take wild animals with a firearm or by archery:
(1) when the person is under the influence of alcohol;
(2) when the person is under the influence of a controlled
substance, as defined in section 152.01, subdivision 4;
(3) when the person is under the influence of a combination
of any two or more of the elements in clauses (1) and (2);
(4) when the person's alcohol concentration is 0.10 0.08 or
more;
(5) when the person's alcohol concentration as measured
within two hours of the time of taking is 0.10 0.08 or more; or
(6) when the person is knowingly under the influence of any
chemical compound or combination of chemical compounds that is
listed as a hazardous substance in rules adopted under section
182.655 and that affects the nervous system, brain, or muscles
of the person so as to substantially impair the person's ability
to operate a firearm or bow and arrow.
(b) An owner or other person having charge or control of a
firearm or bow may not authorize or permit an individual the
person knows or has reason to believe is under the influence of
alcohol or a controlled substance, as provided under paragraph
(a), to possess the firearm or bow in this state or on a
boundary water of this state.
(c) A person may not possess a loaded or uncased firearm or
an uncased bow afield under any of the conditions in paragraph
(a).
Sec. 2. Minnesota Statutes 2002, section 97B.066,
subdivision 1, is amended to read:
Subdivision 1. [MANDATORY CHEMICAL TESTING.] A person who
takes wild animals with a bow or firearm in this state or on a
boundary water of this state is required, subject to the
provisions of this section, to take or submit to a test of the
person's blood, breath, or urine for the purpose of determining
the presence and amount of alcohol or a controlled substance.
The test shall be administered at the direction of an officer
authorized to make arrests under section 97B.065, subdivision
2. Taking or submitting to the test is mandatory when requested
by an officer who has probable cause to believe the person was
hunting in violation of section 97B.065, subdivision 1,
paragraph (a) or (c), and one of the following conditions exists:
(1) the person has been lawfully placed under arrest for
violating section 97B.065, subdivision 1, paragraph (a) or (c);
(2) the person has been involved while hunting in an
accident resulting in property damage, personal injury, or
death;
(3) the person has refused to take the preliminary
screening test provided for in section 97B.065, subdivision 3;
or
(4) the screening test was administered and indicated an
alcohol concentration of 0.10 0.08 or more.
Sec. 3. Minnesota Statutes 2002, section 169A.20,
subdivision 1, is amended to read:
Subdivision 1. [DRIVING WHILE IMPAIRED CRIME.] It is a
crime for any person to drive, operate, or be in physical
control of any motor vehicle within this state or on any
boundary water of this state:
(1) when the person is under the influence of alcohol;
(2) when the person is under the influence of a controlled
substance;
(3) when the person is knowingly under the influence of a
hazardous substance that affects the nervous system, brain, or
muscles of the person so as to substantially impair the person's
ability to drive or operate the motor vehicle;
(4) when the person is under the influence of a combination
of any two or more of the elements named in clauses (1), (2),
and (3);
(5) when 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 0.10 0.08
or more;
(6) when 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) when the person's body contains any amount of a
controlled substance listed in schedule I or II other than
marijuana or tetrahydrocannabinols.
Sec. 4. Minnesota Statutes 2002, section 169A.51,
subdivision 1, is amended to read:
Subdivision 1. [IMPLIED CONSENT; CONDITIONS; ELECTION OF
TEST.] (a) Any person who drives, operates, or is in physical
control of a motor vehicle within this state or on any boundary
water of this state consents, subject to the provisions of
sections 169A.50 to 169A.53 (implied consent law), and section
169A.20 (driving while impaired), to a chemical test of that
person's blood, breath, or urine for the purpose of determining
the presence of alcohol, controlled substances, or hazardous
substances. The test must be administered at the direction of a
peace officer.
(b) The test may be required of a person when an officer
has probable cause to believe the person was driving, operating,
or in physical control of a motor vehicle in violation of
section 169A.20 (driving while impaired), and one of the
following conditions exist:
(1) the person has been lawfully placed under arrest for
violation of section 169A.20 or an ordinance in conformity with
it;
(2) the person has been involved in a motor vehicle
accident or collision resulting in property damage, personal
injury, or death;
(3) the person has refused to take the screening test
provided for by section 169A.41 (preliminary screening test); or
(4) the screening test was administered and indicated an
alcohol concentration of 0.10 0.08 or more.
(c) The test may also be required of a person when an
officer has probable cause to believe the person was driving,
operating, or in physical control of a commercial motor vehicle
with the presence of any alcohol.
Sec. 5. Minnesota Statutes 2002, section 169A.52,
subdivision 2, is amended to read:
Subd. 2. [REPORTING TEST FAILURE.] If a person submits to
a test, the results of that test must be reported to the
commissioner and to the authority having responsibility for
prosecution of impaired driving offenses for the jurisdiction in
which the acts occurred, if the test results indicate:
(1) an alcohol concentration of 0.10 0.08 or more;
(2) an alcohol concentration of 0.04 or more, if the person
was driving, operating, or in physical control of a commercial
motor vehicle at the time of the violation; or
(3) the presence of a controlled substance listed in
schedule I or II, other than marijuana or tetrahydrocannabinols.
Sec. 6. Minnesota Statutes 2002, section 169A.52,
subdivision 4, is amended to read:
Subd. 4. [TEST FAILURE; LICENSE REVOCATION.] (a) Upon
certification by the peace officer that there existed probable
cause to believe the person had been driving, operating, or in
physical control of a motor vehicle in violation of section
169A.20 (driving while impaired) and that the person submitted
to a test and the test results indicate an alcohol concentration
of 0.10 0.08 or more or the presence of a controlled substance
listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, then the commissioner shall revoke the
person's license or permit to drive, or nonresident operating
privilege:
(1) for a period of 90 days;
(2) if the person is under the age of 21 years, for a
period of six months;
(3) for a person with a qualified prior impaired driving
incident within the past ten years, for a period of 180 days; or
(4) if the test results indicate an alcohol concentration
of 0.20 or more, for twice the applicable period in clauses (1)
to (3).
(b) On certification by the peace officer that there
existed probable cause to believe the person had been driving,
operating, or in physical control of a commercial motor vehicle
with any presence of alcohol and that the person submitted to a
test and the test results indicated an alcohol concentration of
0.04 or more, the commissioner shall disqualify the person from
operating a commercial motor vehicle under section 171.165
(commercial driver's license disqualification).
Sec. 7. Minnesota Statutes 2002, section 169A.52,
subdivision 7, is amended to read:
Subd. 7. [TEST REFUSAL; DRIVING PRIVILEGE LOST.] (a) On
behalf of the commissioner, a peace officer requiring a test or
directing the administration of a chemical test shall serve
immediate notice of intention to revoke and of revocation on a
person who refuses to permit a test or on a person who submits
to a test the results of which indicate an alcohol concentration
of 0.10 0.08 or more.
(b) On behalf of the commissioner, a peace officer
requiring a test or directing the administration of a chemical
test of a person driving, operating, or in physical control of a
commercial motor vehicle shall serve immediate notice of
intention to disqualify and of disqualification on a person who
refuses to permit a test, or on a person who submits to a test
the results of which indicate an alcohol concentration of 0.04
or more.
(c) The officer shall either:
(1) take the driver's license or permit, if any, send it to
the commissioner along with the certificate required by
subdivision 3 or 4, and issue a temporary license effective only
for seven days; or
(2) invalidate the driver's license or permit in such a way
that no identifying information is destroyed.
Sec. 8. Minnesota Statutes 2003 Supplement, section
169A.53, subdivision 3, is amended to read:
Subd. 3. [JUDICIAL HEARING; ISSUES, ORDER, APPEAL.] (a) A
judicial review hearing under this section must be before a
district judge in any county in the judicial district where the
alleged offense occurred. The hearing is to the court and may
be conducted at the same time and in the same manner as hearings
upon pretrial motions in the criminal prosecution under section
169A.20 (driving while impaired), if any. The hearing must be
recorded. The commissioner shall appear and be represented by
the attorney general or through the prosecuting authority for
the jurisdiction involved. The judicial district administrator
shall establish procedures to ensure efficient compliance with
this subdivision. To accomplish this, the administrator may,
whenever possible, consolidate and transfer review hearings
among the locations within the judicial district where terms of
district court are held.
(b) The scope of the hearing is limited to the issues in
clauses (1) to (10):
(1) Did the peace officer have probable cause to believe
the person was driving, operating, or in physical control of a
motor vehicle or commercial motor vehicle in violation of
section 169A.20 (driving while impaired)?
(2) Was the person lawfully placed under arrest for
violation of section 169A.20?
(3) Was the person involved in a motor vehicle accident or
collision resulting in property damage, personal injury, or
death?
(4) Did the person refuse to take a screening test provided
for by section 169A.41 (preliminary screening test)?
(5) If the screening test was administered, did the test
indicate an alcohol concentration of 0.10 0.08 or more?
(6) At the time of the request for the test, did the peace
officer inform the person of the person's rights and the
consequences of taking or refusing the test as required by
section 169A.51, subdivision 2?
(7) Did the person refuse to permit the test?
(8) If a test was taken by a person driving, operating, or
in physical control of a motor vehicle, did the test results
indicate at the time of testing:
(i) an alcohol concentration of 0.10 0.08 or more; or
(ii) the presence of a controlled substance listed in
schedule I or II, other than marijuana or tetrahydrocannabinols?
(9) If a test was taken by a person driving, operating, or
in physical control of a commercial motor vehicle, did the test
results indicate an alcohol concentration of 0.04 or more at the
time of testing?
(10) Was the testing method used valid and reliable and
were the test results accurately evaluated?
(c) It is an affirmative defense for the petitioner to
prove that, at the time of the refusal, the petitioner's refusal
to permit the test was based upon reasonable grounds.
(d) Certified or otherwise authenticated copies of
laboratory or medical personnel reports, records, documents,
licenses, and certificates are admissible as substantive
evidence.
(e) The court shall order that the revocation or
disqualification be either rescinded or sustained and forward
the order to the commissioner. If the revocation or
disqualification is sustained, the court shall also forward the
person's driver's license or permit to the commissioner for
further action by the commissioner if the license or permit is
not already in the commissioner's possession.
(f) Any party aggrieved by the decision of the reviewing
court may appeal the decision as provided in the Rules of
Appellate Procedure.
(g) The civil hearing under this section shall not give
rise to an estoppel on any issues arising from the same set of
circumstances in any criminal prosecution.
Sec. 9. Minnesota Statutes 2002, section 169A.54,
subdivision 7, is amended to read:
Subd. 7. [ALCOHOL-RELATED COMMERCIAL VEHICLE DRIVING
VIOLATIONS.] (a) The administrative penalties described in
subdivision 1 do not apply to violations of section 169A.20,
subdivision 1 (driving while impaired crime), by a person
operating a commercial motor vehicle unless the person's alcohol
concentration as measured at the time, or within two hours of
the time, of the operation was 0.10 0.08 or more or the person
violates section 169A.20, subdivision 1, clauses (1) to (4) or
(7).
(b) The commissioner shall disqualify a person from
operating a commercial motor vehicle as provided under section
171.165 (commercial driver's license, disqualification), on
receipt of a record of conviction for a violation of section
169A.20.
(c) A person driving, operating, or in physical control of
a commercial motor vehicle with any presence of alcohol is
prohibited from operating a commercial motor vehicle for 24
hours from issuance of an out-of-service order.
Sec. 10. Minnesota Statutes 2002, section 169A.76, is
amended to read:
169A.76 [CIVIL ACTION; PUNITIVE DAMAGES.]
(a) In a civil action involving a motor vehicle accident,
it is sufficient for the trier of fact to consider an award of
punitive damages if there is evidence that the accident was
caused by a driver:
(1) with an alcohol concentration of 0.10 0.08 or more;
(2) who was under the influence of a controlled substance;
(3) who was under the influence of alcohol and refused to
take a test required under section 169A.51 (chemical tests for
intoxication); or
(4) who was knowingly under the influence of a hazardous
substance that substantially affects the person's nervous
system, brain, or muscles so as to impair the person's ability
to drive or operate a motor vehicle.
(b) A criminal charge or conviction is not a prerequisite
to consideration of punitive damages under this section. At the
trial in an action where the trier of fact will consider an
award of punitive damages, evidence that the driver has been
convicted of violating section 169A.20 (driving while impaired)
or 609.21 (criminal vehicular homicide and injury) is admissible
into evidence.
Sec. 11. Minnesota Statutes 2002, section 171.12,
subdivision 3, is amended to read:
Subd. 3. [APPLICATION AND RECORD, WHEN DESTROYED.] The
department may cause applications for drivers' licenses,
provisional licenses, and instruction permits, and related
records, to be destroyed immediately after the period for which
issued, except that:
(1) the driver's record pertaining to revocations,
suspensions, cancellations, disqualifications, convictions, and
accidents shall be cumulative and kept for a period of at least
five years; and
(2) the driver's record pertaining to the alcohol-related
offenses and licensing actions listed in section 169A.03,
subdivisions 20 and 21, and to violations of sections 169A.31
and 171.24, subdivision 5, shall be cumulative and kept for a
period of at least 15 years, except as provided in clause (3);
and
(3) the driver's record pertaining to an offense, or a
related licensing action, under section 169A.20, subdivision 1,
clause (1) or (5), must be purged after ten years of any
reference to the offense or action if (i) this offense or action
involved an alcohol concentration of 0.08 or more but less than
0.10, (ii) this offense or action was a first impaired driving
incident, and (iii) the driver has incurred no other impaired
driving incident during the ten-year period. For purposes of
this clause, "impaired driving incident" includes any incident
that may be counted as a prior impaired driving conviction or a
prior impaired driving-related loss of license, as defined in
section 169A.03, subdivisions 20 and 21. This clause does not
apply to the driver's record of a person to whom a commercial
driver's license has been issued.
Sec. 12. Minnesota Statutes 2002, section 192A.555, is
amended to read:
192A.555 [DRIVING WHILE UNDER THE INFLUENCE OR RECKLESS
DRIVING.]
Any person subject to this code who drives, operates or is
in physical control of any motor vehicle or aircraft while under
the influence of an alcoholic beverage or controlled substance
or a combination thereof or whose blood contains 0.10 0.08
percent or more by weight of alcohol or who operates said motor
vehicle or aircraft in a reckless or wanton manner, shall be
punished as a court-martial may direct.
Sec. 13. Minnesota Statutes 2002, section 609.21, is
amended to read:
609.21 [CRIMINAL VEHICULAR HOMICIDE AND INJURY.]
Subdivision 1. [CRIMINAL VEHICULAR HOMICIDE.] A person is
guilty of criminal vehicular homicide resulting in death and may
be sentenced to imprisonment for not more than ten years or to
payment of a fine of not more than $20,000, or both, if the
person causes the death of a human being not constituting murder
or manslaughter as a result of operating a motor vehicle:
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of:
(i) alcohol;
(ii) a controlled substance; or
(iii) any combination of those elements;
(3) while having an alcohol concentration of 0.10 0.08 or
more;
(4) while having an alcohol concentration of 0.10 0.08 or
more, as measured within two hours of the time of driving;
(5) in a negligent manner while knowingly under the
influence of a hazardous substance;
(6) in a negligent manner while any amount of a controlled
substance listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, is present in the person's body; or
(7) where the driver who causes the accident leaves the
scene of the accident in violation of section 169.09,
subdivision 1 or 6.
Subd. 2. [RESULTING IN GREAT BODILY HARM.] A person is
guilty of criminal vehicular operation resulting in great bodily
harm and may be sentenced to imprisonment for not more than five
years or to payment of a fine of not more than $10,000, or both,
if the person causes great bodily harm to another, not
constituting attempted murder or assault, as a result of
operating a motor vehicle:
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of:
(i) alcohol;
(ii) a controlled substance; or
(iii) any combination of those elements;
(3) while having an alcohol concentration of 0.10 0.08 or
more;
(4) while having an alcohol concentration of 0.10 0.08 or
more, as measured within two hours of the time of driving;
(5) in a negligent manner while knowingly under the
influence of a hazardous substance;
(6) in a negligent manner while any amount of a controlled
substance listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, is present in the person's body; or
(7) where the driver who causes the accident leaves the
scene of the accident in violation of section 169.09,
subdivision 1 or 6.
Subd. 2a. [RESULTING IN SUBSTANTIAL BODILY HARM.] A person
is guilty of criminal vehicular operation resulting in
substantial bodily harm and may be sentenced to imprisonment of
not more than three years or to payment of a fine of not more
than $10,000, or both, if the person causes substantial bodily
harm to another, as a result of operating a motor vehicle;
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of:
(i) alcohol;
(ii) a controlled substance; or
(iii) any combination of those elements;
(3) while having an alcohol concentration of 0.10 0.08 or
more;
(4) while having an alcohol concentration of 0.10 0.08 or
more, as measured within two hours of the time of driving;
(5) in a negligent manner while knowingly under the
influence of a hazardous substance;
(6) in a negligent manner while any amount of a controlled
substance listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, is present in the person's body; or
(7) where the driver who causes the accident leaves the
scene of the accident in violation of section 169.09,
subdivision 1 or 6.
Subd. 2b. [RESULTING IN BODILY HARM.] A person is guilty
of criminal vehicular operation resulting in bodily harm and may
be sentenced to imprisonment for not more than one year or to
payment of a fine of not more than $3,000, or both, if the
person causes bodily harm to another, as a result of operating a
motor vehicle:
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of:
(i) alcohol;
(ii) a controlled substance; or
(iii) any combination of those elements;
(3) while having an alcohol concentration of 0.10 0.08 or
more;
(4) while having an alcohol concentration of 0.10 0.08 or
more, as measured within two hours of the time of driving;
(5) in a negligent manner while knowingly under the
influence of a hazardous substance;
(6) in a negligent manner while any amount of a controlled
substance listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, is present in the person's body; or
(7) where the driver who causes the accident leaves the
scene of the accident in violation of section 169.09,
subdivision 1 or 6.
Subd. 3. [RESULTING IN DEATH TO AN UNBORN CHILD.] A person
is guilty of criminal vehicular operation resulting in death to
an unborn child and may be sentenced to imprisonment for not
more than ten years or to payment of a fine of not more than
$20,000, or both, if the person causes the death of an unborn
child as a result of operating a motor vehicle:
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of:
(i) alcohol;
(ii) a controlled substance; or
(iii) any combination of those elements;
(3) while having an alcohol concentration of 0.10 0.08 or
more;
(4) while having an alcohol concentration of 0.10 0.08 or
more, as measured within two hours of the time of driving;
(5) in a negligent manner while knowingly under the
influence of a hazardous substance;
(6) in a negligent manner while any amount of a controlled
substance listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, is present in the person's body; or
(7) where the driver who causes the accident leaves the
scene of the accident in violation of section 169.09,
subdivision 1 or 6.
A prosecution for or conviction of a crime under this
subdivision is not a bar to conviction of or punishment for any
other crime committed by the defendant as part of the same
conduct.
Subd. 4. [RESULTING IN INJURY TO UNBORN CHILD.] A person
is guilty of criminal vehicular operation resulting in injury to
an unborn child and may be sentenced to imprisonment for not
more than five years or to payment of a fine of not more than
$10,000, or both, if the person causes great bodily harm to an
unborn child who is subsequently born alive, as a result of
operating a motor vehicle:
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of:
(i) alcohol;
(ii) a controlled substance; or
(iii) any combination of those elements;
(3) while having an alcohol concentration of 0.10 0.08 or
more;
(4) while having an alcohol concentration of 0.10 0.08 or
more, as measured within two hours of the time of driving;
(5) in a negligent manner while knowingly under the
influence of a hazardous substance;
(6) in a negligent manner while any amount of a controlled
substance listed in schedule I or II, other than marijuana or
tetrahydrocannabinols, is present in the person's body; or
(7) where the driver who causes the accident leaves the
scene of the accident in violation of section 169.09,
subdivision 1 or 6.
A prosecution for or conviction of a crime under this
subdivision is not a bar to conviction of or punishment for any
other crime committed by the defendant as part of the same
conduct.
Subd. 4a. [AFFIRMATIVE DEFENSE.] It shall be an
affirmative defense to a charge under subdivision 1, clause (6);
2, clause (6); 2a, clause (6); 2b, clause (6); 3, clause (6); or
4, clause (6), that the defendant used the controlled substance
according to the terms of a prescription issued for the
defendant in accordance with sections 152.11 and 152.12.
Subd. 5. [DEFINITIONS.] For purposes of this section, the
terms defined in this subdivision have the meanings given them.
(a) "Motor vehicle" has the meaning given in section
609.52, subdivision 1.
(b) "Controlled substance" has the meaning given in section
152.01, subdivision 4.
(c) "Hazardous substance" means any chemical or chemical
compound that is listed as a hazardous substance in rules
adopted under chapter 182.
Sec. 14. [COLLECTION OF INFORMATION; REPORT REQUIRED.]
(a) The chief law enforcement officer of each law
enforcement agency shall report the following information to the
commissioner of public safety relating to alcohol concentration
tests, including chemical tests of a person's blood, breath, or
urine, and preliminary screening tests, administered by peace
officers in the agency and occurring from August 1, 2005, to
July 31, 2006:
(1) the initial reason for the interaction between the
officer and the person tested, including, but not limited to,
such reasons as traffic violations, erratic driving, citizen
tips, or traffic accidents; and
(2) the person's alcohol concentration.
(b) The chief law enforcement officer shall report the
information specified in paragraph (a) in a manner specified by
the commissioner.
(c) By January 15, 2007, the commissioner shall report a
summary of the information collected from law enforcement
agencies under this section to the chairs and ranking minority
members of the senate and house committees having jurisdiction
over criminal justice policy.
Sec. 15. [EFFECTIVE DATE.]
Sections 1 to 13 are effective August 1, 2005, and apply to
offenses committed on or after that date.
Presented to the governor May 18, 2004
Signed by the governor May 27, 2004, 1:20 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes