• Implied Consent Procedure

    Fighting For Your License And Protecting Your Driving Record

    Once someone is arrested for DWI, they will be given a court date. This court date will be the first of several potential hearings as part of the criminal DWI case. But there is a second case that starts almost immediately, that has nothing to do with criminal punishments like jail, fines, probation, or court ordered treatment. It's a civil case, commonly called the "Implied Consent" case, and it only has to do with your driving privileges (and sometimes whether or not you have to have "whiskey plates." Before we go any further, you may want to check out our general overview of Minnesota's DWI process to get familiar with the differences between the criminal case and the civil Implied Consent case.

    Why Did Minnesota Make This So Complicated? Why Am I Facing Consequences In Two Different Cases? 

    The State's goal in the criminal case is to overcome the presumption that you are innocent and earn the right to punish you with things like jail, fines, probation, and chemical dependency treatment programs. Because the only way to overcome that presumption of innocence is in a courtroom, and because everyone has the right to a jury trial in a criminal case, the State went ahead and created an entirely separate procedure for DWI prosecutions. This Implied Consent case is lacking two key protections -- the presumption that you are innocent and the right to a jury trial. So the procedure looks a lot different than it does in a criminal case.

    We Have To Demand Our Day In Court

    In a criminal prosecution, the State gives you a court date, and will issue a warrant for your arrest if you skip it. When it comes to your driver's license, nobody wants to give you a court date -- the State of Minnesota already "won" the minute they took your license, so they don't want to risk losing that easy victory in court. 

    What we need to do is file a petition in court, asking a judge to review the revocation and affirm that it was actually appropriate. And the clock is ticking -- we only have 60 days from the date the State took your license to file that petition. If you miss that deadline, it's game over. Even if the criminal DWI charges are dismissed completely, you will still have an alcohol-related license revocation on your driving record, you will still serve the entire revocation period, and you'll still have to pay the $680 reinstatement fee in order to legally drive again.

    Scheduling The Implied Consent Hearing

    Once we file the petition challenging the revocation, another clock starts ticking; this time, against the State of Minnesota. They are required to schedule every Implied Consent hearing within 60 days of the filing of the petition

    Does that always happen? No. Sometimes this means that we can get your license temporarily reinstated while we wait for your hearing. This type of immediate relief is less common in non-metro area counties, but happens regularly in Ramsey County and very frequently in Hennepin County. 

    The 60 day deadline also means there is a limited amount of time to collect all of the information we need to raise a proper defense (such as all of the police reports, squad video, audio/video from the police station, lab reports, witness statements, etc.). We're very good and forcing the State to disclose these documents in a timely manner, but occasionally that process can also take longer than 60 days, requiring a continuance. 

     Fighting For Your License At The Implied Consent Hearing

    Unlike defending a driver in a criminal case, where the prosecutor has some discretion to negotiate a plea agreement, there is very little negotiating to be done in an Implied Consent case. This case is prosecuted by the Attorney General's Office, and the days where their attorneys had the discretion to negotiate for lower revocation times is long gone. Now, even the most "slam dunk" case needs to be fought out to the bitter end.

    That fight comes in two basic flavors -- legal arguments and factual arguments. You can consider the Implied Consent hearing to be a mix of the suppression hearing held in the criminal case (trying to suppress evidence due to constitutional violations) and a trial (raising factual arguments against the revocation). Either route can result in a victory -- whether the initial stop of your vehicle was unconstitutional or whether we convince the judge that the test you took was too inaccurate to prove that you were over the legal limit, the end result in both cases would be the judge returning your license and clearing this incident from your driving record.

    These hearings often (but not always) require live testimony, from the arresting officers, the individuals who administered tests, and/or from laboratory experts and forensic scientists. We rarely ask our clients to testify at these types of hearings (and often, you do not even need to appear at all), but if we think the best way to get a good result for our clients is to have them testify, we take all the time it requires to get your ready for your day in court.

    After the Implied Consent Hearing

    After the hearing, the judge will issue an order. Sometimes, we'll argue to the judge right there at the hearing, explaining why they should throw out (the legal term is "rescind") this revocation. More often, the judge will ask us to file a written argument, providing citations to old cases that are similar to your case. 

    If the judge lets us argue our case on the spot, we'll sometimes get an order immediately -- the judge will tell us then-and-there who wins. But usually, the judge will take the matter "under advisement" and issue an order within two weeks. If the arguments are submitted in writing, the judge will always wait to issue an order, and that order will come around two weeks after everyone has submitted their arguments (which can take up to a month). Written arguments can often be more persuasive than oral arguments, but they certainly take more time.

    End Result

    Ultimately, there will be a ruling one way or the other. The judge is being asked to retroactively determine whether the officer was correct in revoking your license. If the stop of your vehicle was unconstitutional, the revocation was invalid and must be rescinded. If you were denied your right to counsel, it must be rescinded. Improper administration of the test? Rescission. Inaccurate test? Rescission. In fact, there is a whole section of Minnesota's DWI laws dedicated to exactly what types of defenses can be raised in an Implied Consent hearing (and case law over the decades have provided for many, many more defenses). We've helped craft many of those defenses, and are very, very familiar with the rest.

    At the end of the Implied Consent case, you will have likely had one hearing (compared to three or more in the criminal case), and odds are high that you did not even need to attend the one hearing that was held. The result is typically either "revocation sustained" or "revocation rescinded" although we are having more and more success lately getting revocations reduced -- turning a one year revocation into a 90 day revocation, or a two year revocation in to a one-year revocation. 

    Do you have additional questions? You can continue checking out our website for additional information, but it's a poor substitute for actual legal advice that applies to your particular case. Your best bet is to contact us, and let us answer your questions and explain how we can get to work for you.