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What is an Implied Consent Hearing and Why Do I Need a Private Attorney For It?

Posted by Brandon Lauer | Feb 23, 2019 | 0 Comments

The Implied Consent Hearing: Minnesota's Way of Eroding a DWI Suspect's Rights

When one is arrested for a DWI, the law says that you must submit to a chemical test of your breath, blood (upon warrant), or urine (also upon warrant). To refuse to do so is a crime. If you refuse to take the test, or it reveals a Blood Alcohol Concentration of .08 or higher, your driver's license is taken away for a certain amount of time. Furthermore, depending on the severity of the DWI, you may also have your plates impounded and/or your vehicle seized.

Two Separate Hearings, Both of Which You Must Win

After you refuse or fail a test, two paths await you if you wish to scrub your record of a DWI. First, you must be found not-guilty of DWI or plead guilty to a non-DWI offense such as careless driving in the criminal case. Second, you must petition the court for an Implied Consent hearing, which is a civil case, and have the order revoking your driving privileges rescinded. If you win at one stage, but not at the other, it "counts" as a prior DWI. If you win at your criminal trial, but you do not petition for an Implied Consent hearing, then a second DWI arrest within 10 years will be treated as your second offense for purposes of criminal and civil penalties.

Think of it as Minnesota's way to undermine a DWI suspect's due process rights.

But Why Do I Need a Private Attorney? Can't I Just Use the Public Defender?

Even if you qualify for a Public Defender, a Public Defender cannot represent you in an Implied Consent hearing. What this practically means is this: you could have a great Public Defender who wins on your DWI case. However, without hiring an attorney to petition for an Implied Consent hearing, your second DWI arrest within 10 years will be charged as a higher degree.

Well, What is the Hearing About?

An Implied Consent hearing is a civil case, though it can look quite like a sort of criminal hearing. First off, it's a hearing heard by a judge. You can call witnesses, including expert witnesses. There are a variety of issues you can challenge, such as whether the police officer had reasonable suspicion to stop your car, whether the police had probable cause to arrest, whether the testing results were reliable and accurate, etc. Your attorney can cross examine the State's witnesses (ie. the arresting officer).

The Bottom Line is This: protect your rights, hire a private attorney who specializes in DWI cases, and fight both the criminal charges and the Implied Consent case. Call me at (651) 337-9876 or email me at [email protected] to get started.

About the Author

Brandon Lauer

-Mitchell Hamline School of Law, Juris Doctor, Magna Cum Laude -University of Minnesota Duluth, B.A. Political Science, Cum Laude -During law school, I spent time as a Student Attorney at both the State Public Defenders and the Wright County Public Defenders Offices -I also law clerked under b...


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