Driving drunk more serious than refusing breath test

In Minnesota it’s a crime to refuse to submit to chemical testing when a police officer thinks you’re driving under the influence. That’s the reality of the state’s “implied consent” law that has been tested several times in the state’s appellate court.

Today, one case from Moorhead seemed to momentarily tongue-tie the judges who heard the case of a woman who was stopped in November 2012 for not having her headlights on, then charged with driving under the influence when she failed field sobriety tests.

At the police station, she refused to submit to chemical testing, and so she was also charged with second-degree DWI under the implied consent law.

After pleading guilty to both charges, Andrea St. John was sentenced only on the refusal charge, a charge that a district court determined is the more serious charge. In Minnesota, you can’t be sentenced on two charges if you couldn’t commit one without committing the other. The purpose of the law is to prevent prosecutors from exaggerating a person’s criminal conduct.

Or as Court of Appeals Judge Randolph Peterson wrote in his opinion today, “Thus, when appellant pleaded guilty to both second-degree test refusal and third-degree driving under the influence, the district court was prohibited from accepting, recording, and adjudicating the pleas for both offenses if either offense was an included offense of the other offense.”


The state appealed this determination that St. John couldn’t have committed the allegedly more serious offense of not being tested for driving under the influence, if she hadn’t been driving under the influence.

Read the following explanation in today’s decision if you must, but the bottom line in its ruling today is that you can be sentenced for not being tested for drunk driving even if you weren’t driving drunk. And because of that, you can be sentenced for both driving drunk and refusing to be tested for it.

Because an officer could have probable cause to believe that a driver was under the influence of alcohol, even though the driver was not, in fact, under the influence of alcohol, a driver could commit the second-degree test-refusal offense without committing the third-degree driving-under-the-influence offense.

Thus, the third-degree offense is not an included offense of the second-degree offense, and the district court was not prohibited from convicting St. John of the third-degree offense by accepting, recording, and adjudicating her guilty plea.

The Court of Appeals also ruled that driving under the influence is more serious than refusing to be tested for DWI.

A person driving an automobile while under the influence of alcohol directly threatens public safety, but a driver in police custody who refuses to submit to a chemical test is not a threat to public safety. Also, appellant’s driving-under-the-influence offense was the “essence” of her criminal conduct, and her test-refusal offense was “incidental.”

Appellant could not have committed the test-refusal offense if an officer did not first have probable cause to believe that appellant was driving under the influence of alcohol. Therefore, the district court should have imposed a sentence for the driving-under-the-influence offense, rather than for the test-refusal offense.

The court threw out St. John’s sentence for not submitting to DWI testing, and ordered her to be sentenced for driving drunk.