Holiday DWIs

December 21, 2020

The Holiday season is upon us. With this comes a time for celebration with family, friends, and loved ones. While the year 2020 will not allow for much traveling to gather with these groups, we understand that some travel may occur, nonetheless. Celebrating the holidays may include consumption of alcohol as well. We implore you to never get behind the wheel after doing so. In some instances, you may want to stay away from your vehicle altogether. 

Minnesota defines the crime of driving while impaired as: “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle . . . when . . . the person’s alcohol concentration at the time . . . of driving, operating, or being in physical control of the motor vehicle is 0.08 or more.” (emphasis added) Minn. Stat. § 169A.20, Subd. 1(4). Many know that driving while having a blood alcohol level of 0.08 or more is illegal and may result in an arrest for DWI. What most do not know, however, is operating or being in physical control of a vehicle can have the same result. 

Operate is analogous to drive for purposes of Minnesota’s DWI statutes. So, what does this mean? If you have a self-propelling vehicle, like the Tesla perhaps, you can still get a DWI if you take a ride in it while your blood alcohol concentration is 0.08 or higher. While the self-driving feature of some vehicles is extremely cool, it won’t keep you from a DWI if you decide to take a ride following a few drinks. A rather straightforward area of the DWI laws. The more controversial portion of the DWI statute, physical control, is not so clear. 

A person can be deemed in “physical control” of a motor vehicle through a wide range of factors. Case law in Minnesota instructs judges to assess the entire situation in determining whether someone was in physical control of a vehicle while their blood alcohol concentration was at 0.08 or higher for purposes of DWIs. For instance, in Minnesota, you can be charged with a DWI if you are sleeping in your car while your blood alcohol concentration is 0.08 or higher. If you thought sleeping off the drinks in your car was the smart decision, think again! 

The majority of “physical control” DWIs come from the location of the vehicle’s keys. When looking at all the factors surrounding a physical control DWI, the location of the keys can often be the deciding turn. Minnesota case law states that the term “physical control” should be given the broadest meaning possible to deter inebriated persons from getting into vehicles except as passengers. As an example, getting into your vehicle to warm up on a cold night while your blood alcohol concentration is at 0.08 or higher can result in DWI charges. Navigating this rather grey area of law can be difficult. Hiring an effective criminal defense attorney can be the difference in avoiding a DWI for being deemed in physical control of a vehicle. 

Contact Private Criminal Defense Attorney, Alec Rolain of Fowler Ditsch, LLC, to inquire about representation in your alleged criminal matter. Fowler Ditsch, LLC, has represented clients in criminal proceedings for 20 + years. Contact us by email at or phone at 651-287-8883.

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