SF 264

1st Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to crime; establishing a felony level driving 
  1.3             while impaired offense; amending Minnesota Statutes 
  1.4             2000, sections 169A.07; 169A.20, subdivision 3; 
  1.5             169A.25; 169A.26; 169A.27; 169A.275; 169A.283, 
  1.6             subdivision 1; 169A.40, subdivision 3; 169A.63, 
  1.7             subdivision 1; proposing coding for new law in 
  1.8             Minnesota Statutes, chapter 169A. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 2000, section 169A.07, is 
  1.11  amended to read: 
  1.12     169A.07 [FIRST-TIME DWI VIOLATOR; OFF-ROAD RECREATIONAL 
  1.13  VEHICLE OR MOTORBOAT.] 
  1.14     A person who violates section 169A.20 (driving while 
  1.15  impaired) while using an off-road recreational vehicle or 
  1.16  motorboat and who does not have a qualified prior impaired 
  1.17  driving incident is subject only to the criminal penalty 
  1.18  provided in section 169A.25 (first-degree second-degree driving 
  1.19  while impaired), 169A.26 (second-degree third-degree driving 
  1.20  while impaired), or 169A.27 (third-degree fourth-degree driving 
  1.21  while impaired); and loss of operating privileges as provided in 
  1.22  section 84.91, subdivision 1 (operation of snowmobiles or 
  1.23  all-terrain vehicles by persons under the influence of alcohol 
  1.24  or controlled substances), or 86B.331, subdivision 1 (operation 
  1.25  of motorboats while using alcohol or with a physical or mental 
  1.26  disability), whichever is applicable.  The person is not subject 
  1.27  to the provisions of section 169A.275, subdivision 5, 
  2.1   (submission to the level of care recommended in chemical use 
  2.2   assessment for repeat offenders and offenders with alcohol 
  2.3   concentration of 0.20 or more); 169A.277 (long-term monitoring); 
  2.4   169A.285 (penalty assessment); 169A.44 (conditional release); 
  2.5   169A.54 (impaired driving convictions and adjudications; 
  2.6   administrative penalties); or 169A.54, subdivision 11 (chemical 
  2.7   use assessment); the license revocation sanctions of sections 
  2.8   169A.50 to 169A.53 (implied consent law); or the plate 
  2.9   impoundment provisions of section 169A.60 (administrative 
  2.10  impoundment of plates). 
  2.11     Sec. 2.  Minnesota Statutes 2000, section 169A.20, 
  2.12  subdivision 3, is amended to read: 
  2.13     Subd. 3.  [SENTENCE.] A person who violates this section 
  2.14  may be sentenced as provided in section 169A.24 (first-degree 
  2.15  driving while impaired), 169A.25 (first-degree second-degree 
  2.16  driving while impaired), 169A.26 (second-degree third-degree 
  2.17  driving while impaired), or 169A.27 (third-degree fourth-degree 
  2.18  driving while impaired). 
  2.19     Sec. 3.  [169A.24] [FIRST-DEGREE DRIVING WHILE IMPAIRED.] 
  2.20     Subdivision 1.  [DEGREE DESCRIBED.] A person who violates 
  2.21  section 169A.20 (driving while impaired) is guilty of 
  2.22  first-degree driving while impaired if the person: 
  2.23     (1) commits the violation within ten years of the first of 
  2.24  three or more qualified prior impaired driving incidents; or 
  2.25     (2) has previously been convicted of a felony under this 
  2.26  section. 
  2.27     Subd. 2.  [CRIMINAL PENALTY.] A person who commits 
  2.28  first-degree driving while impaired is guilty of a felony and 
  2.29  may be sentenced to imprisonment for not more than seven years, 
  2.30  or to payment of a fine of not more than $14,000, or both.  The 
  2.31  person is subject to the mandatory penalties described in 
  2.32  section 169A.276 (mandatory penalties; felony violations). 
  2.33     Sec. 4.  Minnesota Statutes 2000, section 169A.25, is 
  2.34  amended to read: 
  2.35     169A.25 [FIRST-DEGREE SECOND-DEGREE DRIVING WHILE 
  2.36  IMPAIRED.] 
  3.1      Subdivision 1.  [DEGREE DESCRIBED.] A person who violates 
  3.2   section 169A.20 (driving while impaired) is guilty of 
  3.3   first-degree second-degree driving while impaired if two or more 
  3.4   aggravating factors were present when the violation was 
  3.5   committed. 
  3.6      Subd. 2.  [CRIMINAL PENALTY.] First-degree Second-degree 
  3.7   driving while impaired is a gross misdemeanor.  The mandatory 
  3.8   penalties described in section 169A.275 and the long-term 
  3.9   monitoring described in section 169A.277 may be applicable. 
  3.10     Sec. 5.  Minnesota Statutes 2000, section 169A.26, is 
  3.11  amended to read: 
  3.12     169A.26 [SECOND-DEGREE THIRD-DEGREE DRIVING WHILE 
  3.13  IMPAIRED.] 
  3.14     Subdivision 1.  [DEGREE DESCRIBED.] A person who violates 
  3.15  section 169A.20 (driving while impaired) is guilty of 
  3.16  second-degree third-degree driving while impaired if one 
  3.17  aggravating factor was present when the violation was committed. 
  3.18     Subd. 2.  [CRIMINAL PENALTY.] Second-degree Third-degree 
  3.19  driving while impaired is a gross misdemeanor.  The mandatory 
  3.20  penalties described in section 169A.275 and the long-term 
  3.21  monitoring described in section 169A.277 may be applicable. 
  3.22     Sec. 6.  Minnesota Statutes 2000, section 169A.27, is 
  3.23  amended to read: 
  3.24     169A.27 [THIRD-DEGREE FOURTH-DEGREE DRIVING WHILE 
  3.25  IMPAIRED.] 
  3.26     Subdivision 1.  [DEGREE DESCRIBED.] A person who violates 
  3.27  section 169A.20 (driving while impaired) is guilty of 
  3.28  third-degree fourth-degree driving while impaired. 
  3.29     Subd. 2.  [CRIMINAL PENALTY.] Third-degree Fourth-degree 
  3.30  driving while impaired is a misdemeanor. 
  3.31     Sec. 7.  Minnesota Statutes 2000, section 169A.275, is 
  3.32  amended to read: 
  3.33     169A.275 [MANDATORY PENALTIES; NONFELONY VIOLATIONS.] 
  3.34     Subdivision 1.  [SECOND OFFENSE.] (a) The court shall 
  3.35  sentence a person who is convicted of a violation of section 
  3.36  169A.20 (driving while impaired) within ten years of a qualified 
  4.1   prior impaired driving incident to either:  
  4.2      (1) a minimum of 30 days of incarceration, at least 48 
  4.3   hours of which must be served consecutively in a local 
  4.4   correctional facility; or 
  4.5      (2) eight hours of community work service for each day less 
  4.6   than 30 days that the person is ordered to serve in a local 
  4.7   correctional facility.  
  4.8   Notwithstanding section 609.135 (stay of imposition or execution 
  4.9   of sentence), the penalties in this paragraph must be executed, 
  4.10  unless the court departs from the mandatory minimum sentence 
  4.11  under paragraph (b) or (c). 
  4.12     (b) Prior to sentencing, the prosecutor may file a motion 
  4.13  to have a defendant described in paragraph (a) sentenced without 
  4.14  regard to the mandatory minimum sentence established by that 
  4.15  paragraph.  The motion must be accompanied by a statement on the 
  4.16  record of the reasons for it.  When presented with the 
  4.17  prosecutor's motion and if it finds that substantial mitigating 
  4.18  factors exist, the court shall sentence the defendant without 
  4.19  regard to the mandatory minimum sentence established by 
  4.20  paragraph (a).  
  4.21     (c) The court may, on its own motion, sentence a defendant 
  4.22  described in paragraph (a) without regard to the mandatory 
  4.23  minimum sentence established by that paragraph if it finds that 
  4.24  substantial mitigating factors exist and if its sentencing 
  4.25  departure is accompanied by a statement on the record of the 
  4.26  reasons for it.  The court also may sentence the defendant 
  4.27  without regard to the mandatory minimum sentence established by 
  4.28  paragraph (a) if the defendant is sentenced to probation and 
  4.29  ordered to participate in a program established under section 
  4.30  169A.74 (pilot programs of intensive probation for repeat DWI 
  4.31  offenders). 
  4.32     (d) When any portion of the sentence required by paragraph 
  4.33  (a) is not executed, the court should impose a sentence that is 
  4.34  proportional to the extent of the offender's prior criminal and 
  4.35  moving traffic violation record.  Any sentence required under 
  4.36  paragraph (a) must include a mandatory sentence that is not 
  5.1   subject to suspension or a stay of imposition or execution, and 
  5.2   that includes incarceration for not less than 48 consecutive 
  5.3   hours or at least 80 hours of community work service. 
  5.4      Subd. 2.  [THIRD OFFENSE.] (a) The court shall sentence a 
  5.5   person who is convicted of a violation of section 169A.20 
  5.6   (driving while impaired) within ten years of the first of two 
  5.7   qualified prior impaired driving incidents to either: 
  5.8      (1) a minimum of 90 days of incarceration, at least 30 days 
  5.9   of which must be served consecutively in a local correctional 
  5.10  facility; or 
  5.11     (2) a program of intensive supervision of the type 
  5.12  described in section 169A.74 (pilot programs of intensive 
  5.13  probation for repeat DWI offenders) that requires the person to 
  5.14  consecutively serve at least six days in a local correctional 
  5.15  facility.  
  5.16     (b) The court may order that the person serve not more than 
  5.17  60 days of the minimum penalty under paragraph (a), clause (1), 
  5.18  on home detention or in an intensive probation program described 
  5.19  in section 169A.74. 
  5.20     (c) Notwithstanding section 609.135, the penalties in this 
  5.21  subdivision must be imposed and executed. 
  5.22     Subd. 3.  [FOURTH OFFENSE.] (a) Unless the court commits 
  5.23  the person to the custody of the commissioner of corrections as 
  5.24  provided in section 169A.276 (mandatory penalties; felony 
  5.25  violations), the court shall sentence a person who is convicted 
  5.26  of a violation of section 169A.20 (driving while impaired) 
  5.27  within ten years of the first of three qualified prior impaired 
  5.28  driving incidents to either: 
  5.29     (1) a minimum of 180 days of incarceration, at least 30 
  5.30  days of which must be served consecutively in a local 
  5.31  correctional facility; or 
  5.32     (2) a program of intensive supervision of the type 
  5.33  described in section 169A.74 (pilot programs of intensive 
  5.34  probation for repeat DWI offenders) that requires the person to 
  5.35  consecutively serve at least six days in a local correctional 
  5.36  facility.  
  6.1      (b) The court may order that the person serve not more than 
  6.2   150 days of the minimum penalty under paragraph (a), clause (1), 
  6.3   on home detention or in an intensive probation program described 
  6.4   in section 169A.74.  Notwithstanding section 609.135, the 
  6.5   penalties in this subdivision must be imposed and executed. 
  6.6      Subd. 4.  [FIFTH OFFENSE OR MORE.] (a) Unless the court 
  6.7   commits the person to the custody of the commissioner of 
  6.8   corrections as provided in section 169A.276 (mandatory 
  6.9   penalties; felony violations), the court shall sentence a person 
  6.10  who is convicted of a violation of section 169A.20 (driving 
  6.11  while impaired) within ten years of the first of four or more 
  6.12  qualified prior impaired driving incidents to either: 
  6.13     (1) a minimum of one year of incarceration, at least 60 
  6.14  days of which must be served consecutively in a local 
  6.15  correctional facility; or 
  6.16     (2) a program of intensive supervision of the type 
  6.17  described in section 169A.74 (pilot programs of intensive 
  6.18  probation for repeat DWI offenders) that requires the person to 
  6.19  consecutively serve at least six days in a local correctional 
  6.20  facility.  
  6.21     (b) The court may order that the person serve the remainder 
  6.22  of the minimum penalty under paragraph (a), clause (1), on 
  6.23  intensive probation using an electronic monitoring system or, if 
  6.24  such a system is unavailable, on home detention.  
  6.25  Notwithstanding section 609.135, the penalties in this 
  6.26  subdivision must be imposed and executed. 
  6.27     Subd. 5.  [LEVEL OF CARE RECOMMENDED IN CHEMICAL USE 
  6.28  ASSESSMENT.] Unless the court commits the person to the custody 
  6.29  of the commissioner of corrections as provided in section 
  6.30  169A.276 (mandatory penalties; felony violations), in addition 
  6.31  to other penalties required under this section, the court shall 
  6.32  order a person to submit to the level of care recommended in the 
  6.33  chemical use assessment conducted under section 169A.70 (alcohol 
  6.34  safety program; chemical use assessments) if the person is 
  6.35  convicted of violating section 169A.20 (driving while impaired) 
  6.36  while having an alcohol concentration of 0.20 or more as 
  7.1   measured at the time, or within two hours of the time, of the 
  7.2   offense or if the violation occurs within ten years of one or 
  7.3   more qualified prior impaired driving incidents. 
  7.4      Sec. 8.  [169A.276] [MANDATORY PENALTIES; FELONY 
  7.5   VIOLATIONS.] 
  7.6      Subdivision 1.  [MANDATORY PRISON SENTENCE.] (a) The court 
  7.7   shall sentence a person who is convicted of a violation of 
  7.8   section 169A.20 (driving while impaired) under the circumstances 
  7.9   described in section 169A.24 (first-degree driving while 
  7.10  impaired) to imprisonment for not less than three years.  In 
  7.11  addition, the court may order the person to pay a fine of not 
  7.12  more than $14,000.  
  7.13     (b) The court may stay execution of this mandatory sentence 
  7.14  as provided in subdivision 2 (stay of mandatory sentence), but 
  7.15  may not stay imposition of the sentence or impose a sentence 
  7.16  that has a duration of less than three years. 
  7.17     (c) Notwithstanding the statutory maximum sentence provided 
  7.18  in section 169A.24 (first-degree driving while impaired), when 
  7.19  the court commits a person to the custody of the commissioner of 
  7.20  corrections under this subdivision, it shall provide that after 
  7.21  the person has been released from prison the commissioner shall 
  7.22  place the person on conditional release for five years.  The 
  7.23  commissioner shall impose any conditions of release that the 
  7.24  commissioner deems appropriate including, but not limited to, 
  7.25  successful completion of an intensive probation program as 
  7.26  described in section 169A.74 (pilot programs of intensive 
  7.27  probation for repeat DWI offenders).  If the person fails to 
  7.28  comply with any condition of release, the commissioner may 
  7.29  revoke the person's conditional release and order the person to 
  7.30  serve all or part of the remaining portion of the conditional 
  7.31  release term in prison.  The commissioner may not dismiss the 
  7.32  person from supervision before the conditional release term 
  7.33  expires.  The failure of a court to direct the commissioner of 
  7.34  corrections to place the person on conditional release, as 
  7.35  required in this paragraph, does not affect the applicability of 
  7.36  the conditional release provisions to the person. 
  8.1      Subd. 2.  [STAY OF MANDATORY SENTENCE.] The provisions of 
  8.2   sections 169A.275 (mandatory penalties; nonfelony violations), 
  8.3   subdivision 3 or 4, and subdivision 5, and 169A.283 (stay of 
  8.4   execution of sentence), apply if the court stays execution of 
  8.5   the sentence under subdivision 1 (mandatory prison sentence).  
  8.6   In addition, the provisions of section 169A.277 (long-term 
  8.7   monitoring) may apply.  
  8.8      Subd. 3.  [DRIVER'S LICENSE REVOCATION; NO STAY PERMITTED.] 
  8.9   The court may not stay the execution of the driver's license 
  8.10  revocation provisions of section 169A.54 (impaired driving 
  8.11  convictions and adjudications; administrative penalties). 
  8.12     Sec. 9.  Minnesota Statutes 2000, section 169A.283, 
  8.13  subdivision 1, is amended to read: 
  8.14     Subdivision 1.  [STAY AUTHORIZED.] Except as otherwise 
  8.15  provided in section sections 169A.275 (mandatory penalties; 
  8.16  nonfelony violations) and 169A.276 (mandatory penalties; felony 
  8.17  violations), when a court sentences a person convicted of a 
  8.18  violation of section 169A.20 (driving while impaired), the court 
  8.19  may stay execution of the criminal sentence described in section 
  8.20  169A.25 169A.24 (first-degree driving while impaired), 169A.26 
  8.21  169A.25 (second-degree driving while impaired), or 169A.27 
  8.22  169A.26 (third-degree driving while impaired), or 169A.27 
  8.23  (fourth-degree driving while impaired) on the condition that the 
  8.24  convicted person submit to the level of care recommended in the 
  8.25  chemical use assessment report required under section 169A.70 
  8.26  (alcohol safety programs; chemical use assessments).  If the 
  8.27  court does not order a level of care in accordance with the 
  8.28  assessment report recommendation as a condition of a stay of 
  8.29  execution, it shall state on the record its reasons for not 
  8.30  following the assessment report recommendation. 
  8.31     Sec. 10.  Minnesota Statutes 2000, section 169A.40, 
  8.32  subdivision 3, is amended to read: 
  8.33     Subd. 3.  [FIRST-DEGREE AND SECOND-DEGREE DWI OFFENDERS; 
  8.34  CUSTODIAL ARREST.] Notwithstanding rule 6.01 of the Rules of 
  8.35  Criminal Procedure, a peace officer acting without a warrant who 
  8.36  has decided to proceed with the prosecution of a person for 
  9.1   violating section 169A.20 (driving while impaired), shall arrest 
  9.2   and take the person into custody if the officer has reason to 
  9.3   believe the violation occurred under the circumstances described 
  9.4   in section 169A.24 (first-degree driving while impaired) or 
  9.5   169A.25 (first-degree second-degree driving while impaired).  
  9.6   The person shall be detained until the person's first court 
  9.7   appearance. 
  9.8      Sec. 11.  Minnesota Statutes 2000, section 169A.63, 
  9.9   subdivision 1, is amended to read: 
  9.10     Subdivision 1.  [DEFINITIONS.] (a) As used in this section, 
  9.11  the following terms have the meanings given them. 
  9.12     (b) "Appropriate agency" means a law enforcement agency 
  9.13  that has the authority to make an arrest for a violation of a 
  9.14  designated offense or to require a test under section 169A.51 
  9.15  (chemical tests for intoxication). 
  9.16     (c) "Designated license revocation" includes a license 
  9.17  revocation under section 169A.52 (license revocation for test 
  9.18  failure or refusal) or a license disqualification under section 
  9.19  171.165 (commercial driver's license disqualification) resulting 
  9.20  from a violation of section 169A.52; within ten years of the 
  9.21  first of two or more qualified prior impaired driving incidents. 
  9.22     (d) "Designated offense" includes: 
  9.23     (1) a violation of section 169A.20 (driving while impaired) 
  9.24  under the circumstances described in section 169A.24 
  9.25  (first-degree driving while impaired) or 169A.25 (first-degree 
  9.26  second-degree driving while impaired); or 
  9.27     (2) a violation of section 169A.20 or an ordinance in 
  9.28  conformity with it: 
  9.29     (i) by a person whose driver's license or driving 
  9.30  privileges have been canceled as inimical to public safety under 
  9.31  section 171.04, subdivision 1, clause (10); or 
  9.32     (ii) by a person who is subject to a restriction on the 
  9.33  person's driver's license under section 171.09 (commissioner's 
  9.34  license restrictions), which provides that the person may not 
  9.35  use or consume any amount of alcohol or a controlled substance. 
  9.36     (e) "Motor vehicle" and "vehicle" do not include a vehicle 
 10.1   which is stolen or taken in violation of the law. 
 10.2      (f) "Owner" means the registered owner of the motor vehicle 
 10.3   according to records of the department of public safety and 
 10.4   includes a lessee of a motor vehicle if the lease agreement has 
 10.5   a term of 180 days or more. 
 10.6      (g) "Prosecuting authority" means the attorney in the 
 10.7   jurisdiction in which the designated offense occurred who is 
 10.8   responsible for prosecuting violations of a designated offense. 
 10.9      Sec. 12.  [EFFECTIVE DATE.] 
 10.10     Sections 1 to 11 are effective July 1, 2002, and apply to 
 10.11  crimes committed on or after that date.  However, violations 
 10.12  occurring before July 1, 2002, that are listed in Minnesota 
 10.13  Statutes, section 169A.03, subdivisions 20 and 21, are 
 10.14  considered qualified prior impaired driving incidents for 
 10.15  purposes of this act.