Office of the Revisor of Statutes
Minnesota Session Laws - 1990, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1990
CHAPTER 602-S.F.No. 2177
An act relating to crimes; providing for
administrative impoundment of license plates of
vehicles owned by repeat violators of laws relating to
driving while intoxicated; providing for issuance of
special plates; requiring peace officers to serve a
notice of intent to impound when serving a notice of
intent to revoke the violator's driver's license;
providing for administrative and judicial review of
impoundment orders; eliminating the alcohol problem
screening for persons convicted of offenses associated
with driving under the influence of alcohol or a
controlled substance; modifying procedures for
chemical use assessments, programs, and funding;
changing the maximum rate for reimbursement of
counties from the general fund for the assessments;
expanding the crime of refusing to submit to an
implied consent test; requiring notice of certain
enhanced penalties; expanding the crime of aggravated
driving while intoxicated; removing requirement that
negligence be proven for conviction of criminal
vehicular operation if driver's alcohol concentration
was 0.10 or more; imposing penalties for criminal
vehicular operation resulting in substantial bodily
harm; prohibiting constructive possession of alcohol
in a private motor vehicle; expanding the definition
of possession; clarifying the elements of certain
liquor law violations; changing provisions about
aircraft operation while under the influence of
alcohol or controlled substances; increasing penalties
for certain controlled substance offenses; providing
for transfer of certain convicted felons to prison
pending completion of the presentence investigation;
imposing penalties; appropriating money; amending
Minnesota Statutes 1988, sections 168.041,
subdivisions 3, 8, and 10; 169.121, by adding a
subdivision; 169.122, subdivision 2; 169.124,
subdivision 1; 169.126, subdivisions 1, 2, 6, and by
adding a subdivision; 169.129; 260.151, subdivision 1;
340A.503, subdivisions 1 and 3; and 360.015,
subdivisions 1 and 6; Minnesota Statutes 1989
Supplement, sections 152.021; 152.022; 152.023,
subdivisions 1 and 2; 152.024, subdivision 1; 152.025,
subdivision 2; 152.028, subdivision 2; 169.041,
subdivision 4; 169.121, subdivisions 1a, 3, and 3b;
169.123, subdivision 5c; 169.126, subdivision 4;
260.193, subdivision 8; 340A.503, subdivision 2;
609.115, subdivision 1; and 609.21; proposing coding
for new law in Minnesota Statutes, chapters 152; 168;
and 360; repealing Minnesota Statutes 1988, sections
168.041, subdivision 3a; 169.124, subdivisions 2 and
3; 169.126, subdivisions 2, 3, and 4b; 360.075,
subdivision 7; and 360.0751; Minnesota Statutes 1989
Supplement, sections 168.041, subdivision 4a; and
169.126, subdivision 4a.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
ARTICLE 1
PLATE IMPOUNDMENT BY ADMINISTRATIVE ACTION
Section 1. Minnesota Statutes 1988, section 168.041,
subdivision 3, is amended to read:
Subd. 3. Except as otherwise provided in subdivision 3a
section 168.042, if a person is convicted of an offense that
makes mandatory the revocation of the person's driver's license,
or is convicted of driving a motor vehicle without having a
valid driver's license in force, the court may require the
registration plates and registration certificate of any motor
vehicle owned by the person or any motor vehicle registered in
the person's name to be surrendered to the court.
Sec. 2. Minnesota Statutes 1989 Supplement, section
168.041, subdivision 4, is amended to read:
Subd. 4. If the court issues an impoundment order, the
registration plates and certificates must be surrendered to the
court either three days after the order is issued or on the date
specified by the court, whichever date is later. The court
shall forward surrendered registration certificates to the
registrar of motor vehicles within seven days after their
surrender. The court may destroy the surrendered registration
plates. Except as provided in subdivision 1a, 4a, 5, 6, or 7,
no new registration plates may be issued to the violator or
owner until the driver's license of the violator has been
reissued or reinstated. The court shall notify the commissioner
of public safety within ten days after issuing an impoundment
order.
Sec. 3. Minnesota Statutes 1988, section 168.041,
subdivision 8, is amended to read:
Subd. 8. Nothing contained in this section or section
168.042 is intended to change or modify any provision of this
chapter, with respect to the taxation of motor vehicles or the
time within which motor vehicle taxes must be paid.
Sec. 4. Minnesota Statutes 1988, section 168.041,
subdivision 10, is amended to read:
Subd. 10. "Rental motor vehicle" means a passenger
vehicle, truck, motorcycle, or motorized bicycle:
(1) that is involved in a violation under subdivision 3a,
leased in the name of the violator, or leased jointly in the
name of the violator and the violator's spouse; and
(2) that is one of a fleet of two or more vehicles rented
for periods of 30 days or less.
Sec. 5. [168.042] [ADMINISTRATIVE IMPOUNDMENT OF
REGISTRATION PLATES FOR ALCOHOL-RELATED DRIVER'S LICENSE
REVOCATIONS.]
Subdivision 1. [DEFINITIONS.] (a) For purposes of this
section, the following terms have the meanings given.
(b) "Violator" means a person who was driving, operating,
or in physical control of the motor vehicle when the violation
occurred.
(c) "Violation" means a violation of section 169.123 or an
impaired driving conviction as defined in section 169.121,
subdivision 3, that results in the revocation of a person's
driver's license or driving privileges, and also includes an
alcohol-related license revocation from another state.
Subd. 2. [VIOLATION AND ISSUANCE OF IMPOUNDMENT
ORDER.] The commissioner shall issue a registration plate
impoundment order when a person's driver's license or driving
privileges are revoked for a third violation within five years
or a fourth or subsequent violation within ten years. The order
shall require the impoundment of the registration plates of the
vehicle involved in the violation and all vehicles owned by,
registered, or leased in the name of the violator, including
vehicles registered jointly or leased in the name of the
violator and another. An impoundment order shall not be issued
for the registration plates of a rental vehicle as defined in
section 168.041, subdivision 10, or a vehicle registered in
another state.
Subd. 3. [NOTICE OF IMPOUNDMENT.] An impoundment order is
effective when the commissioner or a peace officer acting on
behalf of the commissioner notifies the violator or the
registered owner of the vehicle of the intent to impound and
order of impoundment. The notice must advise the violator of
the duties and obligations set forth in subdivision 6 and of the
right to obtain administrative and judicial review. The notice
to the registered owner who is not the violator must include the
procedure to obtain new registration plates under subdivision
8. If mailed, the notice and order of impoundment is deemed
received three days after mailing to the last known address of
the violator or the registered owner.
Subd. 4. [PEACE OFFICER AS AGENT FOR NOTICE OF
IMPOUNDMENT.] (a) On behalf of the commissioner, a peace officer
issuing a notice of intent to revoke and of revocation under
section 169.123 shall also serve a notice of intent to impound
and an order of impoundment if the violation is the third
violation within five years or the fourth or subsequent
violation within ten years. If the vehicle involved in the
violation is accessible to the officer at the time the
impoundment order is issued, the officer shall seize the
registration plates subject to the impoundment order. The
officer shall destroy all plates seized or impounded under this
section. The officer shall send to the commissioner copies of
the notice of intent to impound and the order of impoundment and
a notice that registration plates impounded and seized under
this section have been destroyed.
Subd. 5. [TEMPORARY PERMIT.] If the vehicle is registered
to the violator, the officer shall issue a temporary vehicle
permit that is valid for seven days when the officer issues the
notices under subdivision 4. If the vehicle is registered in
the name of another, the officer shall issue a temporary vehicle
permit that is valid for 45 days when the notices are issued
under subdivision 3. The permit must be in a form determined by
the registrar and whenever practicable must be posted on the
left side of the inside rear window of the vehicle. A permit is
valid only for the vehicle for which it is issued.
Subd. 6. [VEHICLES SUBJECT TO IMPOUNDMENT ORDERS.] Within
seven days after issuance of the impoundment notice, a person
who receives a notice of impoundment and impoundment order shall
surrender all registration plates subject to the impoundment
order that were not seized by a peace officer under subdivision
4. Registration plates required to be surrendered under this
subdivision must be surrendered to a Minnesota police
department, sheriff, or the state patrol, along with a copy of
the impoundment order. A law enforcement agency receiving
registration plates under this subdivision shall destroy the
plates and notify the commissioner that they have been
destroyed. The notification to the commissioner shall also
include a copy of the impoundment order.
Subd. 7. [VEHICLE NOT OWNED BY THE VIOLATOR.] A violator
may file a sworn statement with the commissioner within seven
days of the issuance of an impoundment order stating any
material information relating to the impoundment order,
including that the vehicle has been sold or destroyed and
supplying the date, name, location, and address of the person or
entity that purchased or destroyed the vehicle. The
commissioner shall rescind the impoundment order if the violator
shows that the impoundment order was not properly issued.
Subd. 8. [REISSUANCE OF REGISTRATION PLATES.] (a) The
commissioner shall rescind the impoundment order if a person
subject to an impoundment order under this section, other than
the violator, files with the commissioner an acceptable sworn
statement that the person:
(1) is the registered owner of the vehicle from which the
plates have been impounded under this section;
(2) is the current owner and possessor of the vehicle used
in the violation;
(3) was not a passenger in the vehicle at the time of the
violation; and
(4) knows that the violator may not drive, operate, or be
in physical control of a vehicle without a valid driver's
license.
(b) If the order is rescinded, the owner shall receive new
registration plates at no cost, if the plates were seized and
destroyed.
Subd. 9. [ADMINISTRATIVE REVIEW.] At any time during the
effective period of an impoundment order, a person may request
in writing a review of the impoundment order by the
commissioner. On receiving a request, the commissioner or the
commissioner's designee shall review the order, the evidence
upon which the order was based, and any other material
information brought to the attention of the commissioner, and
determine whether sufficient cause exists to sustain the order.
The commissioner shall report in writing the results of the
review within 15 days of receiving the request. The review
provided in this subdivision is not subject to the contested
case provisions of the administrative procedure act in sections
14.01 to 14.70. As a result of this review, the commissioner
may authorize the issuance at no cost of new registration plates
to the registered owner of the vehicle if the registered owner's
license or driving privileges were not revoked under section
169.123 or as a result of an impaired driving conviction as
defined in section 169.121, subdivision 3.
Review under this subdivision shall take place, if
possible, at the same time as any administrative review of the
person's license revocation under section 169.123, subdivision
5b.
Subd. 10. [PETITION FOR JUDICIAL REVIEW.] (a) Within 30
days following receipt of a notice and order of impoundment
under this section, a person may petition the court for review.
The petition must include the petitioner's date of birth,
driver's license number, and date of the violation. The
petition shall state with specificity the grounds upon which the
petitioner seeks rescission of the order for impoundment. The
petition may be combined with any petition filed under section
169.123, subdivision 5c.
(b) Except as otherwise provided in this section, the
judicial review and hearing are governed by section 169.123,
subdivisions 5c and 6, and shall take place at the same time as
any judicial review of the person's license revocation under
section 169.123. The filing of the petition shall not stay the
impoundment order. The reviewing court may order a stay of the
balance of the impoundment period if the hearing has not been
conducted within 60 days after filing of the petition upon terms
the court deems proper. The court shall order either that the
impoundment be rescinded or sustained, and forward the order to
the commissioner of public safety. The court shall file its
order within 14 days following the hearing.
(c) In addition to the issues described in section 169.123,
subdivision 5c, the scope of a hearing under this subdivision is
limited to:
(1) whether the violator owns, is the registered owner of,
possesses, or has access to the vehicle used in the violation;
and
(2) whether a member of the violator's household has a
valid driver's license, the violator or registered owner has a
limited license issued under section 171.30, the registered
owner is not the violator and the registered owner has a valid
or limited driver's license, or a member of the registered
owner's household has a valid driver's license.
(d) In a hearing under this subdivision, the following
shall be admissible in evidence:
(1) certified copies of the violator's driving record; and
(2) certified copies of vehicle registration records
bearing the violator's name.
Subd. 11. [RESCISSION OF REVOCATION AND ISSUANCE OF NEW
PLATES.] If the driver's license revocation that is the basis
for an impoundment order is rescinded, the registrar of motor
vehicles shall issue new registration plates for the vehicle at
no cost, when the registrar receives an application that
includes a copy of the order rescinding the driver's license
revocation.
Subd. 12. [ISSUANCE OF SPECIAL REGISTRATION PLATES.] A
violator or registered owner may apply to the commissioner for
new registration plates, which must bear a special series of
numbers or letters so as to be readily identified by traffic law
enforcement officers. The commissioner may authorize the
issuance of special plates if:
(1) a member of the violator's household has a valid
driver's license;
(2) the violator or registered owner has a limited license
issued under section 171.30;
(3) the registered owner is not the violator and the
registered owner has a valid or limited driver's license; or
(4) a member of the registered owner's household has a
valid driver's license.
The commissioner may issue the special plates on payment of a
$25 fee for each vehicle for which special plates are requested.
Subd. 13. [SALE OF VEHICLE SUBJECT TO IMPOUNDMENT
ORDER.] A registered owner may not sell a motor vehicle during
the time its registration plates have been ordered impounded or
during the time its registration plates bear a special series
number, unless:
(1) the sale is for a valid consideration;
(2) the transferee does not reside in the same household as
the registered owner; and
(3) all elements of section 168A.10 are satisfied.
The registrar may then transfer the title to the new owner
upon proper application and issue new registration plates.
Subd. 14. [MISDEMEANOR OFFENSES.] A person is guilty of a
misdemeanor who:
(1) fails to comply with an impoundment order under this
section;
(2) files a false statement under subdivision 5 or 6;
(3) operates a motor vehicle on a street or highway when
the vehicle is subject to an impoundment order issued under this
section; or
(4) fails to notify the commissioner of the impoundment
order when requesting new plates.
Sec. 6. Minnesota Statutes 1989 Supplement, section
169.123, subdivision 5c, is amended to read:
Subd. 5c. [PETITION FOR JUDICIAL REVIEW.] Within 30 days
following receipt of a notice and order of revocation or
disqualification pursuant to this section, a person may petition
the court for review, unless the person is entitled to review
under section 171.166. The petition shall be filed with the
district court administrator in the county where the alleged
offense occurred, together with proof of service of a copy on
the commissioner of public safety, and accompanied by the
standard filing fee for civil actions. No responsive pleading
shall be required of the commissioner of public safety, and no
court fees shall be charged for the appearance of the
commissioner of public safety in the matter.
The petition shall be captioned in the full name of the
person making the petition as petitioner and the commissioner of
public safety as respondent. The petition must include the
petitioner's date of birth, driver's license number, and date of
the offense, and a copy of the notice of revocation or
disqualification. The petition shall state with specificity the
grounds upon which the petitioner seeks rescission of the order
of revocation, disqualification, or denial and state the facts
underlying each claim asserted.
The filing of the petition shall not stay the revocation,
disqualification, or denial. The reviewing court may order a
stay of the balance of the revocation or disqualification if the
hearing has not been conducted within 60 days after filing of
the petition upon terms the court deems proper. Judicial
reviews shall be conducted according to the rules of civil
procedure.
Sec. 7. [APPROPRIATION.]
(a) $10,000 is appropriated from the general fund to the
commissioner of public safety for ongoing computer transaction
expenses of the bureau of criminal apprehension in implementing
this article.
(b) $12,000 is appropriated from the trunk highway fund to
the commissioner of public safety to reprogram the bureau of
criminal apprehension computer to provide access to motor
vehicle records by name.
(c) $31,000 is appropriated from the highway user tax
distribution fund to the commissioner of public safety for an
additional position in the division of driver and vehicle
services to administer the plate impoundment program.
(d) The complement of the department of public safety is
increased by one position.
Sec. 8. [REPEALER.]
Minnesota Statutes 1988, section 168.041, subdivision 3a;
and Minnesota Statutes 1989 Supplement, section 168.041,
subdivision 4a, are repealed.
Sec. 9. [EFFECTIVE DATE.]
Sections 1 to 5 and 8 are effective January 1, 1991.
ARTICLE 2
CHEMICAL USE ASSESSMENTS
Section 1. Minnesota Statutes 1989 Supplement, section
169.121, subdivision 3b, is amended to read:
Subd. 3b. [HABITUAL OFFENDERS; CHEMICAL USE ASSESSMENT.]
If a person has been convicted under subdivision 1, section
169.129, an ordinance in conformity with either of them, or a
statute or ordinance from another state in conformity with
either of them, and if the person is then convicted of violating
subdivision 1, section 169.129, or an ordinance in conformity
with either of them (1) once within five years of the first
conviction or (2) two or more times within ten years after the
first conviction, the court must order the person to submit to
the level of care recommended in the chemical use assessment
required under section 169.126.
If a person is convicted under section 169.121, subdivision
1a, the court shall order the person to submit to the level of
care recommended in the chemical use assessment report required
under section 169.126.
Sec. 2. Minnesota Statutes 1988, section 169.124,
subdivision 1, is amended to read:
Subdivision 1. [COUNTY BOARD.] The county board of every
county shall establish an alcohol safety program designed to
provide alcohol problem screening and chemical use assessment
assessments of persons convicted of an offense enumerated in
section 169.126, subdivision 1.
Sec. 3. Minnesota Statutes 1988, section 169.126,
subdivision 1, is amended to read:
Subdivision 1. [SCREENING REQUIREMENT WHEN CHEMICAL USE
ASSESSMENT IS REQUIRED.] An alcohol problem screening A chemical
use assessment shall be conducted and a screening an assessment
report submitted to the court by the county agency administering
the alcohol safety program when:
(a) The defendant is convicted of an offense described in
section 169.121 or 169.129; or
(b) The defendant is arrested for committing an offense
described in section 169.121 or 169.129 but is convicted of
another offense arising out of the circumstances surrounding the
arrest.
Sec. 4. Minnesota Statutes 1988, section 169.126,
subdivision 2, is amended to read:
Subd. 2. [REPORT.] (a) The screening assessment report
shall contain an evaluation of the convicted defendant
concerning the defendant's prior traffic record, characteristics
and history of alcohol and chemical use problems, and
amenability to rehabilitation through the alcohol safety
program. The screening report shall include a recommendation as
to a treatment or rehabilitation program for the defendant. The
screening report shall be classified as private data on
individuals as defined in section 13.02, subdivision 12.
(b) The assessment report must include:
(1) a recommended level of care for the offender in
accordance with the criteria contained in rules adopted by the
commissioner of human services under section 254A.03,
subdivision 3;
(2) recommendations for other appropriate remedial action
or care, that may consist of educational programs, one-on-one
counseling, a program or type of treatment that addresses mental
health concerns, or a combination of them; or
(3) a specific explanation why no level of care or action
was recommended.
Sec. 5. Minnesota Statutes 1989 Supplement, section
169.126, subdivision 4, is amended to read:
Subd. 4. [CHEMICAL USE ASSESSMENT.] (a) Except as
otherwise provided in paragraph (d), when an alcohol problem
screening shows that the defendant has an identifiable chemical
use problem, the court shall require the defendant to undergo a
comprehensive A chemical use assessment required by this section
must be conducted by an assessor qualified under appointed by
the court. The assessor must meet the training and
qualification requirements of rules adopted by the commissioner
of human services under section 254A.03, subdivision 3.
Notwithstanding section 13.82, the assessor shall have access to
any police reports, laboratory test results, and other law
enforcement data relating to the current offense or previous
offenses that are necessary to complete the evaluation. An
assessor providing a chemical use an assessment for the court
under this section may not have any direct or shared financial
interest or referral relationship resulting in shared financial
gain with a treatment provider. If an independent assessor is
not available, the court may use the services of an assessor
authorized to perform assessments for the county social services
agency under a variance granted under rules adopted by the
commissioner of human services under section 254A.03,
subdivision 3. An appointment for the defendant to undergo
the chemical use assessment shall be made by the court, a court
services probation officer, or the court administrator as soon
as possible but in no case more than one week after the
defendant's court appearance. The comprehensive chemical use
assessment must be completed no later than three weeks after the
defendant's court appearance. If the assessment is not
performed within this time limit, the county where the defendant
is to be sentenced shall perform the assessment. The county of
financial responsibility shall be determined under chapter 256G.
(b) The chemical use assessment report must include a
recommended level of care for the defendant in accordance with
the criteria contained in rules adopted by the commissioner of
human services under section 254A.03, subdivision 3.
(c) The state shall reimburse the county for the entire
cost of each chemical use assessment and report at a rate
established by the department of human services up to a maximum
of $100 in each case. The county may not be reimbursed for the
cost of any chemical use assessment or report not completed
within the time limit provided in this subdivision.
Reimbursement to the county must be made from the general fund.
(d) If the preliminary alcohol problem screening is
conducted by an assessor qualified under rules adopted by the
commissioner of human services under section 254A.03,
subdivision 3, consists of a comprehensive chemical use
assessment of the defendant, and complies with the chemical use
assessment report requirements of paragraph (b), it is a
chemical use assessment for the purposes of this section and the
court may not require the defendant to undergo a second chemical
use assessment under paragraph (a). The state shall reimburse
counties for the cost of alcohol problem screenings that qualify
as chemical use assessments under this paragraph in the manner
provided in paragraph (c) in lieu of the reimbursement
provisions of section 169.124, subdivision 3.
Sec. 6. Minnesota Statutes 1988, section 169.126, is
amended by adding a subdivision to read:
Subd. 4c. [REIMBURSEMENT.] The commissioner of public
safety shall reimburse the county for the cost of each
assessment and report at a rate established by the commissioner.
The county may not be reimbursed for the cost of any assessment
or report not completed within the time limit provided in
subdivision 4. Reimbursement to the county must be made from
the general fund. The commissioner of public safety shall adopt
rules under chapter 14 providing for the reimbursement of
counties for assessments conducted under this section.
Sec. 7. Minnesota Statutes 1988, section 169.126,
subdivision 6, is amended to read:
Subd. 6. [APPLICABILITY.] This section shall not apply to
persons a person who are is not residents a resident of the
state of Minnesota at the time of the offense and at the time of
the alcohol problem screening assessment.
Sec. 8. Minnesota Statutes 1988, section 260.151,
subdivision 1, is amended to read:
Subdivision 1. Upon request of the court the county
welfare board or probation officer shall investigate the
personal and family history and environment of any minor coming
within the jurisdiction of the court under section 260.111 and
shall report its findings to the court. The court may order any
minor coming within its jurisdiction to be examined by a duly
qualified physician, psychiatrist, or psychologist appointed by
the court.
The court shall have a chemical use assessment conducted
when a child is (1) found to be delinquent for violating a
provision of chapter 152, or (2) alleged to be delinquent for
violating a provision of chapter 152, if the child is being held
in custody under a detention order. The assessor's
qualifications and the assessment criteria shall comply with
Minnesota Rules, parts 9530.6600 to 9530.6655. If funds under
chapter 254B are to be used to pay for the recommended
treatment, the assessment and placement must comply with all
provisions of Minnesota Rules, parts 9530.6600 to 9530.6655, and
parts 9530.7000 to 9530.7030. The commissioner of public safety
shall reimburse the court for the cost of the chemical use
assessment, up to a maximum of $100.
With the consent of the commissioner of corrections and
agreement of the county to pay the costs thereof, the court may,
by order, place a minor coming within its jurisdiction in an
institution maintained by the commissioner for the detention,
diagnosis, custody and treatment of persons adjudicated to be
delinquent, in order that the condition of the minor be given
due consideration in the disposition of the case. Adoption
investigations shall be conducted in accordance with the laws
relating to adoptions. Any funds received under the provisions
of this subdivision shall not cancel until the end of the fiscal
year immediately following the fiscal year in which the funds
were received. The funds are available for use by the
commissioner of corrections during that period and are hereby
appropriated annually to the commissioner of corrections as
reimbursement of the costs of providing these services to the
juvenile courts.
Sec. 9. Minnesota Statutes 1989 Supplement, section
260.193, subdivision 8, is amended to read:
Subd. 8. If the juvenile court finds that the child is a
juvenile major highway or water traffic offender, it may make
any one or more of the following dispositions of the case:
(a) Reprimand the child and counsel with the child and the
parents;
(b) Continue the case for a reasonable period under such
conditions governing the child's use and operation of any motor
vehicles or boat as the court may set;
(c) Require the child to attend a driver improvement school
if one is available within the county;
(d) Recommend to the department of public safety suspension
of the child's driver's license as provided in section 171.16;
(e) If the child is found to have committed two moving
highway traffic violations or to have contributed to a highway
accident involving death, injury, or physical damage in excess
of $100, the court may recommend to the commissioner of public
safety or to the licensing authority of another state the
cancellation of the child's license until the child reaches the
age of 18 years, and the commissioner of public safety is hereby
authorized to cancel the license without hearing. At any time
before the termination of the period of cancellation, the court
may, for good cause, recommend to the commissioner of public
safety, or to the licensing authority of another state, that the
child's license be returned, and the commissioner of public
safety is authorized to return the license;
(f) Place the child under the supervision of a probation
officer in the child's own home under conditions prescribed by
the court including reasonable rules relating to operation and
use of motor vehicles or boats directed to the correction of the
child's driving habits;
(g) Require the child to pay a fine of up to $700. The
court shall order payment of the fine in accordance with a time
payment schedule which shall not impose an undue financial
hardship on the child;
(h) If the court finds that the child committed an offense
described in section 169.121, the court shall order that an
alcohol problem screening a chemical use assessment be conducted
and a screening report submitted to the court in the manner
prescribed in section 169.126. Except as otherwise provided in
section 169.126, subdivision 4, paragraph (d), If the alcohol
problem screening shows assessment concludes that the child has
an identifiable chemical use problem, the court shall require
the child to undergo a comprehensive chemical use assessment in
accordance with section 169.126, subdivision 4. If the chemical
use assessment recommends meets the level of care criteria for
placement under rules adopted under section 254A.03, subdivision
3, the report must recommend a level of care for the child,.
The court may require that level of care in its disposition
order. In addition, the court may require any child ordered to
undergo a chemical use an assessment to pay a chemical
dependency assessment charge of $75. The court shall forward
the assessment charge to the commissioner of finance to be
credited to the general fund. The state shall reimburse
counties for the total cost of the chemical use assessment in
the manner provided in section 169.126, subdivision 4 4c.
Sec. 10. [REPEALER.]
Minnesota Statutes 1988, sections 169.124, subdivisions 2
and 3; and 169.126, subdivisions 2, 3, and 4b; and Minnesota
Statutes 1989 Supplement, section 169.126, subdivision 4a, are
repealed.
Sec. 11. [APPROPRIATION.]
$50,000 is appropriated from the general fund to the
commissioner of public safety for chemical use assessments
required under section 260.151, subdivision 1. The commissioner
of public safety shall use the funds to reimburse juvenile
courts for the cost of the assessments as provided in section
260.151, subdivision 1.
ARTICLE 3
EXPANDED DWI SANCTIONS FOR REPEAT OFFENDERS
Section 1. Minnesota Statutes 1989 Supplement, section
169.121, subdivision 1a, is amended to read:
Subd. 1a. [REFUSAL TO SUBMIT TO TESTING; CRIME.] It is a
crime for any person to refuse to submit to a chemical test of
the person's blood, breath, or urine under section 169.123 if
the person's driver's license has been suspended, revoked,
canceled, or denied once within the past five years, or two or
more times within the past ten years, under any of the
following: this section, or section 169.123,; section 171.04,
171.14, 171.16, 171.17, or 171.18 because of an alcohol-related
incident; section 609.21, subdivision 1, clause (2) or (3),;
609.21, subdivision 2, clause (2) or (3),; 609.21, subdivision
3, clause (2) or (3),; or 609.21, subdivision 4, clause (2) or
(3).
Sec. 2. Minnesota Statutes 1988, section 169.121, is
amended by adding a subdivision to read:
Subd. 3c. [NOTICE OF ENHANCED PENALTIES.] When a court
sentences a person for a misdemeanor violation of this section,
it shall inform the defendant of the statutory provisions that
provide for enhancement of criminal penalties for repeat
violators. The failure of a court to provide this information
to a defendant does not affect the future applicability of these
enhanced penalties to that defendant.
Sec. 3. Minnesota Statutes 1988, section 169.129, is
amended to read:
169.129 [AGGRAVATED VIOLATIONS; PENALTY.]
Any person is guilty of a gross misdemeanor who drives,
operates, or is in physical control of a motor vehicle, the
operation of which requires a driver's license, within this
state or upon the ice of any boundary water of this state in
violation of section 169.121 or an ordinance in conformity with
it before the person's driver's license or driver's privilege
has been reinstated following its cancellation, suspension or,
revocation (1) because the person drove, operated, or was in
physical control of a motor vehicle while under the influence of
alcohol or a controlled substance or while the person had an
alcohol concentration of 0.10 or more or (2) because the person
refused to take a test which determines the presence of alcohol
or a controlled substance when requested to do so by a proper
authority, is guilty of a gross misdemeanor, or denial under any
of the following: section 169.121 or 169.123; section 171.04,
171.14, 171.16, 171.17, or 171.18 because of an alcohol-related
incident; section 609.21, subdivision 1, clause (2) or (3);
609.21, subdivision 2, clause (2) or (3); 609.21, subdivision 3,
clause (2) or (3); or 609.21, subdivision 4, clause (2) or (3).
Jurisdiction over prosecutions under this section is in the
county court.
Sec. 4. [EFFECTIVE DATE.]
Sections 1 to 3 are effective August 1, 1990, and apply to
violations occurring on or after that date.
ARTICLE 4
CRIMINAL VEHICULAR HOMICIDE
Section 1. Minnesota Statutes 1989 Supplement, section
609.21, is amended to read:
609.21 [CRIMINAL VEHICULAR OPERATION HOMICIDE AND INJURY.]
Subdivision 1. [RESULTING IN DEATH CRIMINAL VEHICULAR
HOMICIDE.] Whoever causes the death of a human being not
constituting murder or manslaughter as a result of operating
a motor vehicle as defined in section 169.01, subdivision 2, or
an aircraft or watercraft,
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of
alcohol, a controlled substance, or any combination of those
elements; or
(3) in a negligent manner while having an alcohol
concentration of 0.10 or more,; or
(4) while having an alcohol concentration of 0.10 or more,
as measured within two hours of the time of driving,
is guilty of criminal vehicular operation homicide resulting in
death and may be sentenced to imprisonment for not more than ten
years or to payment of a fine of not more than $20,000, or both.
Subd. 2. [RESULTING IN INJURY GREAT BODILY HARM.] Whoever
causes great bodily harm to another, as defined in section
609.02, subdivision 8, not constituting attempted murder or
assault, as a result of operating a motor vehicle defined in
section 169.01, subdivision 2, or an aircraft or watercraft,
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of
alcohol, a controlled substance, or any combination of those
elements; or
(3) in a negligent manner while having an alcohol
concentration of 0.10 or more,; or
(4) while having an alcohol concentration of 0.10 or more,
as measured within two hours of the time of driving,
is guilty of criminal vehicular operation resulting in injury
great bodily harm and may be sentenced to imprisonment for not
more than five years or the to payment of a fine of not more
than $10,000, or both.
Subd. 2a. [RESULTING IN SUBSTANTIAL BODILY HARM.] Whoever
causes substantial bodily harm to another, as a result of
operating a motor vehicle,
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of
alcohol, a controlled substance, or any combination of those
elements;
(3) while having an alcohol concentration of 0.10 or more;
or
(4) while having an alcohol concentration of 0.10 or more,
as measured within two hours of the time of driving,
is guilty of criminal vehicular operation resulting in
substantial bodily harm and may be sentenced to imprisonment for
not more than three years or to payment of a fine of not more
than $10,000, or both.
Subd. 3. [RESULTING IN DEATH TO AN UNBORN CHILD.] Whoever
causes the death of an unborn child as a result of operating
a motor vehicle defined in section 169.01, subdivision 2, or an
aircraft or watercraft,
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of
alcohol, a controlled substance, or any combination of those
elements; or
(3) in a negligent manner while having an alcohol
concentration of 0.10 or more,; or
(4) while having an alcohol concentration of 0.10 or more,
as measured within two hours of the time of driving,
is guilty of criminal vehicular operation resulting in death to
an unborn child and may be sentenced to imprisonment for not
more than ten years or to payment of a fine of not more than
$20,000, or both. A prosecution for or conviction of a crime
under this subdivision is not a bar to conviction of or
punishment for any other crime committed by the defendant as
part of the same conduct.
Subd. 4. [RESULTING IN INJURY TO UNBORN CHILD.] Whoever
causes great bodily harm, as defined in section 609.02,
subdivision 8, to an unborn child who is subsequently born
alive, as a result of operating a motor vehicle defined in
section 169.01, subdivision 2, or an aircraft or watercraft,
(1) in a grossly negligent manner;
(2) in a negligent manner while under the influence of
alcohol, a controlled substance, or any combination of those
elements; or
(3) in a negligent manner while having an alcohol
concentration of 0.10 or more,; or
(4) while having an alcohol concentration of 0.10 or more,
as measured within two hours of the time of driving,
is guilty of criminal vehicular operation resulting in injury to
an unborn child and may be sentenced to imprisonment for not
more than five years or to payment of a fine of not more than
$10,000, or both. A prosecution for or conviction of a crime
under this subdivision is not a bar to conviction of or
punishment for any other crime committed by the defendant as
part of the same conduct.
Subd. 5. [DEFINITION.] For purposes of this section,
"motor vehicle" has the meaning given in section 609.52,
subdivision 1.
Sec. 2. [EFFECTIVE DATE.]
Section 1 is effective August 1, 1990, and applies to
crimes committed on or after that date.
ARTICLE 5
OTHER ALCOHOL-RELATED OFFENSES
Section 1. Minnesota Statutes 1988, section 169.122,
subdivision 2, is amended to read:
Subd. 2. No person shall have in possession on the person
while in a private motor vehicle upon a public highway, any
bottle or receptacle containing intoxicating liquor or
nonintoxicating malt liquor which has been opened, or the seal
broken, or the contents of which have been partially removed.
For purposes of this section, "possession" means either that the
person had actual possession of the bottle or receptacle or that
the person consciously exercised dominion and control over the
bottle or receptacle. This subdivision does not apply to a
bottle or receptacle that is in the trunk of the vehicle if it
is equipped with a trunk, or that is in another area of the
vehicle not normally occupied by the driver and passengers if
the vehicle is not equipped with a trunk.
Sec. 2. Minnesota Statutes 1988, section 340A.503,
subdivision 1, is amended to read:
Subdivision 1. [CONSUMPTION.] It is unlawful for any:
(1) retail intoxicating liquor or nonintoxicating liquor
licensee or bottle club permit holder under section 340A.414, to
permit any person under the age of 21 years to consume alcoholic
beverages on the licensed premises; or
(2) person under the age of 21 years to consume any
alcoholic beverages unless in the household of the person's
parent or guardian and with the consent of the parent or
guardian. If proven by a preponderance of the evidence, it is
an affirmative defense to a violation of this clause that the
defendant consumed the alcoholic beverage in the household of
the defendant's parent or guardian and with the consent of the
parent or guardian.
Sec. 3. Minnesota Statutes 1989 Supplement, section
340A.503, subdivision 2, is amended to read:
Subd. 2. [PURCHASING.] It is unlawful for any person:
(1) to sell, barter, furnish, or give alcoholic beverages
to a person under 21 years of age, except that a parent or
guardian of a person under the age of 21 years may give or
furnish alcoholic beverages to that person solely for
consumption in the household of the parent or guardian;
(2) under the age of 21 years to purchase or attempt to
purchase any alcoholic beverage; or
(3) to induce a person under the age of 21 years to
purchase or procure any alcoholic beverage, or to lend or
knowingly permit the use of the person's driver's license,
permit, Minnesota identification card, or other form of
identification by a person under the age of 21 years for the
purpose of purchasing or attempting to purchase an alcoholic
beverage.
If proven by a preponderance of the evidence, it shall be
an affirmative defense to a violation of clause (1) that the
defendant is the parent or guardian of the person under 21 years
of age and that the defendant gave or furnished the alcoholic
beverage to that person solely for consumption in the
defendant's household.
Sec. 4. Minnesota Statutes 1988, section 340A.503,
subdivision 3, is amended to read:
Subd. 3. [POSSESSION.] It is unlawful for a person under
the age of 21 years to possess any alcoholic beverage with the
intent to consume it at a place other than the household of the
person's parent or guardian. Possession at a place other than
the household of the parent or guardian is prima facie
evidence creates a rebuttable presumption of intent to consume
it at a place other than the household of the parent or
guardian. This presumption may be rebutted by a preponderance
of the evidence.
Sec. 5. [EFFECTIVE DATE.]
Sections 1 to 4 are effective August 1, 1990, and apply to
violations occurring on or after that date.
ARTICLE 6
AIRCRAFT OPERATION WHILE INTOXICATED PROVISIONS
Section 1. Minnesota Statutes 1989 Supplement, section
169.121, subdivision 3, is amended to read:
Subd. 3. [CRIMINAL PENALTIES.] (a) A person who violates
subdivision 1 or an ordinance in conformity with it is guilty of
a misdemeanor.
(b) A person is guilty of a gross misdemeanor who violates
subdivision 1 or an ordinance in conformity with it within five
years of a prior impaired driving conviction, or within ten
years of the first of two or more prior impaired driving
convictions.
For purposes of this paragraph, a prior impaired driving
conviction is a prior conviction under this section, section
84.91, subdivision 1, paragraph (a), 169.129, 361.12,
subdivision 1, paragraph (a), 609.21, subdivision 1, clause (2)
or (3), 609.21, subdivision 2, clause (2) or (3), 609.21,
subdivision 3, clause (2) or (3), 609.21, subdivision 4, clause
(2) or (3), section 4, or an ordinance from this state, or a
statute or ordinance from another state in conformity with any
of them. A prior impaired driving conviction also includes a
prior juvenile adjudication that would have been a prior
impaired driving conviction if committed by an adult.
(c) A person who violates subdivision 1a is guilty of a
gross misdemeanor.
(d) The attorney in the jurisdiction in which the violation
occurred who is responsible for prosecution of misdemeanor
violations of this section shall also be responsible for
prosecution of gross misdemeanor violations of this section.
When an attorney responsible for prosecuting gross
misdemeanors under this section requests criminal history
information relating to prior impaired driving convictions from
a court, the court must furnish the information without charge.
Sec. 2. Minnesota Statutes 1988, section 360.075,
subdivision 1, is amended to read:
Subdivision 1. [MISDEMEANOR.] Every person who:
(1) Operates an aircraft either on or over land or water in
this state without the consent of the owner of such aircraft; or
(2) Operates, or attempts to operate, any aircraft in this
state while under the influence of intoxicating liquor or of any
narcotic or other habit-forming drug; or
(3) Knowingly permits any individual who may be under the
influence of intoxicating liquor or of any narcotic or other
habit-forming drug to operate any aircraft owned by or in the
custody or control of such person; or
(4) Operates aircraft while in the possession of any
federal license, certificate, or permit or any certificate of
registration issued by the transportation department of this
state, or displays, or causes or permits to be displayed, such
federal license, certificate, or permit or such state
certificate of registration, knowing either to have been
canceled, revoked, suspended, or altered; or
(5) (3) Lends to, or knowingly permits the use of by, one
not entitled thereto of any federal airman's or aircraft
license, certificate, or permit, or any state airman's or
aircraft certificate of registration issued to that person; or
(6) (4) Displays or represents as the person's own any
federal airman's or aircraft license, certificate, or permit or
any state airman's or aircraft certificate of registration not
issued to that person; or
(7) (5) Tampers with, climbs upon or into, makes use of, or
navigates any aircraft without the knowledge or consent of the
owner or person having control thereof, whether while the same
is in motion or at rest, or hurls stones or any other missiles
at aircraft, or the occupants thereof, or otherwise damages or
interferes with the same, or places upon any portion of any
airport any object, obstruction, or other device tending to
injure aircraft or parts thereof; or
(8) (6) Uses a false or fictitious name, gives a false or
fictitious address, knowingly makes any false statement or
report, or knowingly conceals a material fact, or otherwise
commits a fraud in any application or form required under the
provisions of sections 360.011 to 360.076, or by any rules or
orders of the commissioner; or
(9) (7) Operates any aircraft in such a manner as to
indicate either a willful or a wanton disregard for the safety
of persons or property; or
(10) (8) Carries on or over land or water in this state in
an aircraft other than a public aircraft any explosive substance
except as permitted by the Federal Explosives Act, being the Act
of October 6, 1917, as amended by Public Law Number 775, 77th
Congress, approved November 24, 1942; or
(11) (9) Discharges a gun, pistol, or other weapon in or
from any aircraft in this state except as the hunting of certain
wild animals from aircraft may be permitted by other laws of
this state, or unless the person is the pilot or officer in
command of the aircraft or a peace officer or a member of the
military or naval forces of the United States, engaged in the
performance of duty; or
(12) (10) Carries in any aircraft, other than a public
aircraft, any shotgun, rifle, pistol, or small arms ammunition
except in the manner in which such articles may be lawfully
carried in motor vehicles in this state, or is a person excepted
from the provisions of clause (11) (9); or
(13) (11) Engages in acrobatic or stunt flying without
being equipped with a parachute and without providing any other
occupants of the aircraft with parachutes and requiring that
they be worn; or
(14) (12) While in flying over a thickly inhabited area or
over a public gathering in this state, engages in trick or
acrobatic flying or in any acrobatic feat; or
(15) (13) Except while in landing or taking off, flies at
such low levels as to endanger persons on the surface beneath,
or engages in advertising through the playing of music or
transcribed or oral announcements, or makes any noise with any
siren, horn, whistle, or other audible device which is not
necessary for the normal operation of the aircraft, except that
sound amplifying devices may be used in aircraft when operated
by or under the authority of any agency of the state or federal
government for the purpose of giving warning or instructions to
persons on the ground; or
(16) (14) Drops any object, except loose water, loose fuel,
or loose sand ballast, without the prior written consent of the
commissioner of transportation and the prior written consent of
the municipality or property owner where objects may land; drops
objects from an aircraft that endanger person or property on the
ground, or drops leaflets for any purpose whatsoever; or
(17) (15) While in flight in an aircraft, whether as a
pilot, passenger, or otherwise, endangers, kills or attempts to
kill any birds or animals or uses any aircraft for the purpose
of concentrating, driving, rallying, or stirring up migratory
waterfowl, except as may be permitted by other laws of this
state shall be guilty of a misdemeanor.
Sec. 3. Minnesota Statutes 1988, section 360.075,
subdivision 6, is amended to read:
Subd. 6. [ADDITIONAL PENALTIES, CERTAIN VIOLATIONS.] For
any violation of subdivisions 1 and 5, section 4, or of any rule
issued pursuant to section 360.015, in addition to the penalties
provided in this section or section 4, or as a condition to the
suspension of a sentence which may be imposed pursuant thereto,
the court in its discretion may prohibit the violator from
operating an aircraft within the state for such period as it may
determine, but not to exceed one year. Violation of the duly
imposed prohibition of the court may be punished as a contempt
of court. Upon a plea of guilty or conviction under said
sections, in any case involving an airman, the court shall issue
an order prohibiting the airman from exercising, in the state of
Minnesota, the privileges granted to the airman by federal
certificate for a period, in the discretion of the court, not to
exceed one year, and shall notify the commissioner of any action
involving a violation under this section or section 4 by mailing
a report to the commissioner showing the name and address of the
violator, the offense charged, the time and place of violation,
the plea, the finding of the court or jury, and the penalty
imposed.
Sec. 4. [360.0752] [AIRCRAFT OPERATORS UNDER THE INFLUENCE
OF ALCOHOL OR CONTROLLED SUBSTANCES.]
Subdivision 1. [DEFINITION.] As used in this section and
section 5, "operate" includes the acts of all crew members with
responsibility to operate the aircraft.
Subd. 2. [CRIME.] It is a crime for any person to operate
or attempt to operate an aircraft on or over land or water
within this state or over any boundary water of this state:
(a) when the person is under the influence of alcohol;
(b) when the person is under the influence of a controlled
substance, as defined in section 152.01, subdivision 4;
(c) when the person is under the influence of a combination
of any two or more of the elements named in clauses (a), (b),
and (f);
(d) when the person's alcohol concentration is 0.04 or
more;
(e) when the person's alcohol concentration as measured
within two hours of the time of operation or attempted operation
is 0.04 or more;
(f) when the person is knowingly under the influence of any
chemical compound or combination of chemical compounds that is
listed as a hazardous substance in rules adopted under section
182.655 and that affects the nervous system, brain, or muscles
of the person so as to substantially impair the person's ability
to operate the aircraft; or
(g) within eight hours of having consumed any alcoholic
beverage or used any controlled substance.
Subd. 3. [ALLOWING OPERATION.] It is a crime for any
person to knowingly permit any individual who is in violation of
subdivision 2 to operate any aircraft owned by or in the custody
or control of the person.
Subd. 4. [ARREST.] A peace officer may lawfully arrest a
person for violation of subdivision 2 without a warrant upon
probable cause, without regard to whether the violation was
committed in the officer's presence. The express grant of
arrest powers in this subdivision does not limit the arrest
powers of peace officers pursuant to sections 626.65 to 626.70
or section 629.40 in cases of arrests for violation of
subdivision 2 or any other provision of law.
Subd. 5. [EVIDENCE.] Upon the trial of any prosecution
arising out of acts alleged to have been committed by any person
arrested for operating or attempting to operate an aircraft in
violation of subdivision 2, the court may admit evidence of the
amount of alcohol or a controlled substance in the person's
blood, breath, or urine as shown by an analysis of those items.
Evidence of the refusal to take a test is admissible into
evidence in a prosecution under this section.
If proven by a preponderance of the evidence, it shall be
an affirmative defense to a violation of subdivision 2, clause
(e), that the defendant consumed a sufficient quantity of
alcohol after the time of the violation and before the
administration of the evidentiary test to cause the defendant's
alcohol concentration to exceed 0.04; provided, that this
evidence may not be admitted unless notice is given to the
prosecution prior to the omnibus or pretrial hearing in the
matter.
The foregoing provisions do not limit the introduction of
any other competent evidence bearing upon the question whether
or not the person violated this section, including tests
obtained more than two hours after the alleged violation and
results obtained from partial tests on an infrared
breath-testing instrument. A result from a partial test is the
measurement obtained by analyzing one adequate breath sample, as
defined in section 5, subdivision 4, paragraph (b).
Subd. 6. [CRIMINAL PENALTIES.] (a) A person who violates
subdivision 2, clause (g); or 3, is guilty of a misdemeanor.
(b) A person who violates subdivision 2, clauses (a) to
(f), is guilty of a gross misdemeanor.
(c) The attorney in the jurisdiction in which the violation
occurred who is responsible for prosecution of misdemeanor
violations shall also be responsible for prosecution of gross
misdemeanor violations of this section.
Subd. 7. [PRELIMINARY SCREENING TEST.] When a peace
officer has reason to believe that a person may be violating or
has violated subdivision 2, the officer may require the person
to provide a sample of the person's breath for a preliminary
screening test using a device approved by the commissioner of
public safety or the commissioner of transportation for this
purpose. The results of this preliminary screening test shall
be used for the purpose of deciding whether to require the tests
authorized in section 5, but shall not be used in any court
action except to prove that a test was properly required of a
person pursuant to section 5. Following the screening test,
additional tests may be required of the person pursuant to the
provisions of section 5.
A person who refuses to furnish a sample of the person's
breath is subject to the provisions of section 5 unless, in
compliance with section 5, the person submits to a blood,
breath, or urine test to determine the presence of alcohol or a
controlled substance.
Sec. 5. [360.0753] [TESTING PROCEDURES.]
Subdivision 1. [PEACE OFFICER DEFINED.] For purposes of
this section, the term "peace officer" means an employee of a
political subdivision or state law enforcement agency who is
licensed by the Minnesota board of peace officers standards and
training, who is charged with the prevention and detection of
crime and the enforcement of the general criminal laws of the
state, and who has full power of arrest, and shall also include
the Minnesota state patrol and metropolitan airports commission
peace officers, but does not include employees of the department
of natural resources.
Subd. 2. [IMPLIED CONSENT; CONDITIONS; ELECTION AS TO TYPE
OF TEST.] (a) Any person who operates or attempts to operate an
aircraft in or over this state or over any boundary water of
this state consents, subject to the provisions of this section
and section 4, to a chemical test of that person's blood,
breath, or urine for the purpose of determining the presence of
alcohol or a controlled substance. The test shall be
administered at the direction of a peace officer. The test may
be required of a person when an officer has probable cause to
believe the person was operating or attempting to operate an
aircraft in violation of section 4 and one of the following
conditions exists:
(1) the person has been lawfully placed under arrest for
violation of section 4;
(2) the person has been involved in an aircraft accident or
collision resulting in property damage, personal injury, or
death;
(3) the person has refused to take the screening test
provided for by section 4;
(4) the screening test was administered and recorded an
alcohol concentration of 0.04 or more; or
(5) the officer had probable cause to believe that the
person was operating or attempting to operate an aircraft with
any amount of alcohol present in the person's body.
(b) At the time a test is requested, the person shall be
informed:
(1) that Minnesota law requires the person to take a test
to determine the presence of alcohol or to determine if the
person is under the influence of alcohol or a controlled
substance;
(2) that if testing is refused, the person will be
disqualified from operating an aircraft for a minimum period of
one year;
(3) that if a test is taken and the results indicate an
alcohol concentration of 0.04 or more or that the person is
under the influence of a controlled substance, the person will
be subject to criminal penalties and the person may be
prohibited from operating an aircraft in this state for up to
one year;
(4) that after submitting to testing, the person has the
right to consult with an attorney and to have additional tests
made by someone of the person's own choosing; and
(5) that if the person refuses to take a test, the refusal
will be offered into evidence against the person at trial.
(c) The peace officer who requires a test pursuant to this
subdivision may direct whether the test shall be of blood,
breath, or urine. Action may be taken against a person who
refuses to take a blood test only if an alternative test was
offered, and action may be taken against a person who refuses to
take a urine test only if an alternative test was offered.
Subd. 3. [REQUIREMENT OF URINE OR BLOOD TEST.]
Notwithstanding subdivision 2, if there is probable cause to
believe there is impairment by a controlled substance that is
not subject to testing by a breath test, a urine or blood test
may be required even after a breath test has been administered.
Action may be taken against a person who refuses to take a blood
test under this subdivision only if a urine test was offered,
and action may be taken against a person who refuses to take a
urine test only if a blood test was offered.
Subd. 4. [BREATH TEST USING AN INFRARED BREATH-TESTING
INSTRUMENT.] (a) In the case of a breath test administered using
an infrared breath-testing instrument, the test shall consist of
analyses in the following sequence: one adequate breath sample
analysis, one calibration standard analysis, and a second,
adequate breath sample analysis.
(b) In the case of a test administered using an infrared
breath-testing instrument, a sample is adequate if the
instrument analyzes the sample and does not indicate the sample
is deficient.
(c) For purposes of this section, when a test is
administered using an infrared breath-testing instrument,
failure of a person to provide two separate, adequate breath
samples in the proper sequence constitutes a refusal.
Subd. 5. [CONSENT OF PERSON INCAPABLE OF REFUSAL NOT
WITHDRAWN.] A person who is unconscious or who is otherwise in a
condition rendering the person incapable of refusal is deemed
not to have withdrawn the consent provided by subdivision 2 and
the test may be given.
Subd. 6. [MANNER OF MAKING TEST; ADDITIONAL TESTS.] Only a
physician, medical technician, physician's trained mobile
intensive care paramedic, registered nurse, medical
technologist, or laboratory assistant acting at the request of a
peace officer may withdraw blood for the purpose of determining
the presence of alcohol or controlled substance. This
limitation does not apply to the taking of a breath or urine
sample. The person tested has the right to have someone of the
person's own choosing administer a chemical test or tests in
addition to any administered at the direction of a peace
officer; provided, that the additional test sample on behalf of
the person is obtained at the place where the person is in
custody, after the test administered at the direction of a peace
officer, and at no expense to the state. The failure or
inability to obtain an additional test or tests by a person
shall not preclude the admission in evidence of the test taken
at the direction of a peace officer unless the additional test
was prevented or denied by the peace officer. The physician,
medical technician, physician's trained mobile intensive care
paramedic, medical technologist, laboratory assistant, or
registered nurse drawing blood at the request of a peace officer
for the purpose of determining alcohol concentration shall in no
manner be liable in any civil or criminal action except for
negligence in drawing the blood. The person administering a
breath test shall be fully trained in the administration of
breath tests pursuant to training given by the commissioner of
public safety or the commissioner of transportation.
Subd. 7. [REFUSAL TO PERMIT TEST; CEASE AND DESIST ORDER.]
If a person under arrest refuses to permit chemical testing,
none shall be given, but the commissioner of transportation,
upon the receipt of a certificate of the peace officer that the
officer had reasonable and probable grounds to believe the
arrested person had been operating or attempting to operate an
aircraft in violation of section 4 and that the person had
refused to permit the test, shall issue a cease and desist order
prohibiting the operation of an aircraft for a period of one
year.
Subd. 8. [NOTICE OF CEASE AND DESIST ORDER; REQUEST FOR
HEARING.] No cease and desist order under subdivision 7 shall be
made until the commissioner notifies the person by certified
mail of intention to issue a cease and desist order and allows
the person a 20-day period after the date of receiving the
notice to request of the commissioner, in writing, a hearing as
herein provided. If no request is filed within the 20-day
period, the commissioner may then issue a cease and desist order.
However, if a request for hearing is filed, no cease and desist
order shall be made until final judicial determination resulting
in an adverse decision to the person.
Subd. 9. [HEARING.] The hearing shall be before a district
court in the county where the arrest occurred, unless there is
agreement that the hearing may be held in some other county.
The hearing shall be recorded and proceed as in a criminal
matter, without the right of trial by jury, and its scope shall
cover the issues of whether the peace officer had reasonable and
probable grounds to believe the person was operating or
attempting to operate an aircraft in violation of section 4;
whether the person was lawfully placed under arrest; whether the
person refused to permit the test, and if the person refused
whether the person had reasonable grounds for refusing to permit
the test; and whether at the time of request for the test the
peace officer informed the person that the right to fly might be
denied if the person refused to permit the test and of the right
to have additional tests made by someone of the person's own
choosing. The court shall order either that the denial be
rescinded or sustained and refer the order to the commissioner
of transportation for further action.
Subd. 10. [NOTICE OF ACTION TO OTHER STATES.] When it has
been finally determined that a nonresident's privilege to
operate an aircraft in this state has been denied, the
commissioner shall give information in writing of the action
taken to the appropriate federal authorities and any state in
which the nonresident operates an aircraft or has a license to
operate an aircraft.
Sec. 6. [REPEALER.]
Minnesota Statutes 1988, sections 360.075, subdivision 7;
and 360.0751, are repealed.
ARTICLE 7
CONTROLLED SUBSTANCES OFFENSES
Section 1. Minnesota Statutes 1989 Supplement, section
152.021, is amended to read:
152.021 [CONTROLLED SUBSTANCE CRIME IN THE FIRST DEGREE.]
Subdivision 1. [SALE CRIMES.] A person is guilty of
controlled substance crime in the first degree if:
(1) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures containing ten
grams or more of a total weight of ten grams or more containing
cocaine base;
(2) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures of a total weight
of 50 grams or more containing a narcotic drug;
(3) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures of a total weight
of 50 grams or more containing methamphetamine, amphetamine,
phencyclidine, or hallucinogen or, if the controlled substance
is packaged in dosage units, equaling 200 or more dosage units;
or
(4) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures of a total weight
of 100 50 kilograms or more containing marijuana or
Tetrahydrocannabinols.
Subd. 2. [POSSESSION CRIMES.] A person is guilty of a
controlled substance crime in the first degree if:
(1) the person unlawfully possesses one or more mixtures
containing 25 grams or more of a total weight of 25 grams or
more containing cocaine base;
(2) the person unlawfully possesses one or more mixtures of
a total weight of 500 grams or more containing a narcotic drug;
(3) the person unlawfully possesses one or more mixtures of
a total weight of 500 grams or more containing methamphetamine,
amphetamine, phencyclidine, or hallucinogen or, if the
controlled substance is packaged in dosage units, equaling 500
or more dosage units; or
(4) the person unlawfully possesses one or more mixtures of
a total weight of 100 kilograms or more containing marijuana or
Tetrahydrocannabinols.
Subd. 3. [PENALTY.] (a) A person convicted under
subdivision 1 or 2 may be sentenced to imprisonment for not more
than 30 years or to payment of a fine of not more than
$1,000,000, or both.
(b) If the conviction is a subsequent controlled substance
conviction, a person convicted under subdivision 1 or 2 shall be
sentenced to imprisonment for not less than four years nor more
than 40 years or to payment of a fine of not more than
$1,000,000, or both.
(c) In a prosecution under subdivision 1 involving sales by
the same person in two or more counties within a 90-day period,
the person may be prosecuted for all of the sales in any county
in which one of the sales occurred.
Sec. 2. Minnesota Statutes 1989 Supplement, section
152.022, is amended to read:
152.022 [CONTROLLED SUBSTANCE CRIME IN THE SECOND DEGREE.]
Subdivision 1. [SALE CRIMES.] A person is guilty of
controlled substance crime in the second degree if:
(1) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures containing three
grams or more of a total weight or three grams or more
containing cocaine base;
(2) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures of a total weight
of ten grams or more containing a narcotic drug;
(3) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures of a total weight
of ten grams or more containing methamphetamine, amphetamine,
phencyclidine, or hallucinogen or, if the controlled substance
is packaged in dosage units, equaling 50 or more dosage units;
(4) on one or more occasions within a 90-day period the
person unlawfully sells one or more mixtures of a total weight
of 50 25 kilograms or more containing marijuana or
Tetrahydrocannabinols; or
(5) the person unlawfully sells any amount of a schedule I
or II narcotic drug, and:
(i) the person unlawfully sells the substance to a person
under the age of 18, or conspires with or employs a person under
the age of 18 to unlawfully sell the substance; or
(ii) the sale occurred in a school zone or a park zone.
(6) the person unlawfully sells any amount of a schedule I
or II narcotic drug in a school zone or a park zone.
Subd. 2. [POSSESSION CRIMES.] A person is guilty of
controlled substance crime in the second degree if:
(1) the person unlawfully possesses one or more mixtures
containing six grams or more of a total weight of six grams or
more containing cocaine base;
(2) the person unlawfully possesses one or more mixtures of
a total weight of 50 grams or more containing a narcotic drug;
(3) the person unlawfully possesses one or more mixtures of
a total weight of 50 grams or more containing methamphetamine,
amphetamine, phencyclidine, or hallucinogen or, if the
controlled substance is packaged in dosage units, equaling 100
or more dosage units; or
(4) the person unlawfully possesses one or more mixtures of
a total weight of 50 kilograms or more containing marijuana or
Tetrahydrocannabinols.
Subd. 3. [PENALTY.] (a) A person convicted under
subdivision 1 or 2 may be sentenced to imprisonment for not more
than 25 years or to payment of a fine of not more than $500,000,
or both.
(b) If the conviction is a subsequent controlled substance
conviction, a person convicted under subdivision 1 or 2 shall be
sentenced to imprisonment for not less than three years nor more
than 40 years or to payment of a fine of not more than $500,000,
or both.
(c) In a prosecution under subdivision 1 involving sales by
the same person in two or more counties within a 90-day period,
the person may be prosecuted for all of the sales in any county
in which one of the sales occurred.
Sec. 3. Minnesota Statutes 1989 Supplement, section
152.023, subdivision 1, is amended to read:
Subdivision 1. [SALE CRIMES.] A person is guilty of
controlled substance crime in the third degree if:
(1) the person unlawfully sells one or more mixtures
containing a narcotic drug;
(2) the person unlawfully sells one or more mixtures
containing phencyclidine or hallucinogen, it is packaged in
dosage units, and equals ten or more dosage units;
(3) the person unlawfully sells one or more mixtures
containing a controlled substance classified in schedule I, II,
or III, except a schedule I or II narcotic drug, marijuana or
Tetrahydrocannabinols, to a person under the age of 18; or
(4) the person conspires with or employs a person under the
age of 18 to unlawfully sell one or more mixtures containing a
controlled substance listed in schedule I, II, or III, except a
schedule I or II narcotic drug, marijuana or
Tetrahydrocannabinols; or
(5) the person unlawfully sells one or more mixtures of a
total weight of five kilograms or more containing marijuana or
Tetrahydrocannabinols.
Sec. 4. Minnesota Statutes 1989 Supplement, section
152.023, subdivision 2, is amended to read:
Subd. 2. [POSSESSION CRIMES.] A person is guilty of
controlled substance crime in the third degree if:
(1) the person unlawfully possesses one or more mixtures
containing three grams or more of a total weight of three grams
or more containing cocaine base;
(2) the person unlawfully possesses one or more mixtures of
a total weight of ten grams or more containing a narcotic drug;
(3) the person unlawfully possesses one or more mixtures
containing a narcotic drug with the intent to sell it;
(4) the person unlawfully possesses one or more mixtures
containing a narcotic drug, it is packaged in dosage units, and
equals 50 or more dosage units; or
(5) the person unlawfully possesses any amount of a
schedule I or II narcotic drug in a school zone or a park zone.;
or
(6) the person unlawfully possesses one or more mixtures of
a total weight of ten kilograms or more containing marijuana or
Tetrahydrocannabinols.
Sec. 5. Minnesota Statutes 1989 Supplement, section
152.024, subdivision 1, is amended to read:
Subdivision 1. [SALE CRIMES.] A person is guilty of
controlled substance crime in the fourth degree if:
(1) the person unlawfully sells one or more mixtures
containing a controlled substance classified in schedule I, II,
or III, except marijuana or Tetrahydrocannabinols;
(2) the person unlawfully sells one or more mixtures
containing marijuana or Tetrahydrocannabinols to a person under
the age of 18;
(3) the person conspires with or employs a person under the
age of 18 to unlawfully sell one or more mixtures containing
marijuana or Tetrahydrocannabinols;
(4) the person unlawfully sells one or more mixtures
containing a controlled substance classified in schedule IV or V
to a person under the age of 18; or
(5) (3) the person conspires with or employs a person under
the age of 18 to unlawfully sell a controlled substance
classified in schedule IV or V.
Sec. 6. Minnesota Statutes 1989 Supplement, section
152.025, subdivision 2, is amended to read:
Subd. 2. [POSSESSION AND OTHER CRIMES.] A person is guilty
of controlled substance crime in the fifth degree if:
(1) the person unlawfully possesses one or more mixtures
containing a controlled substance classified in schedule I, II,
III, or IV, except a small amount of marijuana; or
(2) the person unlawfully possesses one or more mixtures
containing marijuana or Tetrahydrocannabinols with the intent to
sell it, except a small amount of marijuana for no remuneration;
or
(3) the person procures, attempts to procure, possesses, or
has control over a controlled substance by any of the following
means:
(i) fraud, deceit, misrepresentation, or subterfuge;
(ii) using a false name or giving false credit; or
(iii) falsely assuming the title of, or falsely
representing any person to be, a manufacturer, wholesaler,
pharmacist, physician, doctor of osteopathy licensed to practice
medicine, dentist, podiatrist, veterinarian, or other authorized
person for the purpose of obtaining a controlled substance.
Sec. 7. [152.0261] [IMPORTING CONTROLLED SUBSTANCES ACROSS
STATE BORDERS.]
Subdivision 1. [FELONY.] A person who crosses a state or
international border into Minnesota while in possession of an
amount of a controlled substance that constitutes a first degree
controlled substance crime under section 152.021, subdivision 2,
is guilty of importing controlled substances and may be
sentenced as provided in subdivision 3.
Subd. 2. [JURISDICTION.] A violation of subdivision 1 may
be charged, indicted, and tried in any county, but not more than
one county, into or through which the actor has brought the
controlled substance.
Subd. 3. [PENALTY.] A person convicted of violating this
section is guilty of a felony and may be sentenced to
imprisonment for not more than 35 years or to payment of a fine
of not more than $1,250,000, or both.
Sec. 8. Minnesota Statutes 1989 Supplement, section
152.028, subdivision 2, is amended to read:
Subd. 2. [PASSENGER AUTOMOBILES.] The presence of a
controlled substance in a passenger automobile permits the
factfinder to infer knowing possession of the controlled
substance by the driver or person in control of the automobile
when the controlled substance was in the automobile. This
inference may only be made if the defendant is charged with
violating section 152.021, 152.022, or 152.023, or section 7.
The inference does not apply:
(1) to a duly licensed operator of an automobile who is at
the time operating it for hire in the lawful and proper pursuit
of the operator's trade;
(2) to any person in the automobile if one of them legally
possesses a controlled substance; or
(3) when the controlled substance is concealed on the
person of one of the occupants.
Sec. 9. [EFFECTIVE DATE.]
Sections 1 to 8 are effective August 1, 1990, and apply to
crimes committed on or after that date.
ARTICLE 8
PRESENTENCE INVESTIGATIONS
Section 1. Minnesota Statutes 1989 Supplement, section
609.115, subdivision 1, is amended to read:
Subdivision 1. [PRESENTENCE INVESTIGATION.] When a
defendant has been convicted of a misdemeanor or gross
misdemeanor, the court may, and when the defendant has been
convicted of a felony, the court shall, before sentence is
imposed, cause a presentence investigation and written report to
be made to the court concerning the defendant's individual
characteristics, circumstances, needs, potentialities, criminal
record and social history, the circumstances of the offense and
the harm caused by it to others and to the community. At the
request of the prosecutor in a gross misdemeanor case, the court
shall order that a presentence investigation and report be
prepared. When the crime is a felony violation of chapter 152
involving the sale or distribution of a controlled substance,
the report shall include a description of any adverse social or
economic effects the offense has had on persons who reside in
the neighborhood where the offense was committed.
The report shall also include the information relating to
crime victims required under section 611A.037, subdivision 1.
If the court directs, the report shall include an estimate of
the prospects of the defendant's rehabilitation and
recommendations as to the sentence which should be imposed. In
misdemeanor cases the report may be oral.
When a defendant has been convicted of a felony, and before
sentencing, the court shall cause a sentencing worksheet to be
completed to facilitate the application of the Minnesota
sentencing guidelines. The worksheet shall be submitted as part
of the presentence investigation report.
The investigation shall be made by a probation officer of
the court, if there is one, otherwise by the commissioner of
corrections. The officer conducting the presentence or
predispositional investigation shall make reasonable and good
faith efforts to contact the victim of that crime and to provide
that victim with the information required under section
611A.037, subdivision 2.
Pending the presentence investigation and report, When a
person is convicted of a felony for which the sentencing
guidelines presume that the defendant will be committed to the
commissioner of corrections under an executed sentence and no
motion for a sentencing departure has been made by counsel, the
court with the consent of the commissioner may commit the
defendant to the custody of the commissioner of corrections who,
pending completion of the presentence investigation and report.
When a defendant is convicted of a felony for which the
sentencing guidelines do not presume that the defendant will be
committed to the commissioner of corrections, or for which the
sentencing guidelines presume commitment to the commissioner but
counsel has moved for a sentencing departure, the court may
commit the defendant to the commissioner with the consent of the
commissioner, pending completion of the presentence
investigation and report. The commissioner shall return the
defendant to the court when the court so orders.
Presentence investigations shall be conducted and summary
hearings held upon reports and upon the sentence to be imposed
upon the defendant in accordance with this section, section
244.10, and the rules of criminal procedure.
Presented to the governor April 28, 1990
Signed by the governor May 3, 1990, 10:46 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes