Office of the Revisor of Statutes
Minnesota Session Laws - 1999, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 194-S.F.No. 1382
An act relating to crime prevention; repealing
provisions and striking language related to the
enhanced gross misdemeanor DWI crime; expanding the
gross misdemeanor DWI crime, probationary period, and
mandatory sentencing provisions; requiring mandatory
consecutive sentences for certain DWI-related
offenses; amending Minnesota Statutes 1998, sections
169.121, subdivisions 1c, 3, and 3d; 169.129,
subdivision 1; 609.02, subdivision 2; 609.035,
subdivision 2; 609.105, subdivisions 1 and 3; 609.135,
subdivision 2; and 609.15, subdivision 2; repealing
Minnesota Statutes 1998, sections 169.121, subdivision
3e; 169.129, subdivision 2; and 609.02, subdivision 2a.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1998, section 169.121,
subdivision 1c, is amended to read:
Subd. 1c. [CONDITIONAL RELEASE.] (a) Unless maximum bail
is imposed under section 629.471, subdivision 2, a person
charged with a crime listed in this paragraph may be released
from detention only if the person agrees to abstain from alcohol
and submit to a program of electronic alcohol monitoring
involving at least daily measurements of the person's alcohol
concentration pending resolution of the charge. This paragraph
applies only when electronic alcohol monitoring equipment is
available to the court and only when a person is charged with:
(1) a violation of subdivision 1 or 1a within five years of
two prior impaired driving convictions, or within ten years of
three or more prior impaired driving convictions;
(2) a second or subsequent violation of subdivision 1 or
1a, if the person is under the age of 19 years;
(3) a violation of subdivision 1 or 1a, while the person's
driver's license or driving privileges have been canceled under
section 171.04, subdivision 1, clause (9);
(4) a violation of subdivision 1, clause (f); or
(5) a violation of section 169.129.
If the defendant is convicted of the charged offense, The
court shall require partial or total reimbursement from the
person for the cost of the electronic alcohol monitoring, to the
extent the defendant is able to pay.
(b) Unless maximum bail is imposed under section 629.471,
subdivision 2, a person charged with violating subdivision 1 or
1a within ten years of the first of three prior impaired driving
convictions or within the person's lifetime after four or more
prior impaired driving convictions may be released from
detention only if the following conditions are imposed in
addition to the condition imposed in paragraph (a), if
applicable, and any other conditions of release ordered by the
court:
(1) the impoundment of the registration plates of the
vehicle used to commit the violation, unless already impounded;
(2) if the vehicle used to commit the violation was an
off-road recreational vehicle or a motorboat, the impoundment of
the off-road recreational vehicle or motorboat;
(3) a requirement that the alleged violator report weekly
to a probation agent;
(4) a requirement that the alleged violator abstain from
consumption of alcohol and controlled substances and submit to
random alcohol tests or urine analyses at least weekly; and
(5) a requirement that, if convicted, the alleged violator
reimburse the court or county for the total cost of these
services.
Sec. 2. Minnesota Statutes 1998, section 169.121,
subdivision 3, is amended to read:
Subd. 3. [CRIMINAL PENALTIES.] (a) As used in this section:
(1) "Prior impaired driving conviction" means a prior
conviction under:
(i) this section; Minnesota Statutes 1996, section 84.91,
subdivision 1, paragraph (a), or 86B.331, subdivision 1,
paragraph (a); section 169.1211; section 169.129; or section
360.0752;
(ii) section 609.21, subdivision 1, clauses (2) to (6);
subdivision 2, clauses (2) to (6); subdivision 2a, clauses (2)
to (6); subdivision 2b, clauses (2) to (6); subdivision 3,
clauses (2) to (6); or subdivision 4, clauses (2) to (6); or
(iii) an ordinance from this state, or a statute or
ordinance from another state, in conformity with any provision
listed in item (i) or (ii).
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.
(2) "Prior license revocation" means a driver's license
suspension, revocation, cancellation, denial, or
disqualification under:
(i) this section or section 169.1211, 169.123, 171.04,
171.14, 171.16, 171.165, 171.17, or 171.18 because of an
alcohol-related incident;
(ii) section 609.21, subdivision 1, clauses (2) to (6);
subdivision 2, clauses (2) to (6); subdivision 2a, clauses (2)
to (6); subdivision 2b, clauses (2) to (6); subdivision 3,
clauses (2) to (6); or subdivision 4, clauses (2) to (6); or
(iii) an ordinance from this state, or a statute or
ordinance from another state, in conformity with any provision
listed in item (i) or (ii).
"Prior license revocation" also means the revocation of
snowmobile or all-terrain vehicle operating privileges under
section 84.911, or motorboat operating privileges under section
86B.335, for violations that occurred on or after August 1, 1995.
(b) A person who violates subdivision 1, clause (a), (b),
(c), (d), (e), (g), or (h), or subdivision 1a, or an ordinance
in conformity with any of them, is guilty of a misdemeanor.
(c) A person is guilty of a gross misdemeanor under any of
the following circumstances:
(1) the person violates subdivision 1, clause (f);
(2) the person violates subdivision 1, clause (a), (b),
(c), (d), (e), (g), or (h), or subdivision 1a,:
(i) within five years of a prior impaired driving
conviction or a prior license revocation; or
(ii) within ten years of the first of two or more prior
impaired driving convictions, two or more prior license
revocations, or any combination of two or more prior impaired
driving convictions and prior license revocations, based on
separate incidents;
(3) the person violates section 169.26 while in violation
of subdivision 1; or
(4) the person violates subdivision 1 or 1a while a child
under the age of 16 is in the vehicle, if the child is more than
36 months younger than the violator.
A person convicted of a gross misdemeanor under this
paragraph is subject to the mandatory penalties provided in
subdivision 3d.
(d) A person is guilty of an enhanced gross misdemeanor
under any of the following circumstances:
(1) the person violates subdivision 1, clause (f), or
commits a violation described in paragraph (c), clause (3) or
(4), within ten years of one or more prior impaired driving
convictions or prior license revocations;
(2) the person violates subdivision 1, clause (a), (b),
(c), (d), (e), (g), or (h), or subdivision 1a, within ten years
of the first of two or more prior impaired driving convictions,
two or more prior license revocations, or any combination of two
or more prior impaired driving convictions and prior license
revocations, based on separate incidents.
A person convicted of an enhanced gross misdemeanor under
this paragraph may be sentenced to imprisonment in a local
correctional facility for not more than two years or to payment
of a fine of not more than $3,000, or both. Additionally, the
person is subject to the applicable mandatory penalties provided
in subdivision 3e.
(e) The court shall notify a person convicted of violating
subdivision 1 or 1a that the registration plates of the person's
motor vehicle may be impounded under section 168.042 and the
vehicle may be subject to forfeiture under section 169.1217 upon
a subsequent conviction for violating this section, section
169.129, or section 171.24, or a subsequent license revocation
under section 169.123. The notice must describe the conduct and
the time periods within which the conduct must occur in order to
result in plate impoundment or forfeiture. The failure of the
court to provide this information does not affect the
applicability of the plate impoundment or the forfeiture
provision to that person.
(f) (e) 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 and enhanced gross
misdemeanor violations of this section.
(g) (f) The court must impose consecutive sentences when it
sentences a person for a violation of this section or section
169.129 arising out of separate behavioral incidents. The court
also must impose a consecutive sentence when it sentences a
person for a violation of this section or section 169.129 and
the person, at the time of sentencing, is on probation for, or
serving, an executed sentence for a violation of this section or
section 169.129 and the prior sentence involved a separate
behavioral incident. The court also may order that the sentence
imposed for a violation of this section or section 169.129 shall
run consecutively to a previously imposed misdemeanor, gross
misdemeanor or felony sentence for a violation other than this
section or section 169.129.
(h) (g) When the court stays the sentence of a person
convicted under this section, the length of the stay is governed
by section 609.135, subdivision 2.
(i) (h) The court may impose consecutive sentences for
offenses arising out of a single course of conduct as permitted
in section 609.035, subdivision 2.
(i) The court shall impose consecutive sentences for a
violation of this section or section 169.129 and an offense
listed in section 609.035, subdivision 2, paragraph (f), arising
out of the same course of conduct, as required by section
609.035, subdivision 2, paragraph (g).
(j) When an attorney responsible for prosecuting gross
misdemeanors or enhanced 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.
(k) A violation of subdivision 1a may be prosecuted either
in the jurisdiction where the arresting officer observed the
defendant driving, operating, or in control of the motor vehicle
or in the jurisdiction where the refusal occurred.
Sec. 3. Minnesota Statutes 1998, section 169.121,
subdivision 3d, is amended to read:
Subd. 3d. [GROSS MISDEMEANOR; MANDATORY PENALTIES.] (a)
The mandatory penalties in this subdivision apply to persons
convicted of a gross misdemeanor under subdivision 3, paragraph
(c), or section 169.129.
(b) A person who is convicted of a gross misdemeanor under
subdivision 3, paragraph (c), or is convicted of a gross
misdemeanor violation of section 169.129 within five years of a
prior impaired driving conviction or prior license revocation,
must be sentenced to a minimum of 30 days imprisonment, at least
48 hours of which must be served consecutively, or to eight
hours of community work service for each day less than 30 days
that the person is ordered to serve in jail. Notwithstanding
section 609.135, the above sentence must be executed, unless the
court departs from the mandatory minimum sentence under
paragraph (c) (f) or (d) (g).
(c) A person who is convicted of a gross misdemeanor under
subdivision 3, paragraph (c), or is convicted of a gross
misdemeanor violation of section 169.129 within ten years of two
prior impaired driving convictions, two prior license
revocations, or a combination of the two based on separate
instances, must be sentenced to either:
(1) a minimum of 90 days incarceration, at least 30 days of
which must be served consecutively in a local correctional
facility; or
(2) a program of intensive supervision of the type
described in section 169.1265 that requires the person to
consecutively serve at least six days in a local correctional
facility.
The court may order that the person serve not more than 60 days
of the minimum penalty under clause (1) on home detention or in
an intensive probation program described in section 169.1265.
Notwithstanding section 609.135, the penalties in this paragraph
must be imposed and executed.
(d) A person who is convicted of a gross misdemeanor under
subdivision 3, paragraph (c), or is convicted of a gross
misdemeanor violation of section 169.129 within ten years of
three prior impaired driving convictions, three prior license
revocations, or a combination of the two based on separate
instances, must be sentenced to either:
(1) a minimum of 180 days of incarceration, at least 30
days of which must be served consecutively in a local
correctional facility; or
(2) a program of intensive supervision of the type
described in section 169.1265 that requires the person to
consecutively serve at least six days in a local correctional
facility.
The court may order that the person serve not more than 150 days
of the minimum penalty under clause (1) on home detention or in
an intensive probation program described in section 169.1265.
Notwithstanding section 609.135, the penalties in this paragraph
must be imposed and executed.
(e) A person who is convicted of a gross misdemeanor under
subdivision 3, paragraph (c), or is convicted of a gross
misdemeanor violation of section 169.129 within 15 years of four
prior impaired driving convictions, four prior license
revocations, or a combination of the two based on separate
instances; or anytime after five or more prior impaired driving
convictions, five or more prior license revocations, or a
combination of the two based on separate instances, must be
sentenced to either:
(1) a minimum of one year of incarceration, at least 60
days of which must be served consecutively in a local
correctional facility; or
(2) a program of intensive supervision of the type
described in section 169.1265 that requires the person to
consecutively serve at least six days in a local correctional
facility.
The court may order that the person serve the remainder of the
minimum penalty under clause (1) on intensive probation using an
electronic monitoring system or, if such a system is
unavailable, on home detention. Notwithstanding section
609.135, the penalties in this paragraph must be imposed and
executed.
(f) Prior to sentencing, the prosecutor may file a motion
to have the a defendant described in paragraph (b) sentenced
without regard to the mandatory minimum sentence established
by this subdivision that paragraph. The motion must be
accompanied by a statement on the record of the reasons for it.
When presented with the prosecutor's motion and if it finds that
substantial mitigating factors exist, the court shall sentence
the defendant without regard to the mandatory minimum sentence
established by this subdivision paragraph (b).
(d) (g) The court may, on its own motion, sentence the a
defendant described in paragraph (b) without regard to the
mandatory minimum sentence established by this subdivision that
paragraph if it finds that substantial mitigating factors exist
and if its sentencing departure is accompanied by a statement on
the record of the reasons for it. The court also may sentence
the defendant without regard to the mandatory minimum sentence
established by this subdivision paragraph (b) if the defendant
is sentenced to probation and ordered to participate in a
program established under section 169.1265.
(e) (h) When any portion of the sentence required by this
subdivision paragraph (b) is not executed, the court should
impose a sentence that is proportional to the extent of the
offender's prior criminal and moving traffic violation record.
Any sentence required under this subdivision paragraph (b) must
include a mandatory sentence that is not subject to suspension
or a stay of imposition or execution, and that includes
incarceration for not less than 48 consecutive hours or at least
80 hours of community work service.
Sec. 4. Minnesota Statutes 1998, section 169.129,
subdivision 1, is amended to read:
Subdivision 1. [CRIME.] It is a crime gross misdemeanor
for any person to drive, operate, or be 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
driving privilege has been reinstated following its
cancellation, suspension, revocation, disqualification, or
denial under any of the following:
(1) section 169.121, 169.1211, or 169.123;
(2) section 171.04, 171.14, 171.16, 171.17, or 171.18
because of an alcohol-related incident;
(3) section 609.21, subdivision 1, clauses (2) to (6);
subdivision 2, clauses (2) to (6); subdivision 2a, clauses (2)
to (6); subdivision 2b, clauses (2) to (6); subdivision 3,
clauses (2) to (6); or subdivision 4, clauses (2) to (6).
Sec. 5. Minnesota Statutes 1998, section 609.02,
subdivision 2, is amended to read:
Subd. 2. [FELONY.] "Felony" means a crime, other than an
enhanced gross misdemeanor, for which a sentence of imprisonment
for more than one year may be imposed.
Sec. 6. Minnesota Statutes 1998, section 609.035,
subdivision 2, is amended to read:
Subd. 2. (a) When a person is being sentenced for a
violation of a provision listed in paragraph (f), the court may
sentence the person to a consecutive term of imprisonment for a
violation of any other provision listed in paragraph (f),
notwithstanding the fact that the offenses arose out of the same
course of conduct, subject to the limitation on consecutive
sentences contained in section 609.15, subdivision 2, and except
as provided in paragraphs (b), (c), and (d), and (g) of this
subdivision.
(b) When a person is being sentenced for a violation of
section 169.129 the court may not impose a consecutive sentence
for a violation of a provision of section 169.121, subdivision
1, or for a violation of a provision of section 171.20, 171.24,
or 171.30.
(c) When a person is being sentenced for a violation of
section 171.20, 171.24, or 171.30, the court may not impose a
consecutive sentence for another violation of a provision in
chapter 171.
(d) When a person is being sentenced for a violation of
section 169.791 or 169.797, the court may not impose a
consecutive sentence for another violation of a provision of
sections 169.79 to 169.7995.
(e) This subdivision does not limit the authority of the
court to impose consecutive sentences for crimes arising on
different dates or to impose a consecutive sentence when a
person is being sentenced for a crime and is also in violation
of the conditions of a stayed or otherwise deferred sentence
under section 609.135.
(f) This subdivision applies to misdemeanor and gross
misdemeanor violations of the following if the offender has two
or more prior impaired driving convictions as defined in section
169.121, subdivision 3:
(1) section 169.121, subdivision 1, driving while
intoxicated;
(2) section 169.121, subdivision 1a, testing refusal;
(3) section 169.129, aggravated driving while intoxicated;
(4) section 169.791, failure to provide proof of insurance;
(5) section 169.797, failure to provide vehicle insurance;
(6) section 171.20, subdivision 2, operation after
revocation, suspension, cancellation, or disqualification;
(7) section 171.24, driving without valid license;
(8) section 171.30, violation of condition of limited
license; and
(9) section 609.487, fleeing a peace officer.
(g) When a court is sentencing an offender for a violation
of section 169.121 or 169.129 and a violation of an offense
listed in paragraph (f), and the offender has five or more prior
impaired driving convictions, five or more prior license
revocations, or a combination of the two based on separate
instances, within the person's lifetime, the court shall
sentence the offender to serve consecutive sentences for the
offenses, notwithstanding the fact that the offenses arose out
of the same course of conduct.
Sec. 7. Minnesota Statutes 1998, section 609.105,
subdivision 1, is amended to read:
Subdivision 1. Except as otherwise provided in subdivision
3, A sentence to imprisonment for more than one year shall
commit the defendant to the custody of the commissioner of
corrections.
Sec. 8. Minnesota Statutes 1998, section 609.105,
subdivision 3, is amended to read:
Subd. 3. A sentence to imprisonment for an enhanced gross
misdemeanor or for a period of one year or any lesser period
shall be to a workhouse, work farm, county jail, or other place
authorized by law.
Sec. 9. Minnesota Statutes 1998, section 609.135,
subdivision 2, is amended to read:
Subd. 2. [STAY OF SENTENCE MAXIMUM PERIODS.] (a) If the
conviction is for a felony the stay shall be for not more than
four years or the maximum period for which the sentence of
imprisonment might have been imposed, whichever is longer.
(b) If the conviction is for an enhanced gross misdemeanor
violation of section 169.121 or 169.129, the stay shall be for
not more than six years. The court shall provide for
unsupervised probation for the last year of the stay unless the
court finds that the defendant needs supervised probation for
all or part of the last year.
(c) If the conviction is for a gross misdemeanor violation
of section 169.121 or 169.129, the stay shall be for not more
than four six years. The court shall provide for unsupervised
probation for the last year of the stay unless the court finds
that the defendant needs supervised probation for all or part of
the last year.
(d) (c) If the conviction is for a gross misdemeanor not
specified in paragraph (c) (b), the stay shall be for not more
than two years.
(e) (d) If the conviction is for any misdemeanor under
section 169.121; 609.746, subdivision 1; 609.79; or 617.23; or
for a misdemeanor under section 609.2242 or 609.224, subdivision
1, in which the victim of the crime was a family or household
member as defined in section 518B.01, the stay shall be for not
more than two years. The court shall provide for unsupervised
probation for the second year of the stay unless the court finds
that the defendant needs supervised probation for all or part of
the second year.
(f) (e) If the conviction is for a misdemeanor not
specified in paragraph (e) (d), the stay shall be for not more
than one year.
(g) (f) The defendant shall be discharged six months after
the term of the stay expires, unless the stay has been revoked
or extended under paragraph (h) (g), or the defendant has
already been discharged.
(h) (g) Notwithstanding the maximum periods specified for
stays of sentences under paragraphs (a) to (g) (f), a court may
extend a defendant's term of probation for up to one year if it
finds, at a hearing conducted under subdivision 1a, that:
(1) the defendant has not paid court-ordered restitution or
a fine in accordance with the payment schedule or structure; and
(2) the defendant is likely to not pay the restitution or
fine the defendant owes before the term of probation expires.
This one-year extension of probation for failure to pay
restitution or a fine may be extended by the court for up to one
additional year if the court finds, at another hearing conducted
under subdivision 1a, that the defendant still has not paid the
court-ordered restitution or fine that the defendant owes.
(i) (h) Notwithstanding the maximum periods specified for
stays of sentences under paragraphs (a) to (g) (f), a court may
extend a defendant's term of probation for up to three years if
it finds, at a hearing conducted under subdivision 1c, that:
(1) the defendant has failed to complete court-ordered
treatment successfully; and
(2) the defendant is likely not to complete court-ordered
treatment before the term of probation expires.
Sec. 10. Minnesota Statutes 1998, section 609.15,
subdivision 2, is amended to read:
Subd. 2. [LIMIT ON SENTENCES; MISDEMEANOR AND GROSS
MISDEMEANOR.] If the court specifies that the sentence shall run
consecutively and all of the sentences are for misdemeanors, the
total of the sentences shall not exceed one year. If the
sentences are for a gross misdemeanor or enhanced gross
misdemeanor and one or more misdemeanors, the total of the
sentences shall not exceed two years. If all of the sentences
are for gross misdemeanors and enhanced gross misdemeanors, the
total of the sentences shall not exceed four years.
Sec. 11. [REPEALER.]
Minnesota Statutes 1998, sections 169.121, subdivision 3e;
169.129, subdivision 2; and 609.02, subdivision 2a, are repealed.
Sec. 12. [EFFECTIVE DATE.]
Sections 1 to 11 are effective the day following final
enactment and apply to crimes committed on or after that date.
However, violations occurring before that date which are listed
in Minnesota Statutes, section 169.121, subdivision 3, paragraph
(a), are considered prior impaired driving convictions or prior
license revocations for purposes of this act.
Presented to the governor May 20, 1999
Signed by the governor May 24, 1999, 9:35 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes