1997 Minnesota Statutes

     169.123 Chemical tests for intoxication. 

    Subdivision 1.    Peace officer defined.  For purposes 
 of this section, section 169.121, and section 169.1211, the term 
 peace officer means (1) a state patrol officer, (2) University 
 of Minnesota peace officer, (3) a constable as defined in 
 section 367.40, subdivision 3, (4) police officer of any 
 municipality, including towns having powers under section 
 368.01, or county, and (5) for purposes of violations of those 
 sections in or on an off-road recreational vehicle or motorboat, 
 a state conservation officer. 

    Subd. 2.    Implied consent; conditions; election of test. 
  (a) Any person who drives, operates, or is in physical 
 control of a motor vehicle within this state or upon the ice of 
 any boundary water of this state consents, subject to the 
 provisions of this section and sections 169.121 and 169.1211, to 
 a chemical test of that person's blood, breath, or urine for the 
 purpose of determining the presence of alcohol, controlled 
 substances, or hazardous substances.  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 driving, operating, or in physical 
 control of a motor vehicle in violation of section 169.121 and 
 one of the following conditions exist: 

    (1) the person has been lawfully placed under arrest for 
 violation of section 169.121, or an ordinance in conformity with 
 it; 

    (2) the person has been involved in a motor vehicle 
 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 169.121, subdivision 6; or 

    (4) the screening test was administered and indicated an 
 alcohol concentration of 0.10 or more.  

    The test may also be required of a person when an officer 
 has probable cause to believe the person was driving, operating, 
 or in physical control of a commercial motor vehicle with the 
 presence of any alcohol. 

    (b) At the time a test is requested, the person shall be 
 informed: 

    (1) that Minnesota law requires the person to take a test: 
 (i) to determine if the person is under the influence of 
 alcohol, controlled substances, or hazardous substances; (ii) to 
 determine the presence of a controlled substance listed in 
 schedule I or II, other than marijuana or tetrahydrocannabinols; 
 and (iii) if the motor vehicle was a commercial motor vehicle, 
 to determine the presence of alcohol; 

    (2) that refusal to take a test is a crime; 

    (3) if the peace officer has probable cause to believe the 
 person has violated the criminal vehicular homicide and injury 
 laws, that a test will be taken with or without the person's 
 consent; and 

    (4) that the person has the right to consult with an 
 attorney, but that this right is limited to the extent that it 
 cannot unreasonably delay administration of the test. 

    (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. 2a.    Requirement of urine or blood test.  
 Notwithstanding subdivision 2, a blood or urine test may be 
 required even after a breath test has been administered if there 
 is probable cause to believe that:  (1) there is impairment by a 
 controlled substance or hazardous substance that is not subject 
 to testing by a breath test; or (2) a controlled substance 
 listed in schedule I or II, other than marijuana or 
 tetrahydrocannabinols, is present in the person's body.  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. 2b.    Breath test using 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. 2c.    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. 3.    Manner of making test; additional tests.  (a)
 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, controlled substances, or hazardous substances.  
 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. 

    (b) 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. 

    (c) 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 the 
 concentration of alcohol, controlled substances, or hazardous 
 substances 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. 

    Subd. 4.    Refusal; revocation of license.  (a) If a 
 person refuses to permit a test, none shall be given, but the 
 peace officer shall report the refusal to the commissioner of 
 public safety and the authority having responsibility for 
 prosecution of misdemeanor offenses for the jurisdiction in 
 which the acts occurred.  However, if a peace officer has 
 probable cause to believe that the person has violated section 
 609.21, a test may be required and obtained despite the person's 
 refusal.  A refusal to submit to an alcohol concentration test 
 does not constitute a violation of section 609.50, unless the 
 refusal was accompanied by force or violence or the threat of 
 force or violence.  

    (b) If a person submits to a test, the results of that test 
 shall be reported to the commissioner of public safety and to 
 the authority having responsibility for prosecution of 
 misdemeanor offenses for the jurisdiction in which the acts 
 occurred, if the test results indicate: 

    (1) an alcohol concentration of 0.10 or more; 

    (2) an alcohol concentration of 0.04 or more, if the person 
 was driving, operating, or in physical control of a commercial 
 motor vehicle at the time of the violation; or 

    (3) the presence of a controlled substance listed in 
 schedule I or II, other than marijuana or tetrahydrocannabinols. 

    (c) Upon certification by the peace officer that there 
 existed probable cause to believe the person had been driving, 
 operating, or in physical control of a motor vehicle in 
 violation of section 169.121 and that the person refused to 
 submit to a test, the commissioner of public safety shall revoke 
 the person's license or permit to drive, or nonresident 
 operating privilege, for a period of one year even if a test was 
 obtained pursuant to this section after the person refused to 
 submit to testing.  

    (d) Upon certification by the peace officer that there 
 existed probable cause to believe the person had been driving, 
 operating, or in physical control of a commercial motor vehicle 
 with the presence of any alcohol in violation of section 169.121 
 or 169.1211, and that the person refused to submit to a test, 
 the commissioner shall disqualify the person from operating a 
 commercial motor vehicle for a period of one year under section 
 171.165 and shall revoke the person's license or permit to drive 
 or nonresident operating privilege for a period of one year.  

    (e) Upon certification by the peace officer that there 
 existed probable cause to believe the person had been driving, 
 operating, or in physical control of a motor vehicle in 
 violation of section 169.121 and that the person submitted to a 
 test and the test results indicate an alcohol concentration of 
 0.10 or more or the presence of a controlled substance listed in 
 schedule I or II, other than marijuana or tetrahydrocannabinols, 

 then the commissioner of public safety shall revoke the person's 
 license or permit to drive, or nonresident operating privilege: 

    (1) for a period of 90 days; or 

    (2) if the person is under the age of 21 years, for a 
 period of six months; or 

    (3) for a person with a prior impaired driving conviction 
 or prior license revocation within the past five years, for a 
 period of 180 days; or 

    (4) if the test results indicate an alcohol concentration 
 of 0.20 or more, for twice the applicable period in clauses (1) 
 to (3). 

    (f) On certification by the peace officer that there 
 existed probable cause to believe the person had been driving, 
 operating, or in physical control of a commercial motor vehicle 
 with any presence of alcohol and that the person submitted to a 
 test and the test results indicated an alcohol concentration of 
 0.04 or more, the commissioner of public safety shall disqualify 
 the person from operating a commercial motor vehicle under 
 section 171.165.  

    (g) If the person is a resident without a license or permit 
 to operate a motor vehicle in this state, the commissioner of 
 public safety shall deny to the person the issuance of a license 
 or permit for the same period after the date of the alleged 
 violation as provided herein for revocation, subject to review 
 as hereinafter provided. 

    (h) As used in this subdivision, the terms "prior impaired 
 driving conviction" and "prior license revocation" have the 
 meanings given in section 169.121, subdivision 3, paragraph (a). 

    Subd. 5.    Notice of revocation, disqualification, or 
 determination to deny; request for hearing.  A revocation 
 under subdivision 4 or a disqualification under section 171.165 
 becomes effective at the time the commissioner of public safety 
 or a peace officer acting on behalf of the commissioner of 
 public safety notifies the person of the intention to revoke, 
 disqualify, or both, and of revocation or disqualification.  The 
 notice shall advise the person of the right to obtain 
 administrative and judicial review as provided in this section.  
 If mailed, the notice and order of revocation or 
 disqualification is deemed received three days after mailing to 
 the last known address of the person. 

    Subd. 5a.    Test refusal; driving privilege lost.  (a) 
 On behalf of the commissioner of public safety, a peace officer 
 requiring a test or directing the administration of a chemical 
 test shall serve immediate notice of intention to revoke and of 
 revocation on a person who refuses to permit a test or on a 
 person who submits to a test the results of which indicate an 
 alcohol concentration of 0.10 or more.  

    (b) On behalf of the commissioner of public safety, a peace 
 officer requiring a test or directing the administration of a 
 chemical test of a person driving, operating, or in physical 
 control of a commercial motor vehicle shall serve immediate 
 notice of intention to disqualify and of disqualification on a 
 person who refuses to permit a test, or on a person who submits 
 to a test the results of which indicate an alcohol concentration 
 of 0.04 or more.  

    (c) The officer shall either: 

    (1) take the driver's license or permit, if any, send it to 
 the commissioner of public safety along with the certificate 
 required by subdivision 4, and issue a temporary license 
 effective only for seven days; or 

    (2) invalidate the driver's license or permit in such a way 
 that no identifying information is destroyed. 

    Subd. 5b.    Administrative review.  At any time during 
 a period of revocation imposed under this section or a period of 
 disqualification imposed under section 171.165, a person may 
 request in writing a review of the order of revocation or 
 disqualification by the commissioner of public safety, unless 
 the person is entitled to review under section 171.166.  Upon 
 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.  Within 15 days of 
 receiving the request the commissioner shall report in writing 
 the results of the review.  The review provided in this 
 subdivision is not subject to the contested case provisions of 
 the administrative procedure act in sections 14.001 to 14.69.  

    The availability of administrative review for an order of 
 revocation or disqualification has no effect upon the 
 availability of judicial review under this section.  

    Review under this subdivision shall take place, if 
 possible, at the same time as any administrative review of the 
 person's impoundment order under section 168.042, subdivision 9. 

    Subd. 5c.    Petition for judicial review.  (a) 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.  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.  

    (b) The petition must: 

    (1) be captioned in the full name of the person making the 
 petition as petitioner and the commissioner of public safety as 
 respondent; 

    (2) include the petitioner's date of birth, driver's 
 license number, and date of the offense; and 

    (3) 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. 

    (c) 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. 

    (d) Judicial reviews shall be conducted according to the 
 rules of civil procedure except that prehearing discovery is 
 mandatory and is limited to: 

    (1) the notice of revocation; 

    (2) the test record, or in the case of blood or urine 
 tests, the certificate of analysis; 

    (3) the peace officer's certificate and any accompanying 
 documentation submitted by the arresting officer to the 
 commissioner of public safety; and 

    (4) disclosure of potential witnesses, including experts, 
 and the basis of their testimony. 

 Other types of discovery are not available. 

    Subd. 6.    Hearing.  (a) A hearing under this section 
 shall be before a district judge in any county in the judicial 
 district where the alleged offense occurred.  The hearing shall 
 be to the court and may be conducted at the same time and in the 
 same manner as hearings upon pretrial motions in the criminal 
 prosecution under section 169.121, if any.  The hearing shall be 
 recorded.  The commissioner of public safety shall appear and be 
 represented by the attorney general or through the prosecuting 
 authority for the jurisdiction involved.  The hearing shall be 
 held at the earliest practicable date, and in any event no later 
 than 60 days following the filing of the petition for review.  
 The judicial district administrator shall establish procedures 
 to ensure efficient compliance with this subdivision.  To 
 accomplish this, the administrator may, whenever possible, 
 consolidate and transfer review hearings among the county courts 
 within the judicial district.  

    (b) The scope of the hearing shall be limited to the issues 
 in clauses (1) to (10): 

    (1) Did the peace officer have probable cause to believe 
 the person was driving, operating, or in physical control of: 

    (i) a motor vehicle in violation of section 169.121; or 

    (ii) a commercial motor vehicle in violation of section 
 169.1211? 

    (2) Was the person lawfully placed under arrest for 
 violation of section 169.121 or 169.1211? 

    (3) Was the person involved in a motor vehicle accident or 
 collision resulting in property damage, personal injury, or 
 death? 

    (4) Did the person refuse to take a screening test provided 
 for by section 169.121, subdivision 6? 

    (5) If the screening test was administered, did the test 
 indicate an alcohol concentration of 0.10 or more? 

    (6) At the time of the request for the test, did the peace 
 officer inform the person of the person's rights and the 
 consequences of taking or refusing the test as required by 
 subdivision 2? 

    (7) Did the person refuse to permit the test? 

    (8) If a test was taken by a person driving, operating, or 
 in physical control of a motor vehicle, did the test results 
 indicate at the time of testing: 

    (i) an alcohol concentration of 0.10 or more; or 

    (ii) the presence of a controlled substance listed in 
 schedule I or II, other than marijuana or tetrahydrocannabinols? 

    (9) If a test was taken by a person driving, operating, or 
 in physical control of a commercial motor vehicle, did the test 
 results indicate an alcohol concentration of 0.04 or more at the 
 time of testing? 

    (10) Was the testing method used valid and reliable and 
 were the test results accurately evaluated? 

    (c) It shall be an affirmative defense for the petitioner 
 to prove that, at the time of the refusal, the petitioner's 
 refusal to permit the test was based upon reasonable grounds. 

    (d) Certified or otherwise authenticated copies of 
 laboratory or medical personnel reports, records, documents, 
 licenses, and certificates shall be admissible as substantive 
 evidence.  

    (e) The court shall order that the revocation or 
 disqualification be either 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.  If the 
 revocation or disqualification is sustained, the court shall 
 also forward the person's driver's license or permit to the 
 commissioner of public safety for further action by the 
 commissioner of public safety if the license or permit is not 
 already in the commissioner's possession. 

    Subd. 7.    Appeal.  Any party aggrieved by the decision 
 of the reviewing court may appeal the decision as provided in 
 the rules of appellate procedure. 

    Subd. 8.    Notice of action to other states.  When a 
 nonresident's privilege to operate a motor vehicle in this state 
 has been revoked or denied, the commissioner of public safety 
 shall give information in writing of the action taken to the 
 official in charge of traffic control or public safety of the 
 state of the person's residence and of any state in which the 
 person has a license. 

    Subd. 9. Repealed, 1984 c 622 s 26 

    Subd. 10.    Termination of revocation period.  If the 
 commissioner receives notice of the driver's attendance at a 
 driver improvement clinic, attendance at counseling sessions, or 
 participation in treatment for an alcohol problem the 
 commissioner may, 30 days prior to the time the revocation 
 period would otherwise expire, terminate the revocation period.  
 The commissioner shall not terminate the revocation period under 
 this subdivision for a driver who has had a license revoked 
 under section 169.121 or this section for another incident 
 during the preceding three-year period. 

    HIST: 1961 c 454 s 1-8; 1967 c 284 s 1-6; 1969 c 620 s 1; 1969 
 c 742 s 1; 1969 c 1129 art 1 s 18; 1971 c 893 s 3; Ex1971 c 36 s 
 1; 1973 c 35 s 36; 1973 c 123 art 5 s 7; 1973 c 555 s 1; 1974 c 
 406 s 35-38; 1977 c 82 s 2; 1978 c 727 s 3; 1980 c 395 s 1; 1980 
 c 483 s 1; 1981 c 37 s 2; 1982 c 423 s 9; 1982 c 424 s 130; 1983 
 c 247 s 70; 1983 c 301 s 142; 1983 c 306 s 5,6; 1984 c 430 s 
 4-8; 1984 c 622 s 10-14; 1984 c 655 art 2 s 18 subd 1; 1Sp1985 c 
 4 s 5; 1986 c 444; 1Sp1986 c 3 art 1 s 82; 1987 c 225 s 1,2; 
 1987 c 346 s 1; 1987 c 383 s 7; 1987 c 384 art 2 s 1; 1988 c 681 
 s 3; 1989 c 290 art 10 s 5; 1989 c 307 s 6-13; 1990 c 422 s 10; 
 1990 c 602 art 1 s 6; 1991 c 136 s 1,2; 1991 c 301 s 3; 1991 c 
 333 s 13,14; 1992 c 570 art 1 s 16,17; 1993 c 266 s 19; 1993 c 
 347 s 10,11; 1996 c 442 s 13-17; 1Sp1997 c 2 s 45-48 

*   NOTE:  The amendments to subdivisions 2, 2a, 4, and 6 by 
*Laws 1996, chapter 442, sections 13, 14, 16, and 17, 
*respectively, are effective August 1, 1997, for crimes committed 
*on or after that date.  Laws 1996, chapter 442, section 37, 
*paragraph (c). 

*   NOTE:  The commissioner of public safety may consider 
*violations occurring before August 1, 1997, as prior impaired 
*driving convictions or prior license revocations under 
*subdivision 4, as amended by Laws 1996, chapter 442, section 16, 
*except that violations of section 84.91 or 86B.331 occurring 
*before August 1, 1994, may not be so considered.  Laws 1996, 
*chapter 442, section 37, paragraph (e).