Second Degree Test Refusal
In Minnesota, Second Degree Test Refusal is a gross misdemeanor offense that is punishable by up to one year in jail and/or a $3,000 fine. The minimum fine is supposed to be $900 plus a surcharge of approximately $80. However, in practice, judges often impose an executed fine less than $900.
Second Degree Test Refusal is defined as a refusing to submit to chemical testing where one or more other aggravating factors are present, i.e., while having one or two prior DWI convictions or license revocations within 10 years, or having a child under age 16 in the vehicle.
If a defendant has one prior DWI conviction or DWI license revocation within 10 years, there is a mandatory minimum executed sentence of 30 days to serve. Of those 30 days, the court may allow the defendant to serve all but 48 hours on house arrest (electronic home monitoring). In some counties, house arrest is commonly imposed, and in other counties, it is not an option. Thus, avoiding significant time in jail depends on the particular circumstances of the case.
If a defendant has two prior DWI convictions or DWI license revocations within 10 years, there is a mandatory minimum sentence of 90 days to serve. Of the 90 days, the mandatory minimum sentence is 30 days to serve in jail and 60 days to serve on house arrest (electronic home monitoring). If a judge will not authorize house arrest, a defendant will serve the 90-day sentence in jail. With good time, a 90-day jail sentence would be 60 actual days in jail.
Pursuant to Minnesota Statutes, a defendant arrested for suspected Second Degree Test Refusal faces mandatory bail of $12,000 or continuous alcohol monitoring via a breath machine that a defendant has to blow into three or four times per day.
A charge of Second Degree Test Refusal will trigger potential vehicle forfeiture if the driver has two prior DWI offenses within 10 years. That is to say, the arresting police agency has authority to forfeit a defendant’s vehicle — even if the vehicle isn’t owned by the defendant.
A defendant may be able to reduce the charge of Second Degree Test Refusal to Third Degree DWI, Third Degree Test Refusal, Fourth Degree DWI, or even a non-DWI offense in exceptional cases. The ability to negotiate a reduction depends on several factors, including the driving conduct, one’s criminal/driving record, the jurisdiction where it occurred, and the presence of potential defenses in the case.
If a defendant is convicted of Second Degree Test Refusal, the court will place the defendant on probation typically for 2 to 6 years. The typical conditions of probation are to remain law abiding and successfully complete a chemical dependency assessment and follow its recommended educational or treatment program. In addition, judges usually order a defendant to complete a two-hour victim impact panel offered by MADD. Depending on the facts of the case and where it occurred, a judge may order a defendant to abstain from the use of alcohol and drugs during probation and be subject to random testing.
For information about the driver’s license consequences of Second Degree Test Refusal, please visit our DWI license revocation page.
