INTRODUCTION AND COMMENT

I'm attorney David Kelly.  My office is in Minnetonka, near the border with St. Louis Park, and I have been a practicing law for almost 33 years.  I like working with young people and their families. For several years I was on a panel of court appointed lawyers for the Ramsey County Juvenile Court.  A teen or young adult who has been arrested for an alcohol-related driving offense is treated differently and needs special guidance and attention.  If that has happened to you or a member of your family, you are on the right page.   

In 2004 our legislature decided that any person who had a driver's license - a circumstance which happens to include people as young as 16 - and who is reasonably suspected of driving while impaired, is to be charged as an adult.  (See Minnesota Statutes Section 260B.225).

When I say "driving while impaired," I mean driving in violation of Minnesota Statutes 169A.20.  Usually that would mean being at a blood alcohol content of .08 percent or more.  If you have a breath test that is lower than that, you can still be charged in juvenile court - which is where I am seeing a lot of the non-DWI not-a-drop tickets for offenders that are under age 18.  Everyone over 18 goes to adult court in any event.  

The legislature apparently believes that any teen, who considers himself or herself old enough and mature enough to consume alcohol to a point of being over .08 and then drive, is old enough and mature enough to be charged and punished as an adult.  I can't say that I disagree with this approach, but I will say that this represents a substantial change in philosophy as to the status and treatment of juveniles.

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VANESSA'S LAW - ALCOHOL & DRIVING UNDER 18

The law referred to as "Vanessa's Law" went into effect in May of 2004.  It was written and passed in memory of Vanessa Weiss, who was killed in May of 2003.  She had been a passenger in a vehicle being driven by an unlicensed 15 year old, and she was killed just a few days before her 16th birthday.  This law appears to be civil and administrative in nature, not criminal.  It is triggered by certain crimes, but in itself it does not appear to create any new crimes or criminal penalties.  It merely regulates driving privileges.  For this reason when you go to court, the judge and the lawyers may not be paying much attention to these provisions.  They might not talk about or even mention this law.  Be careful to look into how this may affect you or your family member.  Having a lawyer who is paying attention to it and who can properly advise you can be very important at this point.  The law applies only to drivers who are under age 18, and it has basically two parts (see Minnesota Statutes Sec. 169A.55, Subd. 3):

1. An unlicensed teen who receives a crash-related moving violation or an alcohol or controlled substance related driving violation is not eligible to receive a learner's permit or driver's license until age 18.  When this person turns 18, he or she must then pass the written driver's license test, obtain and hold an instruction permit for at least six months, and then pass the road test.  Violations which trigger this provision include DWI, implied consent, open bottle, underage drinking and any violation of the not a drop law. 

2. If you are a resident of Minnesota and under age 18, the type of driver's license you qualify for is a "provisional" license.  Provisional licenses have a number of limitations, not the least of which is described here.

   A provisional license holder whose driving privilege was revoked due to a crash-related moving violation or an alcohol/controlled substance-related violation cannot regain a license until age 18. At that time, the person must complete the following steps to obtain a full driver’s license:

   • Fulfill all reinstatement requirements, including the payment of fees which can be up to $680 depending on circumstances;

   • Complete the classroom portion of a formal driver education course;

   • Pass the driver’s license knowledge test;

   • Obtain an instruction permit and hold it for three months;

     Additional requirements:

     The personnel at the Department of Public Safety have their hands full trying to interpret these requirements.  They are doing the best they can to make sure that the law is complied with and that we are protected from drivers who should not be on the road.

     The current interpretation from the authorities at the Department of Public Safety is that to get the above-referenced three month period running, just applying for the permit is not enough. You also have to make an application for reinstatement of your license. This can be done at the same time that you apply for the permit.

     But doing it at the same time you apply for the permit requires that you go in and apply for the permit, take the test for that, and have your picture taken for the permit.  Then during the same stop at the testing center, you must also apply for reinstatement of your actual license, pay a fee for that, and have your picture taken AGAIN for the driver's license.  It seems that few people are doing it that way, and the employees behind the counter at the service centers may not be aware of this procedure.  I suggest that you be prepared to explain what you are trying to do and why.

     If all you do is go in and apply for the permit, and then go back three months later and apply for the license, you won't be given a license - not until three months later. There's a form letter from the Department of Public Safety that you are supposed to have received and which is supposed to have explained this.  Many people have a great deal of difficulty understanding such letters, however, and you should be consulting your lawyer.  

   • Complete a driver’s behind-the-wheel class.

One of the magic words in the statute about what happens to a provisional license holder is the word "revoked."  Revoked is not what happens to a driver's license when an under age 21 person gets a not-a-drop ticket.  If all that person has is a not-a-drop ticket, 169A.33 says his or her license is to be "suspended."  The legislature may have intended that revoked and suspended could be used interchangeably, and there is staff in the Minnesota Attorney General's office who say they should be, but that is not how the current boss of the Driver Evaluators at the Minnesota Department of Public Safety sees it.  Her view is that the narrow meanings of those terms should be applied strictly.  The result is a big benefit for any driver who is under 18 and who has a non-dwi not-a-drop ticket. That driver, in the event of being found guilty or pleading guilty, will have only the thirty day suspension of driving privileges provided for in the not-a-drop statute.  Vanessa's law is not considered to apply, because the word in that statute is "revoked."  The legislature may have intended it to apply in this situation, but that's not how it's being interpreted.

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Drinking-driving under 21 - not a drop law

The final outcome of being charged with a violation of the "not a drop law" can be quirky.  There are several different directions that one of these cases can go, and which path you find yourself on can make a big difference.  Ordinarily the underage person is charged with several offenses in addition to violation of not a drop.  Which ones you are found guilty of or plead guilty to, and which ones are dismissed, can create results that would surprise an ordinary person.  Having common sense and being able to read and write won't necessarily help a person understand what he or she is dealing with.  The statutes in this area don't necessarily always mean exactly what they say, and there is not necessarily any logic involved in the pattern they produce.  Anyone facing a situation like this really needs a lawyer.  There is a serious need for guidance, even for the person making no claim of being innocent.

The "not a drop law" has been promoted as a zero tolerance policy.  Minnesota Statutes Sec. 169A.33 states that "it is a crime for a person under the age of 21 years to drive ... after having consumed alcoholic beverages while there is physical evidence of the consumption present in the person's body."  That means the police don't care how low the alcohol breath test reading is.  If they get a reading on the breath test machine at all, the person with that reading will be charged with violating this law.  There will be criminal charges with penalties similar to those of a DWI.  The first offense is a misdemeanor.

The provisions of Minnesota Statutes Sec. 169A.33, Subd. 4 provide for a revocation of the offender's driver's license for thirty days - or for 180 days if there has been a previous violation.  If the under 21 year old person is convicted of driving while impaired (DWI), Minnesota Statutes Sec. 169A.54, Subd. 2 provides for a license revocation of at least six months.  Additionally, as you can see on our limited license temporary permit waiting period page, persons under age 18 are not eligible for a limited license in Minnesota for the first 90 days of the revocation.  Ordinarily a person over 21 who receives a DWI can get a limited license within about three weeks.  Confused yet?  The author of this paragraph has to pull the law books off the shelf with every new case to figure out where each one falls.  He wishes to suggest that nobody should be trying to deal with such situations without professional legal help.  It is not hard to get really lost in the details. 

One more thing.  File this under "quirky" too.  As long as the only offense is a violation of 169A.33, it appears that the offense might not be considered a prior alcohol-related offense for the purpose of enhancing future offenses.  The general rule is that any alcohol-related driving offense will cause a future offense to be enhanced in several ways into a more serious offense.  This offense could be an exception to that rule.  The author strongly suggests, however, that you don't try testing this proposition.

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