Implied Consent
“Implied consent” refers to the implicit agreement that drivers make—by driving on Minnesota roads—to consent to take a chemical test to determine the presence of drugs or alcohol.
The Implied Consent case is all about challenging the driver’s license revocation- whether it was fair for the state to revoke/cancel your driver’s license. It consists of one day of trial (usually more like a half day) where the judge is the trier of fact (no jury, judge decides facts and applies the law). Oftentimes the same defenses are used in the Implied Consent as will later be used in the Criminal case. A successful Implied Consent hearing will result in a court order “rescinding your driver’s license revocation” (victory). Think of this as the civil equivalent of “not guilty” and your driver’s license will again be valid without a revocation on your record. Keep in mind there is a lesser burden of proof standard called “clear and convincing” in the civil Implied Consent case, rather than “beyond a reasonable doubt” (criminal case), so it’s often more difficult to win than in the criminal case.
However, the Implied Consent hearing can also be useful to gain valuable information from witnesses and learn more about the strengths and weaknesses of your case for your criminal case, regardless of whether the civil Implied Consent hearing results in a victory. There is a $300 civil filing fee payable to court administration required. Our Minnesota DWI attorneys advise our clients to always file an Implied Consent Petition in a timely manner.
Even if your driver’s license is only revoked for 90 days, it is oftentimes important to challenge the revocation for the most success in your DWI case. For example, if you don’t challenge it and beat your criminal case, it would still be used against if you later get charged with another DWI as a “prior enhanceable offense”, making the new DWI more serious with greater charges (possibly a felony) and greater penalties (mandatory jail sentences, increased driver’s license revocation). Also, most insurance companies will not raise your rates if you beat both the Implied Consent and Criminal cases. As you can see, DWI charges can be very complicated and in order to protect your rights, you should contact our experienced Minnesota DWI attorneys for help.
WARNING: Implied Consent Deadline (driver’s license case)
Strict 50-day/60-day deadline:
If you ultimately took a breath test (DataMaster device), then you should have received your “Notice and Order of Revocation” on the date of the offense (the day you were arrested). Technically that means you have 60 days from that day to get your Implied Consent Petition properly served and filed with the court. However, within 50 days of your date of offense, you must confirm with us that we are planning to file your Implied Consent Petition (this gives us 10 days to draft the paperwork for the Implied Consent Petition to meet your 60 day deadline).
If you ultimately took a blood or urine test, then you should receive your “Notice and Order of Revocation” whenever the Bureau of Criminal Apprehension Lab completes the testing of your specimen (usually between 2 weeks and 8 weeks, can be earlier or much longer). It will be mailed to your last address listed on your driver’s license (this mail will NOT forward even if you have given the post office forwarding instructions; call us immediately if your mailing address does not match your driver’s license). Do not be confused if you have blown into a roadside Preliminary Breath Test before you were arrested. So long as you ultimately took a blood or urine test, you must provide us with a copy of your “Notice and Order of Revocation” within 50 days of the postmarked date on the envelope, so that we can file your Implied Consent Petition (this gives us 10 days to draft the paperwork for the Implied Consent Petition to meet your 60 day deadline).
In any case, if you think we are close but possibly past the 60-day deadline, call us immediately and tell our staff that your deadline may expire and that you need to talk with an attorney ASAP. Sometimes your interpretation of the timeline may be off a few days, so don’t cut it too close!
WARNING: Address Problem!
Also, in the event of blood or urine; or in the rare event you were not given the Notice and Order or Revocation immediately upon a breath test (DataMaster), please be advised that a Notice of Revocation of your driving privileges will be sent to the address currently listed on your driver’s license. If this is not your current address, the Notice of Revocation will NOT forward even if you have given the post office forwarding instructions. The law still considers it “Notice” even though you will receive no actual notice. It is your responsibility to make sure you receive that Notice and provide us with a copy immediately upon receipt.
Mismatched address on your DL? How to change your address: The best way to do this is to immediately go to your local DMV and request an address change (while you’re at it, a new driver’s license as well; see below). Even with this change complete, the Department of Public Safety (DPS) could still send it to the old address. Therefore, you must also call the DPS once per week and starting now to see if the Notice and Order of Revocation has been sent and request a copy. Once you receive this info, please contact us immediately by calling and writing to the address above or to secretary@yourrightscount.com and attach a copy of the Notice and Order of Revocation.
If you fail to provide us with your Notice and Order of Revocation in a timely fashion, you will lose your right to challenge the driver’s license revocation and we will take no responsibility for your failure. That being said, lots of people come to us after the 60 days has expired (can no longer challenge DL revocation), it does not affect the criminal case (probation and jail possibility) and therefore we still move forward to defend clients from the criminal charges.
How to I still drive while my driver’s license is revoke? You have two options to continue driving throughout your revocation period: 1) Work Permit (a.k.a. Limited License); and 2) Ignition Interlock (a.k.a. blow and drive). That’s right, you can still drive while revoked! Click here for more info.
Call us at 763-682-1324 for your free consultation now.
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