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Third Degree Test Refusal

Third Degree Test Refusal


In Minnesota, Third Degree Test Refusal is a gross misdemeanor offense that is punishable by up to one year in jail and/or a $3,000 fine. There is no mandatory minimum sentence to serve.  The minimum fine is supposed to be $900 plus a surcharge of approximately $80.  However, in practice, judges often impose an executed fine significantly less than $900.


Third Degree Test Refusal is a first-time DWI incident within 10 years where the defendant is alleged to have refused to submit to chemical testing by choice or by conduct.  Test refusal is an aggravating factor, which makes the charge a gross misdemeanor. In addition, Third Degree Test Refusal cannot include the aggravating factor of a child under age 16 in the vehicle.  Otherwise, a refusal offense involving a child in the vehicle would be enhanced to Second Degree Test Refusal, triggering potential vehicle forfeiture.  


A person arrested for suspected Third Degree Test Refusal may be released promptly from custody or may be held for court and subject to bail and/or conditions of release. Charges of Third Degree Test Refusal do not trigger mandatory bail or conditions of release. However, the arresting officer has discretion to recommend the defendant's prompt release from custody or to recommend that the defendant be held until a judge sets bail or other conditions of release. Thus, defendants arrested for this offense will be treated differently, depending on the police agency and jurisdiction of the alleged offense. The likelihood of being release promptly from custody will also depend on the facts of the case and defendant's criminal history.


If a defendant does not have a prior DWI conviction or DWI license revocation in his or her lifetime and the facts of the case are more routine,  the defendant often has a good chance to reduce the offense to misdemeanor Fourth Degree DWI. The ability to negotiate a reduction depends on several factors, including the driving conduct, one's criminal/driving record, whether the defendant submitted to a preliminary breath test and its result, and the jurisdiction where it occurred.  


In the typical Third Degree Test Refusal case, it is unlikely that a defendant will be sentenced to serve any executed jail time. In most cases, the court will stay the execution of 180 to 365 days of jail time and place the defendant on probation for one or two years. In some counties like Hennepin, a defendant often is ordered to perform one or more days of community work service in lieu of executed jail time. As long as the defendant complies with the terms of probation over one or two years, the defendant will avoid having to serve time in jail (aside from any jail time that occurred upon arrest).


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. 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.


Factors that can complicate a case of Third Degree Test Refusal include cases involving accidents, preliminary breath tests with alcohol concentrations of 0.16 or more, and defendants who have prior DWI incidents or other convictions involving the use of alcohol or drugs.


For information about the driver's license consequences of Third Degree Test Refusal, please visit our DWI license revocation page.

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