Legal Question in DUI Law in Minnesota

Re: Minor Consumption ticket,can an officer change the offense if I fight it in

Most people are not aware of this, but you CAN be charged with a DWI in Minnesota even if you are under the legal limit of .10. When this happens, the charge is based on the officer's overall opinion that the defendant was "impaired" by alcohol, even though he/she was not technically over the legal limit. However, if this is your first offense, most prosecutors will reduce a DWI charge under .10 to something else like Careless Driving. In your case, you have an extremely low test result. I don't think that any prosecutor in their right mind would dare to proceed with regular DWI charges against you. HOWEVER, since you are under 21 you are subject to the Minnesota "Not a Drop" Underage Drinking & Driving statute. Under this provision, you can be charged with Underage Drinking & Driving if there is even a drop of alcohol in your system. It sounds like the cop might be trying to give you a break by ticketing you only for minor consumption and ignoring the potential Underage D&D violation. The officer is probably doing this since your test was very low, and I assume this is your first offense. It would be wise to meet with an attorney and have him/her review your paperwork to make sure this is a good deal, but it sounds good so far.

Re: Minor Consumption ticket,can an officer change the offense if I fight it in

The narrow answer to your question is "yes." Technically, though, it is the prosecutor who could amend the charge, or re-charge it as "Underage Drinking and Driving" Minnesota Statutes Section 169A.33. Police officers have discretion to "tab charge" by "ticket" summons certain lesser crimes, in the first instance. But, charges can be amended at least up to the time of trial.

A person under 21 who consumes any alcohol, other than in the house of and with the consent of parent or guardian, is guilty of Minor Consumption, Minn Stat � 340A.503, subd 1(a)(2). There can be a drivers license revocation for underage drinking conviction ("minor consumption"), Minn Stat �171.173, if the court notifies the Commissioner of Public Safety (drivers license agency) of a "determination made under" the Underage Drinking and Driving statute. This probably means that if the court makes no factual finding that driving was involved, your license should not get revoked for 30 (or 180, if a prior) days upon conviction of "Minor Consumption."

From your report, it sounds like the police officer is saying he's tab charged you with minor consumption, without including a police report saying you were driving, but if he has to go to trial and testify, he'll ask the prosecutor to amend or re-charge "Underage Drinking and Driving," which the prosecutor would probably be happy to do. If you want to ensure the best outcome, you could hire a lawyer to go with you to the first appearance (and pre-trial conference, if any) to be sure that there are no police reports in the court file. If not, it's probably a deal worth taking, given your story -- though you'd be wise to fully consult a defense lawyer in person. If there is a police report in the court file, the lawyer may be able to prevent it getting reported to the Commissioner of Public Safety, anyway, and so prevent a license revocation (and alcohol-related event on driving record).

Either way, there is an opportunity for a lawyer to help get a good outcome, without setting a trial date, at which the police officer could show up with his handwritten notes and testimony about driving, allowing the prosecutor to amend the charge to "Underage Drinking and Driving" which is like DWI.

Re: Minor Consumption ticket,can an officer change the offense if I fight it in

Yes.