Fourth-degree DWI is Minnesota’s misdemeanor-level DWI charge. It usually means the state alleges a present impaired-driving violation without a qualifying prior incident in the last 10 years, without a test result of 0.16 or more, without a qualifying child passenger, and without criminal test refusal. It is often a first DWI, but “first offense” and “fourth degree” are not exact synonyms.

The charge is punishable by up to 90 days in jail and a $1,000 fine. A conviction can also lead to probation, a substance-use assessment, treatment or education, license revocation, reinstatement costs, higher insurance premiums, and employment or professional-license problems. The driver’s-license case begins separately and may have a 60-day judicial-review deadline.

This guide explains Minn. Stat. § 169A.27 (2026), the state’s possible DWI theories, physical control, alcohol and drug testing, common defenses, misdemeanor sentencing, and current license consequences. The incident date determines the governing statutory version. This is general legal information, not advice about a particular case.

What to do after a fourth-degree DWI arrest

The misdemeanor label should not create a false sense of time. Video can be overwritten, witnesses can disappear, and the civil license deadline can expire before the criminal case is resolved.

Save every page. Keep the citation, breath-test printout, notice and order of revocation, temporary license, booking paperwork, release order, towing documents, and envelopes.
Calendar 60 days from receipt of the revocation notice. A driver ordinarily must file and serve a petition for judicial review within that period. An administrative-review request does not extend it.
Preserve original evidence. Identify squad and body-camera video, dispatch audio, business or residential cameras, phone-location data, receipts, vehicle data, and witnesses.
Follow release conditions. Do not drive after the temporary privilege expires. Comply with testing, abstinence, and court-appearance requirements.
Write a private timeline for counsel. Include driving, food, alcohol or medication, the stop, instructions, testing, medical issues, and when documents were served. Do not post the timeline online.

A person should not plead guilty at the first opportunity merely to “get it over with” before the test records, video, license deadline, and practical consequences are understood. A prompt resolution can be valuable, but speed without information can turn a defensible case into a permanent record.

What is fourth-degree DWI?

Section 169A.27 provides that a person who violates the ordinary DWI provisions of Minn. Stat. § 169A.20, subdivision 1 (2026) is guilty of fourth-degree DWI. The degree applies when no statutory circumstance raises the offense to third, second, or first degree.

The familiar description is “first DWI under 0.16 with no child passenger and no refusal.” That is often right, but it is only a shorthand. The exact questions are:

Does the state allege a current section 169A.20, subdivision 1 violation?
Is there a qualified prior impaired-driving incident within 10 years?
Is there a valid alcohol concentration of 0.16 or more within the statutory period?
Was a qualifying child passenger in the vehicle?
Is criminal test refusal charged?
Does a separate felony predicate apply?

No aggravating factor and no refusal ordinarily leaves fourth degree. One aggravating factor or refusal ordinarily produces third degree. Two factors, or refusal plus one factor, ordinarily produce second degree. First degree uses its own prior-incident and prior-felony rules.

Fourth degree does not always mean a first lifetime DWI

An old DWI outside the 10-year criminal lookback may not be an aggravating factor. A prior from another state may fail Minnesota’s conformity definition. A revocation may have been rescinded. A conviction and revocation from the same conduct count as one incident, not two. A person can therefore have older or disputed history and still face a fourth-degree charge.

The criminal degree and the driver’s-license history can also diverge. Current license law may use a 20-year lookback. An incident too old to raise the criminal degree may still lengthen revocation or ignition-interlock consequences. The lawyer should obtain the complete record rather than rely on the charge title.

Conversely, the complaint may initially say fourth degree before a prosecutor finds a qualifying prior or a delayed laboratory result. The state may seek to amend the charge if legally and procedurally permitted. Early record review helps identify that possibility before negotiations begin.

The ways Minnesota can prove fourth-degree DWI

Fourth degree is not limited to a 0.08 breath test. Section 169A.20, subdivision 1, prohibits driving, operating, or being in physical control of a motor vehicle:

while under the influence of alcohol;
while under the influence of a controlled substance;
while knowingly or reasonably knowingly under the influence of an intoxicating substance;
while under the influence of a combination of alcohol, controlled substances, or intoxicating substances;
with an alcohol concentration of 0.08 or more at the time or within two hours;
while operating a commercial motor vehicle with an alcohol concentration of 0.04 or more;
with a listed Schedule I or II substance or metabolite in the body, subject to statutory exclusions; or
while under the influence of cannabis flower, cannabis products, lower-potency hemp edibles, hemp-derived consumer products, artificially derived cannabinoids, or tetrahydrocannabinols.

The prosecutor may charge more than one theory from the same incident—for example, impairment and 0.08-or-more. The state must prove the elements of a charged count beyond a reasonable doubt. A chemical result can support one theory while observations support another.

The ordinary 0.08 limit is not the only alcohol standard

For most adult drivers in an ordinary passenger vehicle, the per-se alcohol-concentration limit is 0.08. The commercial-motor-vehicle provision uses 0.04 while the person is operating a commercial vehicle. Minnesota’s under-21 “not a drop” law is a separate offense and does not replace the DWI statute: a driver under 21 can face underage drinking-and-driving consequences, an ordinary DWI charge, or both, depending on the facts.

The relevant number is expressed as grams of alcohol per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine. Police reports and casual conversation often use “BAC” for all three, but the sample type and analytical process matter. A breath reading is not a direct blood draw, and a hospital serum result may not use the same matrix as a forensic whole-blood result.

The two-hour provision is an element, not a guess

The per-se count covers an alcohol concentration of 0.08 or more at the time of driving or as measured within two hours. The state should establish when driving or physical control occurred and when the evidentiary sample was taken. A report that gives only the arrest time may leave a gap. Dispatch data, video timestamps, receipts, witnesses, phone records, and vehicle information can fix or challenge the chronology.

Minnesota law permits some competent evidence from tests outside the ordinary two-hour provision, but a late test does not automatically prove the within-two-hours count. The prosecution may offer other evidence or expert interpretation, and the defense may challenge the assumptions and fit. The precise charge and purpose for which the result is offered should remain clear.

A preliminary breath test is not the evidentiary breath test

The roadside preliminary breath test is primarily a screening device used in the arrest decision. The evidentiary test is administered later under a regulated procedure on an approved instrument. The devices have different purposes, records, and legal rules. A person may take a roadside test and later receive an evidentiary request; the first number does not eliminate the state’s duty to prove the later test or the elements of the offense.

Driving, operating, and physical control

The state does not always need an officer or witness who saw the vehicle moving. Minnesota’s physical-control doctrine addresses the risk that an impaired person in a position to operate a vehicle could put it in motion. The analysis is based on the whole situation, not a single fact.

In State v. Fleck, 777 N.W.2d 233, 236–37 (Minn. 2010), the Minnesota Supreme Court described a totality-of-the-circumstances inquiry. Relevant facts can include where the person was located, where the keys were, whether the vehicle was operable, ownership, the vehicle’s location, whether the person was a passenger, and circumstances suggesting how the vehicle arrived.

Physical presence in or near a vehicle is not automatically physical control. A sober designated driver who has left, a vehicle with a disabling mechanical problem, keys held by someone else, a person sleeping in a remote part of a vehicle, or evidence that another person drove can change the analysis. Photographs, vehicle records, phone data, receipts, and witnesses may be important.

Alcohol impairment and alcohol-concentration cases

An “under the influence” charge does not require a test result at or above 0.08. The state may rely on driving conduct, odor, speech, eyes, balance, divided-attention exercises, statements, and other observations. The defense may point to lawful driving, consistent video, fatigue, anxiety, injury, disability, medical conditions, weather, or instructions that explain the same observations.

An alcohol-concentration count is different. The state must prove 0.08 or more at the time of driving or within two hours. Test timing, identity, admissibility, and reliability matter. A result below 0.08 does not automatically defeat an impairment count, and a result above 0.08 does not cure an unlawful seizure.

Minn. Stat. § 169A.46, subdivision 1 (2026) creates an affirmative defense when post-driving alcohol consumption caused the person to cross the statutory threshold. The defense requires notice before the omnibus or pretrial hearing and proof by a preponderance of the evidence. It concerns actual consumption after driving, not simply absorption of alcohol consumed earlier.

Drug, prescription, cannabis, and intoxicating-substance DWI

A drug DWI should not be evaluated as an alcohol case with different vocabulary. Breath testing does not measure drug concentration. Officers may seek a blood or urine warrant, and the Bureau of Criminal Apprehension or another authorized laboratory may test for substances and metabolites.

Detection and impairment are not the same. Some substances remain detectable after their impairing effects have ended. A metabolite may show prior use without explaining driving or behavior. The charged statutory theory, compound, concentration, active or inactive metabolite, timing, prescribed use, pharmacology, and observed signs must be considered together.

A valid prescription is not a universal defense to impairment. It may matter to the statutory affirmative defense for specified presence-based controlled-substance charges when the drug was used according to the prescription. A person can still be prosecuted for driving while actually impaired by a lawfully prescribed medication.

Cannabis and hemp products have their own statutory language. Minnesota’s presence-based Schedule I or II clause excludes the listed cannabis and THC categories, but the state may charge that the person was under the influence. Toxicology interpretation and the officer’s claimed drug-recognition observations deserve close review.

The roadside investigation

The stop must be lawful when it begins. A traffic violation, observed conduct, a reliable citizen report, or particularized facts suggesting criminal activity may justify a seizure. The defense should identify what the officer knew at that moment and compare the claimed basis with video, road markings, traffic law, and dispatch information.

A lawful traffic stop cannot be expanded on a hunch. In State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011), the Supreme Court explained that reasonable suspicion requires “a particularized and objective basis” for suspecting criminal activity. The timeline should show when the ordinary traffic work ended and which facts supported DWI questioning or exercises.

Field sobriety exercises depend on administration and conditions. Counsel should examine the instructions and demonstration, surface, slope, lighting, footwear, weather, traffic, injury, disability, fatigue, language, anxiety, and whether the officer counted movements the recording does not support.

A roadside preliminary breath test is generally a screening tool used in the probable-cause decision. It is not the same as the evidentiary breath test administered under the implied-consent procedure. The device, operator, timing, and permitted evidentiary use should not be confused with the later approved instrument.

Breath, blood, and urine evidence

Breath testing

An evidentiary breath test should be audited from the observation period through the final record. Potential issues include recent drinking, mouth alcohol, belching or regurgitation, medical conditions, sample agreement, instrument messages, control results, maintenance, certification, operator procedure, radio use, and timing.

The complete record matters more than a screenshot of the final number. Video may show whether the observation period was continuous, whether the person placed anything in the mouth, or whether an event requiring a restart occurred. Instrument data may show aborted tests or diagnostic messages omitted from the narrative.

Blood and urine testing

Blood and urine ordinarily require a search warrant or a recognized exception. Counsel should examine the application, probable cause, material statements and omissions, judicial authorization, execution, collection personnel, kit, preservatives, seals, labeling, storage, transport, chain of custody, laboratory method, controls, calibration, and uncertainty.

A medical blood draw may exist independently of the law-enforcement sample. Access, privacy, warrant, subpoena, and evidentiary issues depend on how the record was obtained. A hospital number and a forensic laboratory number are not automatically interchangeable because the methods and purposes can differ.

Why criminal test refusal is not fourth-degree DWI

Section 169A.27 refers to subdivision 1 of the DWI statute, not the refusal offense in subdivision 2. Criminal refusal is ordinarily third-degree DWI even without an aggravating factor. Refusal plus one factor is ordinarily second degree.

A person may nevertheless face both a fourth-degree impairment or alcohol-concentration count and a third-degree refusal count from one incident. The counts do not merge into one factual question. The state must prove the current DWI theory for the fourth-degree count and the lawful request and refusal elements for the other.

In State v. Bernard, 859 N.W.2d 762, 767–74 (Minn. 2015), the Supreme Court upheld the warrantless breath-test request in that case as a search incident to a lawful arrest. Blood and urine ordinarily require a warrant under current law. The advisory, arrest, attorney access for breath, test availability, medical ability, and the full recorded exchange may still be disputed.

Defense motions and trial issues

A defense can address the stop, expansion, arrest, warrant, statements, test, identity of the driver, physical control, impairment, concentration, drug interpretation, or statutory defenses. Which issue matters cannot be determined from the test number alone.

Suppression

If the initial seizure lacked lawful justification, evidence derived from it may be suppressed. A lawful stop can still be unlawfully prolonged or expanded. A blood or urine warrant can be challenged for lack of probable cause or material falsehoods and omissions under the governing standards. The remedy depends on the violation and causal connection to the evidence.

Reliability and weight

Admissibility does not make evidence infallible. A jury may hear a test and still decide the state has not proved the charged proposition beyond a reasonable doubt. The defense may cross-examine the operator or analyst, use maintenance and quality data, present expert testimony when useful, and connect scientific limitations to the actual facts.

Driving and timing

The state must connect the person to driving, operating, or physical control within the charged timeframe. A later test does not identify the driver. A witness’s estimate, phone record, receipt, surveillance image, vehicle position, or statement may establish or undermine the chronology.

Alternative explanations

Fatigue, shock, injury, diabetes, neurological conditions, prescribed medication, anxiety, language differences, uneven ground, and environmental exposure can explain selected observations. The defense needs evidence, not speculation. Medical records, photographs, video, witnesses, and expert review may convert an alternative explanation into a trial issue.

Fourth-degree DWI penalties and probation

Fourth-degree DWI is a misdemeanor. Under Minn. Stat. § 609.03, subdivision 3 (2026), the maximum is 90 days’ imprisonment, a $1,000 fine, or both. A judge is not required to impose the maximum, and many first-offense outcomes involve stayed jail and supervised or unsupervised probation. Results depend on evidence, record, county, facts, assessment, compliance, and negotiated or litigated rulings.

Common probation conditions include:

a substance-use-disorder assessment and compliance with recommendations;
abstinence from alcohol and nonprescribed controlled substances;
random testing;
a DWI education program or victim-impact panel;
community work service;
payment of a fine, surcharge, assessment charge, and restitution if applicable;
law-abiding behavior and court appearances; and
compliance with license and insurance requirements.

A fourth-degree case ordinarily has no repeat-offense mandatory jail minimum because a qualifying incident within 10 years would itself be an aggravating factor and raise the degree. An old or nonqualifying record can still influence a judge’s discretionary sentence.

A probation violation can lead to additional sanctions or execution of stayed jail. A person who cannot satisfy a condition because of work, treatment availability, cost, disability, or transportation should address the issue through counsel and the court before the deadline rather than simply fail to comply.

Driver’s-license revocation and the 60-day deadline

The license case is civil and separate. Under current Minn. Stat. § 171.178 (2026), a test failure with no qualified prior incident in the past 20 years generally carries at least a 90-day revocation. A driver under 21 with a result below twice the legal limit generally faces at least 180 days. The incident date and statutory version control.

Fourth degree ordinarily means the criminal case does not include a 0.16-or-higher aggravating factor, but the exact reported value and charging decision should be verified. A person may also face separate underage, commercial, or specialized licensing consequences.

A driver ordinarily must file a petition for judicial review within 60 days after receiving the notice and order. The petition must be filed in the proper district court, served, and state the grounds for rescission with specificity. Administrative review, ignition-interlock enrollment, or criminal negotiation does not extend the deadline. Filing does not automatically stay the revocation.

The civil case can address the stop, probable cause, arrest, advisory, test result, test reliability, warrant issues, and specified statutory defenses depending on the procedure. A favorable criminal resolution does not automatically rescind the license action, and a civil victory does not mechanically dismiss the criminal case. See the firm’s Minnesota license revocation and implied-consent guide.

License plates, vehicle forfeiture, and towing

An ordinary fourth-degree case without a prior, 0.16-or-higher result, or qualifying child passenger does not meet the usual plate-impoundment definitions merely because it is a DWI. Minn. Stat. § 169A.60 (2026) separately identifies plate-impoundment violations. A canceled-inimical license or a later-discovered qualifying fact can change the analysis.

Vehicle forfeiture is narrower still. Minn. Stat. § 169A.63 (2026) focuses on first-degree DWI and specified repeat incidents. A routine first-offense fourth-degree DWI is not a designated forfeiture offense.

Towing and impound-lot charges are different from statutory forfeiture. Police or a local authority may tow a vehicle after an arrest even when the state does not seek ownership. Retrieval rules, insurance, proof of ownership, and administrative fees should be addressed promptly to avoid accumulating storage charges.

Employment, insurance, and other practical consequences

A misdemeanor DWI can affect driving jobs, professional licenses, insurance, company-vehicle eligibility, security-sensitive work, and travel. A commercial driver can face CDL disqualification even when driving a personal vehicle. A professional may have a reporting duty before sentencing or license reinstatement.

Noncitizens should consult qualified immigration counsel before entering a plea. Immigration consequences depend on the complete statute, accompanying charges, admissions, sentence, and status. “Only a misdemeanor” is not a sufficient immigration analysis.

Auto insurance may increase or decline renewal, and reinstatement may require proof of coverage. Ignoring the civil revocation can create a later driving-after-revocation charge that is avoidable with accurate status information and transportation planning.

How fourth-degree DWI cases are resolved

Resolution can include dismissal, acquittal, suppression, amendment to a non-DWI offense, a negotiated DWI plea, or trial. No outcome follows automatically from a first offense or a particular test number. The value of negotiation depends on the strength of the stop, driving proof, observations, test, statutory defenses, civil case, and practical priorities.

A well-supported negotiation identifies the actual legal or evidentiary issue. It may address dismissal of alternative counts, jail and probation terms, fine, assessment, treatment, monitoring credit, restitution, and companion traffic charges. The prosecutor does not control the commissioner’s separate license decision, so the civil consequence should be analyzed independently.

Trial preparation asks whether the state can prove driving or physical control, the charged impairment or concentration theory, timing, and test reliability beyond a reasonable doubt. A defense expert may help in a close scientific case, but expert testimony is not a substitute for a factual foundation.

If a plea is considered, the client should know the exact offense, factual basis, sentence, stayed and executed jail, probation length, conditions, license status, insurance implications, and employment consequences before waiving trial rights.

Frequently asked questions about Minnesota fourth-degree DWI

1. Is fourth-degree DWI a misdemeanor?

Yes. It is punishable by up to 90 days in jail and a $1,000 fine. It is the lowest DWI degree, but it is still a criminal conviction with separate license consequences.

2. Is fourth-degree DWI always a first offense?

No. It often is, but an older incident outside the 10-year criminal window or a nonqualifying prior may not raise the degree. Current licensing law can still look back farther.

3. Can someone be convicted with a test below 0.08?

Yes. The state can charge impairment based on driving, observations, field exercises, statements, and other evidence even when the alcohol concentration is below 0.08. The state still must prove impairment beyond a reasonable doubt.

4. Is a 0.08 result automatically a conviction?

No. The state must prove a lawful investigation, driving or physical control, timing, admissibility, identity, and a reliable result. The defense can challenge any unsupported element.

5. Does sleeping in a parked car count as DWI?

It can, but not automatically. Minnesota uses a totality-of-the-circumstances physical-control analysis involving keys, operability, location, the person’s position, ownership, and practical ability to move the vehicle.

6. Can prescription medication cause a DWI charge?

Yes. Lawful possession does not authorize impaired driving. Prescription compliance may supply a statutory defense to certain presence-based charges, but it is not a blanket defense to actual impairment.

7. How is cannabis DWI proved?

The state may use driving, observations, field or drug-recognition evidence, statements, and toxicology. Detection does not necessarily establish impairment, so timing, compound, metabolite, concentration, and expert interpretation matter.

8. Is test refusal fourth-degree DWI?

No. Criminal test refusal is ordinarily third degree even without an aggravating factor. A person may face a fourth-degree impairment count and a separate third-degree refusal count from one incident.

9. Is jail mandatory for a first fourth-degree DWI?

There is no repeat-offense mandatory minimum merely from a first fourth-degree charge. The court may still impose jail within the 90-day maximum and set probation conditions based on the facts and record.

10. Will the driver lose the license before court?

Often yes. Administrative revocation can begin upon service of the notice and order, subject to a short temporary-license period. It does not wait for a conviction.

11. How long is the license-challenge deadline?

A petition for judicial review ordinarily must be filed within 60 days after receipt of the notice and order. The first criminal court date and administrative review do not extend the period.

12. Will the license plates be impounded?

Not in an ordinary first fourth-degree case solely because it is a DWI. Plate impoundment has separate triggers, including a qualifying prior, twice the legal limit, a qualifying child passenger, and specified license status.

13. Can the state forfeit the vehicle?

A routine first fourth-degree DWI is not a designated forfeiture offense under current law. Towing or temporary impoundment after arrest is different from forfeiture of ownership.

14. Can fourth-degree DWI be reduced or dismissed?

Yes, when the facts and law support it. Possible issues include the stop, expansion, driving identity, physical control, probable cause, warrant, test procedure, timing, drug interpretation, and statutory defenses. No result can be promised without the evidence.

15. What should I bring to a DWI consultation?

Bring the citation, test printout, revocation notice and envelope, temporary license, release order, towing papers, medication list, witness information, and any original photographs, video, receipts, or timeline. Do not delay while trying to gather a perfect file.

A misdemeanor DWI still requires a complete defense

Fourth degree identifies the charge level; it does not decide whether the stop was lawful, who drove, whether physical control existed, whether a test was reliable, or whether the state can prove impairment. The criminal case and license case should be reviewed together while their separate deadlines remain open.

If you are facing fourth-degree DWI in Minnesota, contact a DWI defense lawyer promptly with the arrest and license paperwork. Early preservation and a timely civil petition can protect issues that cannot be recovered later.