Yes. And after August 2025, the stakes of that arrest are higher than most people realize. 
Minnesota has never required a breath test to support a DWI arrest or conviction. Probable cause is the standard at the roadside, not a number on a machine. But a major overhaul of Minnesota’s DWI laws took effect August 1, 2025, and if you have any prior DWI history, an arrest today carries consequences that would have been unthinkable even a year ago.
By Kevin Sieben, Sieben Edmunds Miller PLLC
Kevin Sieben focuses on DWI defense in Dakota, Hennepin, Ramsey, and Scott Counties.
The 2025 Law Change You Need to Know About First
Minnesota doubled its lookback period for license revocation consequences from 10 years to 20 years. That single change reshapes the consequences for anyone with prior DWI history.
Under the old law, a conviction from 2013 would have been outside the 10-year window and irrelevant to your current revocation calculation. Under the new law, it counts. A conviction from 2005 counts. The revocation periods that now apply upon conviction are:
- Second DWI within 20 years: two-year revocation
- Third DWI in a lifetime: six-year cancellation plus mandatory treatment
- Fourth DWI in a lifetime: ten-year cancellation plus mandatory treatment and ignition interlock
There is a distinction worth understanding. The criminal charging decision still uses the old 10-year lookback to determine the degree of the offense. License consequences use the new 20-year window. Those are separate calculations running simultaneously, and they can produce very different numbers. A person charged as a first-time offender criminally could still face a six-year license cancellation on the administrative side because the lookbacks are counted differently.
One more thing about the notice you received at the scene. The Notice and Order of Revocation the officer handed you reflects the administrative consequence of the breath test result under the implied consent law. It does not reflect what happens to your license upon criminal conviction. For repeat offenders under the new law, those two numbers can be very different, and the notice may significantly understate your actual exposure.
How an Arrest Happens Without a Breath Test
Officers need probable cause, not a BAC reading. Probable cause gets built from what they see, hear, and observe during the stop.
Driving behavior is usually where it starts. Swerving, wide turns, unsignaled lane changes, running a red light, or stopping past the crosswalk line can all contribute. Even a minor traffic violation serves as the lawful basis for the initial stop, and once the stop is made, everything the officer observes from that point forward can feed the probable cause analysis.
Physical indicators at the vehicle carry significant weight in court. The odor of consumed alcohol, bloodshot eyes, slurred speech, and difficulty maintaining balance are among the most commonly documented observations in Minnesota DWI reports. An officer’s direct sensory observations, if credible, can alone support an arrest.
Statements made during the stop are often the most damaging evidence in the entire case. Answering ‘have you had anything to drink?’ with ‘just a couple beers’ or acknowledging that you feel the effects of alcohol gives the officer exactly what he needs. You have the right to remain silent. Beyond identifying yourself, there is no legal obligation to answer questions about your drinking, where you were, or how you feel. Use that right calmly and consistently.
Because probable cause rests on an officer’s personal observations and judgment, it is subjective by nature. That subjectivity is often the first place a defense attorney looks, because a case built on one officer’s account is a case that depends entirely on that officer’s credibility.
The Two Breath Tests Are Not the Same
The roadside Preliminary Breath Test (PBT) is the handheld device the officer uses at the scene. You can generally decline it without a separate criminal charge. Your refusal may be noted as a factor in the probable cause analysis, but it does not carry criminal consequences the way the station test does.
Field sobriety tests work the same way. The Walk-and-Turn, One-Leg Stand, and Horizontal Gaze Nystagmus test are all voluntary in Minnesota. Declining them carries no separate criminal charge. These tests are also notoriously subjective. Nervousness, fatigue, prior injury, uneven pavement, poor lighting, and cold weather can all produce results that look like impairment and have nothing to do with alcohol. If you took field sobriety tests, the conditions and the officer’s compliance with standardized procedures deserve close examination.
The evidentiary breath test at the station is different. Under Minnesota’s Implied Consent Law, driving on state roads constitutes advance consent to that test after arrest. Refusing it is a separate crime called DWI Test Refusal, automatically charged as a gross misdemeanor with a minimum one-year license revocation. Refusal limits the scientific evidence against you but generally produces worse outcomes, both criminally and administratively, than submitting to the test would have.
There is active litigation in Minnesota right now about the reliability of the DataMaster evidentiary breath test itself. The Minnesota Supreme Court accepted review of Knapp v. Commissioner of Public Safety in August 2025. The case asks whether a DataMaster result should be admissible when the required pre-test observation period was not properly followed. Officers are required to observe a subject for a minimum of 15 minutes before administering the test to guard against mouth alcohol contamination from burping, belching, or recent ingestion. If a burp or belch occurs during that period, the clock resets. The Knapp decision, when it comes down, could significantly affect breath test challenges across Minnesota. If there are any questions about how the observation period was conducted in your case, this is a live issue worth examining.
What to Do After an Arrest
Write everything down before the details fade. What you ate, what you drank, when your last drink was, where you were coming from, and a detailed account of how the stop unfolded. Did the officer give you adequate time to contact an attorney before the breath test? Were you observed for the full required period before the DataMaster test? Did you burp or belch during that observation period, and how did the officer respond? Did the window in your car roll down? What was the weather? These details matter, and they are hardest to reconstruct weeks later when your case is in front of a judge.
Act on your license immediately. You have 60 days from the date you received the Notice and Order of Revocation to file a petition in civil court challenging the administrative revocation. Miss that deadline by a single day and you permanently lose the right to challenge the revocation, regardless of what happens in the criminal case. Given the dramatically longer revocation periods triggered by the 2025 law changes, the civil license challenge is often as consequential as the criminal defense itself, and in some cases more so.
Get legal advice before making any decisions about the evidentiary test, cooperation with officers, or responding to the charges. A brief consultation with a DWI defense attorney before you make decisions you cannot undo is almost always worth the time.
Why a Case Built on Officer Observations Deserves Scrutiny
When the State’s case rests primarily on one officer’s account, that officer’s credibility and conduct become the central issues in the defense. Minnesota prosecutors are required to disclose prior misconduct findings against officers who will testify. An officer with sustained disciplinary findings, particularly findings related to honesty or improper procedure, can be cross-examined on those findings in a case that turns on whether the jury believes what he wrote in his report.
Squad and body camera video is another early focus. Footage often either corroborates or contradicts the written narrative, and the procedures around its preservation and disclosure are themselves worth scrutinizing. A case without a breath test is not an airtight case. It is a case built on observation, judgment, and credibility, all of which can be tested.
Working With Sieben Edmunds Miller
We look at the full picture in DWI cases, not just the charge. That includes whether the traffic stop was legally justified, whether probable cause for arrest was built on solid observations or something more contestable, whether the investigation was conducted properly at every stage, whether all required evidence has been produced, and whether the licensing consequences of any plea have been accurately analyzed under the 2025 law changes before any decision is made.
We are also following and litigating the Knapp question actively. The outcome of that case will affect breath test challenges across Minnesota, and we are positioned to apply it in pending cases as soon as the Supreme Court rules.
An arrest is not a conviction. If you have been arrested for DWI in Minnesota, with or without a breath test, call Sieben Edmunds Miller to talk through what the evidence actually shows and what your options are.
Frequently Asked Questions
Can you be convicted of DWI in Minnesota without a breath test?
Yes. Minnesota does not require a breath test result to charge or convict someone of DWI. A conviction can rest on an officer’s observations, your own statements during the stop, field sobriety test performance, and driving behavior. A breath test strengthens the State’s case but is not required. Cases without one place the officer’s credibility at the center of the defense, which creates real opportunities for challenge.
What happens if you refuse the evidentiary breath test?
Refusing the station test after arrest is a separate crime under Minnesota’s Implied Consent Law called DWI Test Refusal. It is automatically charged as a gross misdemeanor, carries up to one year in jail, and triggers a mandatory minimum one-year license revocation. Refusing limits the scientific evidence against you but almost always results in worse outcomes, criminally and administratively, than the test result itself would have.
Do you have to do field sobriety tests?
No. The Walk-and-Turn, One-Leg Stand, and HGN pen test are all voluntary in Minnesota. You can decline without a separate criminal charge. Your refusal can be noted, but these tests are highly subjective and frequently challenged on the basis of the conditions under which they were administered and the officer’s training and execution.
How long do you have to challenge a license revocation?
Sixty days from the date you received the Notice and Order of Revocation. This is an absolute deadline. Missing it means permanently waiving your right to challenge the administrative revocation regardless of what happens in the criminal case. Given the longer revocation periods under the 2025 law, filing this petition and pursuing it seriously is often critical.
I have an old DWI conviction. Does the 2025 law change affect me?
Possibly significantly. Minnesota now looks back 20 years when calculating license revocation periods upon conviction. A conviction from as far back as 2006 can now count toward the revocation calculation for a current offense. People who reasonably believed an older conviction was behind them may be looking at a six or ten-year license cancellation upon a new conviction. If you have any prior DWI history, this is one of the first things to work through with a defense attorney.
What should I say when an officer asks how much I’ve had to drink?
Politely invoke your right to remain silent and ask to speak with an attorney. You are not required to answer questions about your drinking beyond identifying yourself. Answers that seem harmless, ‘just a couple of beers’ or ‘I had a few earlier,’ can be used to establish probable cause and as evidence of impairment at trial. The right to remain silent exists for exactly this situation.
