Three aggravating factors decide everything (§ 169A.03, subd. 3): a qualified prior impaired-driving incident within the past ten years; an alcohol concentration of 0.16 or more; or a child under 16 in the vehicle who is more than 36 months younger than the driver. Count them, add whether you refused the test, and you have the degree.
The table
| Degree | What gets you there | Classification | Maximum penalty |
|---|---|---|---|
| Fourth | A DWI with no aggravating factors and no refusal (§ 169A.27) | Misdemeanor | 90 days and/or $1,000 (§ 609.02, subd. 3) |
| Third | One aggravating factor, or a test refusal with none (§ 169A.26) | Gross misdemeanor | 364 days and/or $3,000 (§ 609.03) |
| Second | Two or more aggravating factors, or a refusal with one (§ 169A.25) | Gross misdemeanor | 364 days and/or $3,000, with mandatory minimums under § 169A.275 |
| First | Within ten years of the first of three or more qualified priors, or any prior felony DWI or criminal vehicular operation conviction (§ 169A.24) | Felony | "not more than seven years" and/or "not more than $14,000" (§ 169A.24, subd. 2) |
Three things the table doesn't show
- The ten-year clock is the criminal one. Your licence consequences run on a separate twenty-year lookback under § 171.178 after the 2025 changes. A 2009 DWI does not raise the degree of a 2026 charge, but it can push the revocation into ignition-interlock territory. The license guide →
- Refusal is its own crime. Refusing a breath test is charged under § 169A.20, subd. 2, and it counts toward the degree the same way an aggravating factor does. Refusing the test →
- Mandatory minimums and long-term monitoring attach to second- and third-degree offenses with priors (§§ 169A.275, 169A.277). The maximums above are ceilings; the floors are what an attorney negotiates around.
Gross misdemeanor maximums were 365 days until 2023; the change to 364 was made so a state conviction would not automatically trigger federal immigration consequences. If you are not a citizen, say so to the attorney on the first call.
Sources
- Minn. Stat. § 169A.03, subd. 3 — 'aggravating factor'
- Minn. Stat. § 169A.24 — first-degree DWI (felony; 7 years / $14,000)
- Minn. Stat. § 169A.25 — second-degree DWI (gross misdemeanor)
- Minn. Stat. § 169A.26 — third-degree DWI (gross misdemeanor)
- Minn. Stat. § 169A.27 — fourth-degree DWI (misdemeanor)
- Minn. Stat. § 609.02, subd. 3 — misdemeanor: 90 days / $1,000
- Minn. Stat. § 609.03 — gross misdemeanor: 364 days / $3,000
Checked against the sources above on 2026-09-04. This is general information about Minnesota law, not legal advice, and it can't account for your situation. Laws change — several of these did on August 1, 2025. Talk to an attorney.