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A child passenger can make a Minnesota DWI more serious when the child is under 16 and more than 36 months younger than the driver. That combination is an aggravating factor under Minnesota law. It can increase the degree of the charge even when the driver has no prior DWI. The child does not have to be the driver’s own child.
Minnesota uses the term driving while impaired, or DWI, for the offense often called DUI. This guide addresses the child-passenger aggravating factor. Our Minnesota DWI defense page explains representation in the broader case.
What age makes a passenger an aggravating factor?
Section 169A.03, subdivision 3, requires both conditions: the child must be younger than 16, and the child must be more than 36 months younger than the person accused. The passenger must be in the motor vehicle at the time of the alleged offense.
The exact ages matter. In a hypothetical case involving a 30-year-old driver and a 15-year-old passenger, the age conditions are met. A 16-year-old passenger does not meet this particular under-16 definition. That does not resolve other possible charges or safety issues.
Can a first DWI become a gross misdemeanor because a child was present?
Yes. A first offense is not automatically a fourth-degree misdemeanor. Under section 169A.26, an impairment offense with one aggravating factor is third-degree DWI. Third-degree DWI is a gross misdemeanor. Other facts can support a higher degree.
The prosecution still must prove the underlying offense and the facts supporting the increased charge. Having a child in a vehicle does not itself prove impairment. A defense review should evaluate the stop, alleged driving or physical control, chemical testing, and the passenger’s age.
What if there is also a high alcohol result or a prior DWI?
Section 169A.03 also lists an alcohol concentration of .16 or more at the specified time and a qualified prior impaired-driving incident within ten years as aggravating factors. Under section 169A.25, an impairment offense with two or more aggravating factors is second-degree DWI.
For example, a qualifying child passenger and a qualifying .16-or-higher result can support second-degree treatment, assuming the state proves the required facts. A prior record must be examined under the statutory counting rules rather than estimated from memory. See our high-BAC DWI defense page.
Does refusing a chemical test change the analysis?
Yes. Refusal has a different degree calculation. Section 169A.25 makes a qualifying chemical-test refusal with one aggravating factor second-degree DWI. That means a qualifying child passenger may have a different effect on an impairment count and a refusal count.
A roadside screening refusal is not interchangeable with refusal of an official test. Our roadside versus official breath-test guide explains the distinction.
Is DWI with a child always a felony?
No. The child-passenger factor alone does not automatically make the DWI a felony. First-degree felony DWI has separate criteria under section 169A.24, including specified prior incidents or felony convictions. Second- and third-degree DWI are gross misdemeanors. The complaint and complete history determine which provisions need review.
Does the DWI charge decide custody or driving privileges?
Do not assume one criminal charge resolves every related issue. License action, release conditions, and any family-court proceeding require separate review. Follow existing orders and confirm current driving privileges. If parenting is also at issue, tell counsel about the existing case and orders; do not assume that a criminal case automatically changes a custody order.
What should you bring to a consultation?
- The complaint, citation, and all license notices.
- Accurate ages of the driver and passengers at the incident date.
- Test paperwork and records of prior cases or license actions.
- Release conditions and any existing parenting or protective orders.
Keep records intact and give counsel your own account. Avoid discussing testimony with a child or trying to influence anyone’s recollection.
Talk with a Minnesota DWI defense lawyer
Request a free criminal-defense consultation with Martine Law. Minnesota criminal defense is provided by Martine Law PLLC. Phones and chat are answered 24/7, with AI covering when no staff is free.
Prepared October 14, 2026. General information about Minnesota law; advice requires review of your incident date, records, and individual circumstances.
