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Subdivision 1.Impairment occurred after driving ceased.
If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.20, subdivision 1, clause (5) (driving while impaired, alcohol concentration within two hours of driving), or 169A.20 by a person having an alcohol concentration of 0.16 or more as measured at the time, or within two hours of the time, of the offense, that the defendant consumed a sufficient quantity of alcohol after the time of the violation and before the administration of the evidentiary test to cause the defendant's alcohol concentration to exceed the level specified in the applicable clause. Evidence that the defendant consumed alcohol after the time of the violation may not be admitted in defense to any alleged violation of section 169A.20, unless notice is given to the prosecution prior to the omnibus or pretrial hearing in the matter.
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Subd. 2.Impairment from prescription drug.
If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.20, subdivision 1, clause (7) (presence of Schedule I or II controlled substance), that the defendant used the controlled substance according to the terms of a prescription issued for the defendant in accordance with sections 152.11 and 152.12.
Notes of Decisions
Fedziuk v. Comm'r of Pub. Saf., 696 N.W.2d 340 (Minn. 2005).
· cites it 3× “With that request, Fedziuk raised an affirmative de *343 fense under Minn.Stat. § 169A.46 (2004) 1 that the presence of the schedule II controlled substance in her system at the time of her arrest was pursuant to a prescription.”
Axelberg v. Comm'r of Pub. Saf., 848 N.W.2d 206 (Minn. 2014).
· cites it 2× “Minn.Stat. § 169A.46, subd. 1 (2012). Unlike the majority opinion today, Dutcher⅛ holding represents good common sense.”
Robert Edward Dornbusch v. Comm'r of Pub. Saf., 860 N.W.2d 381 (Minn. Ct. App. 2015).
“§ 169A.46, subd. 2 (2014). The question we must answer — whether the defense could also apply in a driving-while-impaired administrative proceeding — is a matter of statutory interpretation, which we review de novo.”
Timothy Neil Koebnick v. Comm'r of Pub. Saf. (Minn. Ct. App. 2015).
· cites it 4× “the revocation, finding that Koebnick’s testimony regarding his post-driving alcohol consumption was not credible, that witnesses at the scene did not observe Koebnick drinking alcohol after driving, that there was only a brief period of time between when he returned home and…”
Robyn Lynn Hager v. State of Minnesota (Minn. Ct. App. 2015).
· cites it 2× “See Minn. Stat. § 169A.46, subd. 2 (2008) (“If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.”
State of Minnesota v. Daniel Gary Mason (Minn. Ct. App. 2015).
· cites it 2× “Furthermore, Minnesota Statutes section 169A.46 (2014), which lists affirmative defenses, omits “not driving” as an affirmative defense to test refusal.”
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