The Minnesota Court of Appeals has again declared that the law making it a crime to refuse to submit to DUI testing is constitutional.

The Court ruled today (pdf) in the case of Tarah Louise Fichtner of Hermantown, who was stopped and arrested in 2013 after she failed two of three field sobriety tests but refused a breathalyzer test.

The Court of Appeals cited a Minnesota Supreme Court ruling earlier this year — it occurred after Fichtner’s arrest — that said a breath test is constitutionally permissible as a search incident to arrest, and a person “does not have a fundamental right to refuse a constitutional search.”

But Judge John Rodenberg threw out second degree DWI charges against her, ruling that the law allowing additional charges when there are children in the car of someone driving drunk counts the presence of all the children as a single crime, not an individual count for each child.

“The statute plainly states that the presence of ‘a child’ in a vehicle in which the driver is impaired is an aggravating factor,” he wrote in today’s opinion. “We conclude that the plain language of the statute provides that the presence of either a child or multiple children may constitute only one aggravating factor. Multiple children present in a vehicle cannot be deemed multiple, stackable aggravating factors.”

Rodenberg ordered the case back to district court where Fichtner will be sentenced on third-degree DWI instead.

Both are gross misdemeanors in Minnesota. Third-degree DWI requires a 30-day jail sentence or 8 hours of community service for each day sentence.