It’s time for the Justice System to Restore the Fourth Amendment for Drivers

It’s time for the Justice System to Restore the Fourth Amendment for Drivers

Just this week, Judge Alan F. Pendleton of Anoka County suppressed a breath test in a DWI case pursuant to the landmark case of Missouri v. McNeely, which we can now confidently assign the term “landmark” given its affect nationwide on DWI law. This particular ruling is a sea change in Minnesota because of the influence of this Judge. Judge Pendleton publishes bi-weekly judicial training updates and is particularly knowledgeable and well regarded for his fourth amendment jurisprudence. He has also added compliance with McNeely to his training update. The opinion is also far more detailed and comprehensive with regard to his historical analysis search and seizure than prior positive McNeely opinions in Minnesota. The timing of this opinion could not be more critical. It follows on the heels of several test suppressions, including those in Rice County and Steele County, after an initial phase of districts erroneously upholding chemical testing without a warrant. It also comes right before the July 4th Holiday, and two weekends in a row of “increased DWI enforcement.” If County Attorneys offices were serious about protecting public safety, to the extent that means prosecuting drunk driving successfully, they would have begun implementing a system of telephonic warrants for chemical testing in DWI cases months ago. Instead, prosecutors remain obstinant, betting on the Court of Appeals or the Supreme Court of Minnesota issuing some opinion to get around McNeely. This lack of action on the part of Counties demonstrates a mentality of enitlement. The Counties believe they are basically entitled to a steady stream of DWI convictions and revenue, and similarly the Department of Public Safety and even some private companies have financial interests at stake in the fees and expenses surrounding the process by which a revoked driver comes to get their driving privileges back. The Judiciary in contrast has slowed it’s knee jerk reaction to try to distinguish McNeely as some radical opinion that is not applicable to Minnesota, and is instead taking action to RESTORE the Fourth Amendment, This is critical since this right has been dismantled over the past four decades by caselaw pertaining to traffic stops, vehicle searches, searches of the person, and DWI. While McNeely is a landmark case, it is not truly a radical opinion, and is not unprecedented. In fact, before the advent of chemical testing in DWI, Fourth Amendment protections for searching a person’s body were fairly robust. Indeed, the current circumstance in which a person’s body has less protection than their home or office, seems counterintuitive, and stands in stark contrast to the state of the law just 50 or 60 years ago. A combination of several factors led to the rapid decline of this protection, with the automobile itself being a culprit of sorts. As car ownership increased, people began to travel greater distances and with more frequency, including daily commuting to and from work, and from the after bar. Inevitably, increased traffic accidents and fatalities followed leading to greater public safety concerns to which municipal… Read more {+}

McNeely and You

You’ve been charged with a DWI. You may have ultimately taken a breath test, urine test, or blood test that resulted in an alcohol concentration of over .08, perhaps much higher. It is absolutely essential that you are aware of the United States Supreme Court ruling in Missouri v. McNeely, which can be found by  here clicking here. This is a sea change in DWI law. When selecting at attorney, you need to make sure not only that they are aware of this case, but that they understand its relationship with Minnesota law and that your attorney is one who is heavily invested and engaged in fighting DWIs pursuant to McNeely. Don’t let a lawyer tell you that “McNeely only applies to blood tests” or that you “consented” to the test or any such thing. The U.S. Supreme Court just vacated the judgments in two Minnesota DWI cases where a urine test was used, and in Minnesota law, a breath test is even more coerced because you don’t have a right to an alternative test. It is irresponsible for your attorney not to apply genuine legal issues and good faith legal challenges to your case. The County Attorneys have tried to frame the McNeely case as outlining the circumstances under which an officer can take your blood, breath, or urine for chemical testing. But McNeely actually does not spell out those circumstances, and in fact places a great burden on the state. McNeely states that “in those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” That means the police have to at least attempt to get a warrant before taking your blood. Believe it or not, this is not a new law. Warrantless chemical tests of blood, urine and breath have been deemed to have violated the Fourth Amendment right against illegal search and seizure for some time, as anunciated in Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, (1989). The problem has been that there are exceptions to the warrant requirement, and one in particular has been distorted into a systematic violation of the Fourth Amendment in Minnesota for decades. One exception is exigent circumstances. The State must demonstrate that there is a grave exigency to obtain the chemical test in a certain period of time, and that obtaining that evidence would be delayed significantly if they had to get a warrant. Minnesota DWI law provides that the chemical test must be able to demonstrate the alcohol concentration within two hours of driving. The courts in Minnesota have erroneously ruled that, because alcohol starts to leave your system after it goes to your brain, this creates a “per se” exigency. McNeely specifically rejects and nullifies this per se rule. The U.S. Supreme Court acknowledged that much of the law surrounding chemical testing for alcohol is quite old, and that modern technology allows for police to obtain warrant telephonically in a matter… Read more {+}

Find yourself in trouble this 4th of July? Some practical tips.

Fourth of July is one of the busiest days of the year for families, friends, and police. It’s hot, and people are out in the hot sun, driving in their cars, motoring boats around the lake, all while drinking booze and blowing up things. It’s a real easy day to draw attention to yourself, do something stupid, or break the law. Today is a day to be EXTRA vigilant about how much you’ve had to drink before taking the wheel, or how you react to someone’s physical aggression or words. It’s also a really good day to not be in possession of ANYTHING illegal, as the threshold for pulling you over in a vehicle, or even inspecting your boat, is very low. But everyone make mistakes. Maybe you’ve been pulled over after a few beers. Perhaps you find yourself in the back of a squad after defending the honor of your girlfriend against a miscreant pervert with busy hands. Maybe your drunk, abusive boyfriend finally got what was coming to him, and someone called the cops. Here are a few tips on how to at least make the best out of a bad situation. 1. You have the right to remain silent. This is one of the most important rights you have, and it puts you in the greatest control, even if held captive by authorities. I have yet to hear of a situation where someone has talked themselves out of being arrested or charged with a crime. You may think your explanation gets you off the hook. That’s because you’re speaking from a perspective of common sense. Unfortunately, the law has drifted afar of common sense in some areas, and what you believe to be the truth that will set you free is more likely to be an admissible statement in court that gets you convicted of a crime. Many times have I heard from a client “the officer didn’t read me my rights, so my case should be dismissed, right?” Wrong. If you have not been arrested, if you have not been detained in a squad car, and and officer is asking you questions, he’s waiting for you to say the thing that gives him the authority to arrest you, and will be used against you in court. The moment an officer begins asking you questions, be extremely polite and courteous, and refuse to speak with him. The officer may make promises, may make veiled threats, whatever he does, do not answer factual questions. Do not think that being “open” and “honest” with the officer will cause him to somehow respect you enough to let you go. It won’t. Ever. 2. DO NOT LIE to the officer, especially about your name and birth date (which is a crime unto itself). Simply decline to speak with him. 3. Obey physical commands. If an officer gives you physical commands, obey those commands for your own safety, and to avoid the possibility of being charged with resisting arrest or obstruction. DO NOT SPEAK to… Read more {+}

Arm yourself against police injustice; get a smartphone.

In 1948, George Orwell wrote his famous “1984″, a novel in which a hyperbolic version of then existing English Socialism watches its society on every street corner, and even in their yards and homes. His writing was prophetic. The persistant conflagration of the Fourth of Amendment is the single greatest threat to your liberty. What Orwell DID NOT foresee is that, simultaneously, every single “prole” would possess, on their person, a camera which could broadcast any and all footage within minutes of recording. THAT’S OUR WEAPON, and recently, the Supreme Court of the United states affirmed your right to use that weapon to record police activity. Just as the Second Amendment was designed to ensure the citizenry would never be unarmed and helpless against tyranny, so the First Amendment stands for the proposition that the government shall have no monopoly on information, knowledge, memorial, and history. Your weapon in this fight is your phone, and the internet. When you carry a phone with a camera, you’re not just possessing something fun or convenient. You carry the power to record irrefutable evidence. Keep it charged. Keep it ready. Record EVERY badge, every word. Mount a “go-pro” in your vehicle. Activate it at every traffic stop. Don’t be a victim. Record. Record everything, and tell them in advance and simultaneously that you’re recording. This isn’t a quip. This is important for your liberty and future. Record all authority, and all interactions with them. Arm yourself against police injustice; get a smartphone. was last modified: May 27th, 2016 by Alex DeMarco

Jury Acquits Client of Felony Terroristic Threats

The Felony Terroristic threats statute is a very broad offense. Minn. Stat. 609.713 provides “Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another” is guilty of a felony. An insincere “I’m gonna kill you” or “do that and your dead” can result in a felony charge. Client was charged with felony terroristic threats. It was alleged he confronted the mother of his child over the whereabouts of his child. She had disappeared with his daughter for nearly a year, and he had not seen or heard from her. He confronted her in a public place on the same morning her children were taken by social services. She manufactured a story that he had threatened to kill her boyfriend, who was with her, and that he reached for a knife. By entering evidence of the current child dispute and citing it as a motive for her to lie, and by noting the inconsistency of her testimony with the video, Alex De Marco secured a “not guilty” verdict on the charge of felony terroristic threats. The defense presented no witnesses other than the defendant. If you’ve been charged with terroristic threats, you should know it is one of the most difficult cases for the state to prove at trial if you have a lawyer that knows the law and the rules of evidence. Don’t just hire any lawyer. Invest in your defense. Call Cavaleri & De Marco today. 651-503-8394 Jury Acquits Client of Felony Terroristic Threats was last modified: May 7th, 2015 by Alex DeMarco