DWI, the Current State of the Law, and where we go from here.

There are many attorneys that handle many DWIs for a wide range of fees.  DWI is the most common crime in Minnesota, and at any time in a criminal defense lawyer’s career,  20%-40% of their case files are likely DWIs.  Getting DWI cases is not hard.  If they’re in the phone book, if they’re answering their phone a night, a criminal defense lawyer is going to get plenty of DWI calls, especially around the holidays.  While this results in good business for the attorney, the fact is, it also remains a thorn in their side.  Secretly, most of us hate DWI cases, because the case law is overwhelmingly in favor of the state, and raising all possible challenges to a DWI is as much work as any felony case but pays a lot less. However, by attacking a DWI from every angle, a good lawyer can either set up to beat a DWI, or obtain VERY good results for someone who is in a whole lot more trouble.   VERY recently, new developments in DWI law have developed which make your decision of who you hire for current, pending DWI matters absolutely critical. Long ago we talked about Missouri v. McNeely and its potential impact on DWI moving forward.  Despite a very well reasoned and clearly stated opinion that directly addresses even Minnesota’s implied consent law and covers all manner of exceptions to the warrant requirement, candidly, Minnesota has chosen to completely ignore the Supreme Court of the United States and engage in incredibly complex acrobatics to get around what was clearly stated, and 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. ”  The Supreme Court ruled long ago that blood, breath, and urine tests are all searches for purposes of the Fourth Amendment.  Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, (1989). Often we attorneys dazzle our prospective clients by explaining to them the holding in McNeely and it’s offspring, and by talking about the analogies between home searches and the search of their person in the context of a DWI.  It’s easy to do so because, frankly, it’s not complicated, and any person of intelligence can understand exactly what the opinion says.  But again, the Courts in Minnesota have chosen specifically to wield unruly complex arguments to steer clear  of the obvious.  And so eventually the newly charged DWI defendant asks “So will this beat my DWI?  Has it worked?”   The candid answer should be given:  On the whole…No.  As the Attorney General is fond of quoting in memo after memo, over 80 cases have gone to the Minnesota Court of Appeals, and each one has failed, because, essentially, in each case the Court of Appeals has found that the individual, particular driver, under the “totality of the circumstances” analysis required by Brooks, has ruled that the the driver… Read more {+}

Domestic Assault Law Changes in August

New domestic assault laws make arrest easier, dismissal harder On August 1, 2014, a new law goes into affect which broadens the basis on which a person may be arrested and charged with domestic assault.  It now includes provisions for misdemeanor arrest, and expands the time frame to 72 hours.  If you are charged with domestic assault, or someone you know has just been arrested for domestic assault, here’s why you need to involve a criminal defense attorney immediately. The politics of domestic assault continue to ignore the rights of the accused and discourage investigation and common sense. It is often politically incorrect to doubt the words of an accuser, particularly a woman Sadly, however, we have created a system that does provide incentive to manufacture domestic assault allegations, and for the accuser to stick to their false story.  As discussed previously at Minnesota Legal Defense, The system also makes it extremely difficult for the accuser to “drop charges” so to speak.  There are a number of attributes which make domestic assault so difficult from the very beginning:   (1) The speed with which various mechanisms move when accusations are made (2) The immediate isolation of the accused. (3) The affects on pending or soon to be initiated family law proceedings. (4) The ability of the accuser to continue to manufacture evidence at trial. From the moment 911 is called, a very fast process begins, and you’re going to jail. Law enforcement and prosecuting authorities take domestic assault very seriously, as well they should. According to a 2012 Domestic Violence Report citing to the 2010 Minnesota Crime Victim Survey, as many as 201,814 adults may have experienced domestic violence in 2010. Besides the wrongfulness of this act, the other concern of law enforcement is that perpetrators of domestic violence may go on to harm their victims repeatedly. Abusive relationships have been known to escalate quickly. No officer wants to be the one that did not respond to a 911 call only to find a murder has occurred. For this reason, police respond swiftly to domestic assault calls. The person that calls 911 often has a distinct advantage in that they will tell the first version of events. At that point, invariably, officers end up subject to a phenomenon known as confirmation bias. When they arrive on scene, they will be looking for evidence which confirms the facts of the initial call. The caller will also often be the first person interviewed at the scene, further securing this bias. From there, they will interview the suspect, and selectively record and put in their reports those portions of the story that confirm the accuser’s version of events. It’s for this reason that it is important to not talk to the police. You may think that you’re helping yourself and that you can prove your innocence, but the officer is most often looking for you to say the magic words that confirm any part of the accuser’s story. Frankly, any confirmation that you… Read more {+}

How to Avoid a Probation Violation and Stay Free

OK, so you got a great deal. Maybe you didn’t get a great deal, but hey, your lawyer said it was a good idea, so you went with it. Case over. Now you’re on probation. No sweat, right? Guess what, now the work is up to YOU, not a lawyer. Minnesota, relative to other states, has a pretty generous sentencing structure. First and even second time offenders can often have most or all of their jail time stayed pursuant to certain “conditions.” Our justice system views this as a “second chance”, a chance for the defendant to reform their ways and demonstrate law abiding behavior. Unfortunately, sometimes a probation violation can happen faster and easier than one thinks. Once a person is arrested or summoned on a probation violation, the very real danger of jail time is at hand. Jail time was stayed on particular conditions, and if those conditions have been violated, it is presumed by many courts that jail time will no longer be stayed. It’s a system of second chances, but it does not tend to be a system of third and fourth chances. So if you’re on probation, here are some very concrete steps you can take to avoid probation violations, or empower an attorney to beat a probation violation if one is filed. These steps can mean the difference between freedom and jail. 1. They keep a file with your name on it, so make a file of your own. One of the greatest problems lawyers face when representing someone in a probation violation is a lack of memory by the defendant and the absence of a timeline. Too often we hear from clients “I called and called my probation officer, and told him about my situation, but they never got back to me.” This is an actual problem. We hear it too often for it to be just manufactured out of thin air, and the fact is probation officers, like attorneys or anyone else, sometimes get too busy, or they just get lazy and don’t do their job. But in order for us to put the probation officer in their place, we need to be able to ask “isn’t it true that my client, Steve, called you on this day and this day?” Keep a running file on everything relevant to you probation. It should serve as a detailed journal of sorts. Log every phone call you make to your probation agent by date and time. Look at your phone. Screen capture the outgoing call. If you want to be REALLY proactive, download an app to record your calls, and notify your probation officer that you record calls. In order for it to be admissible, you have to notify them in advance that the calls are recorded. Save every piece of mail they send, and every letter you reply with. What’s that? You don’t write to your probation officer? That’s a shame, because while voicemails can be ignored and deleted, paper mail should be… Read more {+}

Aiding and Abetting: Wrong Place at the Wrong Time

Many people accused of aiding and abetting are simply in the wrong place at the wrong time. Some people do not even know what constitutes aiding and abetting. Minnesota law says that it is the act of providing a criminal with assistance, whether you helped them in the planning of a crime or you concealed the crime after it happened. Many times, individuals accused of this crime had no idea that what they were doing could be considered aiding and abetting or the act occurred while they were present at the scene and they didn’t condone it at all. For instance, you may have been having a night out with a friend when they decided to break into a store. You kept trying to tell your friend to stop, but he wouldn’t. When the police arrived, you were arrested too although you were not doing anything. Just because you were in the wrong place at the wrong time made it look as if you were providing assistance. Another example is when a person is convinced to not report a crime that was committed by someone close to them. Perhaps this convincing involved lines such as, “they will think you had something to do with it and you will never get to see your kids or family again.” By not going ahead and reporting the crime, you could be accused of aiding and abetting and then you could face consequences that interfere with your life. A person can also be charged with aiding and abetting if they do not report crimes against children. For example, a Minneapolis teacher who notices that a child is displaying the signs of child abuse is obligated to report the abuse. This is a legal obligation that is designed to protect the child. If the teacher doesn’t report the abuse and it is found that he or she recognized the abuse and did nothing, she could be charged with aiding and abetting. While this doesn’t necessary constitute being in the wrong place at the wrong time, it is a good example of when a person is required to report a crime. Doctors, nurses, and other parents are subject to this requirement as well. A person is in the wrong place at the wrong time if a family member comes to their home after committing a crime and then the police arrive. If the family member hiding from the authorities tells you to tell them that they are not there, it is best to go ahead and tell them. While you did not ask to be put in such a compromising position, you do not want to have an aiding and abetting charge filed against you either. Withholding information from authorities also constitutes aiding and abetting, but it is possible that you may not immediately recollect the information that they are seeking. Sometimes when a person is under pressure, they may not remember important information until later. However, withholding where someone they are looking for is located… Read more {+}

Terroristic threats: The Catchall Felony

“Touch me again, and I’m gonna knock you out.”  We’re Americans. We live in a society and in a culture that is no stranger to confrontation. The fact is we love fighting. We love to watch smack talk in sports. We love to see a baseball or football coach take an umpire or referee to task, spitting and yelling with the glare of rage in their eyes. We love watching guys in a movie engage in macho banter back and forth, and this aids in character development. Even our political discourse has become a dog fight, with right and left pundits yelling over each other, and the media purposefully seeks out confrontational and divisive topics less for our information than our entertainment. For better or for worse, this affects our interaction in everyday life. When we get pissed off, and when we’re looking to make a show and stir some drama up, we use fighting words. We put on a fighting face and take stand as a character of sorts. The frank truth is nobody takes it too seriously, and everyone knows it’s mostly hot air. You would think that wouldn’t be a crime. You would think actually hitting a guy in the face and giving him a black eye, or stealing, or damaging someone’s property would be a worse action. But guess what? At the most basic level, those are misdemeanors. Turns out going Joe Pesci with your mouth gets you charged with a Felony, a thing called Terroristic Threats.  That’s right. You might as well have kept your mouth shut and socked the dude in eye, because that’s only a misdemeanor, presuming you don’t have prior assaults and you don’t break any bones.  Now you’re a terrorist.  Ok, so punching a guy is not my legal advice. You want free advice? Here it is: Anyone who “unlawfully and feloniously directly or indirectly threatens to commit any crime of violence with the purpose to terrorize another or in a reckless disregard of the risk of causing such terror” commits a terroristic threats. The critical distinction on which criminal activity turns in Terroristic Threats in Minnesota is the scienter requirement, or “mens rea.” That was for the other lawyers out there or the Catholic School kids that actually had to take Latin. That means your mindset. It doesn’t say “intentionally”, but in common language, it means you have to actually mean what you say in order to really be guilty of terroristic threats. You have to seriously and immediately mean that you’re going to hurt someone or their property, or you should have known that someone was going to be genuinely fearful you would cash the check your mouth is writing. In other words, it can’t be just posturing. “The test of whether words or phrases are harmless or threatening is the context in which they are used.” United States v. Prochaska, 222 F.2d 1 (7 Cir. 1955); United States v. Pennell, 144 F.Supp. 317 (N.D.Cal.1956). “ Thus the question… Read more {+}