Posts Categorized Criminal

Bernard v. State of Minnesota, killing the DWI mill and restoring basic rights

We recently discussed a victory some weeks ago in which a person was able to avoid Minnesota DWI charges by following Alex DeMarco’s instructions to the letter at the police station.  The basic key:  Never submit, never refuse, ask for a warrant, every time.  That approach is based on recent rulings in Minnesota DWI law throwing out convictions for defendants whose fourth amendment rights were violated.  Had it been any other case, murder, burglary, drugs…the law would be clear.  It’s really simple.  Warrantless searches are unreasonable.  Only very precise exceptions can justify a search without a warrant, exceptions which are basically not even remotely applicable in a DWI case, despite decades of presumption to the contrary.  Today the very heart of DWI law in Minnesota, the criminal charge of DWI test refusal, THE ONLY mechanism by which test are obtained in Minnesota, was heard before the Supreme Court of the United States.  We wanted to update you so you can read the entire Transcript from Bernard‘s oral argument.    If you or anyone you know is facing a DWI, whether it’s in Faribault, or St. Paul, or Woodbury, or Minneapolis, All of Dakota County including Lakeville, Burnsville, Hastings, Apple Valley, or anywhere in Minnesota, contact us today to set up a free consultation.   Bernard v. State of Minnesota, killing the DWI mill and restoring basic rights was last modified: July 13th, 2016 by Alex DeMarco

Just say everything but “no” to implied consent.

“Finally, Petitioner argues Mr. Jones was subjected to an unreasonable warrantless search. Contained within this argument the court finds Petitioner’s more persuasive assertion: Mr. Jones did not refuse to take a blood or urine test because he stated he would take a test once a warrant was obtained.” Recent order in Rice County DWI Implied Consent case (Names changed). So we haven’t blogged DWI in awhile and we’re gonna blow through this like Terry Tate enforcing an office. First of all, for total newbs, we just dropped “implied consent” on you. What’s that? The law that says “hey by virtue of driving in Minnesota, you consent anytime to have yourself tested for booze or drugs whenever we want.” You’d probably remember this from your driver’s license application, if it was on there, which it’s not, but ignorance isn’t a defense, so on we go.  Bottom line, besides the criminal charges, “State vs. you”, there’s the civil case, “You vs. Commissioner of Public Safety”, which you need to file within 30 days of receiving your notice of revocation. If you don’t do that, your license is gone.  Period.  Hard and fast deadline.  That’s the two sides of DWI law, the criminal, the civil.  So this comes from that challenge to the license revocation.  How about the criminal?  It was so good, the test refusal charges, the serious DWI Charge, was dismissed by the prosecutor upon our motion before we even got to a hearing.  The state has now has to prosecute the matter with no field sobriety tests, no alcohol concentration, no evidence.  How did it get so good? Because this guy called an attorney who understood what he needed to know right there, right then. We’ve written previously regarding the bombshell that opened up DWI litigation three years ago in Missouri v. McNeely. If you’re facing a DWI and you haven’t heard of this court case, the one liner states: “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’s the Supreme Court of the United States; the highest Court in the land.  Blood, breath, and urine tests are all searches for fourth amendment purposes. (Skinner v. Railway Labor Executives Association). Some people thought it didn’t apply to Minnesota because we don’t force a test like Missouri.   Call it Minnesota nice, or laziness, whatever you want, but the bottom line is that a person is given a supposed “choice” on whether to take the test or not.  In other words, we say “we don’t wanna touch you or force you to do anything, but if you don’t subject yourself to this warrantless search, we’re gonna charge you with an even worse crime.”  So initially,some folks thought this didn’t apply to Minnesota.  Oops.  Two urine test cases from Minnesota get reversed by SCOTUS a few weeks later.  It suffices to say a lot of case law has… 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 {+}