Posts Categorized Criminal

Collateral Consequences for Licensed Practitioners and Nurses under Minn. Stat. 245C

Collateral consequences are those consequences of a criminal conviction that are not related to the actual sentence. Collateral consequences are the difficulties that a person has as a result of the criminal charge or conviction. For individuals in certain professions, such as nursing, there are some rather steep collateral consequences that could affect the profession. Under Minnesota Statute 245C, background checks that are performed by the Department of health and Human Services could prevent an individual from being able to work as a registered nurse, licensed practical nurse, home health aide, or even being the guardian of an elderly patient. Just the filing of certain criminal charges, especially gross misdemeanors and felonies, can result in an administrative process that could lead to administrative disqualification from practicing in the field. In some cases, a person may ignore the administrative notice that is sent by the Department of Health and Human Services after they have been charged with a serious crime. All the agency has to establish is that the defendant committed the crime based on a “preponderance of the evidence.” Even an acquittal does not affect the decision that the agency has made. When a person hires aSt. Paul criminal defense attorney, their attorney will advise them of the possible notification from DHS so that appropriate steps are taken to protect the client in both criminal court and at the administrative level. An offense, such as reckless driving may not result in any action, but criminal sexual conduct, DWI, assault, domestic assault, financial crimes, and drug abuse are all examples of crimes that can result in a criminal charge that can result in the ultimate collateral offense of not being able to practice as a nurse. Under Minnesota Statute 245C.15, subdivision 1, a disqualifying crime includes all degrees lf murder, first and second-degree manslaughter, all forms of domestic assault, kidnapping, aggravated robbery, murder of an unborn child in all degrees, prostitution, all degrees and types of criminal sexual conduct, neglect or endangerment of a child, felony-level stalking, shooting at or inside a public transit facility or vehicle, indecent exposure involving a minor, and child pornography. Also considered a disqualifying offense is the aiding and abetting of someone who committed any of these crimes. The offense doesn’t have to occur in just Minnesota either. When disqualification is based on a judge’s determination before any conviction could take place, the disqualification period begins from the date the court order is issued. Subdivision 2 states that a person can be disqualified from practicing in the nursing profession permanently. They can also be disqualified if less than 15 years have passed since the sentence was discharged, if there was a sentence, in many of the crimes mentioned above (excluding murder and sex offenses), including specific white collar crimes. The ten-year disqualification pertains primarily to misdemeanors, gross misdemeanors, and very few felonies. The crimes are minor compared to those resulting in permanent disqualification or 15 years of disqualification. The seven-year disqualification, like the ten-year disqualification, pertains… Read more {+}

Wrongfully Charged with Criminal Sexual Conduct

It is difficult for some people to hear that a person has been acquitted of criminal sexual conduct. However, Minnesota does not necessary have to corroborate the story of the accuser in order for someone to be charged or convicted of the crime. It is outlined in Minnesota Statute 609.347 subd. 1 that the testimony of a victim does not have to be corroborated. This was also stated in the case State v. Ani (Minn 1977). “Corroboration” is defined as other evidence that supports the accusation of the accuser. There have been a number of cases throughout Minnesota in which individuals have been wrongfully charged of criminal sexual conduct because of simple accusations. Not only does this hurt the accused, but it also hurts the credibility of those who have legitimately been victimized. It is a disservice to law enforcement and the court system as well. Even if a person does not have a prior criminal record and has a flawless reputation, the accusation takes precedent and the case is aggressively prosecuted. Nationwide, there have been quite a few false accusations. These false accusations have led to convictions that sent these individuals to prison under the title of “rapist” or “sex offender.” DNA evidence has led to the release of some of them, while others are still waiting. When DNA evidence has led to the declaration of their innocence and they are released from prison, they tend to win large monetary settlements for the wrongful conviction and the years of their lives that they lost. Sometimes false accusations stem from custody issues or out of “revenge.” For instance, a parent may coach their young child to say that the other person touched them inappropriately in an effort to keep the other parent from ever gaining custody of the child. Other times, someone may be mad at another and wish to get revenge by going as far as accusing them of sexual assault. Also unfortunate is when someone makes the accusation for the sole purpose of getting attention. Sometimes these individuals recant and other times they see it through to the conclusion. In some cases, they will come out and say after the conviction that their accusations were false, but it takes much more than that to get a person out of prison. However, you cannot be convicted of criminal sexual conduct unless the prosecutor convinces the jury beyond a reasonable doubt that each of the elements of criminal sexual conduct exist. The job of the defense is to implant reasonable doubt where it belongs to get the correct verdict. Nonetheless, the prosecutor legally points to the jury and states that if they believe the victim, that is enough evidence to convict the defendant. In other words, the conviction occurs simply because of another person’s word and not the evidence or lack of evidence in the case. Most juries do review the facts and evidence in the case, knowing that false accusations do happen and the defense’s job is to point… Read more {+}

The importance of responding immediately with “I’m invoking my 5th Amendment right to counsel”

Under the Fifth Amendment, a defendant is given the right to not testify. This means that the judge, prosecutor, and even the lawyer of the defendant cannot force them to testify on their own behalf in fear that they may self-incriminate without intending to do so. Any time someone says, “I plead to the Fifth” or “pleading to the Fifth,” they are doing so because it is their right to not answer questions. When in the custody of police or when in court, a person can exercise their Fifth Amendment right to not self-incriminate. The origin of this right is rather interesting in that it originates from the refusal of the Puritans to cooperate with the English interrogators. The Puritans would often be tortured or coerced into confessing their religious affiliation and they would be considered guilty if they were silent. English law granted the right for citizens to not self-incriminate in the mid-1600s when a revolution created the greater parliamentary power. This right then followed the Puritans to America, where it would be included in the Bill of Rights. When you are pulled over for DWI or you are charged with any type of criminal offense, you do not have to answer the questions of law enforcement. You can invoke your Fifth Amendment right to stay silent until you have counsel present. Your Miranda Rights say that you have the “right to remain silent” and that “anything you say or do can be used against you in a court of law.” It also states you have the “right to an attorney.” When you contact your attorney after invoking your Fifth Amendment right, your attorney will advise you on what you should and should not say. You can have your attorney present during questioning so that you do not self-incriminate yourself. Even if you feel your statement is completely innocent, it can be misconstrued by law enforcement to mean something that it doesn’t and this can be used against you in court. By invoking your Fifth Amendment right to counsel, you could be making the difference between freedom and conviction. It is important to note that the Fifth Amendment right to self-incrimination does not extend to blood tests, fingerprinting, or DNA evidence that is being gathered for a criminal case. The Supreme Court has upheld that the privilege only extends to communicative evidence, such as interrogation. DNA and fingerprints, in particular are considered non-communicative or non-testimonial. The importance of responding immediately with “I’m invoking my 5th Amendment right to counsel” was last modified: November 19th, 2014 by Alex DeMarco

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 {+}