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Felon in Possession of a Weapon

In general, the law prohibits an individual convicted of a felony from possessing or purchasing a firearm under specific conditions. While there are some provisions under federal law that allow certain felons to have their gun rights restored, Congress has not declared this provision a law. Over the past 30 years, Minnesota and federal laws have changed and crimes that used to not be felonies are now considered felonies. This has resulted in arguments regarding non-violent felons having their firearms rights restored. However, legal traction has not been gained and that means nothing has been implemented. Outside of a pardon, these individuals have not been able to gain back their rights to own weapons. Nonetheless, a question that manySt. Paul criminal defense lawyers find individuals asking is what types of weapons can a convicted felon possess, if any? In Minnesota, felons are to not own weapons unless certain conditions exist and the federal law is a rather technical one in that it could be possible for a felon to purchase and own specific types of muzzle loading firearms. Generally, these weapons are defined as guns that were manufactured before or during 1898 and they are loaded from the muzzle, which is the open end of the barrel. A firing pin or primer being ignited does not trigger these firearms. Instead, a flint stone or percussion cap ignites the weapon. These are considered antique firearms and federal law does state that a person convicted of a felony can possess an antique firearm. However, there are a number of current firearms that use black powder and are made from the components of modern firearms. These weapons are not counted as antique firearms although the firing mechanisms may be similar. This means that careful research is required when wishing to own such a firearm. If an unintended violation of the firearms law is committed, just like an intentional violation, the prison sentence could be lengthy, so any attempts to own a black powder firearm must be evaluated very carefully. That way there is no chance of violating the law. The specific conditions that exist in Minnesota in regards to those convicted of a felony possessing a weapon are as follows: The individual cannot own or possess a firearm if they have been convicted or adjudicated for a felony-level drug offense or a crime of violence, unless ten years have passed since the restoration of their civil rights or since sentence discharge, whichever occurs first. During that time, the person is to not be convicted of any other offense. A person who has been convicted of a felony with a punishment of more than one year in jail whose civil rights have yet to be restored. A person currently charged with a felony that warrants more than one year imprisonment, the prohibition is limited to semiautomatic assault weapons and pistols. Violation is a gross misdemeanor, except in the case of illegal possession of an assault weapon or pistol by a minor, which is punishable… Read more {+}

DWI for Sleeping In the Car: Can it Happen?

It has been seen in the news time and time again that individuals have been arrested for DWI for sleeping in their cars. Some individuals simply go to their car to “sleep it off” before they take to the roads. When they have been at a bar and they simply don’t have a ride home or money for a cab, that’s what they decide to do in some cases. So when the question regarding whether or not a person can get a DWI for sleeping in their car is asked, the answer to the question is “it depends.” It was in 2010 that the Minnesota Supreme Court issued a decision regarding this issue. While the court did not say that every person who is asleep behind the wheel of a parked car will get a DWI, it does send a message that being over the legal blood alcohol content of .08 while behind the wheel of a vehicle, even if the vehicle was not driven, could result in a DWI charge in Minnesota. This charge could ultimately lead to a conviction. The case is known as State v. Fleck and it is in this case that Mr. Fleck was parked in his apartment building’s parking lot while intoxicated. A neighbor called the police because they saw Mr. Fleck sleeping in the driver’s seat of his car with the door of the car open. Fleck had not been driving the vehicle, which was determined by officers because the car was not warm to the touch. The car had not been running, the lights were not on. His keys were in the center console rather than in the ignition. Before the case went to trial, officers had attempted to start the vehicle, but they could not start it. There was nothing that indicated the car was operable. Mr. Fleck received the DWI charge because he was in “physical control” of the vehicle while he was impaired. The Minnesota courts define “physical control” as a situation in which an intoxicated person is found in a parked motor vehicle in which the vehicle could be started without much difficulty and become a source of danger to others or the operator. In other words, you have physical control of the vehicle if the means to put the vehicle into motion exists or you are in close proximity to the vehicle’s controls. In State v. Juncewsky (Minn 1981), the court recognized that the law does not apply to passengers who hand over control of the car to another driver. It has also been determined that being around or in the vehicle is not enough to show a person has physical control. Instead, the court considered the situation as a whole, including the location of the keys, the proximity to the vehicle or the location within, whether or not the person was a passenger, the vehicle owner, and whether the vehicle would start. There are some individuals who have had no intention of driving the car, but… Read more {+}

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 {+}