Posts Tagged Minneapolis Criminal Defense Attorney

When Driving Drunk Becomes Necessary

There are two fundamental ways in which a DWI is challenged. One is a legal challenge which deals with the constitutionality of the progressive intrusion into one’s fundamental Fourth Amendment Rights. This primarily asks a court to suppress evidence in a DWI case before any sort of trial. It could raise a challenge to the basis for stopping the vehicle in a case. If the stop is legally proper, one could challenge the basis for the expansion of the the traffic stop into a DWI investigation, basically determining whether it was proper to ask a person to come out of the vehicle for standardized field sobriety testing. It could raise a challenge to whether there was probable cause to arrest the driver after such investigation.  Finally, a challenge may be raised to the Constitutionality of taking a chemical test without a warrant, which was recently litigated in a number of DWI cases in Minnesota and ultimately the Supreme Court of the United States ruling in |State v. Bernard|. DWI cases are difficult to challenge, but most of the successful litigation and positive case law come from these challenges. There can also be challenges raised to the science of DWI testing. The state is advancing a scientific test as evidence of a crime, namely operating a motor vehicle while the person has an alcohol concentration above .08. The State thereby “must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability. “Without a foundation guaranteeing the test’s reliability, the test result is not probative as a measurement and hence is irrelevant.” State v. Dille, 258 N.W.2d 565, 567 (Minn.1977).  It is very difficult to do this without involving an independent expert regarding the science of alcohol testing. It is often not successful to challenge the reliability of the chemical test as a matter of law before a judge. However, there can be success in challenging it before a jury, because the fact is that precise testing for alcohol concentration is not very good science, and the police officers themselves know very little about it. However there are also what are known as “affirmative defenses” to DWI.  There are not many, but one in particular which Alex DeMarco recently advanced at trial, and with success, is that of “necessity.” What is a necessity defense? It’s actually a defense that arises from English Common law and may apply to a number of different crimes and circumstances. Essentially this defense is made in a circumstance where the driver did not want to drive the car, but felt they had to in order to escape an immediate danger. Many lawyers when faced with a case of necessity give up afte researching the case law. That is because there are numerous rulings that have significantly limited when the defense is available. Many published cases deal with circumstances where the trial court ruled the jury could not consider a necessity defense, and the court of appeals and other higher… 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 {+}

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 {+}

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