Minnesota Criminal Defender : Minneapolis, Anoka County Criminal Defense Attorneys & Lawyers for Felonies & Misdemeanors : Brandt Criminal Defense

So last time I covered what you need to know if you are pulled over for DWI / DUI in Minnesota.  This time the assumption is that you have now been arrested.  For Part II, what you need to know about being arrested for DWI / DUI...

Remember you're on candid camera in the cop car

Remember this from last time – assume you are being recorded.  You'll be put into the squad car and probably left alone.  Assume anything you say or do inside the squad car is being recorded and will be used against you later, so for Pete's sake be quiet in there.  Now is not the time to berate yourself for all the drinks you had at the bar.  Just be quiet!

Your car will be searched

Any time a person is arrested for DWI / DUI the police can search your vehicle.  Also, if the officer is going to tow your car to the impound lot, he or she can search the car to do an "inventory search" to make sure all your valuables are accounted for.  Incidentally this is also a convenient time for the police officer to locate any illegal items in the car.  Once in a while you may have a passenger who is not being arrested, is sober and can drive the car home for you, but more likely, your car is getting searched.

Don't chat with the officer

After watching the search from the back seat of the squad car, you'll likely be driven to the police station.  Again, remember you don't have to talk to the police officer in the car.  If you do say anything make sure you are polite and respectful. 

At the station

Once at the police station you there are three key things you should remember:

First, you have the right to speak with a DWI / DUI defense attorney before taking any blood, breath or urine test.  Exercise your right!  Ask for a phone book.   Ask for pencil and paper to take notes from your conversation.  Find an attorney who will answer the phone and call for advice.  Attorneys never charge for this call, so be sure to make the call.  Use the paper to make notes for yourself about everything that has happened so you can communicate these facts to your attorney later. 

Second, you need to know that refusing to take the chemical test (blood, breath or urine) is a crime in and of itself.  Minnesota has some of the harshest punishments in the nation for DWI offenses.  Yes, refusing to take the test is a crime in Minnesota.   It's a gross misdemeanor which carries serious penalties.  There are a few select defenses to test refusal which is why it's important to call an attorney before consenting to the test.

Third, know that you can request a second chemical test.  Assuming you consent to either take the breath test (using the Intoxilyzer machine) or provide a urine sample, you also have the right to an additional test of your blood, to be administered at your own expense by a qualified person of your choosing. The additional test must be conducted within a reasonable time after arrest, and its results are admissible in court. This is a good option because the second test may give different or better results than the first test. 

Whatever you do, call an attorney.  An attorney can advise you about whether you should request an additional test as well as give you advice on how to comply with the first chemical test.

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So what would you do if you were stopped by the police for drunk driving?  I have over 15 years of experience handling DWI / DUI cases and believe me; people do all kinds of things which make their case harder to defend. 

Here are some pointers to keep in mind if you are stopped or arrested for drunk driving…

Be polite

BE POLITE.  This rule applies in all situations where police are involved.  Always, always, always be polite.  Being rude or aggressive will get you nowhere fast.

Don’t make any sudden movements

Officers are trained to be cautious, and to protect themselves, first and foremost. They always approach the car from behind so they have a clear view, and so the driver would have to turn completely around in order to shoot or attack them. So, don’t make any sudden movements and keep your hands on the wheel at 10 and 2 o’clock.

Smile! You're on candid camera!

Assume everything you say and do is being recorded.  Nearly every police car in Minnesota is equipped with a camera and several microphones.  Police officers have a microphone on their uniform and there is one in the police car too.  If you break rule number 1, everybody is going to find out about it – the prosecutor, the judge, the jury, etc. So remember rule number 1 and be polite at all costs.

Don't lie

This should be obvious.  Do not lie.  If you get caught in a lie it will hurt your credibility with the officer and it will be used against you later in court.

Do not take the field sobriety tests

You have the right to (politely) say no to the field sobriety tests (FSTs).  You don't have to walk in a straight line, you don't have to allow the officer to check your eyes with his pen light and you don't have to take the breathalyzer test at the side of the road.  The tests are entirely subjective. It’s completely up to the officer whether you “pass.” (For more information on the history and science behind FSTs, read: Are Field Sobriety Tests Accurate?)  The prosecutor will use these tests against you later in court (see number 2).  However, if you don't take the tests you will probably still be arrested anyway.  On the up side, if you don't take the tests then there isn't as much evidence against you later.

Don't answer incriminating questions

You have the right to (very, very politely) decline to answer incriminating questions.  You do have to give your name, license and proof of insurance to the police officer.  But if the officer asks you where you've been, if you’ve been drinking, or how much—and you're concerned that you might incriminate yourself—simply say, “I’m sorry, officer, but I’ve been advised not to answer any questions.”  Again, if you decline to answer questions and decline to take any field sobriety tests, you'll probably be arrested anyway.  But, again, the upside is you haven't given the prosecutor much evidence to base charges on either.

Assume you're going to be arrested

Assuming you have been polite (but uncooperative) you are probably getting arrested anyway...this is inevitable.  If you've been drinking there is a good chance your breath test would show a blood alcohol level over .08 (the legal limit in Minnesota - .pdf).  If you haven't had more than a drink or two, then you probably cooperated with all the tests and questions and you're on your way home.  End of story.

But let's assume you're being arrested…next time...what to keep in mind when you're taken into custody...

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White Collar Crime…the phrase conjures up visions of white men, executives, wearing suits and ties standing at a shredding machine, doesn't it?

But does the executive stereotype fit today?

The phrase has been around since about 1939 and has carried several definitions which all centered on the upper class status of the people accused.  But looking at a list of white collar crimes shows that the stereotype of the executive in a suit is not the only group targeted by investigators these days.  Because of the widespread use of technology by everyday people nearly anyone can be accused of a white collar crime.

Types of White Collar Crimes:

• Computer hacking
• Money laundering
• Internet crime
• Internet fraud
• Computer crimes
• Credit card fraud
• Insurance fraud
• Health care fraud
• Accounting fraud
• Tax crimes
• Consumer Fraud

Small business owners, restaurant servers, college students…almost anyone can be accused of these crimes.

What law applies?

In Minnesota anyone accused of a so-called white collar crime will be charged under one or more of a variety of statutes.  Depending on the circumstances, the federal government can also bring criminal charges for white collar crimes.  For instance, where the fraud is alleged to occur in multiple states federal charges could apply.  The Federal Bureau of Investigation (FBI) investigates  federal white collar crimes. The FBI defines white collar crime as "illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent on the application or threat of physical force or violence"

Where does the business executive stereotype come from then?

White collar crime does tend to overlap with corporate crime because the opportunity for fraud, bribery, insider trading, embezzlement, computer crime, copyright infringement, money laundering, identity theft, and forgery are more available to "white-collar" or professional employees like accountants, bankers, managers and executives.

We can expect more charges of white collar crimes in Minnesota...

Joy Powell of the Star Tribune recently reported that prosecutions are increasing for white collar crimes in Minnesota.  If you’ve been charged with a white collar crime, vigorous and effective legal representation is more important than ever.  Prosecutors are eager to enforce these laws, especially in the wake of recent and repeated reports of corporate scandals within the Twin Cities and elsewhere such as the Tom Petters case).  Several laws, including the Sarbanes-Oxley Act and its White-Collar Crime Penalty Enhancements Act, have created tough penalties for senior executives, and have significantly increased the penalties for common types of fraud which apply to many individuals. 
 

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The simple answer is: ALWAYS. 

No matter how small the item, taking something that is not yours is a crime, plain and simple.  There have been literally hundreds of thousands of theft charges written by prosecutors for thefts in which the defendant is accused of stealing less than five dollars worth of merchandise from a store.  If you have kids and teenagers around you, it is very important to let them know that - yes, shoplifting even a candy bar worth less than one dollar can result in criminal charges. 

Often these small scale crimes are charged as petty misdemeanors and dealt with through a "diversion" program.  But if those offers are ignored your teenager will end up with a court hearing before a district court judge. 

Teenagers often find themselves on the wrong end of many charges that used to be treated more lightly. 

• Streaking across the athletic field during a game is Disorderly Conduct. 
• Taking a car for a joy ride is really Motor Vehicle Theft. 
• Stealing a neighbors lawn ornaments is Theft
• Egging someone's house is Criminal Damage to Property.
• Breaking into a schoolmate's house is Burglary. 

The moral of the story, as David Crosby once sang: teach your children well.  And keep them out of the juvenile court system!  If your child or teenager winds up in juvenile court it's very important to deal with it swiftly.  Take advantage of any diversionary programs offered, and make sure all court orders are followed so the situation doesn't escalate with further bad behavior resulting in probation violations or new charges.

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Last time I laid out the basics of criminal assault in Minnesota.  In this article, I will outline some common defenses when a person is charged with assault.

Self Defense

A defendant can argue self-defense when he or she agrees that act of assault occurred occurred, but claims that it was justified by the other person's threatening actions.  A jury must decide that the defendant acted reasonably.  In short, did he act reasonably under the circumstances or did he go overboard.  

The jury considers:

• Who was the aggressor?
• Was the belief that self-defense was necessary a reasonable one?
• Did the defendant use only the force necessary?

Defense of Others

Defense of Others claims are similar to self defense claims.  Here, the defendant agrees that the act occurred, but claims that it was justified by the other person's threatening actions to a third person.  Again, to win, you must convince the jury that you acted reasonably under the circumstances. 

Alibis

An alibi defense is simply the argument that: it wasn't me because I was somewhere else".

Credibility

One of the best defenses is to challenge the credibility of witnesses - including the police.  A good attorney will examine all aspects of witnesses statements, the inconsistencies and the omissions.  Any witnesses testimony could be damaged by "prior inconsistent statements" (things they said before that conflict with what they're saying in court) or "rebuttal witnesses" (people you bring in to testify) who tell a different story.   

What can I do?

You can hire an attorney who will help to preserve evidence, investigate and interview witnesses that you cannot or should not talk to yourself.  You can also protect yourself by avoiding contact with the alleged victim, following any rules set by the court and avoiding using any drugs, alcohol, or places which might trigger another altercation.  Also, statements to police (like in this case) can be very damaging which is why you have the right to remain silent. 

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Assault and battery are two different issues in civil lawsuits.  In criminal court, however, assault and battery fall under one statute - there is no difference.  The only difference is in the severity of the crime, or the "degree". 

A person commits assault when they do something with the intent to hurt someone or make them think they are about to be hurt.  An assault can be direct (hitting someone with your fist) or indirect (putting something in their drink). 

In Minnesota, people may refer to an "aggravated assault" but criminal assault actually comes in various degrees depending on whether an injury occurred, how severe the injury was and the relationship between the actors. 

• First degree assault
• Second degree assault
• Third degree assault
• Fourth degree assault
• Fifth degree assault
• Domestic violence
• Domestic battery
• Sexual assault
• Motor vehicle assault

First degree is the most serious charge and carries the harshest punishments.  Whereas a fifth degree assault charge might only be a misdemeanor if it's a first time offense. 

There are also several different types of non-physical assault charges including:

• Intimidation of violence or threats
• Unwanted touching or harassment (sexual or non-sexual)
• Verbal or emotional abuse with violent undertones
• Putting something in someone’s drink
• Knowingly transmitting a disease

Being charged with any form of assault can have serious effects on your life, and having an assault charge on your criminal record is no treat.  Next time, I'll cover some potential defenses to assault charges.

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I got a DWI, when can I drive again?

Whether your license was revoked or canceled as inimical (dangerous) to public safety, you may still be able to drive again soon.  If, that is, you qualify for the Minnesota Ignition Interlock Program.

Ignition Inter-what?

An Ignition Interlock is a small device that is installed in your vehicle.  It looks like a cell phone.  The device interrupts the car’s ignition system.  In order to start the car, you must blow into it and hum a like you're playing a kazoo.  Basically, it's like having a small breathalyzer machine in the car with you.  If the machine detects any alcohol, then your car won't start.  If it doesn't detect any alcohol, then your car will start and you can drive away.  But, you have to blow into the machine every 15 minutes.

Sounds great, how do I sign up?

First you have to qualify for the program.  The Minnesota Department of Public Safety (DPS) has a simple chart explaining the eligibility and a good explanation of the pros and cons of participating in the ignition interlock program.  Plus you can see the program terms you must agree to up front.  

Who provides the ignition interlock device?

The Minnesota Department of Public Safety administers the program.  There are several private vendors who provide ignition interlock services as part of the program.

This sounds expensive...

It is.  The program is not a good fit for everyone.  Initially you must enroll and pay for device installation in your car ($90 at the time of this article), then you pay monthly service fees ($60 - $125), a removal fee ($50) and any lock out fees ($50 per instance).

Additionally, program participants must meet other requirements such as:

• Meet all requirements for license reinstatement and pay the reinstatement fee ($680)
• Own or drive a vehicle with valid insurance
• Pay any outstanding court fees or child support
• Take and pass the written DWI driver’s license exam at a testing location
• Apply for a new license ($24+)
• Provide evidence of enrollment in a qualifying treatment facility or a discharge summary

Wait a minute, do I have to participate?

Not necessarily.  The program started in 2008 in Hennepin and Beltrami Counties.  Tom Robertson of Minnesota Public Radio reported the program initially met with mixed reviews.  But, as of July 1, 2009 the ignition interlock program became mandatory for certain repeat DWI offenders.  As of May 2010 an ignition interlock bill began the process of circulating the Senate and House. Now over 400 people have participated in the program. 45 States now have some sort of ignition interlock program in place, many of them involve mandatory participation.

The ignition interlock program appears to be here to stay for the foreseeable future.

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Can you really lock up your court records and throw away the key?  The short answer is, it depends.  You can, but it's not as easy as turning a key in a lock.

What is an Expungement?

To request an "expungement of criminal records" is just another way of saying you are asking the court to seal the criminal record, hide criminal records from the public or even destroy your criminal court records.

There are essentially two types of expungements in Minnesota: "statutory authority" expungements and "inherent authority" expungements.

Statutory Expungements 

Statutory expungements mean that a particular law authorizes a Judge to seal the records.  There are five types of cases that fall under statutory authority:

1. Juvenile criminal cases;
2. Juvenile criminal cases where the juvenile was certified and tried as an adult in adult court;
3. Drug diversion cases for first time offenders who possessed a small amount.
4. Cases for possession of a small amount of marijuana that happened before 1976.
5. Cases that were dismissed by the prosecutor and / or some cases where a person did not plead guilty;

Inherent Authority Expungements

All other cases are considered "inherent authority" expungements. Inherent authority simply means that the Judge can decide to use their Judicial power to order the records sealed, or not. 

There are a few exceptions.  For example, if a case is more than 15 years old, if the person’s plea was vacated and the case dismissed, or if the person received a pardon, then you may be entitled to an expungement.  

How does an expungement work?

You must apply for an expungement under statutory authority.  Then, if the Judge grants the expungement, the Judge may seal all records related to the case in all locations, even outside the courthouse.

If no law specifically authorizes an expungement of your records, then you must apply for an expungement under inherent authority.  Then, if the judge grants the expungement, the judge is limited in what records can be sealed.  What does that mean, exactly?  It means that the Judge only has the power to seal the court record and the probation record.

So what's the difference?

An expungement ordered under a Judge's inherent authority stays at the courthouse - where the Judge has power.  That means the judge cannot seal police department records, Bureau of Criminal Apprehension (BCA) records, Department of Human Services records, or other executive branch department records.  So if you someone goes to the courthouse, they won't find your record.  But, if your landlord or employer runs a criminal background check of the BCA records, those records will still show up!

If this is inspiring even more questions you can find more information from other authors and the Minnesota Judicial Branch.

Are there any cases that can't be expunged? 

 Yes...

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Types of Disorderly Conduct Crimes

Disorderly conduct is a misdemeanor crime.  Minnesota Statute 609.72 defines disorderly conduct.  According to the statue, you can be found guilty of disorderly conduct if you take any action that you know (or should know) that will alarm, anger or disturb others or that will instigate an assault or a "breach of the peace".  This law applies to actions taken in public or in private, including on a school bus.

Sound vague?  It is.  

Some other things the law defines as disorderly conduct are when a person recklessly, knowingly, or intentionally:

• Engages in brawling or fighting; or
• Commits indecent conduct and exposure; or
• Disturbs a lawful assembly or meeting; or
• Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in an offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Have you ever seen one sports fan yell at opposing fans in the stands?  Don't they know their noisy, boisterous actions could anger or offend the rival fans?  Sure they do.  And that could, technically, be disorderly conduct..and sometimes sports fan conduct goes beyond yelling.

But of course that's not how it usually happens, is it?  Frequently, the targets of a disorderly conduct charge are rowdy teenagers, people who've had too much to drink and people having a family dispute. 

What Does Count as Disorderly Conduct, Exactly?

This is a charge which is as common to prosecutors as all-purpose flour is to bakers.  Some of the behaviors above are obvious (if you're physically fighting in a bar or nightclub like Vikings' cornerback Cedric Griffin, you can be charged with disorderly conduct) But the charge can also come up for yelling at someone in front of other people.

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Underage drinking charges can be very serious and damaging to your personal and professional life.  I have over 15 years experience in handling underage drinking cases and have seen the impact they can have on a young person's future.

Minnesota Underage Drinking and DWI Laws

Underage drinking charges can be especially harsh in Minnesota where cities are passing new underage drinking laws.

As a State, Minnesota is a “zero tolerance” state – meaning even trace amounts of alcohol can result in penalties. These penalties increase if the person was operating a motor vehicle at the time of arrest.

Prosecutors can charge a person with just trace amounts of alcohol in their system. This also means that the punishments increase depending on the blood alcohol content (BAC) of the underage person.  In addition to the usual DWI laws, extra penalties apply to minors who drive under the influence of alcohol. These laws include Vanessa’s Law as well as the Not A Drop law.

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What is an Order For Protection?

Minnesota orders for protection vary in length and purpose, they are sometimes called OFPs, harassment orders, or restraining orders. Often times orders for protection are brought against a person accused of harassment, assault, domestic abuse, stalking or terroristic threats.

While the orders are supposed to protect a victim in good faith, they may also be applied for unnecessarily.  They are unfortunately sometimes a form of retaliation during difficult break ups, divorces, or other stressful matters.  The worst scenario is when an order for protection is applied for as a strategy to gain leverage over someone in a future civil matter such as a divorce proceeding or custody dispute. 

How Long is the Order in Effect?

Orders for Protection may be short term or long term.  They can last up to two years. They prohibit contact with the person who filed the order and often also include other people like extended family, children or grandchildren.  Usually the order requires you to keep a specific distance between yourself and the protected person(s) until the order expires.  And that means you can't send messages through friends, mail letters, call, text or send email to the protected person(s). 

How Else Can an Order for Protection Impact You?

There may be "collateral damage" to your life if you have an order for protection against you.  You may be ordered to stay out of your own home, if the victim(s) also live there; and you can be prevented from seeing your children, if they are named in the order.  Something people don't usually realize is that you can be prohibited from owning or possessing a firearm, even for hunting; or you could be denied employment or housing because the order is on your record.  Lastly, if you aren't a full citizen, you could experience immigration status problems.

So, What Should You Do if You are Served with a Notice?

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