Do I Need to Get a DWI Lawyer in Brainerd MN?

Before about 1990, a Minnesota DWI was little more than a rather serious traffic ticket. In fact, many Brainerd officers just gave intoxicated motorists a warning. But since then, and even more so since the early 2010s, authorities have gotten tough on DWIs, in both the field and the courthouse. Judges have authorized many new tools, like roadside checkpoints, that have increased the number of arrests. People do not even have to be “driving” a vehicle to be arrested for Driving While Intoxicated. Faced with these situations, hiring a DWI lawyer in Brainerd MN is a no-brainer.

Why You Should Contest Your DWI in Brainerd MN

Some people think that if they are guilty of DWI, there’s no point in fighting the case. Many times, it’s better to accept the inevitable and get it over with. But a criminal case is usually not one of these times. Even if you think you are guilty, perhaps because you failed a chemical test, you might not be legally guilty. More than likely, there is at least one defense that could either significantly reduce the punishment or prompt the judge to throw the case out of court.

Lawmakers have changed the DWI law, so it is much easier to obtain convictions. Before about 2000, a chemical test was only evidence of intoxication. Now, defendants who have a BAC above the legal limit are intoxicated as a matter of law. As a result, in many jurisdictions, about half the probationers were convicted of DWI. The offense is so serious, especially when considering the direct and collateral consequences, that you could really benefit by getting a DWI Lawyer.

What Is at Stake in a Minnesota DWI?

Lengthy court supervision and substantial cost are the two biggest direct consequences of this offense. For fourth-degree DWI, which is a first offense, the average Crow Wing County probation length is two years. The average supervision periods increase for each subsequent charge, all the way up to seven years for first-degree DWI (fourth or subsequent offense).

There is a substantial cost as well, and the high fine is just the beginning. Typically, when considering fines, court costs, supervision fees, and higher insurance rates, the average cost for a first offense is about $10,000. With the help of a DWI lawyer in Brainerd MN, you have a chance to create the best defense against your charges.

Higher Insurance Premiums

Those higher insurance premiums are the most expensive consequence. Most people must obtain high risk SR-22 insurance. In some cases, that may increase your rates by over 60 percent. The higher rate usually remains in force for three years. Afterwards, drivers can shop around for other insurance. But there is no guarantee that their rates will drop substantially.

Drivers’ License Suspension

A DWI conviction can also mean lengthy drivers’ license suspension. That suspension can be up to one year for a first-time offense. Sometimes, a lawyer can arrange a restricted drivers’ license that includes an ignition interlock device. Many Minnesotans depend heavily on their vehicles. So, this possibility alone is a good reason for you to get a DWI lawyer in Brainerd.

How Can a DWI Lawyer in Brainerd MN Help Me?

The criminal law system is more like a process. Defendants go from one stage to the next. A Brainerd DWI lawyer provides help at every stage of this process. If you don’t have a DWI lawyer in Brainerd, you are on your own. People in this situation can fight the power and rage against the machine as much as they want. But their criminal cases usually end very badly.

Jail Release in Brainerd, MN

In many misdemeanors, jail release is not much of an issue. The judge gives the defendant a few days in jail, and the case ends. DWI is a lot different. A jail sentence would be a few weeks or months as opposed to a few days. Furthermore, a jail sentence could mean long-term drivers’ license suspension.

Most DWIs are nonviolent misdemeanors. Therefore, jail release usually is not much of a problem. In fact, OR (Own Recognizance) pretrial release might be an option. OR release programs vary. Usually, however, if the defendant pays a small administrative fee and promises to abide by release conditions, the sheriff releases the defendant.

Conditions of Release

These conditions include more than showing up at trial. Most defendants must remain in the county at all times and report monthly to a supervision officer. Additionally, most DWI defendants must have IIDs in their vehicles.

An Ignition Interlock Device is basically a Breathalyzer that’s connected to the ignition. If a specimen is over the limit, which is usually .04, the vehicle won’t start the next time someone turns the key.

Repeat or aggravated DWI is much different. There is basically a presumption that these defendants are a threat to public safety. Therefore, officials only grant bail in limited circumstances.

Bail Factors in Brainerd

A Brainerd DWI lawyer goes to bat for defendants in these situations. At the arraignment hearing, judges consider a wide range of bail factors, such as the defendant’s:

  • Criminal record,
  • Ability to pay,
  • Threat to the public, and
  • Connections to the community.

Jail release is important in a criminal case. Most people, including most jurors, subconsciously assume that people in jail did something wrong.

Selecting the Right Brainerd DWI Lawyer

Unless the case is quite complex, as outlined above, an attorney search process usually begins in earnest after the jail release phase.

The Sixth Amendment guarantees the right to counsel in all criminal cases, including misdemeanor DWI. However, this provision does not guarantee the right to free counsel. Crow Wing County has an excellent public defender’s office. It is large enough to have ample resources, and yet small enough so the attorneys are not overworked. 

For the most part, individual judges have their own rules as to when the public defender is available. Many judges reason, correctly or incorrectly, that if the defendant can afford to make bail, the defendant can afford an attorney. So, a public defender may be unavailable except in jail cases. That probably means that you need a DWI lawyer in Brainerd.

Crow Wing County Criminal Defense Lawyers

In many ways, Crow Wing County criminal defense lawyers are the same. But there are some very important differences as well, such as:

  • Experience: Years of experience are important. But this figure is often deceptive. Many criminal defense lawyers have little trial experience. Instead, they fall into a pattern of accepting the state’s first offer. No one wants an attorney who always looks for the easy way out.
  • Dedication: Successful criminal defense lawyers are passionate about individual rights. They don’t practice criminal defense as a sideshow or just take a few cases for friends and family.
  • Accessibility: Goldilocks sought a dinner, chair, and bed that was neither too hot nor too cold. You do not want a lawyer who is too busy to give your case the attention it deserves. You also don’t want a lawyer who sits in the office and waits for your call. 

Choosing the right Brainerd DWI lawyer might be the most important decision you ever make. But don’t shop around for too long. The faster you make a good decision, the sooner your lawyer starts working for you.

Pretrial Defenses in Brainard MN

The vast majority of Minnesota DWI cases do not go to trial. Instead, an attorney negotiates a plea bargain with the prosecutor. Usually, that agreement includes probation. 

Additionally, Crow Wing County is rather unique in that prosecutors allow defendants to plead guilty to reckless driving, especially in borderline cases. Section 169.13 is a misdemeanor, like both third and fourth-degree DWI. However, reckless driving does not have many of the same collateral consequences. A reckless driving conviction probably means higher auto insurance rates, but they may not be as high. Furthermore, there is no drivers’ license suspension or ignition interlock requirement.

Procedural Defenses

However, we are getting ahead of ourselves. Prosecutors only offer sweet deals like reckless driving if there are serious problems with the evidence. If that’s true, many prosecutors would rather secure convictions for lesser-included offenses than having an additional L on their win-loss records. At the pretrial stage, Brainers DWI lawyers usually concentrate on procedural defenses, such as:

  • No Reasonable Suspicion: This drunk driving defense is especially common in roadside checkpoint matters. Officers don’t need reasonable suspicion, which is basically an evidence-based hinch, to detain motorists at DWI roadblocks. However, these checkpoints must meet specific legal requirements, mostly regarding the checkpoint’s setup and operation. A failure in any area could invalidate the checkpoint and therefore the stop.
  • Failure to Warn: When officers demand breath or blood samples, they must administer statutory warnings. There could be several issues in this area. Many statutory warnings are mostly Legalese and difficult to understand, especially if, as the state claims, the person was intoxicated at the time. Furthermore, the officer who reads these rights must normally speak the defendant’s language. An officer who speaks, reads, and writes only English cannot warn non-English speakers of the test consequences, even if the words are in the defendant’s language.
  • Failure to Mirandize: All criminal defendants are entitled to these general warnings, such as the right to remain silent. Officers must administer these warnings before custodial interrogation begins. “Custody” means the defendant does not feel free to leave. Arguably, therefore, officers should definitely administer these warnings before they ask the defendant if s/he has been drinking.
  • Technical Chemical Test Issues: Today’s Breathalyzers are extremely sophisticated and sensitive devices. They require regular maintenance from qualified professionals. Judges have thrown out dozens of cases, or even hundreds of cases, because of technical Breathalyzer flaws.

An experienced DWI defense attorney can evaluate this evidence in a case and provide you with your best options. In other words, it’s not necessarily a good idea to jump at a wet reckless plea. If the evidence is especially weak, a trial may be in your best interests.

DWI Trial Defenses in Brainard MN

There are basically two kinds of DWI trials, at least from an evidence standpoint. Test cases rely on, wait for it, chemical test results. Non-test cases usually hinge on the approved Field Sobriety Tests.

The burden of proof is the same in both kinds of trials. Prosecutors must establish guilt beyond a reasonable doubt. Minnesota courts have a not-very-helpful definition of reasonable doubt. “The jury has a high degree of certainty about the defendant’s guilt, although they need not be 100 percent convinced.”

An Example of the Need for Proof Beyond a Reasonable Doubt

If Oscar drives a grey Silverado and a grey Silverado is in a bar parking lot, Oscar is probably inside. But that evidence is not proof beyond a reasonable doubt. Lots of people drive grey Silverados. Moreover, even if the license plate number matches, Oscar’s son, who frequently borrows his dad’s pickup, could be the person in the store.

Almost all DWI cases involve Breathalyzer tests. Police officers only administer blood tests in limited situations. And, although they have a Constitutional right to refuse, most people voluntarily provide samples.

Challenging Breathalyzer Test Results in Brainard and Crow Wing County

Contrary to popular myth, a Brainerd DWI lawyer can successfully challenge Breathalyzer test results. We discussed some technical flaws above. Now, let’s look at some scientific flaws. Some possible issues include:

  • Mouth Alcohol: If the defendant burps, vomits, or belches in the fifteen minutes prior to the test, alcohol particles from the stomach rush into the mouth and skew the results. Officers are supposed to watch subjects closely in the fifteen minutes before they test. But the law doesn’t enforce this monitoring period very closely.
  • Temperature Issues: As mentioned, Breathalyzers are very sensitive instruments. They are particularly sensitive to air temperature changes. The mercury often rises or falls quickly in Minnesota. Body temperature could be a factor as well. A 1.8-degree fever, which is probably not high enough to call in sick, could affect Breathalyzer results by 7 percent.
  • Ketone Levels: The liver secretes ketones to convert glucose into energy. Diabetics usually have very high ketone levels. So do smokers and certain dieters. Most Breathalyzers read ketones as ethanol. Therefore, in many situations, the Breathalyzer result is artificially high.

To point out these flaws to jurors, especially in a .08, .09, or other borderline BAC case, Brainerd DWI lawyers often partner with degreed chemists. Such professionals are much more credible than the Breathalyzer techs whom prosecutors usually rely on.

No-Evidence DWI Cases

Other test cases are no-evidence cases. There is no evidence, or a clear lack of evidence, on a non-driving element. 

Now assume Oscar met his son Felix at the bar. They both get drunk. On the way home, Oscar rear-ends Jack. By the time officers arrive, both Oscar and Jack have exited the vehicle. Unless a credible eyewitness saw Oscar behind the wheel, prosecutors would be hard pressed to prove, beyond a reasonable doubt, that he was driving the truck.

Call Today to Speak With a Brainerd DWI Lawyer at Carlson & Jones

Because of the serious nature of a DWI, you need a serious lawyer. For a free consultation with an experienced criminal defense attorney in Brainerd, contact Carlson & Jones, P.A. Convenient payment plans are available.

 

This article was originally published on May 20, 2018 and updated on June 17, 2021.

What Is a Custodial Parent in Minnesota?

Determining the rights and duties of two parents in family court can be a difficult experience for many understandable reasons. When two separating parents both want custody of a child, it’s natural for them to struggle with their emotions. If you’re asking what is a custodial parent in Minnesota, it may be time to educate yourself.

It’s also natural for parents going through this experience to struggle simply because they may not understand the legal definitions of some of the terms courts use in these circumstances. For example, a court in Minnesota may need to determine which parent of a child will be deemed the “custodial parent” when parents are separating or divorcing.

The best way to fully understand the meaning of terms like custodial parent is to enlist the help of a family law attorney who can explain them to you. However, this blog will cover the basics. It defines what a custodial parent is in Minnesota, what a custodial parent’s rights include, how parents may share custody of a child, and how courts decide who should be a custodial parent.

What a Custodial Parent Is

The laws defining the rights and responsibilities of a custodial parent vary from one state to another to some degree. In general, though, a custodial parent is the parent who serves as a child’s primary caregiver. Although a child may spend some of their time with another parent, for the most part, the custodial parent is the parent with whom they live.

Sometimes, a court officially names someone a custodial parent by granting them legal or physical custody over a child. However, there are also instances when someone may be considered a custodial parent because they’ve reached an informal agreement with a child’s other parent. Additionally, if there is only one parent involved in a child’s life, they would qualify as the custodial parent by default.

Defining the Two Types Child Custody in Minnesota

As the above section referenced, there are generally two types of custody a court may grant a parent in Minnesota: physical and legal. It’s important to understand the difference between the two. Many don’t realize physical custody and legal custody aren’t necessarily interchangeable terms.

Under Minnesota law, when a parent is granted physical custody of a child, they have the right to make decisions about where a child lives. They can also make basic decisions about a child’s daily routine. Thus, to serve as a custodial parent, a parent must have physical custody.

A parent who’s been granted legal custody of a child has the right to make decisions about how that child is raised. These can include decisions about a child’s education, health care, and religious upbringing. However, because a child may not spend most of their time living with a parent who has legal custody, being granted legal custody doesn’t necessarily mean one has custodial parent rights and duties.

Sole Custody vs. Joint Custody in Minnesota

A court may grant one parent sole custody over a child. When this happens, they are the only parent with a custodial parent’s legal rights and responsibilities.

However, a judge may determine that joint custody is the preferable arrangement for a child. If parents are granted joint legal custody, they both have the right to make critical decisions about how to raise a child. If they’re granted joint physical custody, a structure must be established to ensure both parents have the opportunity to make decisions about a child’s day-to-day life and routine.

It’s important to understand that, even within the same family, a judge may determine that different custody arrangements are ideal for different children. For example, they might grant sole custody of a younger child to one parent, while granting both parents joint custody of an older child.

What’s More Common: Joint Custody or Sole Custody?

Minnesota’s child custody laws are designed with the assumption that in most circumstances, it’s best for both parents to have the chance to make decisions about a child’s overall upbringing. Thus, Minnesota courts tend to grant joint legal custody to parents. 

That said, there are exceptions. For instance, if two parents aren’t able to communicate or coordinate with one another in a manner that would best serve a child’s needs, a judge might be more inclined to grant sole custody to one parent. This might be the case when domestic violence or similar factors are involved.

Sharing Custodial Parent Duties

Some parents understandably wonder how they’ll successfully make decisions about a child’s upbringing they can both agree on when a court grants joint custody. If they have differing opinions about certain issues, how can they arrive at resolutions?

To some degree, parents may need to navigate these difficulties together. However, in Minnesota, when a judge grants joint custody, they can make determinations regarding the specific types of decisions each parent can make.

For example, maybe two parents have been granted joint custody. Each wants to raise a child in their own religion. The problem is, they don’t share the same religious beliefs.

Technically, legal custody involves the right to make decisions about religious upbringing. That said, in a case like this, a judge may grant joint custody while also deciding that one parent will have the right to determine which religion a child is raised in.

Factors a Court Weighs When Determining Who Should Be a Custodial Parent

Ideally, two parents who are separating from one another will be able to come to an agreement regarding which parent a child will spend most of their time living with. Of course, it’s not uncommon for parents to be unable to agree on this issue.

A court must determine who should be assigned a custodial parent’s rights and duties when this happens. To make a decision that’s in the best interests of the child or children involved, a court must account for a variety of factors. They include the following:

What Is a Custodial Parent vs. Previous Roles

In some instances, one parent has already served as a child’s primary day-to-day caregiver. They may have been the parent most likely to cook a child’s meals, address their health and medical needs, discipline them, etc. A court may be more likely to assign the role of custodial parent to this individual.

Courts also frequently consider how long a child has lived in a particular setting when determining who should serve as a custodial parent. It might be decided that removing a child from a home they’re accustomed to and forcing them to adjust to a new living situation would not be in their best interests.

Relationship

A court may factor in the degree of intimacy in a relationship between a child and both parents when determining who should be the custodial parent. This can be difficult to evaluate, but essentially, if a child is obviously closer to one parent, the court might determine that parent should have custody.

The nature of other relationships within a family might also influence a court’s decision. Relationships with siblings, relatives who live with one parent, and other important individuals in a child’s life could play a role in an eventual decision.

A Child’s Wishes

If a court determines a child is mature enough to make their own decisions regarding who should serve as their custodial parent, this might be another factor affecting the ruling.

Usually, a court won’t consider a child able to make these types of decisions if they’re younger than 12 years of age. As always, though, there may be exceptions.

Contact and Communication Between the Custodial and Non-Custodial Parent

Except in unique circumstances (again, such as instances of abuse), the goal when assigning custodial parent rights is to ensure the non-custodial parent still has the opportunity to see their child and be involved in their life to a reasonable degree. According to Minnesota Statutes §518.175, unless a parent is abusive, neglectful, or generally is incapable of providing a child with the care they deserve, a parent is entitled to at least 25% of a child’s parenting time.

In family court, it may be clear that one parent would be more inclined to allow the other parent to visit a child often enough to satisfy the legal requirements under Minnesota law. This is yet another factor that may affect who will or will not be assigned the role of custodial parent.

Cultural Background

Parents don’t always come from the same cultures. Although this is by no means the only factor that will determine who becomes a custodial parent, a court’s decision may be at least somewhat influenced by whether a child seems to be more “at home” in the culture of one particular parent.

Custodial Parents and Child Support in Minnesota

Up until fairly recently, labels such as “sole physical custody,” “primary physical custody,” and “primary physical residence” carried a high degree of weight in Minnesota. In most cases, a custodial parent who had primary physical custody of a child was the parent who would receive child support payments from the other parent. 

That’s not necessarily the case any longer. Due to recent changes to Minnesota’s laws, courts will now consider the income of both parents when determining who should receive child support payments. They’ll also factor in the percentage of parenting time each parent will have.

How an Attorney Specializing in Family Law Minnesota Can Help

All that said, it’s important to remember that this is merely a general overview. These issues and topics are very complicated. To thoroughly understand what a custodial parent is in Minnesota, and to improve your chances of being granted custodial parent rights, strongly consider hiring a qualified family law attorney.

 

Talking Cost of Divorce in Wright County with a Divorce Lawyer in Buffalo, MN

Calculating the average cost of a divorce is a bit like calculating the average price of a house. There is a significant discrepancy, to say the least. Former Today Show host Matt Lauer recently listed his Hamptons estate for $44 million. A small house in an older section of Buffalo will cost a lot, lot less than that. So, the average price of the two means almost nothing.

Therefore, if you ask a Buffalo, MN divorce lawyer a question like “How much does the average divorce cost?”, the only honest answer is “more than you expect.” Anyone who gives you a different answer is most likely inexperienced or simply telling you what you want to hear. Marriage dissolution proceedings vary so much that blanket cost estimates are basically meaningless.

Additionally, divorce costs more than just money, at least in most cases. Typically, there is a significant emotional price as well. Many people alternate between intense sadness and intense happiness. Additionally, many spouses feel a profound sense of loss. They do not mourn the loss of a spouse as much as they mourn the loss of what might have been.

An experienced Buffalo, MN divorce lawyer knows how to minimize both these costs and put long-term solutions in place for you and your family. Furthermore, we are one of the only Minnseota family law firms that offers comprehensive flat fee billing. Based on an initial evaluation, we can calculate the complete cost of a divorce. This complete divorce includes things like marriage dissolution, property division, and financial support. Flat fee billing is also available in modifications and other family law matters.

Types of Divorce

As mentioned, the type of house usually determines its cost. A few other factors, such as location, also apply. Similarly, the type of divorce often determines the cost. A few other factors, such as the lawyer’s experience level, also apply.

Absentee Spouse

Some marriage dissolutions are marital trauma divorces. Things are going rather well until something like abuse or adultery suddenly and unexpectedly poisons the relationship. However, most marriage dissolutions are slow fade divorces. Perhaps the spouses grow apart over time. Or perhaps the marriage is a near-constant cycle of sin and forgiveness, and one spouse simply cannot forgive any longer. These marriages usually break up emotionally long before they break up legally.

So, in most cases, the spouses have been separated for several weeks, months, or even years before someone finally files a divorce petition. There is a good chance that one spouse has moved on, especially if no young children were involved.

When one spouse files, a Buffalo, MN divorce lawyer usually calls the proceeding an absentee spouse marriage dissolution. Since these matters often involve little more than filing papers, the cost of divorce could be rather minimal. Most courts allow citation by publication in a newspaper or even posting on the courthouse door. There’s practically no way a respondent will see these notices. So, once a brief waiting period ends, the judge often signs a divorce decree.

Don’t be fooled. Absentee divorces are surprisingly complex. For example, the aforementioned citation must include certain magic words, must appear in the right place, and must run for the prescribed amount of time. A mistake in any area could enable the respondent to completely undo the divorce, even many years after the fact.

Agreed Divorce

These marriage dissolutions are sometimes called waiver divorces. There are no substantive questions about parenting time, child support, property division, spousal support, or anything else. The petitioner files for divorce, the respondent signs all the papers, and the judge approves everything.

If the spouses were married less than six months and they are both ready to move on, the divorce might well be agreed. In general, these matters are a bit more time-consuming than absentee spouse divorces, but they are not substantially more expensive.

Those are two pretty big “ifs.” The average marriage which ends in divorce lasts about eight years. Most people have children and/or acquire property during this period. Parenting time, property division, and other issues usually cannot be resolved with just the stroke of a pen.

Additionally, if the spouses were only married a short while, the respondent often isn’t willing to let go so quickly. There is no legal defense to uncontested divorce in Minnesota. Only one spouse must testify that the marriage has irretrievably broken down. However, respondents can and do drag things out and make the divorce more expensive, usually in the hope that the petitioner will give up.

Uncontested Divorce

Most marriage dissolutions fall into this category. Neither spouse wants a protracted legal battle. But at the same time, neither spouse wants to go gentle into that good night.

We touched on some common divorce issues above. In an uncontested divorce, one or more of these issues might require dvorce mediation, which is outlined below. For now, let’s look at some common uncontested divorce issues more closely.

  • Parenting Time: There is a presumption that children benefit from consistent and meaningful contact with both parents. Parents frequently disagree as to what words like “consistent and meaningful” mean in a given context. Other parents disagree about the residential/non-residential designation.
  • Child Support: Frequently, the guidelines provide the support obligation. But judges can ignore the guidelines in some situations. Furthermore, some parents try to hide income or assets from their spouses in order to reduce their financial obligations.
  • Spousal Support: The same issues regarding asset or income-concealment apply here. Moreover, Minnesota laws are rather subjective in this area. The amount and duration of payments depends on a number of factors, such as the length of the marriage and the relative earning ability of the spouses.
  • Property Division: Roughly these same subjective factors apply to the division of debt and assets. About the only guidance is that Minnesota is an equitable distribution state. The divorce cannot be an unfair financial burden on either party. 

Uncontested divorces usually begin and end in much the same way as agreed divorces. The intermediate process could take several months or even several years. The length of that process, and the complexity of the issues, usually determines the cost of an uncontested divorce.

Contested Divorce

Only a handful of matters are contested divorces. Many Buffalo, MN divorce lawyers only handle two or three every eight or ten years.

Some people want or need the emotional closure that a divorce trial often uniquely offers. Other people want or need a judicial declaration that the breakup of the marriage was the other spouse’s fault. Still other times, the parties are so far apart on one or more of the aforementioned issues that they cannot possibly work out a settlement, even with a mediator’s help.

The judge’s rulings are pretty much final in these situations. Appeals are possible, but usually only successful if the judge abused his/her discretion or made an extremely serious error.

Reducing the Financial Cost of Divorce

Sometimes, attorneys have little or no control over the financial cost of divorce. If the adverse party agrees on most issues, the cost is generally lower. On the opposite end of the scale, if the adverse party bitterly contests every decision or throws up roadblocks, the cost could skyrocket.

We touched on asset concealment above. This problem is one of the most common cost-increasing factors in a Wright County divorce.

People try lots of different things to hide money. Common schemes include voluntarily increasing wage withholding to make their paychecks look smaller, moving assets to LLCs or other entities, and “transferring” items or accounts to friends or family members. These plans always unravel eventually, but many times, a Buffalo, MN divorce lawyer must work hard to make the house of cards fall.

This work usually happens during divorce discovery. The law requires both parties to put all their cards, including financial records, on the table. To get the right answers, a lawyer must simply know the right questions to ask, or rather the right requests to make. If disputes arise over what must be produced and when, a judge usually resolves these matters.

Other times, however, attorneys have considerable control over divorce costs. Mediation is one of the best ways to reduce legal fees. The Department of Justice estimates that mediation and other alternative dispute resolution options saved litigants about $15 million in 2017.

Generally, it takes less time to prepare for mediation than trial. Mediation usually only lasts a full day or perhaps even a half day. There are no witnesses to question or cross-examine, no legal motions to argue, and no lengthy arguments to present. A trial, on the other hand, could last several days and include all these things.

Furthermore, mediation resolves divorce cases faster than trials. The DOJ also estimated that meditation reduced litigation time by a collective 13,886 days in 2017. Since time is money to clients and Buffalo, MN divorce lawyers, the faster the case is over, the lower the cost will be.

How Buffalo, MN Divorce Lawyers Reduce the Emotional Cost of Divorce

As outlined above, mediation could significantly lower the financial cost of marriage dissolution. Mediation usually reduces the emotional cost of divorce as well.

Trials are almost always public record. All the court filings are public, and anyone can attend the proceeding. Especially if marital fault is an issue in the divorce or the property division, such scrutiny can be truly awful.

Mediation, on the other hand, is private. Mediation usually takes place in an office building instead of a courthouse. Furthermore, only the parties know the date, time, and location. The only public document is a brief mediation report, which simply states that the case either settled or did not settle.

Additionally, mediation increases civility. The parties spend most of the time in separate rooms. They only interact with the mediator, who uses shuttle diplomacy to try and facilitate a settlement. On a related note, mediation is also empowering. When future disputes arise, and they always do, the parties often try to talk them out before they rush to hire Buffalo, MN divorce lawyers.

Trials, on the other hand, are emotional showdowns. These events are great theater for TV and movies, but they are often very hard on families.

On a final note, mediation increases control. The parties make important decisions instead of a Wright County family law judge. This added control is especially important if one or both parties have problems accepting authority.

Collaborative Law

So far, we’ve looked at litigation divorces. Litigation divorces often do not involve trials. In fact, over 90 percent of these matters settle out of court. But there is usually at least one court hearing. 

For example, at the temporary hearing, the judge sets ground rules for the divorce proceeding, including protective orders as needed. The judge also orders temporary financial support and a temporary parenting time division.

Technically, these orders expire when the judge finalizes the divorce. However, there’s an inertia factor. If the temporary orders work, even if they are not perfect, most judges hesitate to change them.

Collaborative law is a non-litigation divorce. As such, it often has very different emotional and financial costs. Litigation divorces usually begin when one spouse files a marriage dissolution petition. Collaborative law divorces begin when both parties submit a joint collaborative law declaration. That’s usually the only court filing in the case.

There are no court hearings, mediation sessions, or discovery motions in a collaborative law divorce. Instead, the parties meet privately about once a month to discuss the aforementioned divorce issues. If outside help is required, like a child psychologist or real estate agent, the parties usually split the costs. Many collaborative divorces are resolved after about six or eight meetings.

If things go wrong and the parties cannot reach an agreement, they must start over with new Buffalo, MN divorce lawyers. This rule helps ensure that the parties are fully committed to the process.

This alternative is an excellent choice in some situations. Obviously, however, it’s not for everybody.

Rely on a Dedicated Divorce Attorney in Buffalo, MN

There are a number of ways to reduce the emotional and/or financial costs of divorce. For a free consultation with an experienced Buffalo, MN divorce lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Wright County and nearby jurisdictions.

 

This article was originally published on July 2. 2019 and updated on June 29, 2021.

How Much Does Divorce Cost in Minnesota?

The average divorce cost in Minnesota is around $7,500 but can range anywhere from $3,000 to up to $100,000. Determining how much does a divorce cost in Minnesota depends on multiple factors, including the type of divorce attorney you hire.

What else affects the cost of divorce? And how can you make sure your divorce is as affordable as possible? We’re answering these questions and more in this guide, so keep reading. 

How Much Does a Divorce Cost in Minnesota with Fixed Fees?

There are several fixed fees you’re required to pay when filing for divorce in Minnesota. These fees are court-mandated, meaning there’s typically no way to get around or reduce them. But you can control some other divorce costs. 

Learn about fixed and variable divorce fees in Minnesota and tips on how to file for divorce affordably below.

Court Filing Fees

Minnesota courts charge a fee to file for divorce. Dissolving a marriage with or without children costs $365. There’s an additional $10 fee for the forms you and your former spouse need to fill out to make your divorce official.

Judges will waive filing fees in some rare cases. Usually, you only get a waiver if you can prove to the court that you cannot afford the fee. 

Serving Fees

In Minnesota, the law requires hand delivery of divorce papers. But the state explicitly forbids the spouse seeking the divorce from serving the documents himself or herself. Instead, you must hire someone to serve divorce papers for you.

There are two parties legally allowed to serve documents in Minnesota: your local Sheriff or a process server. Sheriffs’ civil processing fees vary by county. For example, the Sheriff in Ramsey County charges $70 per service while the Hennepin County Sheriff charges $80 to serve divorce papers.

The average cost of a professional process server is $53.99. However, Minnesota law defines a process server as a person aged 18 years or older who isn’t “party to the action.” In other words, your server can technically be any adult as long as that adult isn’t you, your former spouse, or anyone else named in the divorce proceedings.

Motion Filing Fees

In some cases, you or your spouse may need to file a motion before or during divorce proceedings. Motions request that the judge make a decision about a limited matter before the start of a trial. For example, if you fear injury from your former spouse, you may request a motion for a temporary restraining order. 

Filing a motion before or during divorce proceedings will usually cost $50–$75. It’s free to file a domestic abuse/harassment motion in Minnesota. If you have to respond to a motion (i.e., if your spouse files one against you), you’ll also have to pay $50–$75. 

Third-Party Fees

Complicated divorces may require a third-party service. 

This is often the case when there are a significant number of high-value assets on the line. To ensure the equitable division of your marital property, you and your spouse may need a third-party appriasal of your property. According to bankrate.com, one single-family home appraisal costs $300–$450. The actual cost to appraise your assets will depend on their size, value, and condition.

It’s also common to hire child custody evaluators when children are involved in a divorce. The custody evaluator will conduct interviews with the child and each parent to determine what’s best for the minor. Fees for custody evaluations vary. But expect to pay anywhere from $5,000 to over $15,000. 

Mediation Expert Fees

If you’ve ever researched how to get a divorce, you may know that divorces don’t always require attorneys. Alternative dispute resolution (ADR) may be an option if you and your spouse are willing to work together. 

During ADR, a mediator will help you and your spouse decide the terms of your divorce. Mediation experts are neutral parties that work for both spouses, meaning you can split the cost. A mediator could be a lawyer or another type of mediation professional.

According to the Bureau of Labor Statistics, mediators make a median pay of $30 per hour. Hiring an attorney to be your mediator can cost anywhere from $100 to $300 per hour. Yet, the cost is often worth it since the more experienced the mediator, the faster you and your spouse can come to an agreement, and the less you’ll pay in the end.

Attorney Fees

You and your spouse can finalize your divorce outside of court and for much less money if you both amicably agree on the terms. But when spouses can’t compromise, a Minnesota court will make decisions about the issue(s) for you. This is where a divorce attorney comes in.

Attorney fees are typically the highest cost during a divorce. The average US divorce attorney charges $250 per hour. This is only an average, meaning some attorneys charge more and others charge less. In Minnesota, the average attorney’s hourly fee ranges from $215–$255 depending on a few factors. 

The Location Factor

The first factor is location. City lawyers are almost always pricier per hour than rural ones. This increased rate comes partly from the fact that urban lawyers receive greater demand for their services. 

The current rural lawyer shortage has also spurred many firms to get creative with rates. Some law firms now provide flat fee services, which allows you to only pay for the divorce services you need. So, the first way to reduce divorce attorney costs is to seek out a firm offering flat fee services.

Your Minnesota Divorce Lawyer’s Expertise is a Factor

Another factor that impacts attorney rates is expertise. Young, inexperienced lawyers for divorce know they can’t compete against their tenured counterparts. So, they charge a lower hourly rate to attract business. The same thing goes for attorneys who have low success rates.

In addition to rates, you have to consider hours logged. Uncontested divorces where you and your spouse work out the terms of your divorce are always cheaper. Why? Because they’re quicker. Conversely, if you and your spouse need multiple trials to resolve disputes, your attorney will log more hours, and your final bill will be higher. 

Factors Affecting Divorce Attorney Costs

By now, you may be wondering: what if you can’t afford the cost of an attorney? Should you represent yourself in a divorce? Technically, you don’t need an attorney to get a divorce in Minnesota. But if you do choose self-representation, the judge will expect you to follow court and local laws. 

If you don’t want to represent yourself, there’s good news. You can cut divorce attorney fees by choosing an experienced lawyer with a reasonable hourly rate, working with your spouse to reduce the number of disputes needing resolution, or both. Here’s how.

The Type of Attorney You Hire

You may think hiring an inexperienced divorce lawyer will save you money. But because the attorney has less expertise, he or she will be less prepared to respond to complications in the case should they arise. 

Worse, these lawyers may try to aggravate disputes just to make an extra buck. That’s why it’s always wiser to choose a reputable lawyer with divorce expertise, even if he or she has a higher hourly rate.

Good attorneys never increase conflict in your case just to pad their paychecks. An experienced divorce attorney knows how to handle complex matters and can speed up the process, logging fewer hours in the long run. That way, you’ll pay less for the total cost of representation. 

The Complexity of Your Divorce 

Complicated divorces are always more expensive. You’ll have to go to trial for each dispute you and your spouse can’t decide on your own. And the longer you spend in court, the higher your final divorce attorney bill will be. The most commons disputes during divorces include:

  • Child Custody: when you and your spouse can’t agree on how you will or will not share custody of your children
  • Child Support: when you and your spouse can’t agree on whether or how much child support should be paid
  • Division of Assets: when you and your spouse can’t agree on how you should divide your marital property (i.e., assets purchased during the marriage)
  • Division of Liabilities: when you and your spouse can’t agree on how you should divvy up marital debts (i.e., liabilities acquired during the marriage)
  • Spousal Maintenance: when you and your spouse can’t agree on how much and for how long alimony will be paid to the lesser-earning spouse 

It’s understandable if you and your spouse have trouble agreeing on these crucial issues. However, resolving as many of these problems as possible outside of court can significantly reduce your attorney fees.

Looking for the Best Divorce Attorney in Minnesota?

When considering the divorce cost in Minnesota, you have to factor in court and attorney fees. You can’t control the fees courts require to file a divorce. But you can reduce the total cost of legal representation by compromising with your spouse or, when you can’t, by choosing an experienced attorney who knows how to fight for your rights.

Ready to learn how Carlson & Jones P.A. can help you afford the cost of divorce? Contact us for a free consultation with our Minnesota divorce attorney. 

How Your Jail Release in Minnesota Helps and Impacts Your Case

After more than fifty years, it appears that public support for America’s war on drugs is faltering. A growing number of Wright County jurors see illicit drugs as a health and safety issue, as opposed to a criminal law issue. So, outcomes for a Buffalo MN drug crime lawyer in these cases are changing, particularly in simple possession matters.

Court and Government Response to Drug Crimes in the U.S.

Nevertheless, prosecutors are still very aggressive in this area, especially regarding possession cases. In the 1980s, when the War on Drugs was just heating up, drug arrests were evenly split between possession and distribution matters. Today, simple possession cases make up over 80 percent of all drug arrests. 

Apropos of nothing, the law enforcement climate changed in the early 80s mostly because of Len Bias’ death. According to many, this basketball phenom was as good as Michael Jordan, or maybe better. If you see this kid’s highlight reel, it’s hard to disagree with either assertion. A few hours after the Boston Celtics chose Bias in the first round, he did a line of cocaine at a party, laid down, and died. 

In response, Congress passed a number of laws which, in retrospect, were overly strict. These laws included the controversial mandatory minimum sentencing requirement. A trace amount of cocaine meant a long prison sentence, regardless of the facts. Several decades later, President Barack Obama issued over 1,700 pardons, most of them for harsh drug crime sentences from the late 20th century.

The aforementioned environmental changes (public health v. public safety) give Buffalo, MN drug crime lawyers an even better opportunity to successfully resolve drug possession cases in Wright County. While every matter is different, most follow the same general outline.

Get Out of Jail (Almost) Free in Buffalo MN

A new day is also dawning in terms of jail release, which is always the first priority in a criminal case. The changed political and social climate is a good sign, but pretrial detention creates multiple serious problems for Buffalo, MN drug crime lawyers and their clients. 

Economic Impact of Drug Charges in Buffalo MN

Even a few days behind bars could have an unbelievable economic impact on a Minnesota family. Most people lose their jobs and/or businesses in these situations. Without any way to provide for their families, these individuals often become increasingly desperate. 

The strain on emotional relationships could be even worse than the strain on professional relationships. 

Emotion Impact of Drug Charges in Buffalo MN

Furthermore, incarceration can cause brain injury, which is colloquially known as the “jailhouse blues.” Incarceration triggers the fight-or-flight instinct. People who are behind bars have neither option. So, their stress hormone levels go through the roof. Continued exposure to such hormones alters brain chemistry. Many people know someone who was not the same person when s/he got out of jail as s/he was before. That’s because, from a brain biology standpoint, the person is different.

Perhaps most importantly, many jurors assume if the defendant is in jail, the defendant must have done something wrong. At that point, the drug possession case becomes a criminal law violation which merits punishment, as far as the jury is concerned. In other words, especially in these cases, pretrial detention transforms the presumption of innocence into a presumption of guilt.

Release on Your Own Recognizance in Buffalo MN

OR (Own Recognizance) release is often an option in nonviolent cases, such as drug possession. Essentially, the defendant promises to appear at trial, and the sheriff releases the defendant. This form of pretrial release has gained significant traction in recent years, as critics have harped on the cash bail system. These critics note that most inmates in county jails are unsentenced. They are simply waiting for trial because they cannot afford bail.

That commonly-cited statistic might be misleading. Many of the incarcerated people have already made bail and are just waiting on their paperwork to clear. Indeed, a number of these individuals probably voluntarily surrendered and are booking in and booking out. They might never make it past the waiting room. Furthermore, a pure OR release program gives judges no discretion in this area. Semi-violent offenders, like stalkers, are right back out on the street, regardless of the facts.

So, complete bail reform, which several states have tried, is pretty much a bust. In New York, the pure OR system lasted less than a year.

Nevertheless, OR is a good option in many cases. The procedure varies slightly in different jurisdictions. Generally, a review board considers the charged offense and the defendant’s criminal record, then gives a thumbs up or thumbs down.

Although there is no formal hearing, a Buffalo, MN drug crime lawyer can usually advocate for defendants before review boards, at least informally. This advocacy could be the difference between OR release and a money-based release option.

Traditional Jail Release Options

Cash bail, or a bail bond, is still available in Wright County. Typically, and forgive us if we sound like a broken record, the sheriff sets a presumptive bail amount based on the defendant’s criminal history, if any, and the severity of the offense. The presumptive amount is usually around $700 for most misdemeanors and $1,500 for most felonies. The exact amount varies significantly, mostly according to the facts of the case.

Bail Per Charge in Buffalo MN

Also, bail is usually per charge as opposed to per arrest. So, if Dexter faces three felony charges, his bail will probably be a minimum of $4,500. Due to the facts of the case, it will probably be a lot higher than that. Indeed, the sheriff might not even set a presumptive amount in such cases. More on that below.

Cash Bail in Buffalo MN

Financially, cash bail is like a rental property security deposit. If the defendant fulfills all bail conditions, the county refunds most of the cash bail money. In addition to appearing at trial, some other common pretrial release conditions include reporting to a bail bond agent, remaining in the county, and avoiding any further legal trouble.

The cash bail system has been around for thousands of years. Most people value their money above all else. The prospect of losing it is usually sufficient to convince people to toe the line, at least temporarily. The obvious problem with this system is that, for many people, $4,500 might as well be $45 million.

Bail “Bond” in Buffalo MN

So, a bail bond is usually available. Essentially, a bond is an insurance policy. If your car is damaged, your auto insurance company assumes the financial risk. Similarly, if a defendant fails to meet all bond conditions and the judge revokes it, the bail bond company assumes the financial risk. Most bail bonds companies charge about a 15 percent premium to issue these insurance policies.

Bail Revocation in Buffalo MN

Speaking of bail revocation, if the judge revokes your bond, a Buffalo, MN drug crime lawyer can help you turn yourself in, as outlined above. Usually, a lawyer has all the ducks in a row, including a new bond. This alternative is much better than having a warrant pop up during a random traffic stop.

In serious cases, such as drug trafficking or felony drug possession cases, cash bail or a bail bond might not be an immediate option. Either the sheriff doesn’t set an amount or the amount is so high that the defendant cannot possibly pay it. A Buffalo, MN drug crime lawyer can set or reduce bail at the arraignment, which usually happens about three days after the arrest.

Initial determinations are usually limited to criminal record and nature of the offense. At the arraignment, the judge considers a number of other factors, such as the defendant’s:

  • Links to the community,
  • Ability to skip bail,
  • Threat to individual witnesses or victims,
  • Ability to pay, and
  • Willingness to abide by conditions.

Attorneys usually settle these matters out of court. For example, the prosecutor might agree to reduce the bail amount if the defendant agrees to electronic monitoring.

Procedural Defenses for Drug Crimes in Buffalo MN

Jail release gives a defense attorney a head start. Pretrial release does more than eliminate the presumption of guilt. Release also allows defendants and Buffalo, MN drug crime lawyers to work together as partners. However, there is still a long race to run.

To seal the deal, the case must usually involve a legal defense. A defense gives the jury the legal opportunity to acquit a defendant. So, the better the defense, the riskier trial becomes. That risk increases a Wright County prosecutor’s willingness to deal.

What the 4th Amendment Means

Many drug possession cases involve a procedural defense. Under the Fourth Amendment, officers either need a search warrant or probable cause before they can seize evidence of a crime, including contraband substances. If a Buffalo, MN drug crime lawyer excludes the evidence, the state’s case normally collapses like a house of cards. An officer’s testimony that the defendant had drugs is insufficient.

Search Warrants in Buffalo MN

Most drug trafficking cases involve search warrants. Typically, several agencies work together on these arrests, which culminate with a search warrant. Frequently, officers depend, at least in large part, on a confidential informant’s testimony. CIs receive money or leniency in exchange for such testimony. Therefore, a Buffalo, MN drug crime lawyer can often successfully challenge drug trafficking search warrants. Many people will say nearly anything for love or money.

Probable Cause Exception

But most drug possession cases don’t involve search warrants. Events happen too quickly. Therefore, the prosecutor must rely on the probable cause exception. Over the years, courts have created a few specific doctrines, such as:

  • Consent: Owners may allow officers to search their property, such as a house or a wallet. Consent is an affirmative, voluntary act. There’s a big difference between assent and consent. Furthermore, if officers threatened to get a warrant if the defendant didn’t agree to the search, that consent is arguably involuntary.
  • Plain View: This exception frequently comes up in vehicle possession cases. If officers see contraband in plain view, like a bottle of prescription painkillers, they may seize it without a warrant. This right is only available if the officer was lawfully in that place at that time. So, reasonable suspicion for the stop, or lack thereof, could be an issue.
  • Stop and Frisk: The reasonable suspicion rule also applies in these stops. Reasonable suspicion means specific, articulable facts which point to criminal activity. In this case, that criminal activity must be illegal weapon possession. During this pat-down, officers can seize any other contraband they see, or rather feel, in plain view, or rather plain touch.

Other Constitutional rights sometimes come into play. Cell phones are a good example. The Supreme Court has ruled that people have a reasonable expectation of privacy in all content past the home screen. If officers want to read your text messages or take other such actions, they must either get a warrant or obtain owner consent.

Stingray Devices in Buffalo MN

Incidentally, some Minnesota law enforcement agencies have Stingray devices. These sophisticated gadgets, which are also known as IMSI catchers or cell site simulators, send false signals which trick cell phones into connecting with a fake tower, allowing police to track the owner’s movements. Some Stingrays can read your text messages, call records, Internet search history, and even tap into your phone calls.

Needless to say, these devices are quite controversial, so law enforcement agencies keep their mouths shut about the specifics of the gadgets they own.

Substantive Drug Possession Defenses

The legal definition of possession offers a defense in many cases. Proximity to the drugs, by itself, is not enough. The state must also prove the following elements:

  • Control: Theoretical possession is not enough. Prosecutors must establish that the defendant exercised control over the drugs. The drugs must not have been in a locked container, like a glove compartment, and must not have been in someone else’s possession, such as a joint passed around at a party.
  • Knowledge: This element must be more than theoretical as well. A defendant must know more than “something illegal” is in a bag. As a matter of fact, the defendant can literally be sitting on a stash of drugs, and not possess the stash for legal purposes.

At trial, the prosecutor must establish all elements of possession, and all the other elements of the offense, beyond a reasonable doubt. That’s the highest standard of proof in Minnesota law.

What is Deferred Disposition in Buffalo MN?

Normally, a Buffalo, MN drug crime lawyer files a pretrial motion in disputed possession matters. If the judge rules favorably, the judge will throw the prosecution out of court.

If the defense is strong enough, many prosecutors offer good deals before that hearing. They do not want to risk losing everything because of an adverse judicial ruling. Deferred disposition is usually available in drug possession cases.

Prosecutorial deferred disposition is like pretrial diversion. If the defendant successfully completes program requirements, the prosecutor dismisses the case. Judicial deferred disposition is like probation. If the defendant successfully completes probation, the judge dismisses the case.

Both these outcomes have significant advantages, but there are significant risks as well. So, before you accept one, review the situation thoroughly with an experienced Buffalo, MN drug crime lawyer.

Connect with a Buffalo MN Drug Crime Lawyer

Most drug possession cases have a relatively happy ending. For a free consultation with an experienced Buffalo, MN drug crime lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

 

 

This original article was published July 17, 2019 and updated June 3, 2021.

What Kind of DWI Defense Will a Lawyer Provide in Hutchinson?

In criminal court, McLeod County prosecutors must establish every element beyond a reasonable doubt for DWI defense. Under Minnesota law, a “reasonable doubt” is anything beyond “a fanciful or capricious doubt.” For example, the defendant’s doppelganger might have committed a crime, but that argument is capricious and fanciful. Instead, the doubt must be based on “reason and common sense.”

The “reason and common sense” line, which many states use, does little to adequately explain this rather difficult concept. Indeed, one court remarked that this description is like saying a white horse is a horse than is white.

In many ways, the debate over the precise meaning of this phrase is beside the point. The bottom line is that a Hutchinson DWI lawyer need not “prove” anything. Creating a reasonable doubt is enough. If even one juror has such a doubt, the defendant is not guilty as a matter of law. Furthermore, if the state’s evidence is weak, many prosecutors are willing to reduce charges to something like reckless driving. This offense is also a misdemeanor, but it does not have the same collateral consequences as DWI.

Possible Penalties of DWI in Hutchinson MN

Before we look at some types of DWI defense, let’s examine what is at stake in a DWI prosecution. Precise penalties vary, mostly depending on the defendant’s criminal record and the facts of the case. But the Big Three are always court supervision, aggravated circumstances, and driving privileges.

Typically, court supervision does not mean incarceration, unless the defendant has two or more prior DWIs. Court supervision, or probation, usually lasts around a year. During this time, defendants must comply with numerous conditions. The biggest ones are usually:

  • Reporting Regularly: Generally, probationers must personally report to probation officers at least once a month. These appointments are not like doctors’ appointments. Defendants cannot decide when to meet their probation officers and they cannot cancel if their kids get sick.
  • Avoiding Additional Legal Problems: Violation of this condition prompts most of the motions to revoke probation that Hutchinson DWI lawyers deal with. Anything more serious than a speeding ticket could mean jail time. 
  • Obeying Court Orders: Probation usually involves paying a fine, performing community service, and jumping through other hoops. Usually, only a steadfast and stubborn refusal to comply triggers a motion to revoke probation.

If the judge finds that the allegations in the motion to revoke probation are true, one of several things could happen. The judge could cancel probation and send the defendant to jail. More than likely, however, a motion to revoke usually means a longer period of probation or a few days in jail as a condition of reinstatement.

Aggravating circumstances in a DWI include prior drunk driving convictions, open container of alcohol in the passenger area, a child passenger under 16, and a collision. McLeod County prosecutors are notoriously aggressive in this area. If there is a hint that aggravated DWI charges might hold up in court, prosecutors usually tack on additional charges.

Refusal to provide a chemical sample is another example of an aggravating circumstance. You have the right to refuse to provide a sample, but this right is not free. The refusal is admissible in court. Most jurors assume people refuse because they have something to hide. A good Hutchinson DWI lawyer can blunt that presumption. For example, some people refuse because they are nervous or don’t trust government tests.

Refusal also impacts driving privileges. DWI usually means drivers’ license suspension, or at least drivers’ license limitation. The possibilities in this area are more severe in refusal cases.

The Venue Defense in Hutchinson DWI Cases

In the movies and TV shows, fleeing suspects often say something like “If we cross the state line, the police cannot touch us.” That’s not entirely true, but it is partially accurate, because of the venue rule.

Venue is Legalese for the jurisdiction where the state brings criminal charges. McLeod County prosecutors only have authority over crimes which occur in McLeod County. The boundary lines are not always easy to determine. For example, Cedar Mills is partially in Meeker County and partially in McLeod County. 

Things get really confusing when officers spot DWI suspects in one county and pull them over in another county. Technically, the state could bring charges in either county. But there are territoriality issues. To return to the previous example, the Meeker County Sheriff’s office usually does not want to send its deputies all the way to Hutchinson to testify in someone else’s criminal case.

Venue mistakes often give attorneys the leverage they need to successfully mount a DWI defense. If bureaucrats file charges in the wrong county, the judge must dismiss the case. Prosecutors can refile the charges in another county, but many times, they will agree to a favorable plea bargain rather than go to all that trouble. Furthermore, the delay benefits a Hutchinson DWI lawyer. Over time, memories fade and physical evidence disappears.

Lack of Reasonable Suspicion for the DWI Stop

Venue is a procedural DWI defense, as is lack of reasonable suspicion and lack of probable cause for the arrest. Prosecutors can work around the venue defense, if they are so inclined, but they cannot work around the next two procedural defenses. Lawyers cannot turn back the clock and erase police officer mistakes in these areas.

In 2020 and 2021, there were some high-profile police stops in Minnesota which involved little evidence of wrongdoing. Some people even claimed these stops were pretext detentions. They contend that officers essentially detained these individuals because they didn’t look right.

Legally, such stops almost always hold up in court. Officers only need reasonable suspicion, which is essentially an evidence-based hunch. Furthermore, the stop’s purpose is illegal. Usually, when officers pull over DWI suspects, they care almost nothing about the expired sticker or other infraction which prompted the stop. But the stop is still legal.

Because of this low standard of evidence, it’s very difficult for a Hutchinson DWI lawyer to invalidate a stop. Probable cause for the arrest, however, is a different story.

Preliminary Evidence of Impairment in Hutchinson

Technically, this intermediate step is not a procedural DWI defense. Officers do not need evidence of impairment to go to the next step. Such evidence usually includes:

  • An unwise answer to the dreaded “Have you been drinking” question, or
  • Physical symptoms, such as bloodshot eyes, slurred speech, slow reflexes, or unsteady balance.

However, this step is important for many jurors. If an officer pulls over a defendant and immediately assumes s/he is probably drunk, some jurors smell something fishy. That’s especially true if the officer had staked out a bar or was actively looking for DWIs as part of a concerted enforcement effort.

Once upon a time, efforts to erode police officer credibility in this way rarely worked and usually backfired. Most people highly esteemed police officers. Cops got free pancakes at Denny’s. Now, officers pay for their own pancakes. So, more jurors are willing to consider an argument that the officer railroaded the defendant. Public confidence in law enforcement officers recently hit an all-time low.

Probable Cause for the Arrest

This area is mandatory. Police must have probable cause to arrest suspects. In most cases, “probable cause” is an even more vague standard than beyond a reasonable doubt. But in the DWI context, the law is more certain.

Officers usually have probable cause to arrest suspects if they perform poorly on the field sobriety tests. In Minnesota, there are four such tests:

  • Horizontal Gaze Nystagmus: For the DWI eye test, suspects must track moving objects with their eyes without moving their heads. This test reliably reveals nystagmus, a condition also known as lazy eye. The problem is that intoxication is not the only cause of nystagmus. In fact, it’s not even the leading cause of it.
  • Walk and Turn: Suspects must walk a straight line heel to toe forwards and backwards. This test is very difficult to successfully perform if the suspect is wearing anything other than athletic shoes. Furthermore, it’s much harder to walk an imaginary line than an actual line.
  • One-Leg Stand: People with any mobility impairment whatsoever usually cannot possibly stand on one foot for fifteen or twenty seconds. Additionally, officers usually have suspects perform this test near the end, when they are physically and mentally fatigued.
  • Portable Breathalyzer: This gadget’s specific flaws, or at least some of them, are discussed below. For now, we’ll just say that the portable Breathalyzers police officers carry are even more inaccurate than the bigger ones at the police station.

Officers always swear that the defendant “failed” these tests, even if the failure was a technicality, like taking too many heel-to-toe steps. Since the standard of evidence is so low, most McLeod County judges take officers at their word. The field sobriety test flaws are more important at trial. Jurors decide for themselves, based on the evidence and not based on a police officer’s opinion, whether defendants passed or failed the tests.

However, sometimes this evidence is unavailable. People sometimes assert their Fifth Amendment rights and refuse to perform these tests. Other times, hurried officers skip right to the good part and immediately cuff the defendant.

In these situations, prosecutors must rely on the reasonable suspicion evidence, such as bloodshot eyes, mentioned above. This evidence usually proves consumption. But it does little or nothing to prove intoxication.

Non-Intoxication DWI Defense in Hutchinson, MN

Not all cases involve procedural defenses, but many do. So, a Hutchinson DWI lawyer must pay close attention to the details. This same diligence is necessary with regard to non-intoxication defenses. Frequently, intoxication is the only issue in a DWI trial, but this offense has other elements as well. Prosecutors must prove all elements of the offense, and not just one of them, beyond a reasonable doubt. Some possible non-intoxication DWI defenses include:

  • Public Place: It is not illegal to operate a motor vehicle while intoxicated if the vehicle was on private property at the time. Shopping mall parking lots are not public places, even if they have street names and traffic control signals. The space in front of a private dwelling, like the curb next to a driveway, is in a grey area.
  • “Wheeling” the Defendant: This defense often comes up in DWI-collision cases. Generally, when officers arrive on the scene, the defendant has exited the vehicle. Therefore, officers cannot testify that the defendant was driving. To prove this point, prosecutors must call another witness. Such a witness may or may not be available.
  • Operating the Vehicle: On a related note, the defendant must have been operating the vehicle at the time. Legally, a person sitting in a motionless car is usually operating the vehicle, even if the person is asleep or unconscious. That’s assuming the vehicle was driveable at the time.

How does reasonable doubt work in these defenses? Public place arguments are usually all or nothing. But the other two are more subjective. If a vehicle had more than one occupant, it’s very difficult to conclusively prove who was driving the car. Or, if a prosecutor fails to prove the car had gas and was in good working order, the state has arguably not established the “operating” element.

Intoxication Defenses in Hutchinson, MN

Even if these two areas are not issues in a DWI case, intoxication, or lack thereof, is usually a question. Scientifically, alcohol blood tests are much more accurate than breath tests. But in 2016’s Birchfield v. North Dakota, the Supreme Court ruled that officers needed search warrants to perform blood draws. So, officers normally rely on flawed Breathalyzer tests. Some specific issues include:

  • Ketone Levels: Diabetics, smokers, and some other people have elevated ketone levels in their bodies. These particles basically transform sugar into energy. Breathalyzers register ketone particles as ethanol. So, the BAC estimate might be artificially high. In borderline cases, like a .08 or .09, jurors could easily have a reasonable doubt as to the result’s accuracy.
  • Mouth Alcohol: If the defendant burped or vomited prior to the test, ethanol particles from the stomach flood the mouth and skew the test result. Many officers do not watch defendants prior to the test, so there’s no way of knowing if mouth alcohol contributed to the result.
  • Recent Consumption: On a similar note, alcohol does not pass from the stomach to the blood. Instead, it goes from the stomach to the liver and then to the blood. So, if the defendant had anything to drink in the preceding hour, that alcohol has not yet entered the bloodstream.

To drive home these flaws with the jury, many Hutchinson DWI lawyers point out that the modern Breathalyzer is essentially the same gadget as the 1920s Drunk-O-Meter.

Connect with an Experienced Hutchinson DWI Lawyer

Attention to detail is often the key to creating reasonable doubt. For a free consultation with an experienced Hutchinson DWI lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

 

 

This article was originally published on Feb 21, 2020 and updated on June 01, 2021.

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