Where Can I Find the Best Brainerd Divorce Lawyers?

Among most age groups, marriage dissolution rates have declined sharply since 1990. The one prominent exception is divorce among people over 50, or so-called “grey divorce.” These rates have skyrocketed since 2000.

Still, a significant number of marriages end in divorce. There is a lot at stake in these proceedings, so it’s very important to find the best Brainerd divorce lawyers.

What are the qualities you should look for in the best divorce attorney? And what’s at stake if you choose the wrong lawyer? We’re answering these questions and more in this article, so keep reading.

Temperament Is Important in Divorce Proceedings

Aggressive representation is very important in marriage dissolution matters. As outlined below, there are a wide range of complex issues. Assertive representation is the best way, and perhaps the only way, to preserve your legal and financial rights.

But there is a difference between aggressive representation and blind obstructionism. Unfortunately for their clients, many Brainerd divorce lawyers adopt the latter stance. They reason that the client wants bulldog representation in this legal matter. So, they contest every inch of legal ground.

On the surface, that may seem like a good idea. But, in fact, it is often counterproductive. One factor in child custody and visitation is the ability to co-parent. The former spouses do not need to be friends, but they need to be able to work together. If a parent is obstinate, the Crow Wing County judge may conclude that the person would not be a good co-parent. It is almost impossible for these individuals to win a custody fight.

The right disposition is only part of the equation. The best Brainerd divorce lawyer must also be highly familiar with all the issues involved.

Hire Brainerd Divorce Lawyers With Experience and Expertise

Not just any attorney will do when it comes to fighting for your rights during divorce. Instead, you need a Brainerd family lawyer who has experience with divorce cases and can guide you through the process of how to get a divorce.

Not only that, but you’ll also want to focus on professionals who have specific expertise with the type of divorce you’re going through. After all, you don’t want to hire a divorce mediator specializing in compromise when you have a court custody battle coming up.

How do you ensure you’re hiring an expert? Here are our three top tips for finding the best Brainerd divorce lawyer the first time, every time.

Before you ever hire a divorce attorney in Brainerd, you should ask for references. An attorney should be able to refer you to former clients whose case he or she won. Any divorce lawyer who can’t or won’t provide references isn’t worth your time.

It’s also important to look up your attorney’s credentials. You can access online information about your divorce lawyer’s continuing education, which is a good sign you’re dealing with a highly educated and experienced professional.

Finally, it never hurts to check your attorney’s online reviews. Browse the reviews on your lawyer’s website and also take the time to browse reviews on Yelp and Google. Of course, one bad review shouldn’t send you running, but an overall trend of former client dissatisfaction should be a red flag.

The Best Divorce Attorneys Communicate Well

You know the saying, “communication is key”? The person who came up with that adage must have been talking about lawyers. Because, when it comes to finding the best divorce attorney in Minnesota, you’ve got to ensure he or she is highly communicative.

There may be a lot on the line during your divorce. If you and your attorney can’t clearly and easily communicate, you may feel alone.

Any good lawyer should make you feel comfortable bringing up questions and concerns. He or she should explain complicated laws or arguments in a way that’s simple for you to understand.

Most importantly, your attorney should never communicate unrealistic expectations about your case. In Minnesota, it’s illegal for attorneys to make promises about results, and doing so could be a reason for disbarment.

What’s At Stake in a Brainerd Divorce Proceeding?

Divorce is also known as dissolution of marriage in Minnesota. Marriage dissolution can be contested or uncontested.

In an uncontested divorce, the spouses can sit down together and compromise about the terms of the dissolution. However, when a couple can’t agree on the divorce terms, the case will go to trial.

Contested divorces typically go to trial. This type of divorce requires lengthy court battles that can be highly expensive.

So, the biggest thing at stake during divorce proceedings is money. You’ll have to pay at least $375 to file for divorce in Crow Wing County and, on top of that, your divorce lawyer’s retainer. The longer the divorce proceedings go on, the higher the cost.

Further, the terms of your divorce will determine your share of debts and assets. These terms decide child custody issues, such as where your kids will live, go to school, and spend holidays. And divorce terms also spell out who pays child support or alimony payments (i.e., spousal support) and how much.

Luckily, a Brainerd divorce attorney can help you get the most favorable outcome in court. Here are some of the top strategies the best divorce lawyers in Minnesota use to fight for their clients’ rights.

Property Division in a Brainerd Divorce

The Gopher State is an equitable distribution jurisdiction. The judge must equitably divide marital property. That’s not necessarily the same thing as equally dividing property.

Division is a two-step process. First, the judge must classify property as either marital or non-marital. The general rule is that property acquired before the marriage or by gift is non-marital property and everything else is subject to joint division. But there are some complexities, and commingled property is a good example.

Especially during lengthy marriages, commingling is quite common. For example, Husband may use funds from his paycheck (marital property) to fix up a classic car he owned before the marriage (non-marital property). At a minimum, Wife is probably entitled to reimbursement for her portion of these marital funds. In some cases, especially if the car was just a jumble of parts when the couple exchanged vows, the non-marital property may have transmuted into marital property.

Second, there is the division itself. Some common factors in this distribution include:

  • A party’s prior marriage,
  • The length of this marriage,
  • Any agreements between the parties,
  • Relative age, health, and educational status of the parties,
  • Current and future income potential,
  • The economic needs of each party, and
  • Custody of minor children.

For the most part, the judge weighs all these factors equally. One is not more important than the other. Spousal agreements may be the exception. Most Brainerd judges enforce most property agreements as long as they are reasonably fair and entirely voluntary.

Debt Division in Brainerd Divorce Proceedings

In Minnesota divorces, courts typically divide liabilities based on who accumulated the debt. That means each spouse pays his or her own non-marital debts. Things get trickier, though, when considering marital debts.

For example, you may be responsible for your spouse’s debt in the following cases:

  • One spouse uses his or her credit card to purchase household groceries or supplies for the whole family
  • One spouse has a history of using his or her partner’s credit card, which has accumulated debt
  • You and your spouse agreed to share the debt in a prenuptial agreement

Additionally, consider the case where one spouse acquired a debt that solely benefitted the other partner. For example, consider the case of a husband acquiring debt after paying for his wife’s non-necessary medical expenses. In this case, a Minnesota court would most likely order the wife to pay the debt since it solely benefitted her.

Child Custody Issues in Brainerd

Assuming there has been no domestic violence, there is a rebuttable presumption that joint custody is in the best interests of the children. Joint custody probably will not involve a 50-50 division. Instead, one Minnesota parent has primary custody and the other one has liberal visitation rights. The best Brainerd Divorce Lawyer can give you excellent advice in this area.

Much like property division, there is a list of factors for the Crow Wing County judge to consider. Some prominent ones include:

  • Parental preference (agreements between the parties),
  • Preservation of the status quo,
  • Parent-child relationship,
  • Each parent’s commitment to co-parenting, and
  • Physical and mental health of each family member.

Preservation of the status quo is perhaps the most important factor. The old saying that “possession is nine-tenths of the law” definitely applies in Brainerd divorce cases.

The Best Brainerd Divorce Lawyer for Domestic Support Obligations

In most cases, DSOs involve both child support and spousal support. In terms of child support, Minnesota is an income shares state, as are most other jurisdictions. The child support formula considers the income of both parents and then assigns a proportional obligation to the noncustodial parent. The guidelines are applicable in all but a few cases.

Spousal support works much differently. First, it is not applicable in all Brainerd divorce cases. The judge must make affirmative findings that one spouse has an economic need. Second, the amount and duration of payments is very subjective. Some factors to consider include:

  • Oblige spouse’s economic need,
  • The obligor spouse’s ability to pay,
  • Standard of living during the marriage,
  • Length of the marriage,
  • Noneconomic contributions to the relationship, and
  • The age, health, and earning potential of each party.

Like child custody provisions, domestic support obligations can usually be modified based on changed circumstances. The obligee’s remarriage terminates the obligation altogether, but “remarriage” is not always easy to define in this context.

Call Today To Speak With a Brainerd Divorce Lawyer at Carlson & Jones

The best divorce attorneys are aggressive, experienced, and communicative. They have the expertise to defend your rights, whether you’re fighting for property, child custody, or spousal support.

Are you searching for a divorce attorney in Crow Wing County, Minnesota? The best Brainerd Divorce Lawyers have considerable skills and always have your best interests at heart. For a free consultation with an experienced family law attorney in Brainerd, contact Carlson & Jones, P.A.

Originally published on May 19, 2018 and updated on October 28, 2021.

A Hutchinson Criminal Lawyer Explains the 5 Types of Assault Cases in MN

Most assault cases occur when the temperature is between 80 and about 90 degrees. That sounds like a Minnesota summer to me. Heat increases testosterone production, which increases aggression. When the temperature gets much higher than 90, people stay inside, so the assault rate goes down.

In all these cases, the prosecutor must establish guilt beyond a reasonable doubt. Lack of evidence is usually one of the best defenses a Hutchinson criminal lawyer can use. However, sometimes it’s better to settle these cases out of court. Trails are very risky affairs, even if the prosecutor’s evidence is not very good.

Below, we’ll talk more about the defense strategies a Hutchison assault attorney can employ in your case. But first, let’s discuss the five most common types of assault charges.

1. Child Abuse in Hutchinson and MN

Pretty much all child abuse and neglect issues are very subjective. For example, assume Cindy’s dad consistently lets her stay up late. So, she often falls asleep in school. In some contexts, especially a family law proceeding, Dad’s actions could be considered child endangerment.

That subjectivity extends to Minnesota Statute Section 609.377, which is the state’s main child abuse law. It applies if a parent, guardian, or legal caretaker:

  • Uses cruel discipline or unreasonable force
  • Which is excessive given all the circumstances.

That subjective definition could include just about anything. Corporal punishment is a good example, and as a Hutchinson criminal lawyer as well as a parent, I address this issue a lot. Some parents consider paddling or spanking cruel and excessive; other parents have no problem with it at all.

The alleged infraction, child’s age, and amount of force often control the outcome. There’s a difference between spanking Ben because he ran out into the street and spanking him because he forgot to wash behind his ears. Ben’s age makes a difference as well. A ten-year-old is usually held to a higher standard than a four-year-old. Finally, the number of force matters. Did Ben’s dad leave a red mark or cause a deep bruise?

If all three of these areas favor the defendant, it’s nearly impossible to prove guilt beyond a reasonable doubt. In borderline cases, Hutchinson criminal lawyers often try to plead these cases down to reckless conduct or another lesser-included offense.

2. Simple Assault in Hutchinson and Minnesota

Fifth-degree assault is the most commonly-charged assault case in McLeod County. First time assault is a misdemeanor, subsequent assault is usually a gross misdemeanor, and subsequent assault against the same alleged victim is usually a felony. The elements are:

  • Committing an act with intent to cause fear in another of immediate bodily harm or death; or
  • Intentionally inflicting or attempting to inflict bodily harm upon another.

Note that injury, no matter how slight, is not an element of this offense. Note also that physical contact, no matter how slight, is not an element either. Hutchinson criminal lawyers have an easier time defending non-injury and/or non-contact cases. But prosecutors can and do still obtain convictions in these instances.

Assault and a few other cases, like theft, require lay witness testimony from an alleged victim. Unlike police officers, assault victims are not professional witnesses. Also unlike police officers, alleged victims are not always cooperative. In other cases, alleged victims relocate beyond the court’s jurisdiction, and prosecutors cannot subpoena or locate them.

Some states have lesser assault statutes which are essentially like traffic tickets. Minnesota really has no such law, so a Hutchinson criminal lawyer’s plea bargaining options are a little more limited. However, the aforementioned reckless conduct charge may be available if the prosecutor’s evidence is quite weak.

3. Domestic Assault in MN

Facially, this charge is pretty much the same as fifth-degree assault. However, domestic violence assault has a number of collateral consequences. For example, persons with domestic assault convictions have a very hard time getting a fair shake in family court, even if the incident occurred years ago and involved a different family. Additionally, many domestic violence victims obtain restraining orders, and these proceedings are quite complex.

An alleged victim cannot “drop” the charges under any circumstances. A person can say s/he does not want to pursue charges, but the prosecutor has the final call. If the prosecutor wants to go forward, the judge could issue a subpoena and force the victim to testify.

The domestic assault law only applies in certain situations, and some of them are very difficult to prove. The protected categories are:

  • Persons related by blood or marriage,
  • Current or former roommates, and
  • People who are involved in a significant romantic relationship.

Common-law marriage usually does not count. Furthermore, a single one night stand does not mean that two people are roommates or involved in a significant romantic relationship.

Especially if the victim is uncooperative, prosecutors are often willing to reduce charges to simple assault. That conviction does not have nearly as many collateral consequences. However, many prosecutors do not reduce charges under any circumstances. They’d rather die with their boots on.

4. Aggravated Assault in MN

In Minnesota, aggravated assault is an assault that causes temporary or permanent injuries. As the name suggests, aggravated assaults also include one or more aggravating factors.

An example of an aggravating factor is using a weapon during the assault. Aggravated assaults can be first-, second-, or third-degree assaults.

Third-degree aggravated assault typically applies to bodily harm inflicted against minors and children. However, assaults leading to “substantial bodily harm” (SBH) may also count as third-degree aggravated assault.

Second-degree assault is also known as assault with a weapon or assault with a deadly weapon. The elements are:

  • Dangerous Weapon: Under Minnesota law, pretty much anything other than a hand is a dangerous weapon. Increasingly, Hutchinson criminal lawyers see cases in which the hand is a dangerous weapon. That’s true in some really bad medical malpractice cases.
  • Substantial Bodily Harm: Essentially, SBH means that you put someone in the hospital and keep them there for at least a day.

First-degree aggravated assault occurs when one of two factors are present: great bodily harm (GBH) or aggravated assault against a police officer. Great bodily harm includes any injury conferring the likelihood of death, serious or permanent injury, and/or permanent impairment of a body part.

607.222 is not quite as serious if only one of the aggravating factors (dangerous weapon or SBH) is present. Again, some prosecutors will plead down aggravated assault cases to simple assault.

5. Vehicular Assault in Hutchinson and Minnesota

Prosecutors can press these charges if the defendant was grossly negligent and caused SBH, or if the defendant was negligent while under the influence of alcohol or another substance and caused SBH.

Minnesota Statute 609.2113 divides vehicular assault cases into three categories. These are vehicular assaults causing bodily harm (BH), substantial bodily harm (SBH), and great bodily harm (GBH).

Each category carries different penalties if convicted. BH brings about the least significant consequences, and GBH results in the most severe sentences.

If you’re convicted of vehicular assault causing BH, you may have to spend a year in jail and/or pay $3,000 in fines. Vehicular assaults causing SBH can earn offenders up to three years in prison and up to a $10,000 fine. GBH carries the greatest penalty of up to five years in prison, a $10,000 fine, or both.

These cases are sometimes difficult to prove. A witness must place the defendant behind the wheel at the time of the crash. By the time emergency responders arrive, the defendant has usually exited the vehicle. But all bets are off if the defendant admitted driving the car. These statements are usually admissible.

This is why it’s critical to find an experienced assault defense attorney in Minnesota to defend your case.

What Are the Defenses a Hutchison Assault Attorney Can Use?

If you’ve received an assault charge, you need the best assault lawyer at your side. Yet, not just any defense attorney will do. You need a defense attorney who specializes in assaults and has the experience to show for it.

Why? An experienced attorney knows the defenses to use in your case, including how to beat a sexual assault charge. That way, you can potentially avoid the negative consequences that come with an assault conviction in Hutchinson, MN.

The False Allegation Defense

Studies show that over 2.5% of child abuse allegations are false. And the majority of these allegations come from parents making false claims about the abuse.

Though rare, false statements about child abuse clearly happen. In fact, child abuse accusations are surprisingly common during divorce and/or custody proceedings. So, many lawyers can use this defense to reduce or even eliminate child abuse charges against their clients.

This defense also applies to the other five assault cases we’ve discussed here. For example, if someone falsely accuses you of simple assault, your Hutchinson defense attorney can show that the allegations are false. If your lawyer can do that, you may be able to keep the case out of court and decide it during settlement.

The Self-Defense Defense in Hutchinson and Minnesota

Self-defense is the best affirmative defense in the book. Affirmative defenses admit that the offender did, in fact, commit the crime. However, a good defense attorney will argue that the assault was committed in self-defense.

For a court to believe the assailant was defending his or herself, the assault must have been necessary to avoid physical harm or injury. Defense of Others is also a viable defense in some assault cases. Ask your Hutchison criminal attorney if either of these defenses are available to you.

The Lack of Evidence Defense in MN

Lack of evidence is yet another common strategy Hutchison defense lawyers use against assault allegations. This defense relies on the fact that Minnesota courts have the burden of proof — not you and your Hutchison assault attorney.

In any assault case, the prosecutor must have evidence to prove your guilt. And this proof must show that you are guilty beyond a reasonable doubt. So, the best assault lawyer will poke holes in the evidence to make the judge or jury doubt your guilt.

This defense is especially useful in cases where your lawyer can’t exactly prove your innocence. Instead, he or she will focus on showing that the opposition’s case is inadequate.

The Consent Defense in Hutchinson and Minnesota

According to Minnesota Statute 609.341, consent is a written or verbal agreement between two parties. The consent defense is arguably the most effective assault defense out there. It alleges that violence between two parties isn’t legal assault if both parties agree or consent to the use of physical force.

The consent defense works against almost any assault allegation. However, children cannot consent to violence until they are of the “age of consent” or, in general, 16 years of age. That means the consent defense isn’t applicable to cases of child abuse.

Work With Experienced Criminal Defense Lawyers in Minnesota

All five types of assault are serious crimes in Hutchinson, Minnesota. A conviction could earn you jail or even prison time, and that’s not even to mention the hefty fines you’ll have to pay. However, working with a Hutchison assault attorney can help you avoid these consequences.

Were you recently charged with assault? All five types of assault cases have some valid defenses. For a free consultation with an experienced Hutchinson criminal lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

Originally published on February 18, 2019 and updated on October 26, 2021.

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

Minnesota law enforcement officers arrest about 25,000 DWI offenders each year. And 77% of these charges result in DWI convictions. This is why hiring a DWI defense attorney is a must after you’re charged with drunk driving.

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. A good criminal attorney will know the DWI defense strategies that will work in your case.

What Does DWI Mean in Minnesota?

In Minnesota, DWI stands for Driving While Intoxicated. Law enforcement would consider you intoxicated if you’re operating a vehicle with a blood-alcohol level of 0.08 or higher.

Minnesota distinguishes between four degrees of DWIs:

  • Fourth Degree: first-time offenders with no aggravating factors and offenders without DWI convictions in the last ten years with no aggravating factors
  • Third Degree: first-time offenders with one aggravating factor and second-time offenders 
  • Second Degree: first-time offenders with two aggravating factors and third-time offenders
  • First Degree: offenders who receive four DWI convictions within 10 years or second-time DWI felony offenders

Fourth-degree DWI offenses are misdemeanors. Third- and second-degree offenses are gross misdemeanors. And fifth-degree DWI convictions are felonies.

By now, you may be wondering: what is an aggravating factor? Driving with a blood-alcohol level of 0.16 or higher and having a child aged 16 or younger in the car are aggravating factors for DWI in Minnesota.

DUI vs. DWI in Minnesota

DUI and DWI are two different ways officers can charge people for driving intoxicated. With a DUI, a law enforcement officer must see the driver swerving, weaving, driving too fast, or showing other outward manifestations of intoxication.

DWIs are much simpler to prove. Offenders could be driving perfectly, hit a roadblock, blow a blood-alcohol level of 0.08 or higher, and receive a DWI. All that matters is that the blood-alcohol level is above the legal limit, not that the driver appears to be intoxicated.

However, for conviction purposes, you can think of DWIs and DUIs as essentially the same.

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?

DWIs in Minnesota can cost up to $10,000. This includes things like tow and impound fees for your vehicle (at least $150) and attorney fees ($1,000–$5,000 for a case that doesn’t go to trial). But it doesn’t include things like the cost for bail, which can reach up to $12,000 for prior offenders.

Yet, the high cost of DWIs isn’t the only thing at stake when you’re convicted. You risk probation, fees, loss of driver’s privileges, prison time, and more.


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).

Keep in mind that you’ll have to pay probation fees, too. In Brainerd, probation fees range anywhere from $150–$250.


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.

Fines increase further if the offender has priors. For a second DWI conviction, a court can fine you up to $3,000, which is also the minimum fine for third-time offenses. Upon receiving a felony DWI, you could risk paying up to $14,000 in fines.

Jail Time

Many Minnesotans are surprised to learn that DWIs commonly incur jail and/or prison time. The exact sentence length depends on the number of priors and whether it’s a felony-level DWI. Here’s the breakdown:

  • 1st Offense: For offenders with blood-alcohol levels under 0.16, the sentence is up to 90 days in jail. For offenders with blood-alcohol levels above 0.16, the penalty increases to up to 1 year in county jail.
  • 2nd Offense: For second-time offenders with blood-alcohol levels under 0.16, the sentence is up to 90 days in jail. For second-time offenders with blood-alcohol levels above 0.16, the punishment increases to up to 1 year in county jail.
  • 3rd Offense: Third-time offenders’ sentences are up to 1 year in county jail, regardless of blood-alcohol level.
  • Felony Offense: A felony DWI can incur up to 7 years in federal prison.

Offenders who drive impaired and cause bodily harm or death to another party may receive a Criminal Vehicular Operation charge. A conviction for this charge could result in up to a 10-year prison sentence.

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. Second-time DWI offenders can lose driving privileges for up to two years. Three or more DWI offenses can lead to permanent driver’s license suspension.

Sometimes, a lawyer can arrange a restricted drivers’ license that includes an ignition interlock device. With an ignition interlock device, the offender can regain his or her driving privileges immediately.

Receiving a DWI gross misdemeanor (i.e., driving with a blood-alcohol level of 0.16 or higher) automatically qualifies for an ignition interlock device. The same is true of second-time DWI offenders. If an offender with prior DWIs receives a third or greater offense, the court will order an ignition interlock device for up to six years.

Many Minnesotans depend heavily on their vehicles. So, this possibility alone is a good reason for you to get a DWI lawyer in Brainerd.

Further, there are costs associated with reinstating your driver’s license and getting an ignition interlock device. To challenge your driving restrictions, you must pay $320 to file the motion, attorney fees, and $700 to get your license officially reinstated. Then, your ignition interlock device will cost an additional $125 per month.

Lost Employment Opportunities

When you’re convicted of a DWI in Minnesota, it stays on your record for 10 years. Employers that run background checks will see your prior conviction(s), which could affect your hireability. For example, the following jobs generally won’t employ people with DWI priors:

  • Pipeline and transit jobs
  • Railroad jobs
  • Trucking jobs
  • Aviation jobs
  • Maritime jobs

Teachers, nurses, and doctors may also be negatively affected by DWI convictions. So, if you don’t want to lose your job, it’s absolutely critical to speak to a DWI defense attorney near you.

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

If you’re ever charged with driving under the influence, your first call should be to a DWI lawyer in Brainerd. Experienced criminal attorneys know the pretrial and trial DWI defense strategies to get your charges dropped.

Have you been arrested for a DWI in Minnesota? 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.


Originally published on June 17, 2021 and updated on October 21, 2021.

When Can You Be Charged with Public Intoxication in Minnesota?

Public intoxication is a crime that you can be penalized for, but only if there are certain elements present in your case. That’s good, because if you can prove that any element is missing from the case, you may be able to have the charges dismissed.

What many people don’t know is that public intoxication isn’t an actual charge in Minnesota. Minnesota Statute 340A.902 says that no person can receive a criminal charge for being drunk or drunk in public.

Yet, a law enforcement officer can charge you for being drunk in public under other crimes, including disorderly conduct.

If you’re charged with disorderly conduct for misbehaving while drunk in public, working with a Minnesota disorderly conduct lawyer can help reduce or even eliminate your charges.

What Exactly Is a Public Intoxication Charge in Minnesota?

340A.902 effectively eliminates the ability for a court to convict you of public intoxication. However, if someone is drunk in public and behaves disruptively, he or she might receive a disorderly conduct charge.

This crime, also called being “drunk and disorderly,” asserts that you’re visibly drunk or being influenced by drugs in a public place and you’re participating in one of the following behaviors:

  • Being offensive, noisy or abusive
  • Using offensive language
  • Fighting
  • Disturbing meetings

Being a public nuisance is also closely related to disorderly conduct. A public nuisance is someone who annoys, hurts, or endangers others. This definition also includes obstructing public highways and disobeying local legislation.

If you do any of these things while drunk, you could also receive a public nuisance charge.

Is Disorderly Conduct a Misdemeanor?

Normally this is a misdemeanor charge, but that doesn’t mean you shouldn’t try to have the penalties lowered or the case dismissed. After all, the penalties for a disorderly conduct misdemeanor conviction include jail time and thousands of dollars in fines.

Other Types of Charges Related to Drunkenness in Minnesota

An officer can arrest you, and you can be charged with public intoxication if you seem to be intoxicated or drunk and are in public at the time. But this is only true if you’re also caught committing one of the following crimes:

  • DUI / DWI
  • Assault
  • Property damage

If you’re drunk in public while underage, you could also receive an Underage Drinking charge. For example, a Minor in Possession (MIP) is an underage drinking charge in Minnesota.

Anyone under the age of 21 can receive a MIP for possessing, purchasing, or attempting to purchase alcohol. The only exception is when a parent or legal guardian is present, and the underage person is in their private dwelling.

Disorderly Conduct Conviction Penalties

Disorderly conduct, including being a public nuisance, is a misdemeanor in Minnesota. If convicted, you could receive up to 90 days in the local jail, a fine of up to $1,000, or both.

Fines and jail time increase if the disorderly conduct is targeted toward a vulnerable adult. However, this is only the case if the perpetrator of the disorderly conduct crime is that vulnerable adult’s caregiver. Then, a conviction results in up to one year in prison and/or a $3,000 fine.

Even if you don’t get jail time for one of these crimes, a court may order a probationary period. During probation, you may have to complete community service hours, see a counselor, or attend alcohol awareness courses.

Finally, misdemeanor convictions stay on your record forever unless you get your record sealed. Employers will then have access to your criminal record, and your conviction could impact your ability to get hired. Plus, having a prior misdemeanor can increase penalties for future criminal convictions.

A Minnesota defense attorney can help expunge your record if you have a prior conviction.

Disorderly Conduct Charge Defenses in Minnesota

You don’t want to suffer the consequences of disorderly conduct or public nuisance charge in Minnesota. What kind of defense could help you?

The exact defense a Minnesota criminal attorney uses will vary depending on the crime. For example, getting a DUI or DWI charge is a form of public intoxication. To get out of a conviction, you’ll want to show that you weren’t intoxicated or under the influence of drugs.

If you can’t do that, then show that the location wasn’t public property. Since there is no single definition of what constitutes public property, your attorney can help you argue that you weren’t on governmental land or in a public space. And a Minnesota court can’t convict you of disorderly conduct if you’re in the privacy of your own home.

The only exception here is if you commit assault or damage someone else’s property while drunk in the privacy of your own home. Even so, a disorderly conduct defense lawyer could still get you out of a conviction. This is especially true if the assault or property damage occurred as a result of self-defense.

Your attorney can also help you fight the case by showing that you weren’t intoxicated or acting as if you were. For instance, maybe you were talking loudly because you were rehearsing for a play in which you are to play someone who is intoxicated.

Minnesota’s statutes further make exceptions for people behaving disorderly who have neurological conditions, epilepsy, or are insane.

Free Speech Defenses

By now, you may be wondering: how can I receive a charge for being offensive or using offensive language while publicly intoxicated in Minnesota? Isn’t that practicing free speech?

According to the Minnesota Statutes, a court can only convict someone of disorderly conduct for offensive speech if the language arouses alarm or anger.

So, if you’re using offensive language while drunk in a public space and no one seems alarmed or angered, a Minnesota disorderly conduct attorney can get your conviction overturned.

Call a Minnesota Disorderly Conduct Lawyer

When you’re charged with disorderly conduct while publicly intoxicated, the onus is on you and your Minnesota criminal defense lawyer to prove otherwise.

There could be dozens of reasons for an officer to misinterpret your behaviors, and it’s your right to correct his or her misconception of your actions. Your attorney can help you try to turn around this situation, so you face fewer or no penalties.

Looking for a Minnesota disorderly conduct lawyer? Carlson & Jones has the experience and expertise you need to get out of a charge related to public intoxication. Call us today to schedule a free consultation and find out how we can help defend your case!


Originally posted on February 19, 2018 and updated on October 19 2021.

Criminal Vehicular Operation CVO Charges in Buffalo, Wright County, MN

In most states, criminal authorities consider car wrecks to be civil matters between insurance companies. Peace officers rarely file criminal charges in these situations, even if the collision is fatal.

But most states do not have a law like Section 609.2113 of the Minnesota Statutes. The Criminal Vehicular Operation law is a felony. These penalties apply if the defendant causes substantial bodily harm while driving in a particular way.

This statute is quite complex, and there are lots of moving parts. So, if you face CVO charges in Wright County, only a highly experienced Buffalo, MN criminal lawyer should represent you in court. Otherwise, you may be looking at extended prison time for something that was essentially a mistake.

CVO’s Basic Elements

To receive a Criminal Vehicular Operation charge in Buffalo, Minnesota, a person must cause an injury (not death) while driving “in a grossly negligent manner.” In general, negligence means someone acts without care for other people’s safety.

Usually, gross negligence applies to driving under the influence of alcohol or controlled substances. But that’s not always the case. Here are two other situations that fall under gross negligence:

  1. After causing an accident (due to negligence or not), the driver flees the scene.
  2. A driver who has received a ticket for vehicle defects doesn’t fix the problem and, knowing the risk, drives anyway, ultimately causing an accident.

Much like the DUI law, the CVO law contains no mental state. It is a crime to drive under the influence of a substance. It does not matter if the defendant unintentionally, or even unknowingly, drove in this condition. The different kinds of CVO may involve a mental state, as outlined below. But in general, Wright County prosecutors must simply prove the basic elements.

The only time mental state does matter is if someone used a substance they did not know and had no reason to believe was intoxicating.

Criminal Vehicular Operation is always a felony. But the exact range of punishment depends on the amount of harm the defendant caused, as follows:

  • Great Bodily Harm: GBH CVO is a five-year felony. Typically, great bodily harm means that the car crash victim received injury treatment at a hospital and stayed at least one night. Additionally, there must be no evidence of intent to harm the alleged victim. Different statutes cover vehicular assault and vehicular manslaughter. A GBH CVO is an automatic felony.
  • Serious Bodily Harm: SBH CVO, which is a three-year felony, is usually a treated-and-released offense. SBH, which may be the most common type of Criminal Vehicular Operation, usually includes things like broken bones. This crime is a felony.
  • Bodily Harm: If the vehicle collision victim received some treatment at the scene, such as a bandage or perhaps some field stitches, the maximum punishment is one year in prison. This is the only CVO charge that’s a misdemeanor.

The different levels often create proof problems. Assume Frank hits Jesse in an intersection and Jesse goes to a nearby emergency room. After waiting for about an hour, he leaves without receiving treatment. If prosecutors file GBH or even SBH charges, a Buffalo, MN criminal lawyer may be able to get the case thrown out due to lack of evidence. There may be no medical bills to support the charges.

CVO vs. Vehicular Homicide in Minnesota

Vehicular homicide is a charge related to CVO in Minnesota. Courts use this charge instead of CVO if the accident results in death rather than just injury.

Vehicular homicide is an extremely serious crime in Buffalo and a felony. A conviction could result in $20,000 in fines, up to 10 years in prison, or both. Further, vehicular homicide offenders risk forfeiting their driver’s licenses, vehicles, and gun rights.

It’s important to note that vehicular homicide cases can become even more serious if the accident results in the death of a pregnant person. Fatally injuring an unborn child is an additional felony charge in Minnesota.

Even if a court convicts you of injuring an unborn child, it’s a felony. You’ll risk paying up to $20,000 in fines and/or spending up to five years in prison. The prison sentence increases to up to 10 years in the case of vehicular homicide.

Minnesota Criminal Vehicular Operation Penalties

Has a Minnesota court recently charged you with CVO? You need to hire a Buffalo, MN criminal defense lawyer ASAP. If you choose instead to represent yourself, you risk the following penalties of a CVO conviction.

Jail / Prison Time

All CVO convictions come with the potential of jail time. But exactly how long do you go to jail for vehicular assault? Here are the facts:

Even though CVOs that cause bodily harm (BH) are only a misdemeanors, you could still spend a maximum of one year in jail. The sentence only increases as the injuries to the other party get more severe.

As we’ve mentioned, a Substantial Bodily Harm (SBH) CVO conviction is a felony. As such, a conviction means prison, not jail time. SBH CVO felons must serve up to three years in prison.

Great Bodily Harm (GBH) CVOs are also felony convictions that bring on lengthy prison sentences of up to five years in prison.

Fines in MN

Jail and/or prison time aren’t the only penalties CVO offenders have to worry about. BH CVOs come with fines of up to $3,000. Offenders must pay these fines on top of court and attorney fees and bail.

SBH and GBH CVOs have even higher fines. Both SBH and GBH CVO convictions come with a fine of up to $10,000.

Background Checks in MN

Did you know that felonies must remain on your criminal record in Minnesota for at least five years? You can’t even begin the expungement process until this period is up.

The same thing is true of misdemeanors, though you only have to wait two years before you can hire a Buffalo, MN criminal lawyer to expunge it.

If you apply for a job before the waiting period is up, potential employers will see your conviction. Felony convictions, in particular, may hamper your ability to find work and look like someone an employer wants to hire.

Additionally, felonies found during background checks can also affect your ability to get a loan. The lender may worry that felons may commit future crimes, face jail time, or get slapped with hefty fines, all of which can prevent the borrower from making good on his or her loan.

Other Consequences

In Minnesota, a felony conviction can affect other aspects of your life, too. For example, a court could revoke your gun and/or voting rights if you have a CVO felony.

Felonies also affect the ability to find housing. Many landlords won’t accept applications from convicted felons, leaving these offenders with limited housing options.

You don’t want to face the consequences of a CVO conviction in Minnesota. That’s why you need a CVO criminal defense attorney to fight for your rights.

If you already have a CVO conviction on your record, a CVO lawyer can also help you navigate the expungement process in Buffalo, MN.

How Buffalo, MN Criminal Lawyers Approach the Major Kinds of CVO

Negligent operation while under the influence of a substance may be the most common type of CVO charge. These key terms deserve some close attention.

Negligence is a civil law term that denotes a lack of care or, more likely, a violation of a safety statute, like speeding or making an illegal lane change. But negligence alone is not enough. The defendant must also cause a crash while negligent. And, that crash must cause at least bodily harm.

Since negligence is a civil term, civil car crash defenses, such as contributory negligence, may be available. In criminal court, a Buffalo, MN criminal lawyer need not “prove” the defense. Creating a reasonable doubt as to the defendant’s guilt is enough.

The illicit substance could be alcohol and/or a controlled substance. 609.2113 states that the defendant is guilty if s/he was “under the influence” of a substance. That’s a lower standard than intoxicated. Essentially, if the defendant had one drink or one pill, the defendant was probably under the influence of the substance.

This subdivision has some variations. It is a felony to negligently cause a serious crash if the defendant’s BAC alcohol level was at least .08 within two hours of the collision. This provision gives law enforcement some added leeway. And, it is also a felony to negligently cause a serious crash while under the influence of any Schedule I or Schedule II drug. If the defendant had a valid prescription, the defendant may be not guilty as a matter of law.

Section 609.2113 also applies to gross negligence serious crashes. The statute does not define gross negligence, but generally, this term is synonymous with reckless driving. If the defendant committed two or more traffic violations and caused a crash (e.g. speeding while traveling on the wrong side of the road), the defendant was probably grossly negligent.

Leaving the scene of a serious crash is probably the third major type of CVO. This subdivision is not like some other hit-and-run laws. This prohibition only applies if the defendant caused the crash and left the scene. Additionally, “cause” is a civil law term which may be subject to contributory negligence and some other car crash defenses.

Reach Out to a Dedicated Criminal Defense Lawyer in Wright County, MN

Criminal Vehicular Operation (CVO) occurs in Minnesota when a grossly negligent driver gets into a wreck and injures the other party. There are three types of CVO charges, two of which are felonies. Regardless of which CVO charge you receive, a conviction may result in jail or prison time, fines, and more.

Criminal Vehicular Operation is a serious felony which may be difficult to prove in court. For a free consultation with an experienced Buffalo, MN criminal lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Wright County and nearby jurisdictions.

Originally published on October 24, 2019 and updated October 12, 2021.

A Hutchinson Criminal Lawyer Looks at the Consent Defense

Of all the defenses in a sex crimes prosecution, such as lack of evidence and entrapment, consent may be the most potent and most dangerous one.

Consent is a potent defense because, if established, it completely unravels most sex crimes cases. If a McLeod County jury accepts the consent defense, it will return a not-guilty verdict. During pretrial negotiations, if it looks like the consent defense may be viable, prosecutors may offer a fire sale-type plea deal.

Consent is also a dangerous defense. During the trial, the defendant must typically testify. So, the prosecutor has a chance to cross-examine the defendant. And, pretty much anything goes in these exchanges. Moreover, if the defense does not resonate with the jury, some jurors may react very harshly against the defendant.

There is a wildcard here. On a 66-0 vote, the Minnesota State Senate recently joined the House and closed the marital exception loophole in the sexual assault law. The change must now go to a conference committee to iron out differences between the House and Senate versions. And, no one is sure what the final version will look like.

So, now more than ever, if the consent defense may be an option in your case, you need a highly-skilled Hutchinson criminal lawyer to break things down for the jury.

What Consent Is

According to Section 609.341, consent is “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” To many McLeod County jurors, and many Hutchinson criminal lawyers, this definition is a bit out-of-step with modern human relations. Most people do not sign waivers before participating in sexual activities. So, “consent” is very rarely black and white.

But note that the statute includes “overt actions.” That could be something like going to the defendant’s room. In this instance, if another person saw the alleged victim and defendant leave together, the defendant may not have to testify. That’s usually a big plus for Hutchinson criminal lawyers. Of course, the alleged victim could always say that s/he changed her mind later and withdrew consent. But many jurors may have a hard time buying that story.

The consent can be limited. That’s why public flirting very rarely constitutes consent to perform a sexual act. These are two very different things.

What Consent Is Not

As the Legislature just made even more clear, a prior sexual relationship does not mean that the alleged victim consented this time. Consent is not an automatic payment arrangement. Just because you give consent once, you do not agree to future encounters.

Significantly, the statute only says that a prior sexual relationship is inconclusive. It does not say it’s irrelevant. If the alleged victim frequently and recently consented to sexual contact, that history puts circumstantial evidence of consent into a new light. A Hutchinson criminal lawyer may even be able to delve into past consent issues in the alleged victim’s background. This approach may be a way to bypass Minnesota’s rape shield law, at least in part.

The Rape Shield Law means criminal attorneys can’t submit the victim’s prior sexual conduct to the court. The only exception to this law is if a judge deems the victim’s prior record as substantial evidence in the case (i.e., that it has probative value).

Also according to the statute, consent is more than failure to resist. That’s assent and not consent. These are two different things. But once again, assent may be relevant. If the alleged victim assented and there is other circumstantial evidence, like intense flirting, a Hutchinson criminal lawyer may be able to employ a consent defense.

Alcohol and Consent

Many, if not most, of these incidents involve alcohol. Under the law, if the alleged victim was “incapacitated” or “helpless,” consent is impossible as a matter of law.

Words like “incapacitated” imply a very high BAC level of perhaps .22 or higher. As a very rough rule of thumb, .08 is legally drunk, .16 is stumbling drunk, .22 is passed-out drunk, and .28 is comatose, or perhaps even dead, due to alcohol poisoning.

So, if the alleged victim had two or three drinks, consent is still very possible. After four or five drinks, it’s a little harder to establish. Certain drugs may have a similar effect, especially something like Zolpidem (Ambien), Rohypnol (Ruffies), and other date rape drugs.

On a related note, physical restraint or natural unconsciousness (asleep) also makes consent impossible. Certain people cannot consent as a matter of law. This list includes children and people in certain professional relationships (e.g.psychiatrists and patients).

When Can a Criminal Lawyer Use the Consent Defense in Minnesota?

Hutchinson criminal lawyers typically use the consent defense in criminal sexual conduct crimes. In Minnesota, sex crimes fall into one of the following categories:

  • Fifth-degree sex crimes, which include sexual contact and crude conduct
  • Fought-degree sex crimes, which include sexual contact and statutory rape against victims of certain ages
  • Third-degree sex crimes, which include penetration crimes and statutory rape against victims of certain ages
  • Second-degree sex crimes, which include sexual contact crimes and aggravated statutory rape
  • First-degree sex crimes, which include penetration crimes and sex crimes committed against a person aged 13 or younger

In all but a few cases, a sex crimes defense attorney can apply the consent defense. We’ll talk about which cases are exceptions to this rule later. But, first, we’re discussing why you don’t want to receive a sex crime conviction in Minnesota. 

Sex Crime Penalties in Hutchison, MN

Being convicted of one or more of sex crimes in Minnesota comes with serious penalties.

A fifth-degree sex crime can earn offenders a gross misdemeanor, up to 1 year in jail, and/or a $3,000 fine. Sentencing increases to five years in jail and/or a $10,000 fine for repeat fifth-degree sex crimes.

Fourth-degree sex crimes generally earn offenders up to 10 years in prison, up to a $20,000 fine, or both. Third-degree sex crimes incur up to 15 years in prison and/or a $30,000 fine.

In Minnesota, second- and first-degree criminal sexual conduct convictions come with minimum sentencing guidelines.

For a second-degree conviction, the offender must serve at least 90 months or up to 25 years in prison and/or pay up to a $35,000 fine. First-degree convictions come with 144-month minimum sentences. But offenders could spend up to 30 years in prison, pay a $40,000 fine, or both.

In addition to these punishments, Minnesota sex criminals must submit their DNA to the court. Predatory Offender Registration (POR) and Community Notification of sex offender status are also requirements that apply in some cases.

You don’t want to be convicted of a sex crime in Minnesota. That’s why you need an experienced Hutchison criminal lawyer to help you understand whether the consent defense applies to your case.

When Can’t a Hutchison Criminal Lawyer Use the Consent Defense?

Consent is a defense in all but a few criminal sexual conduct cases. In which cases is the consent defense not allowed? We’re talking about four of them next.

Sex Crimes Against Minors

The consent defense is not allowed in cases where an offender committed a sex crime against a minor. This includes some instances of statutory rape as long as the offender is a certain number of months older than the victim.

The age of consent in Minnesota is 16. Any sex crime committed against a person aged younger than 16 cannot use the consent defense in court.

Note that the “mistaken age” defense also isn’t available for sex crimes against minors. The only exception to this rule is in some circumstances of statutory rape, especially when the offender and the minor are close in age.

Position of Authority Sex Crimes

Regardless of the age of the victim, if a person in a position of authority commits a sex crime against someone younger than him or herself, consent is not a defense. However, there must be a certain number of years separating the age of the offender and the victim.

People in positions of authority typically include parents, teachers, and coaches.

Significant Relationship Sex Crimes

Consent isn’t a defense when a person who holds a significant relationship with a minor commits a sex offense against that minor. This includes sexual criminal conduct perpetrated by parents or guardians, relatives, and other adults who cohabitate with the minor.

There used to be an exception here if the offender was married to the minor and committed a sex crime. However, since Minnesota closed the marital rape loophole, the consent defense isn’t available in these cases anymore.

Employment Sex Crimes

Regardless of the victim’s age, professionals employed in certain roles cannot use the consent defense against criminal sexual conduct charges. These employees include:

  • Psychotherapists
  • Clergy members
  • Correctional officers
  • Masseuses

Any sex crime offenders partaking in the above roles cannot use the consent defense when a court brings charges against them.

Rely on a Diligent Attorney

Sex crimes are no joke in Minnesota. You could risk one to 30 years in jails and thousands of dollars in fines. Luckily, a sex crimes defense attorney can help reduce or even eliminate your charges using the consent defense.

Have you recently received a sex crime charge in Minnesota and think the consent defense applies to your case? Consent is a very high risk/reward defense in sexual assault prosecutions. For a free consultation with an experienced Hutchinson criminal lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Originally published on May 18, 2019 and updated on October 5, 2021.

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