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.

Probation

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.

Fines

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.

Are Divorce Records Public in Brainerd, Minnesota?

Like most other court records, divorce decrees are also a public record. Anyone can access the information related to your divorce for free or by paying a small fee. However, you can request the court to seal a part or all of your divorce decree in Brainerd and all of Minnesota

Once your divorce is finalized, all the paperwork related to your proceedings will be condensed into a divorce record. It comprises the important details of your case, including divorce settlement, alimony, and custody arrangements, among other things. At this point, like most people, you are less likely to think about what happens to your divorce record.

An experienced divorce lawyer in Brainerd, MN, will make it a point to keep our clients and prospects well-informed. If you are getting a divorce, here’s what you need to know about divorce records.

1. The Minnesota Divorce Rate

More than 267,000 people in Minnesota are divorced.

While the marriage rate in Minnesota is slightly higher than the national average, the opposite is true of divorce. In Minnesota, there are 7.1 divorces per 1000 people. That’s compared to the national average of 7.7 divorces per 1000 people.

According to Minnesota divorce lawyers, the state’s rate of divorce has increased since the coronavirus pandemic. By some estimates, divorce filings have gone up by at least 30%.

Yet, overall, the Minnesota divorce rate is on the decline. Divorces have decreased from 2008’s rate of 9.1 per 1000 people. At the same time, the national divorce rate has actually increased since 2008.

The Minnesota cities with the highest divorce rates include:

  • Brainerd
  • Virginia
  • Zimmerman
  • Fairmont
  • Stewartville
  • Hutchison
  • Isanti
  • Cloquet
  • Sauk Rapids
  • International Falls

Brainerd, MN has the second-highest divorce rate in Minnesota, second only to Virginia, MN. With a population of just over 13,00 people, Brainerd’s divorce rate was 14% in 2020. Approximately 1497 people are divorced in Brainerd. 

What’s Information Is in a Divorce Record?

In Minnesota, a divorce record is also known as a divorce decree. First and foremost, a Brainerd divorce record or decree serves as proof of a dissolution of marriage. Dissolution of marriage is the legal term for divorce in Minnesota. 

The divorce record will also contain all the conditions of marriage dissolution. These will be the conditions decided during uncontested divorce, mediation, or court proceedings. Conditions may include specifics about property and debt division, child support, alimony, and custody agreements.

Sometimes, a divorce record may also contain protective order records. In Minnesota, Orders for Protection (OFPs) typically come about due to domestic violence.

Are Divorce Records Public in Brainerd, MN?

Not just in Brainerd, MN, in many jurisdictions around the world, most court proceedings are public records. So, your divorce record or decree is also a public record. In fact, if you file it, your separation agreement also becomes a public record.

This is part of the Minnesota Data Practices Act. This law ensures that the Minnesota public has the right to access and analyze public records. The law also states that the public has the right to have public records explained to them if the data isn’t easily understandable.

Even before the Data Practices Act, the First Amendment granted public access to records. This is because the First Amendment grants the US public a “right of access” to any record created in court.

In other words, anyone can access your divorce record if they know where and how to find it. The purpose of making most court proceedings a public record is to allow the tax-paying citizens to scrutinize, examine, and copy them, regardless of the purpose. You usually have to pay a small fee to access the court records.

Who Would Want to Access a Brainerd Divorce Record?

Courts often request divorce records during legal proceedings. For example, a Brainerd court might want to see a divorce record if one of the divorced persons is:

  • Getting remarried
  • Making a property dispute
  • Filing for a green card
  • Disputing spousal and/or child support
  • Determining how property distribution in his or her will

Individuals may also want to access divorce records. For example, say you’re dating someone new and want to know about their marriage history. You can look up their divorce records online, in-person, or with the help of a Brainerd divorce lawyer.

Can You Seal Divorce Records in Brainerd, MN?

As you may already know, in almost all cases, the courts will not seal the divorce records automatically. However, with the help of an experienced divorce lawyer in Brainerd, MN, you can apply and convince the court to seal your records. One or both parties have the right to ask the court to seal the records.

Upon your request, the court may seal only a part or your entire divorce record. The final decision usually rests with the judge. The court will, in most cases, consider if making the record public could be harmful or not. If the answer is yes, the court will seal the record.

In Minnesota, requesting a judge to seal part of your divorce record is a “narrowly tailored” request. Making a narrow request is usually more successful than asking to seal the entire divorce record.

Reasons Divorce Records Can Be Sealed in Brainerd, MN?

The court will decide to seal portions or your complete record depending on the circumstances of your case. However, the usual reasons for placing divorce records under seal include the following:

  • If the circumstances of your divorce require to protect the identity of children from the public, the court will seal this portion of your divorce records
  • Sometimes, the court may also seal the records to protect the identity of domestic abuse and child abuse victims
  • In many cases, the court will also seal sensitive information such as bank account numbers and social security numbers, among other things  
  • If one or both parties own a business, the court may seal any sensitive information related to the business

Usually, judges are reluctant to seal the entire divorce records. It is often a better strategy to ask the court to redact a portion of your divorce decree. However, there is no guarantee that the court will make the decision in your favor. You can, of course, consult an experienced divorce lawyer in Brainerd, MN to help you get the best possible outcome.

Where to Find Divorce Records in MN

As mentioned, anyone who knows where to look can find divorce records. In most states, including Minnesota, you can try one of the following options to find the divorce decrees.

However, keep in mind that if the divorce record is sealed, neither you nor a lawyer can access it. 

Your State’s Vital Records Website

If you are comfortable with finding court records online, you can start with a general search on your state’s vital records website. However, not all states will record marriages and /or divorces on the vital records site.

The Minnesota Office of Vital Records does not record marriages or divorces. Instead, the website will guide you to search for the county district court office that granted the divorce. You will need to know the name of the person and the county court where the divorce was granted. If you know the date, the search will be a lot easier.

You can order the copy of records online or you can visit the county court house, write an application, and collect the copies yourself. Make sure to check the website to see the detailed procedure. For example, some counties may not allow walk-in record access requests. In this case, you may have to send the application well in advance.

Third-Party Website Access to Public Records

Some third-party websites allow you to access public records for a small fee. These search engines not only enable searches in Minnesota. You can also find public records from other states.

Whether these sites can grant you access to Brainerd, MN divorce records depends on availability. To find a record, you’ll need to provide the name of the person and the location of the record. These search engines usually allow you to input a location as general as a state to specific city searches.

 

Divorce Attorney in Brainerd, MN

Another option is to contact an experienced divorce lawyer in Brainerd, MN. Lawyers know the court systems well-enough to find the desired divorce records as quickly as possible. Remember, divorce records are important as they can tell you about a person’s actual marital status.

An attorney can also assist you in understanding a divorce record after you access it. Remember: the state of Minnesota grants you the right to have any public record explained to you if you don’t understand it.

How to Find the Best Divorce Attorneys in Brainerd, MN

If you want access to someone else’s divorce records, experienced Brainerd divorce lawyers can help. An attorney can also help you understand divorce records. But how do you choose the right lawyer?

The best way to ensure your divorce attorney is up to the job is to look for experience. Of course, your chosen lawyer should meet Minnesota’s minimum standards for legal professionals. He or she should be licensed and, furthermore, licensed in the area where he or she practices.

Secondly, you want to make sure your chosen divorce lawyer has experience locating divorce records. During your initial consultation, ask if the attorney to share similar cases he or she has worked on.

Finally, always check an attoney’s online reviews. Check out what others have to say about being a client because this can give you a lot of information about what outcomes to expect from your Brainerd divorce attorney.

Talk to a Seasoned Divorce Lawyer in Brainerd, MN

Whether you want to get your divorce records sealed or find the divorce records of someone you know, hiring an experienced divorce lawyer in Brainerd, MN is the right way to do it. Family lawyers with proven track record, like Carlson & Jones, P.A. can provide you with the right legal advice. Call us today on (855) 976-2444 for a free consultation or contact us online to see how we can help.

 

How Many Times Can You Appeal a Child Custody Case in Brainerd, MN?

Child custody is one of the most critical elements of a divorce case involving minor children. When one of the spouses disagrees with the child custody award, they will appeal the court’s decision in the hopes of getting a better outcome. How many times can you appeal a child custody case? The short answer is that you can appeal a child custody decision as many times as there are courts superior to the one that made the ruling.

Types of Child Custody

Minnesota child custody agreements define which parent(s) get physical and legal custody of a child. Physical custody specifies where the child lives, with whom, and when. Legal custody determines which parent(s) will make significant legal decisions for the child.

In Minnesota, there are four primary types of child custody. They are:

  1. Sole Physical Custody: In this custody, the court will place the children under the supervision of one parent, while the other parent will get limited or generous visitation depending on the circumstances of your case.
  2. Joint Physical Custody: In this type of custody, the children will stay with both parents for a significant amount of time. However, this type of custody is rare.
  3. Sole Legal Custody: Legal custody gives a parent the right to have a say in major decisions like health, education, religion, and general upbringing of the children. Sole legal custody means only one parent gets this right.
  4. Joint Legal Custody: In joint legal custody, both parents get to decide regarding the health, education, religion, and overall welfare of the children. However, both parents need to make things work. Only then the court is likely to award joint legal custody.

Contrary to common belief, joint legal custody isn’t always a 50/50 split. For example, a common joint physical custody arrangement is when the child lives with one parent during weekends and another parent on weekdays. Or one parent may receive primary physical custody, allowing him or her to decide when the other parent can visit the child.

When one parent gets primary physical custody, the other parent can still see the child. But if both parents can’t agree on a visitation schedule, the court will specify one. Courts typically grant 25% custody to the non-custodial parent unless there’s a reason that this arrangement isn’t in the child’s best interest.

Another common misconception about child custody battles is that courts place preference on the mother. However, this isn’t actually true. Minnesota courts prefer to grant joint custody whenever possible, believing that it’s in the child’s best interest to be around both parents.

The only way a child custody attorney could win you sole legal and/or physical custody is if you can prove that the other parent is unfit.

What Is an Unfit Parent in Brainerd?

Brainerd parents can lose custody of their children voluntarily or involuntarily. With voluntary custody loss, the parent gives written consent to terminate their parental rights. When a court deems a parent unfit, he or she may lose custody involuntarily.

Unfit parents in Minnesota are those who showcase abandonment, neglect, or failure to pay child support. Other factors making a parent unfit include being physically and/or emotionally abusive or failing to care for the child’s physical, emotional, or mental health.

Murder or Assault Convictions Impact in Child Custody

Parents convicted of murdering or assaulting one of his or her children, sexually abusing any child, or committing any other offense requiring sex offender registration are also unfit.

Court Ordered Adjustments

A Minnesota parent could lose custody if the child is temporarily placed in foster care for some reason, and the parent fails to make court-ordered adjustments. Conditions that could lead to a child’s placement in foster care include the parent’s chemical dependency and addiction or if the child was significantly harmed while in his or her care.

So, for instance, a parent could be deemed unfit if the child was removed from the home due to drugs being present. The court may then order the parent to attend chemical dependency rehabilitation. If the parent fails to do as requested, the court may deem him or her unfit.

Absent Birth Fathers in Minnesota

Finally, absent birth fathers are typically deemed unfit in Minnesota. An absent birth father is a father who wasn’t married to the mother at the time of the child’s birth and is not listed on the child’s birth certificate. Absent birth fathers aren’t involved in their children’s lives and don’t pay child support.

Other than these reasons, a Minnesota court would not typically award sole custody of a child. Courts instead consider the child’s best interest when determining custody agreements.

Child’s Best Interest Is Key

As an experienced child custody lawyer in Brainerd would tell you, the court always puts the child’s best interests first. Of course, the court will take into account different factors when determining child custody. However, the child’s overall best interests form the crux of their decision.

The various factors that can affect the outcome of child custody include parents’ wishes, the relation of the child with both parents, adjustment to home, school, and community, and cultural background, among other things.

The court will also check if the parent seeking custody is capable of raising a child financially, emotionally, and mentally. Just like each divorce case is unique, so is every child custody situation. You should talk to your lawyer to know your legal options.

What Factors Decide Child Custody Agreements?

How do courts decide what’s in a child’s best interest in custody battles? A judge always takes into account what each parent wants. If one parent doesn’t want custody of the child, the court is more likely to award full custody to the other parent.

Of course, the judge will also consider what the child wants. However, in Minnesota, children must be of a certain age for a judge to ask their opinion on custody battles.

Otherwise, here are the top factors courts consider when deciding on child custody:

  • Who the child’s primary caretaker is currently
  • Where the child has lived for most of his or her life
  • How close the child is to each parent
  • Where the child’s siblings or other significant relatives live
  • Where the child goes to school
  • The health of the family relationships in each household
  • The mental and physical health of each parent
  • Each parent’s suitability for giving the child love, affection, and education
  • The child’s cultural background
  • Whether one parent is abusive or has committed domestic abuse before
  • Each parent’s willingness to cooperate with one another

In cases of joint custody, the last factor is essential. Co-parents must show how they plan to resolve any major disputes regarding the child.

What if domestic abuse has occurred between the co-parents? A Minnesota court could rule that the abuse is a detriment to your ability to cooperate and that joint custody isn’t in the child’s best interest. It’s critical to consult with a child custody attorney in Brainerd, MN to ensure you still get a fair agreement in these difficult cases.

Can You Appeal Child Custody Decision in Brainerd?

Although the short answer is “Yes,” appealing a child custody decision is not as easy as it sounds. In almost all cases, if your argument for an appeal is that the trial court didn’t get it right, the appellate court is not likely to entertain your request.

However, if your appeal is based on the argument that the trial court applied an incorrect legal standard when determining the child custody, your chances of being heard are better. Unfortunately, nothing is guaranteed, and the possibility of filing a successful appeal will change from case to case. Make sure to discuss your case with an experienced child custody lawyer in Brainerd first.

But how many times can you appeal a court’s decision? You can only bring an appeal to a higher court and, as a general rule, you can only appeal the same court once. That means you can appeal a child custody decision as many times as there are courts superior to the one that made the ruling.

6. File for Modification Instead of Appealing

Although you can appeal the child custody order, it is often better to seek modification instead. If your current custody arrangement is no longer in the best interest of the child, you can go to the court and ask for an order modification.

However, there needs to be a change in circumstances that warrants the modification, and you should be able to prove this change in the court. For example, if the present environment threatens the mental and physical well-being of your child, the court will be more willing to change the previous custody arrangement.

If both parents agree to the modification (which does happen), the court will modify the order. Also, if the custodial parent is found guilty of criminal offenses, the custodial arrangements will be modified.

However, at least one year needs to pass from the date of issuing the original custody order before you can file for modification. If you have already filed a motion for modification before, whether or not the court granted it, you can’t file a subsequent request for at least two years. But there are exceptions to these rules as well. Talk to a competent family lawyer to discuss your options.

Parting Words

Getting a divorce is exceptionally difficult when children are involved. Sometimes, the child custody order can be unbearable for one of parents, resulting in an emotional decision to appeal the original custody order. However, you need to consider all your legal options carefully before proceeding with a crucial decision like this. Hopefully, this short post will help you understand a few important facts related to this issue.

Talk to an Experienced Child Custody Lawyer in Brainerd Today!

We know how heartbreaking it is to see an unexpected outcome of your child custody request. But don’t worry! Carlson & Jones, P.A., one of the most experienced child custody lawyers in Brainerd, are here to help you. Call us on (855) 663-7423   or contact us online to know how we can help resolve your child custody issues.

 

This article was originally published on October 24, 2020 and updated on August 19, 2021.

Breaking Down a Minnesota Domestic Violence Charge in Brainerd, MN

Domestic assault in Minnesota is such a serious offense because the unique type of violence causes prolonged psychological trauma. Being unjustly charged with domestic violence or domestic assault can also cause trauma. In order to defend yourself, breaking down a Minnesota domestic violence charge can help you understand what to expect.

Domestic Violence Arrest Policy in Minnesota

In terms of arrest policy, Minnesota does not have a statewide mandatory arrest policy in domestic violence situations. Minn. Stat. Ann. Section 629.341 says a peace officer “may arrest [as opposed to shall arrest] a person anywhere without a warrant, including at the person’s residence, if the peace officer has probable cause to believe that within the preceding 24 hours the person has committed domestic abuse.” Individual department policies in counties and municipalities vary.

The news is not all bad. A number of defenses are available in these situations. Many of these defenses are procedural defenses, or legal technicalities. People can often fix some of their mistakes, but police procedure error isn’t one of these things. So, a Brainerd domestic assault lawyer in Minnesota might be able to get the case thrown out of court in these situations. Other defenses, such as a lack of evidence, are available as well.

Defining Domestic Assault in Minnesota

Minnesota law identifies family/household members in various ways. Some of these categories are straightforward and others are rather complex. Breaking down a Minnesota domestic violence charge, the major ones are:

  • Spouses, former spouses, parents, and children,
  • Individuals related by blood,
  • Individuals who currently live together or have cohabitated in the past,
  • Any couple, whether or not they are cohabitating, that has a child in common regardless of their relationship background, and
  • Two people who are significantly involved in a sexual relationship.

That last bullet point might be the most intricate one. A one-night stand probably does not constitute a significant sexual relationship. The living together category is equally subjective. A few weeks, or even a few months, might not be “living together” for domestic violence purposes. A Brainerd domestic assault lawyer can use arguments like these to reduce DV assault charges to standard assault charges.

Spouse on Spouse Violence in Minnesota

All this being said, the vast majority of domestic assault cases in Minnesota are spouse-on-spouse violence. In ye olden days, these alleged victims could assert an evidentiary privilege and refuse to testify against their spouses.

Those days are gone. Now, an alleged victim is basically a witness. As such, an alleged victim cannot “drop” a criminal assault case. Only the state has this power. In fact, prosecutors could subpoena alleged victims and force them to testify against their will. But these instances are rare, except in extreme cases.

Qualified DV Offenses in Minnesota

Breaking down a Minnesota domestic violence charge, the protected classes above are only part of the puzzle. Not every assault crime in Minnesota qualifies as domestic violence. For example, ABC (Assault By Contact) cannot be a domestic violence crime, regardless of the actors’ identities. The laws of Minnesota consider the following infractions to be domestic violence offenses:

  • Violating an OFP (Order for Protection) related to a previous domestic violence incident,
  • Violating an NCO (No Contact Order) which was issued under similar circumstances,
  • A violent crime, including murder, assault, criminal sexual misconduct, or malicious child punishment, of a person in one of the aforementioned protected classes,
  • Making terroristic threats (threatening an entire group of people, like a family),
  • Harassing behavior, violating a harassment restraining order, or stalking, and
  • Interfering with an emergency call (g. unplugging the phone so an alleged victim cannot call 9-1-1).

Domestic Violence in Family Court

A “DV” addition has significant collateral consequences, particularly in family court. Even if the offense involved a different family, a conviction could effectively prevent a person from obtaining favorable custody and visitation orders. A Brainerd domestic assault lawyer can advocate for individuals in these situations, whether they want to enforce a prior conviction or prevent one from being enforced.

Domestic Assault Penalties in Minnesota

Since domestic violence in any form is a serious crime, there are naturally some immediate effects as well. A person convicted for domestic assault may have to face consequences beyond the typical penalties of an assault. Breaking down a Minnesota domestic violence charge, they are as follows:

Misdemeanor or Felony Charges in MN

When a domestic assault is considered a misdemeanor, penalties may include up to 90 days in jail and/or a fine of up to $1,000. In case of a felony, domestic assault may include one to three years in prison and/or fines of up to $5,000.

These maximum penalties usually apply to first-time offenders. If the offender has one previous domestic violence-related conviction within the last 10 years, which is basically any offense in the list above which involves a person in a protected class, s/he may be charged with a gross misdemeanor.  Furthermore, if the offender has two previous convictions within the last 10 years of a third offense, s/he may be charged with a felony.

For a second-time offense, the maximum misdemeanor penalty increases to one year in jail and/or fines of up to $3,000. The third and subsequent offenses are always felonies. Possible punishment includes a prison term of up to five years and/or fines up to $10,000.

Additionally, any type of domestic or non-domestic assault is a crime of moral turpitude. CMT convictions have significant future employment consequences. Many insurance companies refuse to cover people in positions of trust who have any such crimes on their records. Moreover, a CMT could lead to deportation or other adverse immigration proceedings.

Protective Orders Resulting from Domestic Assault in MN

Protection orders are also associated with penalties of domestic assault. Violating them may result in additional penalties. An individual can request a protection order or no-contact order at any point in time. However, most Crow Wing County judges automatically issue these orders upon a domestic assault arrest or conviction.

These initial ex parte orders, which a judge could also issue based solely on an alleged victim’s affidavit, are good for up to fourteen days. Then, after a full hearing, the court decides if a permanent order is required depending on the severity of the case details. If granted, these orders may be valid for up to two years and can be renewed thereafter. Breaking down a Minnesota domestic violence charge, common prohibitions and requirements in protective orders often include:

  • Committing domestic abuse against a family member, the alleged victim, or the alleged victim’s pets,
  • Being in or near the alleged victim’s house, workplace, and common surrounding areas,
  • Contacting the alleged victim, either directly or through a third party,
  • Paying child and/or spousal support,
  • Surrendering child custody and visitation rights,
  • Giving up custody of shared pets,
  • Providing health insurance for the alleged victim and/or a family member,
  • Paying restitution, and
  • Attending marriage counseling or receiving mental health treatment.

A few additional words about a kick-out order, or an exclusion from a shared residence. In most cases, this relief is unavailable in an ex parte order. However, upon hearing, a judge may order a defendant to vacate a shared residence, even if the defendant is financially responsible for the rent or mortgage.

Contrary to popular myth, a protective order is not just a piece of paper. Law enforcement agencies which are slow to respond to domestic violence calls often respond immediately if the offense is a violation of a court order.

The violation of a protection order is considered a misdemeanor. The penalties for this offense may include a jail term of up to 90 days and fines of up to $1000. Bonds may also be imposed at $10,000 upon the defendant’s arrest. The severity of penalties may increase if the accused violates the protection order within 10 years of being convicted for domestic violence.

If there is a parallel proceeding in family court, some judges hesitate to issue protective orders. There are no statistics on how many alleged victims lie in these proceedings to receive an edge in family court. But these things do happen. If a criminal judge refuses to issue a protective order, the judge presiding over the family law proceeding probably will. A civil protective order is basically the same as a criminal protective order.

Gun Ownership Rights in Minnesota

According to the laws of Minnesota, the person who has been convicted for domestic violence may lose the right to have a gun. If the defendant used a deadly weapon during the domestic assault, the defendant must forfeit that knife, gun, or other object. There are no ifs, ands, or buts.

If the defendant owns any deadly weapon, the judge could take it away, if the circumstances warrant such a move. These take-away orders also eliminate the defendant’s ability to keep and/or bear arms, at least temporarily.

Furthermore, acquiring a gun after losing the right to own one will result in severe penalties that include a jail term of up to one year and fines of up to $3,000.

How a Brainerd Domestic Assault Lawyer Can Help

A domestic assault charge can negatively impact the offender’s professional life, personal reputation, finances, and living conditions. It is best to get help from a domestic assault lawyer to fight these charges. Your lawyer’s main focus is breaking down a Minnesota domestic violence charge. You do not have to simply take your licks, and you don’t have to accept the prosecutor’s first settlement offer.

Analyze the Domestic Violence Charges in MN

Prosecutors are very aggressive in these situations. If the facts could possibly support a domestic violence enhancement, one is almost certainly forthcoming.

However, as outlined above, there are many moving parts in a domestic assault case. An assault which happens in a private residence is not automatically a domestic assault, even if the defendant and alleged victim know each other. There are also a number of possible procedural defenses. We’ll look at them next.

Even if prosecutors wrongfully applied the DV label, it’s not always a good idea to fight this designation. Frequently, in domestic violence court, there is an emphasis on treatment as opposed to punishment. In regular criminal court, the opposite is usually true. So, if the defendant has PTSD or another issue, domestic violence court might be the place to be, even if the case might belong somewhere else.

Nevertheless, since DV assault has some significant additional consequences, like protective orders, Brainerd domestic assault lawyers usually file motions to transfer these cases if at all possible.

Procedural Errors as a Defense in MN

Did you notice that peace officers may arrest domestic assault defendants even without a warrant and even if they didn’t witness the offense? This procedural shortcut is usually unavailable in other cases. As a result, some officers erroneously assume that other procedural shortcuts apply as well. That’s not true.

Failure to properly Mirandize the defendant is a good example. Most people are at least somewhat familiar with the Miranda rights (such as “you have the right to remain silent”). However, most people do not know how early the obligation to Mirandize the defendant kicks in.

Miranda Warnings in Minnesota

Legally, peace officers must administer the Miranda warnings before custodial interrogation begins. Let’s look at these two words in detail.

In this context, “custody” does not mean being placed in handcuffs or a holding cell. Instead, custody usually begins when defendants don’t feel free to leave. Most people don’t feel free to leave as soon as officers knock on their front doors or approach their vehicles. Some people don’t feel free to leave when they see a police car nearby.

Somewhat similarly, “interrogation” is not limited to asking questions about the alleged assault. In fact, it’s not even limited to asking questions. Skilled investigators know how to use very subtle means and extract damaging information from defendants.

That’s why it’s usually important to not say anything and call a Brainerd domestic assault lawyer immediately. If you do these things, officers will almost certainly arrest you. But an arrest was probably inevitable at this point anyway.

Self Defense Against Domestic Violence in MN

This defense is an affirmative defense. Defendants must admit that they assaulted the alleged victim, but that the assault was legally justified. In this case, the justification is the defense of self, the defense of others, or in some cases, the defense of property.

These defenses usually hinge on principles like proportionality of response and reasonable belief of a threat. Once again, let’s break these concepts down.

Proportionality essentially means that the defendant may only use the amount of force necessary to fend off an assault. In other words, if someone pulls a knife, you cannot pull a gun, at least in most cases.

Size matters. If Jason Momoa charged at me with a stick, I might reasonably believe that I need a gun to stop him. In fact, I might reasonably believe that I need a death ray to stop him.

The threat must always be physical. Words, no matter how hurtful or threatening they are, hardly ever justify a violent response, at least in the domestic assault context.

Reasonable belief basically means that the defendant feels threatened. Let’s go back to the me vs. Jason example and switch things around. If I waved a stick at Jason, he probably would not feel threatened. In fact, if I leveled a death ray at him, he might not feel threatened. If there is no credible threat, the self defense doctrine usually does not apply.

Plea Bargain Agreement in Minnesota

Even if there is no defense, prosecutors are usually willing to offer a plea bargain. It’s just that this offer is usually better if a defense could apply. Usually, a plea bargain means a reduced sentence and/or reduced charges. For example, if there are some police procedure questions, prosecutors might reduce felony aggravated assault to simple misdemeanor assault.

We touched on the difference between punishment and treatment above. If the defendant has a substance abuse problem or other issue, treatment for that problem probably produces a better outcome than a few weeks stewing in jail.

It is important to understand that every case is different as they involve several different details. Though a domestic assault lawyer will offer the best representation possible and try to get the charges dropped, the final outcome depends on the severity of the case and the evidence presented to the jury. Based on these aspects, your lawyer will try his/her best for the best result, including a reduced penalty and fines.

Consult a Minnesota Domestic Violence Lawyer at Carlson & Jones

It is necessary that you protect your rights if you have been charged with domestic violence. if you’re interested in breaking down a Minnesota domestic violence charge, seeking legal help can minimize penalties to a great extent. The experienced Brainerd domestic violence lawyers at Carlson & Jones P.A. will plan and present your case facts in the most favorable manner to obtain positive results. Contact us today for a free consultation.

Did Wild West Gunfighter Clay Allison Have a Brain Injury?

Roughly two hundred and forty years ago this month, two of the most famous gunslingers in the West, Clay Allison and Wyatt Earp, supposedly confronted one another in a Dodge City saloon. Earp later claimed that Allison backed down, but that assertion has never been proven.

What is known is that Allison was one of the most violent men in a very violent time. Previously, in 1874, Allison dined with notorious gunman Chunk Coleman before shooting him in the head in a New Mexico hotel. When someone asked Allison why he had supper with the man before murdering him, Allison cooly explained that he “didn’t want to send a man to hell on an empty stomach.” A year later, Allison played a role in a lynching. Afterward, he dragged the corpse through the rough brushes and rocks of the New Mexico wilderness.

Allison married a short time later, and family life seemed to have calmed him. Nevertheless, his erratic behavior continued. On one occasion, a local dentist accidentally worked on the wrong tooth. Allison tracked him down, pinned him to the floor, and pulled out one of the man’s teeth with a pair of pliers.

A wagon accident killed Allison in Texas in 1887. His tombstone includes the very questionable assertion that he was a “gunfighter and a gentleman” that “never killed a man who did not need killing.”

Before all these things happened, the Confederate Army gave Allison a medical discharge because of a “partly epileptic and partly maniacal” condition. Historians speculate that Allison suffered a brain injury in early childhood. That would explain both his discharge and his rather checked Old West activities.

Brain Injury Causes

Traumatic Brain Injuries send millions of people to hospital emergency rooms every year. Unfortunately, doctors send a significant number of these victims home without giving them proper medical treatment. Head injuries do not cause visible bleeding or swelling, and they may not be very painful. Therefore, doctors often misdiagnose head injuries as shock from the incident or even early-onset dementia.

Another reason for this confusion is that brain injuries have a number of different causes. Most f them are not even physical injuries in the traditional sense of the word. The three most common head injury causes are:

  • Trauma: Even though the skull is very thick, it does not take much physical force to cause a brain injury. Brainerd, MN injury lawyers often deal with these wounds in car crashes and serious falls. As outlined below, trauma brain injury treatment requires several different approaches.
  • Motion: A person can scramble an egg just by shaking it. It’s not necessary to crack the shell. A brain injury can occur the same way. Violent motion, like whiplash n a car crash, often scrambles the brain without breaking the skull.
  • Sudden Loud Noise: Explosive blasts and other sudden loud noises trigger shock waves which disrupt brain functions. These shock waves have made TBIs the “signature wound” of the Iraq and Afganistan Wars, according to many doctors. Many witnesses say that the noise of a car crash sounds like an explosion, so it may have the same effect on the brain.

Brain injury symptoms vary almost as much as the causes. Initially, most people suffer a loss of consciousness. That could be complete incapacitation or a dazed feeling. Different people react differently to different causes. Soon afterward, victims begin experiencing tinnitus (ringing in the ears), headaches, and like Allison, personality changes. Eventually, if the injury is not properly treated, victims experience dementia-like symptoms and even death.

Damages in a brain injury case typically include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages may be available as well, in some cases.

Brainerd, MN Injury Lawyers and Brain Injury Treatments

The financial compensation which Brainerd, MN injury attorneys help deliver does more than bring justice to victims. It also gives them the financial resources they need to obtain the treatment they need.

In trauma brain injury situations, this treatment often includes emergency surgery. Doctors must act quickly to relieve brain bleeding and swelling.

In all situations, brain injuries require extensive physical therapy. The therapist has a big job. Brain injury therapists must train uninjured parts of the brain to take over any lost functions. That’s because brain injuries are always permanent. Once brain cells die, they never regenerate. Additionally, the permanent nature of these injuries make the road to recovery a long and winding one. Progress usually takes place in fits and starts.

Contact a Tenacious Attorney

A serious brain injury has lifelong effects. For a free consultation with an experienced Brainerd, MN injury lawyer, contact Carlson & Jones, P.A. You have a limited amount of time to act.

Who Can a Brainerd Injury Lawyer Hold Responsible for Truck Crash Damages?

In Minnesota, bus drivers, truck drivers, and other commercial operators are common carriers. Since they are professional drivers, these individuals have a very high duty of care. That higher duty is reflected in things like the different highway speed limits for large trucks and passenger vehicles.

Because of this higher duty of care, it is easier for a Brainerd truck accident lawyer to establish negligence, which is a lack of care. Certain technological and legal tools make this process even simpler. It is also easier for Brainerd injury lawyers to establish negligence per se, which is a violation of a traffic or other law.

The higher duty of care affects more than first party liability theories, like negligence and negligence per se. It also concerns some third party liability theories, which are discussed below.

Injuries in Large Vehicle Collision Claims

Third party liability is especially important in catastrophic injury cases. Many times, the injuries which truck accident victims sustain fall into this category. Minnesota has one of the lowest vehicle insurance minimums in the state. So, in many cases, the individual tortfeasor (negligent driver) may not have sufficient insurance coverage to pay fair compensation.

Large commercial trucks weight over 80,000 pounds. Many other large vehicles, such as tour buses, are almost equally massive. So, Brainerd injury lawyers often must obtain compensation for a number of serious injuries, including:

  • Head Injuries: Trauma, motion, and sudden loud noises cause most head injuries. Truck accidents involve all three. Victims usually sustain very serious trauma injuries in these cases. Additionally, upon impact, their necks often move in a sudden, whip cracking-like motion. That motion alone may be sufficient to cause a head injury. Finally, many victims and witnesses say the noise of a truck crash is like an explosion. Noises like these create shock waves which disrupt brain functions.
  • Blood Loss: Because of external and internal trauma injuries, many victims are practically in hypovolemic shock by the time emergency responders arrive on scene. Typically, if people lose more than about a fifth of their blood, it is very difficult to recover.
  • Serious Burns: Diesel fuel burns at a different temperature from gasoline. That’s why many large truck crashes are fireball collisions. That’s also why many truck accident victims sustain third or fourth-degree burns. These injuries always require specialized, and expensive, treatment at designated burn centers. Furthermore, even if the injuries heal, these victims must often deal with permanent disfiguring scars.

Brainerd injury lawyers can obtain significant compensation for these injuries, depending on the facts of the case and the extent of injury.

If the victim survives, damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Under Minnesota law, if the victim receives treatment at a hospital, the victim normally sustained a “serious” injury.

If the victim does not survive, a Brainerd injury lawyer may file a wrongful death claim. These claimants usually receive compensation for pecuniary losses, such as the decedent’s pain and suffering, lost future financial contributions, and lost future emotional contributions.

Employer Liability in Truck Accident Claims

Respondeat superior (let the master answer) is the most common employer liability theory in large vehicle collision claims. This legal doctrine basically has three elements:

  • Employee: In this context, an “employee” is not just someone who receives a regular paycheck. Independent contractors, owner-operators, and even unpaid volunteers may be employees for negligence purposes. The employer controls them to some extent, and that control is all that’s required.
  • Scope of Employment: In a similar vein, any act that benefits the employer in any way is within the scope of employment. That definition goes well beyond situations like delivery drivers. For example, Crow Wing County courts have held that employee softball games are within the scope of employment. Employers benefit from the free advertising.
  • Foreseeability: The victim/plaintiff’s injuries must be a foreseeable result of the tortfeasor’s conduct. For example, if a doctor makes a medical mistake during treatment, that’s not a foreseeable result of a vehicle collision claim.

Other employer liability theories, which often apply in intentional tort cases, include negligent hiring, negligent entrustment, and negligent supervision.

Brainerd Injury Lawyers and Owner Liability

Negligent entrustment normally applies if vehicle owners allow incompetent drivers to operate their vehicles, and these operators negligently injure other people. Commercial negligent entrustment cases, like people who rent a U-Haul moving truck, work a bit differently because of the Graves Amendment.

This federal law imposes legal obstacles to fair compensation. In commercial negligent entrustment cases, in addition to driver incompetence, the victim/plaintiff must also establish that the vehicle owner was:

  • Not in the trade or business of renting motor vehicles, and
  • Independently negligent.

Typically, tortfeasors rent U-Haul trucks from moving companies and not from vehicle rental companies, like Enterprise. Furthermore, if the owner or agent fails to verify that that driver’s license is valid, the owner or agent may have been negligent.

Rely on Experienced Attorneys

Truck crashes often cause serious injuries. For a free consultation with an experienced Brainerd injury lawyer, contact Carlson & Jones, P.A. We do not charge upfront legal fees in these cases.

 

 

The Three Types of Negligence in a Brainerd Car Accident Claim

Most car accidents are not “accidents” in the sense that they were unavoidable or inevitable. Human error, mostly driver error, accounts for over 90 percent of these incidents. When that driver error is also a lack of care, which is usually the case, the tortfeasor (negligent driver) may be legally responsible for damages.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages may be available as well, in some cases. The amount and type of damages largely depends on the facts of the case and the skill of your Brainerd personal injury lawyer.

Many of the cases these attorneys handle involve one of the three types of negligence discussed below. The categories may sound academic, but understanding them helps a Brainerd personal injury lawyer obtain maximum compensation in a car wreck case.

Behavioral Negligence

Many drivers know they should not get behind the wheel, yet they do so anyway. In the process, they knowingly put other people at risk. Therefore, damages in behavioral negligence cases tend to be rather high.

Alcohol is a good example. Most people are not legally intoxicated until after they consume three or four drinks, but impairment begins with the first drink. So, alcohol is a factor in about a third of the fatal crashes in Minnesota. Alcohol impairs both reflexes and judgment ability. People need both these things to safely operate motor vehicles.

As in many other types of cases, Brainerd personal injury lawyers may use either direct or circumstantial evidence to establish alcohol impairment. If the tortfeasor was arrested for DUI, the tortfeasor may be responsible for damages as a matter of law. Circumstantial evidence of impairment includes things like erratic driving, bloodshot eyes, and an odor of alcohol.

Many other drivers make poor choices and therefore put other drivers at risk, thus failing to live up to the standard of care. Some other types of behavioral negligence include:

  • Fatigue: Drowsiness and alcohol have basically the same effect on the body and mind. Both slow reaction times and make it difficult or impossible to focus on a task.
  • Drugs: In some areas, there are more “drugged” drivers than “drunk” drivers. Most drug-impaired motorists ingested legal substances, such as prescription painkillers or some over-the-counter drugs. Even if it is legal to take these drugs, it’s illegal and dangerous to drive under the influence of certain drugs.
  • Medical Condition: Chronic illnesses like heart disease and epilepsy may cause drivers to lose consciousness suddenly and without warning. The resulting loss-of-control collisions often cause extremely serious injuries.

Punitive damages are available in behavioral and other types of negligence cases if there is clear and convincing evidence that the tortfeasor intentionally disregarded a known risk and/or behaved extremely recklessly.

Brainerd Personal Injury Lawyers and Operational Negligence

Some people are physically fit and capable of driving when they get on the road. But, they subsequently make poor choices. If these poor choices constitute a lack of ordinary care, the driver may be legally responsible for damages.

Distracted driving is the most common form of operational negligence. Every year, distracted drivers seriously injure over 390,000 people. Hand-held cellphones may be the main culprit. But studies show that hands-free devices may even be more dangerous. These gadgets still distract drivers by pulling their eyes off the road and taking their minds off driving. Additionally, hands-free devices may give people a false sense of security.

Simple deficiencies, such as failing to look both ways before pulling into traffic, are a serious problem as well. These TBFTL (turned but failed to look) crashes are especially a problem in places like Brainerd. Many people in Crow Wing County drive large SUVs or pickup trucks. These big vehicles inhibit driver vision.

Brainerd personal injury lawyers can suggest several legal options in these cases. People who use cellphones while driving may be liable for damages as a matter of law. In other cases, Brainerd personal injury lawyers can introduce circumstantial evidence and obtain compensation for victims.

Environmental Negligence

Some drivers do not technically break any traffic laws but they may still be liable for damages. They may fail to adjust for adverse conditions like:

  • Wet roads,
  • Darkness,
  • Sunrise/sunset glare, and
  • Fog.

In fact, when conditions are less than ideal, drivers arguably have an enhanced duty of care. They must slow down, use appropriate safety equipment, and have a special degree of driving skill.

The type of driver may also affect the type of environmental or other negligence. Uber drivers, taxi drivers, and other commercial operators are common carriers in Minnesota. These individuals have a special legal responsibility, especially with regard to the safety of passengers in their vehicles.

Connect with Tenacious Attorneys

Negligent drivers often cause serious injuries. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

Three Most Common Head Injury Causes

Every year, almost three million Americans go to hospital emergency rooms following serious head injuries. Traumatic Brain Injuries are a factor in about a third of the unintentional deaths in the United States. Despite the severity of these injuries, many people do not get the medical help they need right away.

TBIs are rather difficult to diagnose. Many people do not lose consciousness, vomit, or have other signature symptoms. Doctors often mistake the other symptoms, such as confusion, with either trauma from the injury or early-onset dementia. Furthermore, the brain is very adept at hiding its own injury. So, many TBI victims “feel fine” and do not press the doctor for treatment.

These facts often make a serious injury even more serious. As a result, a Brainerd personal injury attorney may be able to obtain significant compensation for these victims. This compensation usually includes money for economic damages, such as medical bills, as well as noneconomic damages, such as pain and suffering. Additional punitive damages may also be available, in some cases.

Understanding the common causes of these injuries makes it easier for victims to get the medical care they need. This prompt medical care also increases the financial compensation that’s available later.

Trauma

The aforementioned misdiagnosis issues are especially acute in slip-and-fall and other head trauma injuries. Such trauma injuries account for a large portion of the TBIs in Crow Wing County.

Most emergency responders easily identify trauma injuries, due to bleeding and swelling. But head trauma injuries do not display these symptoms. The skull hides internal bleeding and also compresses the brain. So, there is no visible injury. As a result, brain bleeding and swelling often go undetected.

Ordinarily, trauma injuries heal, given sufficient time and medical attention. But head trauma injuries are permanent. Once brain cells die, they never regenerate. It’s only possible to alleviate the symptoms. Doctors can perform surgery to stop the bleeding and reduce the swelling. Later, a physical therapist can work with a victim so that uninjured parts of the brain take over the lost functions. But these processes are long, difficult, and expensive.

Motion

Most people know that it’s possible to scramble an egg just by shaking it. In many ways, the human head is a lot like an egg. Sudden, violent motion causes the brain to smash against the inside of the skull. So, this motion almost literally scrambles the brain in the same way that it scrambles an egg.

These motion-related head injuries are especially common in car crash cases, mostly because of the whiplash effect. When a fast-moving car hits a solid object, the occupants in the car continue moving forward at the same speed. As a result, their necks usually surge forward then snap back, much like the cracking of a whip.

Whiplash is a soft tissue injury. It normally does not show up on cat scans, X-rays, and other diagnostic tests. Doctors must diagnose whiplash according to the symptoms, and as mentioned above, that’s difficult to do.

Fortunately, a Brainerd personal injury attorney can connect head injury victims with experienced accident physicians. These professionals know how to spot conditions like whiplash. They also know how to treat these injuries. Typically, these individuals charge nothing upfront for their services. So, a Brainerd personal injury attorney ensures that victims get the treatment they need, and not just the treatment they can afford.

Sudden Loud Noise

Many of these head injury practitioners say that a TBI is the “signature injury” of the Iraq and Afghanistan Wars. A disproportionate number of veterans come home with these kinds of injuries. That’s probably because of the prevalence of explosive blasts in these conflicts.

Researchers have recently learned that explosive blasts produce shock waves which are basically biological Electromagnetic Pulses. Normal EMPs shut down electronic devices, and biological EMPs disrupt brain functions.

Here is Minnesota, truck accidents cause many EMP-related brain injuries. Witnesses often describe the noise of these crashes as like explosions. Additionally, many of these crashes involve fireball explosions. These vehicles often carry hundreds of gallons of diesel fuel, a concoction which is much more volatile than gasoline.

Truck accidents are usually legally complex for several reasons. These incidents often involve the respondeat superior rule. According to this legal doctrine, a shipping company or other large truck owner is responsible for the damages a driver negligently causes. Additionally, many truck drivers have licenses in several different states. So, it’s difficult to accurately assess the tortfeasor’s driving record.

Respondeat superior and driving record are directly relevant to the amount of compensation a Brainerd personal injury attorney can obtain in these cases.

Reach Out to Assertive Lawyers

Serious brain injuries come in many shapes and sizes. For a free consultation with an experienced Brainerd personal injury attorney, contact Carlson & Jones, P.A. Home and hospital visits are available.

How Do Brainerd Car Accident Lawyers Win Truck Crash Claims?

Pretty much every product on a Minnesota store shelf spent at least some time on a large truck. So, today’s semi trucks are larger and heavier than ever. As a result, the large truck fatality rate has increased 30 percent since 2009. These large vehicles are basically impossible for even experienced drivers to operate in any sort of emergency.

The stakes are very high. These crashes normally cause catastrophic injuries, such as serious burns, brain injuries, and wrongful death. Damages usually include compensation for economic losses, such as medical bills, as well as noneconomic losses, such as pain and suffering. Additional punitive damages may also be available, in some cases.

However, stingy insurance companies do not simply give away this compensation. Instead, a Brainerd car accident lawyer must fight hard to obtain it. Many times, that fight involves the same basic steps.

Obtaining Medical Care for Victims

Immediate medical attention is one of the keys to a successful outcome. The settlement process cannot begin in earnest until medical treatment is at least substantially complete. Otherwise, your Brainerd car accident lawyer does not know the case’s full financial value, and your settlement may not cover all your losses. So, the sooner the medical treatment ball gets rolling, the sooner the case will be over.

Additionally, if the victim does not seek immediate medical treatment, the insurance company usually later claims that the victim’s injuries must not have been very severe.

The medical treatment needs to be more than quick. It also needs to be the right kind of treatment. Many car crash injuries, like whiplash, are difficult to diagnose and treat. So, victims need injury specialists.

A Brainerd car accident lawyer can typically connect truck crash victims with the medical help they need. As a bonus, these top-rated truck crash physicians usually charge no money upfront. Instead, they defer payment until the case is resolved, and they also often discount their fees.

Understanding the Legal Context

To obtain compensation, the victim/plaintiff must prove that the crash was not just a random incident. Instead, a Brainerd car accident lawyer must establish negligence by a preponderance of the evidence (more likely than not). This showing is easier to make in truck crash cases. In Minnesota, commercial drivers are common carriers. They have a higher duty of care than non-commercial drivers.

Driving in the rain is a good example. Non-commercial drivers have a duty to slow down and drive more carefully when it is raining. Arguably, since the duty of care is higher, commercial drivers must pull over and wait for it to stop raining. That’s especially true if the common carrier is a bus, taxi, or other vehicle which carries passengers for a fare.

Truck crash cases are more complex than car crash cases, because of the respondeat superior doctrine. This rule states that employers, like transportation or shipping companies, are vicariously liable for damages. Respondeat superior applies if:

  • Employee: Independent contractors and owner-operators are employees in this context. The employer controls these individuals in terms of things like hours worked and route traveled. That control is all that’s necessary.
  • Scope of Employment: The law defines this prong very broadly as well. Delivery drivers working their normal routes operate within the scope of employment. But this designation also applies to any activity which benefits the employer in any way. That could include driving an empty truck back to the warehouse.

Third party liability theories like this one are important in truck crash cases. Because of the aforementioned catastrophic injuries, the individual tortfeasor (negligent driver) may not have enough insurance coverage to provide fair compensation. Respondeat superior gives a Brainerd car accident lawyer an additional source of compensation.

Using the SMS Score

Most truck drivers have licenses in several different states. So, it’s difficult to obtain complete driving records. Fortunately, the Federal Motor Carrier Safety Administration maintains the Safety Management System database. The SMS keeps track of:

  • Unsafe driving citations, such as speeding or distracted driving,
  • Alcohol or substance abuse,
  • Vehicle maintenance violations,
  • HOS (Hours of Service) compliance,
  • Driver physical fitness, and
  • Crash history.

To access some of these records, most notably the critical crash history report, a Brainerd car accident lawyer usually needs a court order. Strict privacy laws protect much of the SMS data.

This data comes from law enforcement sources as opposed to judicial records, so it’s usually more accurate. For example, if a truck driver receives a citation for defective brakes and gets the brakes fixed, the citation probably will not show up in judicial records. But it will appear in law enforcement records.

Brainerd Car Accident Lawyers and Electronic Evidence

HOS compliance is especially important in the many drowsy driving-related truck crashes. To stem the tide of fatigue-induced collisions, the FMCSA rolled out the Electronic Logging Device mandate in the spring of 2018. The ELD is attached to the truck’s ignition, so it contains an almost foolproof record. Because of the ELD, a Brainerd car accident lawyer knows exactly when the truck driver was on the road and how much rest s/he had prior to the crash.

Downloading ELD information requires both legal and technical expertise. Because of the aforementioned privacy laws, a Brainerd car accident lawyer usually needs a court order to access the ELD. Furthermore, these devices are extremely sophisticated. It takes a lot more than a screwdriver and a laptop to download ELD information. This process requires special machinery, and a Brainerd car accident lawyer has access to the necessary technology.

Other electronic evidence in truck crash cases includes the vehicle’s Event Data Recorder, which is a little like a commercial jet’s black box, and any nearby surveillance camera footage.

Rely on Experienced Attorneys

Truck crashes usually involve complex legal issues and serious injuries. For a free consultation with an experienced Brainerd car accident lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

The Five Elements of a MN Distracted Driving Claim

Increased distracted driving is almost directly related to increased smartphone use and capability. It’s amazing how much these gadgets have advanced since the first iPhone came out in 2007. To keep up with these changes, Minnesota has one of the broadest device distraction laws in the county. MS 169.475 prohibits sending or viewing any text-based message, or accessing the internet in any way, while the vehicle is part of traffic. The law even applies if the driver is stopped at a red light.

Nevertheless, there are some significant gaps. As broad as it is, Minnesota’s device distraction law does not apply to some common activities, such as:

  • Using an app,
  • Recording audio,
  • Taking a selfie,
  • Recording video, or
  • Playing a game.

Sometimes, these activities may constitute reckless driving. MS 169.13 applies if the driver’s behavior “constitutes a significant deviation from the standard of conduct that a reasonable person would observe in the situation.” But officers usually only write reckless driving citations if the driver violated several traffic laws at about the same time (e.g. changing lanes illegally while speeding).

So, in most device distraction cases, Brainerd car accident lawyers must rely on a traditional five-point negligence case. The victim/plaintiff must establish each element by a preponderance of the evidence (more likely than not).

Duty

Most drivers have a duty of reasonable care. This legal obligation means drivers must obey the rules of the road and, as my grandfather said, watch out for th’ other fella.

A case from the 1930s, Donoghue v. Stevenson, laid the foundation for this concept. In Donoghue, a woman sued a beer bottler after the found a dead snail in her beer bottle. The court held that a person “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” According to the court, neighbors were “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” The so-called neighbor principle evolved into the duty of care.

Uber drivers, taxi drivers, and other commercial drivers have a higher duty of care. Essentially, these drivers must do whatever it takes to avoid accidents. For example, a non-commercial driver must slow down in the rain. But a Brainerd car accident lawyer can argue that a commercial driver has a duty to pull over in a heavy rainstorm.

Breach

A Crow Wing County judge usually determines duty. It is a legal question. But a jury usually determines breach. The violation of that duty is a fact question.

Let’s return to the list of device distractions which the law does not cover. Most people would consider something like snapping a selfie on the highway to be a breach of the duty of reasonable care. But if the driver’s phone went off and the driver swiped the “ignore call” icon, most people would not consider that action to be a breach of duty, even though the act technically constitutes device distraction.

Brainerd Car Accident Lawyers and Cause

To win a distracted driving negligence case in Minnesota, driver inattention must be the underlying cause of the vehicle collision.

Assume Tim was so into PUBG Mobile that he ran a stop sign and collided with Carlos. Running the stop sign was the direct cause, but device distraction was the underlying cause. And, since it’s technically legal to play PUBG Mobile, or any other game, while driving, Carlos’ Brainerd car accident lawyer would also have to establish all the other prongs of a negligence case.

Proximate Cause

Proximate cause is a legal term which basically means foreseeability. Benjamin Frankin was a smart guy, but he was clearly not an attorney. He had an extremely broad view of foreseeability, as evidenced by this poem which he wrote.

As far as Brainerd car accident lawyers are concerned, foreseeability has a rather narrow meaning. Assume that when Carlos went to the hospital after a crash, the doctor made a medical mistake. Even though Carlos would not have gone under the knife if Tim had not hit him, Tim is not legally responsible for that injury. A medical mistake is not a foreseeable consequence of a car crash.

In that situation, Carlos might have a separate negligence claim against the doctor.

Damages

Generally, the victim must suffer a physical injury to have a claim for damages. That physical injury could be either property damage or personal injury. Obviously, the greater the damage, the more compensation a Brainerd car accident lawyer is able to recover.

In some cases, victims may be able to pursue negligent infliction of emotional distress claims if they suffered no physical injury. But these situations are limited.

Rely on Experienced Attorneys

Device distraction crash victims may be entitled to substantial compensation. For a free consultation with an experienced Brainerd car accident lawyer, contact Carlson & Jones, P.A. We routinely handle cases in Crow Wing County and nearby jurisdictions.

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Buffalo Lawyers

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