Pandering: A Sex Crime That Leads to Heavy Penalties in MN

There are many crimes you can be charged for, but pandering is one that is frowned upon in society. While it’s not prostitution, it’s part of the process and seen negatively.

In Minnesota, pandering is a sex crime. It means hiring or agreeing to hire someone for the purpose of prostitution. This crime can be a misdemeanor or a gross misdemeanor. Penalties increase further if the prostitute was younger than 18 years old. 

There is good news, though. A Minnesota sex crimes defense attorney can help you get the best outcome and lowest sentencing possible. The best thing to do if you’re accused of this crime is to protect your rights and reputation. Your attorney can help you build a strong case for your defense.

What Is Pandering in Minnesota?

Pandering is the act of procuring a person for prostitution. To be convicted of pandering, actual prostitution does not have to take place and the procurement doesn’t have to take place. The attempt to find someone to become a prostitute or to entice someone into the sex trade is enough to result in a conviction.

Pandering is also when a person encourages, facilitates or promotes prostitution. For instance, if you run a spa and know that certain members of the staff provide sexual services, you could be convicted of pandering.

It’s important to note that pandering targets prostitution intermediaries. Prostitutes can’t receive pandering charges in Minnesota, and neither can a person who solicits a prostitute’s services.

If law enforcement charges you with pandering in Minnesota, a conviction could mean community service. Worse, you may have to pay thousands of dollars in fines and spend up to 25 years in prison. This is why hiring the best sex crimes defense attorney is so critical.

What Kinds of Penalties Do You Face for Pandering in MN?

Depending on where it takes place and which state or states are involved, the penalties vary. For example, you might face time in prison for several years just for encouraging prostitution.

Pandering convictions in Minnesota incur fines, community service, and/or prison time. The exact sentence varies depending on whether the crime occurred in a public place and the age of the person procured. 

First Degree Penalties

In general, Minnesota charges pandering as a first degree sex crime if the person was under 18 years old. 

If the person was 18 years or older, the procurer must pay at least $500 in fines or perform court-ordered community service. A second offense committed within two years of the original crime is a gross misdemeanor. Violators can earn up to a $1500 fine and/or 20 hours of community service.

The penalties for pandering increase if the hiring or attempt to hire takes place in a public location. If the prostitute is 18 years or older, the minimum fine is $1500. Panderers also have to complete community service hours for committing the crime in a public place. 

If the public place is a park or a school zone, a court can add 3 years to the maximum prison sentence.

Second Degree Penalties

Second degree sex charges apply to pandering offenses committed against adults aged 18 years or older.

Pandering crimes committed against minors incur even heftier penalties, whether the crime takes place in a public place or not. If the prostitute is between 16 and 18 years of age, the panderer can get up to five years in prison, up to a $10,000 fine, or both. Pandering minors aged 13 to 16 years old can incur up to 10 years in prison and/or a $20,000 fine. 

Hiring or attempting to hire a minor under the age of 13 can get you slapped with 20 years in prison, up to a $40,000 fine, or both. You’ll also have to register as a sex offender in the state of Minnesota. Registering as a sex offender means you can only live in certain places, and your sex offender status will be publicly available to whoever wants to see it.

The penalty for pandering can increase to a maximum of 25 years in prison and/or up-to a $60,000 fine if:

  • It’s the second first degree sex charge within 10 years
  • The person hired suffered physical harm during the crime
  • The person hired was kept in debt bondage or forced labor conditions for more than 180 days

If you find yourself charged with one of these pandering offenses, there is good news. A Minnesota sex crime criminal defense attorney can reduce or even eliminate your charges.

Can You Defend Yourself Against Pandering Charges?

Yes. To charge you with pandering, a Minnesota court usually must prove that you directly received compensation for the prostitute’s services. However, it’s not pandering if your received compensation for a prostitute’s services but didn’t know that income was earned through prostitution.

For example, in the situation where the spa has sex workers, if the owner did not know that employees were taking it upon themselves to prostitute themselves, the owner would not be guilty of pandering. Not knowing that it is happening or being unaware that money is being made because of prostitution is a defense. To receive a pandering charge, the owner must have specifically hired the sex workers with the intent that they offer sex for money.

A court may use the fact that you accepted money from a prostitute as evidence of pandering. Minors and adults over the age of 55 are exempt from pandering charges in cases like these. Minnesota allows this defense to protect the children and elderly relatives of prostitutes who may rely on the prostitute’s income. 

You may also use several other defenses, like insanity, entrapment or involuntary intoxication, depending on your situation. Your attorney can help you decide the best option for your situation.

Which Pandering Defenses Can Minnesota Sex Crimes Defense Attorneys Not Use?

Before you hire an attorney, it’s important to know which defenses don’t work in pandering cases. 

It’s not a defense that the person hired or attempted to be hired didn’t end up engaging in the act of prostitution. This is so that courts can enforce charges against panderers who hire undercover police officers, and the officer doesn’t actually engage in the act of prostitution.

Even if these situations do apply to you, experienced Minnesota criminal defense lawyers know the tricks to lessen your charges.

Need a Sex Crime Criminal Defense Attorney in Minnesota?

Pandering is a sex crimes and a major criminal offense in Minnesota. If you’ve been charged with pandering, you need an experienced defense lawyer to argue your case. Call Carlson & Jones today for a free consultation with the best criminal defense attorney in Minnesota.

 

Originally published on February 19th, 2018 and updated on September 14, 2021

How Your Jail Release in Minnesota Helps and Impacts Your Case

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

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

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

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

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

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

Get Out of Jail (Almost) Free in Buffalo MN

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

Economic Impact of Drug Charges in Buffalo MN

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

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

Emotion Impact of Drug Charges in Buffalo MN

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

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

Release on Your Own Recognizance in Buffalo MN

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

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

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

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

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

Traditional Jail Release Options

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

Bail Per Charge in Buffalo MN

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

Cash Bail in Buffalo MN

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

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

Bail “Bond” in Buffalo MN

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

Bail Revocation in Buffalo MN

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

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

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

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

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

Procedural Defenses for Drug Crimes in Buffalo MN

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

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

What the 4th Amendment Means

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

Search Warrants in Buffalo MN

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

Probable Cause Exception

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

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

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

Stingray Devices in Buffalo MN

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

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

Substantive Drug Possession Defenses

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

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

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

What is Deferred Disposition in Buffalo MN?

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

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

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

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

Connect with a Buffalo MN Drug Crime Lawyer

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

 

 

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

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

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

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

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

Possible Penalties of DWI in Hutchinson MN

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

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

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

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

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

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

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

The Venue Defense in Hutchinson DWI Cases

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

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

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

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

Lack of Reasonable Suspicion for the DWI Stop

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

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

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

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

Preliminary Evidence of Impairment in Hutchinson

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

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

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

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

Probable Cause for the Arrest

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

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

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

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

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

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

Non-Intoxication DWI Defense in Hutchinson, MN

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

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

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

Intoxication Defenses in Hutchinson, MN

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

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

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

Connect with an Experienced Hutchinson DWI Lawyer

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

 

 

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

How Much Does a Criminal Defense Lawyer Cost in Buffalo, MN?

Have you noticed that when you need something, the price usually goes up? When COVID-19 hit, face mask prices increased 500 percent in some areas. That’s the basic law of supply and demand. When demand goes up, so does the price. Many people assume this law applies to criminal defense attorneys, but they are bound by legal ethics. If you’re wondering how much does a criminal defense lawyer cost, the answer depends on your charges and your income.

Why Criminal Defense Lawyers Must Set Fixed Feed for Certain Services

Fortunately, that’s not the way it works in this area. Legal ethics require attorneys to set fixed fees for certain services. Experience level is usually the biggest factor. So, as an attorney gains experience over the years, the attorney can charge more money. There are some other factors as well, which are outlined below. Admittedly, some of these factors are rather subjective. But one thing is for sure. Lawyers cannot double or triple their fees because you had a brush with the law.

Nevertheless, retaining the services of a good Buffalo criminal lawyer is a significant investment. Before you transmit your credit card information, there are a number of things to consider. Always remember that you have choices in this area. Your criminal case is a very serious matter, but it is not a matter of imminent life and death. People usually have a few days to make a decision.

Free Lawyers in Buffalo, MN

In a significant number of cases, the cost of a Minnesota criminal defense lawyer is nothing, or at least practically nothing. The Sixth Amendment guarantees the right to counsel in criminal cases. Therefore, Wright County provides attorneys to defendants who qualify for such assistance. Exact procedure varies in different counties, and in different courts in the same county. However, the free lawyer choices are always the same: a public defender or a court-appointed lawyer.

The Public Defender’s Office

The public defender’s office usually assigns one lawyer to a misdemeanor court and two to a felony court. Reinforcements are usually available, especially in a serious felony case, like a complex sex crime prosecution. 

Essentially, the public defender’s office is like a private criminal defense law firm. Since the county pays all the firm’s expenses, the clients pay nothing. Frequently, public defenders are underfunded. The Wright County Commissioners are not made of money, and there is only so much funding to go around. Making matters worse, public defenders are usually at the end of the bread line. Voters usually don’t mind paying money for roads, schools, and other things that benefit many people. Paying for someone’s Buffalo, MN criminal defense lawyer is not a major item on voter wish lists.

As a result, there is some truth to the image of the overworked public defender. According to an American Bar Association study, some public defenders juggled up to 400 cases at once. That’s a bit deceptive, mostly because most criminal cases settle out of court, and settle rather quickly. More on that below. Nevertheless, there is some cause for concern.

Private Attorneys for Those Who Cannot Afford a Lawyer

To bypass this issue, many Wright County judges appoint private attorneys for people who cannot afford lawyers. Sometimes, judges screen the attorneys they appoint. That’s especially true in the aforementioned serious felony cases. Indeed, in a capital case, the state imposes additional requirements. But in many misdemeanors, judges appoint any attorney who can find the courthouse door.

Not everyone qualifies for a court-appointed attorney or a public defender. These qualifications vary in different courts. Some judges simply ask defendants if they can afford legal representation. Others require defendants to submit financial affidavits.

What Is the Incarceration Presumption?

There is also an incarceration presumption. Most judges connect bail money with the money to hire a lawyer. They assume that if the defendant cannot afford bail, the defendant cannot afford an attorney either. That’s usually accurate. However, just because a defendant can scrape up bail money, that doesn’t mean s/he can afford an attorney. Furthermore, if the defendant obtained free pretrial release, the incarceration presumption should still apply. But it usually doesn’t, at least in the minds of many judges.

A Court-Appointed Lawyer Is Permanent

Defendants who go with a free lawyer get what they get and they can’t throw a fit. Once a judge assigns a court-appointed lawyer, that assignment is permanent, unless the defendant hires a private Buffalo, MN criminal defense lawyer. Similarly, if a defendant goes to the public defender’s office, the chief public defender has the exclusive right to assign lawyers to individual cases.

Your Right to Counsel of Your Own Choosing

On a related note, the Supreme Court recently ruled that the Sixth Amendment’s right to counsel means defendants have the right to counsel of their own choosing. This issue occasionally comes up in some drug crime matters. Prosecutors cannot seize so much cash during a raid that the defendant cannot afford to hire the lawyer s/he wants to hire.

Representing Yourself in Buffalo, MN

Incidentally, you can represent yourself in a court case, including a criminal case. If you’re asking how much does a criminal defense lawyer cost because you don’t think you can afford it, explore your options before making a decision. As a rule of thumb, if the criminal case includes possible jail time, self-representation is one of the biggest mistakes a person can make.

How Do Attorneys Determine Legal Fees?

This question is really two questions. First, as mentioned, attorneys must use certain factors to determine their fees. Second, different attorneys use different fee structures.

Years of experience is usually the biggest factor which determines legal fees. Inexperienced lawyers cannot charge as much as experienced Buffalo, MN criminal lawyers. That doesn’t mean a less experienced lawyer is not as good. It just means these attorneys cannot charge as much. Other factors include:

  • Geographic Area: Attorneys in big cities like Minneapolis usually charge more than attorneys in smaller communities like Buffalo. Rent, payroll, and other expenses are higher in big cities.
  • Client’s Ability to Pay: Attorneys can reduce their fees if the client cannot pay full price. That’s especially true if the client is from a historically underserved or neglected ethnic or socioeconomic group.
  • Complexity of the Matter: Some criminal cases are relatively straightforward and others are not. DUI is a good example. If the defendant submitted a blood sample, the case is pretty black and white. But if the defendant refused to provide any chemical sample, the case is much more complex. The state must rely on shaky circumstantial evidence in these matters. Furthermore, most Buffalo criminal lawyers also charge more for felonies than misdemeanors. Felonies are more complex, and there is more at stake.
  • Amount of Time Involved: Attorneys usually charge less for a criminal plea than a criminal trial, simply because there is not as much time involved. Many criminal attorneys charge stairstep fees, such as X for a negotiated settlement, X+Y for a bench trial, and X+Y+Z for a jury trial. 

Now, let’s talk about fee structure. As mentioned, many criminal defense lawyers charge flat fees. For example, Pam might charge $1,000 for a felony plea, no matter how much time she puts into the case. Other lawyers charge hourly fees. Hourly billing is a bit more common in civil cases.

The law prohibits criminal defense attorneys from charging contingent fees. Therefore, defendants usually have to pay at least some money upfront.

How Do I Know I’m Getting a Good Value for the Cost of a Buffalo Lawyer?

If you face criminal charges in Wright County, when it comes to legal representation, you have almost a dizzying array of choices. 

At first blush, pretty much all Buffalo, MN criminal lawyers seem alike. They all went to law school and all passed the bar exam. But upon closer inspection, there are some important differences.

The Experience of Your Buffalo, MN Lawyer Is Invaluable

As mentioned, years of experience is probably the single most important factor in this entire process. Experience is the best teacher. Furthermore, there are a number of techniques that law students do not learn in class. Finally, each county and court has its own written and unwritten procedural rules. You do not know them all unless you have handled cases in that jurisdiction.

Years of experience could be deceptive. As recently as 1990, non-jury or jury trials resolved about a fifth of the criminal cases in Minnesota. Today, that proportion is less than 5 percent. Therefore, many Buffalo, MN criminal lawyers practice for years, or even decades, and only handle a few criminal trials. 

We all fall into ruts if we are not careful. Sometimes, these attorneys fall into a rut of always, or at least usually, taking the state’s first offer. Prosecutors usually don’t make favorable offers to these lawyers. 

So, be sure and ask about the attorney’s trial experience. For example, ask the attorney about his/her most complicated or memorable trial. Lawyers love telling war stories. If the attorney has to think about this answer because s/he has such limited trial experience, that’s a bad sign.

Accessibility from Your Buffalo Criminal Defense Lawyer

The lawyer’s accessibility, or lack thereof, could be another bad sign. It could also be a very good sign.

Legally, as mentioned above, attorneys cannot assess fees based on supply and demand. So, many lawyers use volume to earn more money. Attorneys are rarely as overworked ast the unfortunate public defenders discussed above. But sometimes, they take more cases than they should.

Commonly, overworked attorneys cannot commit the amount of time they should to an individual case. So, they might miss an important detail. Furthermore, many overworked lawyers assign legal work to less-experienced associates or non-lawyer paralegals. That’s not the caliber of defense the client is paying for. 

It’s probably also best to avoid overly-accessible lawyers. If you want to try a new restaurant and there are no customers in the parking lot, that’s usually a bad sign. By the same token, if an attorney has few clients, there’s usually a reason.

Goldilocks looked long and hard to find a bowl of porridge, chair, and bed that was just right. Criminal defendants should also look for a “just right” lawyer in terms of accessibility. However, don’t look too long. The sooner you partner with a Buffalo, MN criminal lawyer, the sooner the case will be over.

Dedication from a Lawyer that Lives in Buffalo

Many people have family lawyers, especially in smaller communities like Buffalo. The same attorney handles your divorce, prepares your will, settles your car crash claim, and so on. There’s a level of trust in these relationships that’s usually unavailable elsewhere. Trust is important in a criminal defense situation. But a criminal conviction, even for a misdemeanor, could easily ruin your life. So, you need someone who is dedicated to criminal law.

The late Grant Cooper, who represented Robert Kennedy’s assassin in 1969, is a good example. When Cooper agreed to represent Sirhan Sirhan, Cooper was a highly experienced lawyer. But Cooper wasn’t really a criminal defense lawyer. He handled a wide array of cases. For example, former child star Shirey Temple hired Grant Cooper to handle her divorce from B-movie actor John Agar. 

As a result, Cooper might have missed some weaknesses in the state’s evidence. Maybe that’s why Sirhan remains in a California prison to this day.

Incidentally, one of the latest Kennedy conspiracy theories is that Cooper intentionally threw the Sirhan case so the Los Angeles County District Attorney wouldn’t indict him on some unrelated gambling charges. But that’s just speculation.

Consult with a Knowledgeable Criminal Defense Lawyer in Buffalo, MN

Even if you’re asking how much does a criminal defense lawyer cost, you do not want just any lawyer. You want a dedicated Buffalo, MN criminal lawyer to handle your case. Your family lawyer will understand your decision. Besides, you can still invite him/her to your next dinner party.

The cost of a criminal defense lawyer in Buffalo, MN varies in different situations. For a free consultation with an experienced Buffalo, MN criminal lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

A Brainerd, MN DWI Lawyer Looks at Some Possible Defenses

Alcohol-involved wrecks usually have both civil and criminal consequences for Minnesota drivers. In civil court, victims must only establish liability by a preponderance of the evidence. That’s the lowest standard of proof in Minnesota. But in criminal court, prosecutors must establish guilt beyond a reasonable doubt. That’s the highest standard of proof in Minnesota.

Essentially, the state’s evidence must be so overwhelming that it not only overcomes the presumption of innocence. The proof must also firmly convince jurors that the defendant is guilty. Maybe or probably guilty is not good enough.

Because the burden of proof is so high, a Brainerd, MN DWI lawyer has several options in terms of a successful defense. The result of this approach could be a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser included offense.

Procedural Issues

Most DWI arrests begin with traffic stops. Typically, officers can pull over motorists based on little more than a hunch. In a 2015 Iowa case, a federal judge ruled that officers could pull over a motorist for traveling 1mph over the speed limit, even though the speeding stop was just a pretext and the officers knew the charges would not hold up in court.

Sometimes, however, even this tiny bit of proof is unavailable in a DWI case. Informer tips are a good example. Frequently, these tips are so vague (blue sedan eastbound on Highway 210) that they have no value in court whatsoever.

If the stop was illegal, then the arrest was illegal as well, under the fruit of the poisonous tree doctrine. It does not matter if the driver was passed-out drunk behind the wheel.

Minnesota law enforcement officers also periodically set up DWI checkpoints. These roadblocks often appear around the Fourth of July, New Year’s Eve, and other holidays associated with drinking and driving. 

Officers do not need evidence of wrongdoing to pull over motorists at checkpoints. However, these roadblocks must meet rigid requirements. If they fall short, a Brainerd, MN DWI lawyer can invalidate the checkpoint and therefore invalidate the arrest.

Brainerd, MN DWI Lawyers and Intoxication Defenses

After they are pulled over, about 80 percent of defendants provide a chemical breath or blood sample. If the sample shows the defendant’s BAC was above the legal limit, the defendant is guilty as a matter of law.

Chemical tests are not always accurate. For example, if a defendant burped, vomited, or belched in the fifteen minutes prior to a Breathalyzer test, alcohol particles from the stomach gush into the mouth. As a result, the Brethalyzer’s BAC estimate might be artificially high.

Furthermore, chemical tests are not always admissible. If the Breathalyzer had not been calibrated properly or recently, any results might be legally inadmissible.

In the remaining 20 percent of DWI cases, prosecutors must use circumstantial evidence to prove intoxication. Such evidence usually comes from the four approved field sobriety tests, which are:

  • Horizontal Gaze Nystagmus: The DWI eye test determines if the defendant has nystagmus, a condition also known as lazy eye. Intoxication is only one cause of nystagmus, and it is not even the leading cause.
  • Portable Breathalyzer: Some of the Breathalyzer’s flaws were discussed above. Portable Breathalyzers are even more inaccurate than the larger ones used at police stations.
  • One-Leg Stand: People with any mobility impairment at all usually cannot stand on one leg for more than a few seconds, whether they are drunk or sober.
  • Walk and Turn: Environmental factors often affect these test results. For example, it is much more difficult to walk an imaginary line heel-to-toe than it is to walk an actual line, like a parking lot stripe, in this fashion.

Some officers administer additional unapproved tests, like Romberg’s balance test (head back, eyes closed, and arms extended test). These results are usually only admissible for limited purposes.

Non-Intoxication Defenses

Frequently, the “intoxication” element is the only real issue in a DWI case. But in many situations, a Brainerd, MN DWI lawyer can challenge the “driving” element as well.

According to the Minnesota DWI law, “driving” is more like “operating.” The vehicle need not be moving. If the defendant is behind the wheel and the vehicle is drivable, DWI charges will probably hold up in court, at least with regard to “driving.” Sometimes, however, the defendant does not have the keys, the car is out of gas, or there are other extenuating circumstances.

DWI collisions are another example. Generally, by the time emergency responders arrive, the defendant has left the vehicle. Unless a witness places the defendant behind the wheel at or near the time of the crash, there may be insufficient evidence on this point.

Other non-intoxication defenses include the public/private place issue. Driving while intoxicated is only illegal if the defendant was in a public place. Shopping center, apartment complex, and some housing development parking lots are not public places, even if they are open to the public. A private driveway is not a public place either. The street directly in front of a private residence is in a grey area.

Connect with a Dedicated Attorney

There is a big difference between a DWI arrest and a DWI conviction. For a free consultation with an experienced Brainerd, MN DWI lawyer, contact Carlson & Jones, P.A. The sooner you call us, the sooner we start fighting for you.

A Criminal Defense Lawyer in Brainerd, MN Talks About the Different Burdens of Proof

Some people might remember the O.J. Simpson murder saga in the early and mid-1990s. In 1995, after a long and sensational criminal trial, a jury acquitted the former football star of double murder charges. About a year later, another jury heard basically the same evidence and concluded that Simpson was responsible for the deaths. That’s perhaps the best example of the different burdens of proof in court cases, as outlined below.

Apropos of nothing, in 2016, NFL “concussion doctor” Bennet Omalu said he would “bet my medical license” that Simpson had a serious brain injury. Chronic Traumatic Encephalopathy, a degenerative brain injury commonly associated with football players, would explain Simpson’s erratic behavior and fits of rage, according to Dr. Omalu. But that’s the subject of another blog.

The different burdens of proof affect the way a criminal defense lawyer in Brainerd, MN approaches different cases. Since the defendant is presumed innocent in the United States, the burden of proof is on the state. So, if an attorney casts doubt on the state’s case, the defendant often goes free. Alternatively, weak evidence gives a criminal defense lawyer in Brainerd, MN an edge during settlement negotiations.

Beyond a Reasonable Doubt

Minnesota law usually defines a reasonable doubt as a doubt based on reason and common sense. Many courts have criticized this definition, arguing that it is akin to saying “a white horse is a horse that is white.” Nevertheless, that’s the generally accepted definition in The Gopher State. Some variations, such as reasonable doubt “does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt,” are acceptable.

DWI-collision cases are a good illustration of the way this standard works in practice. Assume Ben and Jerry hit another car in an intersection. Ben and Jerry are both intoxicated. By the time emergency responders arrive, they have exited the vehicle. Officers arrest Ben for DWI.

Wright County prosecutors could probably prove Ben was in the car, but it would be difficult for them to prove Ben behind the wheel. Another witness, such as the other driver in the collision, would have to testify that Ben emerged from the driver’s side. That testimony would not prove he was driving beyond a shadow of a doubt, but it would establish that fact beyond a reasonable doubt.

Criminal Defense Lawyers in Brainerd, MN and Clear and Convincing Evidence

Child custody, financial fraud, and certain juvenile cases commonly employ this standard of evidence. C&C basically means “the evidence is highly and substantially more likely to be true than untrue.”

Let’s return to the previous example and change the facts a bit. Now assume that Jerry told officers Ben was driving the car. There are a number of reasons to question Jerry’s statement. He was drunk, so his memory and perception are questionable. Additionally, he might have been tattling so officers would arrest Ben instead of Jerry.

So, if the standard was beyond a reasonable doubt, Jerry’s statement might not be enough to convict Ben. But if the standard was clear and convincing evidence, which is a step lower, Jerry’s statement might hold up in court.

Preponderance of the Evidence

Typically, this final standard determines what an individual must prove, as opposed to what the state must prove. A preponderance of the proof (more likely than not) is the standard in most personal injury cases. It’s the standard the Simpson civil jury used.

Picture two stacks of typing paper sitting side by side. Both stacks have the same number of sheets. If a criminal defense lawyer in Brainerd, MN adds one sheet of paper to the stack on the left, it has more paper than the stack on the right. That’s a picture of a preponderance of the evidence.

Once more, let’s look at our DWI-collision example. Now assume the car is abandoned by the time emergency responders arrive. An investigation reveals that Ben owned the car. It’s more likely than not that a car’s owner was driving the vehicle at any given time, unless the owner had an airtight alibi. So, by a preponderance of the evidence, Ben was probably driving the car. Proving intoxication, however, would be a much more difficult matter.

Reach Out to Savvy Lawyers

The burden of proof affects the way attorneys approach different cases. For a free consultation with an experienced criminal defense attorney in Brainerd, MN, contact Carlson & Jones, P.A. Convenient payment plans are available.

How Does a Buffalo, MN Lawyer Uphold the Presumption of Innocence in All Three Phases of a Criminal Case?

The presumption of innocence is usually associated with the seventh century Roman Emperor Justinian. But the concept of ei incumbit probatio qui dicit, non qui negat (the burden of proof lies upon him who affirms, not he who denies) might go back even further than that in Roman law. Jewish and Islamic religious scholars talked about this idea as well.

Today, this concept is a cornerstone of common law systems in the United States, Canada, United Kingdom, and a few other places. But in most parts of the world, it is almost unheard of.

Wright County prosecutors have almost unlimited resources, and they bring these resources to bear in the most serious felony and the least serious misdemeanor. The presumption of innocence is the only way a Buffalo, MN lawyer can level the playing field. So, as soon as the attorney/client partnership begins, the fight to uphold this critical concept begins as well.

Jail Release

Upholding the presumption of innocence begins at this point. If the defendant remains in jail, the presumption of innocence essentially becomes a presumption of guilt. Incarcerated defendants cannot participate in their own defense in any meaningful way. Additionally, defendants who are behind bars often accept help from a public defender instead of a top Buffalo, MN lawyer.

Typically, the Wright County sheriff sets presumptive bail amounts according to the severity of the offense and the defendant’s criminal record. People charged with felonies must pay more than people charged with misdemeanors. And, even if the prior conviction was completely unrelated, it usually drives up the bail amount.

Research suggests the opposite is true. People charged with serious offenses are more likely to face the music than people charged with petty offenses. Furthermore, if the defendant has been through the system before, the defendant is not as scared.

A Buffalo, MN lawyer can bring up these points during a bail reduction hearing. This hearing usually occurs within seventy-two hours of an arrest. When the case comes up, the judge considers a wide range of factors, including:

  • Amount of evidence the state has,
  • Defendant’s contacts with the community,
  • Risk of flight, if any, and
  • Defendant’s ability to pay.

Frequently, Buffalo, MN lawyers make deals with prosecutors to secure the defendant’s release. These deals usually involve some give-and-take. For example, the state might agree to reduce the bail amount if the defendant wears an ankle bracelet.

Attorneys often work out these same kinds of arrangements to resolve criminal cases. More on that below.

Lawyers in Buffalo, MN and Pretrial Matters

The police might gather evidence against the defendant, but that does not mean prosecutors can use this proof in court. If a Buffalo, MN lawyer reduces the amount of available evidence, it’s much easier to successfully resolve the charges.

Pretrial proceedings often focus on procedural matters. A police error early in the process has a significant impact on the trial. Some examples include:

  • Failure to Mirandize: When custodial interrogation begins, officers must give defendants their Miranda rights (you have the right to remain silent, etc.). Otherwise, any statements the defendant makes are inadmissible. Custodial interrogation starts when officers ask any questions and the defendant does not feel free to leave.
  • Search Warrant Issues: Possession cases always involve either search warrants or search warrant exceptions. Unless officers had a valid warrant or a narrow search warrant exception applied, any guns, drugs, or other contraband officers seized is probably inadmissible.
  • Lineup Issues: Criminology professionals recommend double-blind lineups. Neither the witness nor the administering officer should know the suspect’s identity. But Minnesota only requires blind lineups. Arguably, these identifications are inherently unreliable.

Buffalo, MN lawyers also do their own evidence collection. Technically, prosecutors are legally required to turn over exculpatory evidence. But they short-circuit this requirement whenever possible.

Resolving a Criminal Case

As discussed above, plea bargains resolve about 95 percent of the criminal cases in Wright County. Mostly because of the presumption of innocence, these plea bargains usually involve reduced charges and/or a reduced sentence.

Aggravated assault, which is one of the most common felonies in Minnesota, is a good example. If the evidence is weak, prosecutors often agree to reduce these charges to ordinary assault, which is a misdemeanor. Additionally, instead of lengthy incarceration, many defendants are sentenced to a brief period of probation.

If the case goes to trial, prosecutors must prove every element beyond a reasonable doubt, which brings us back to the presumption of innocence. So, in the aggravated assault example, unless there is overwhelming evidence that the defendant assaulted the victim and also caused a serious injury, the jury must acquit the defendant.

Connect with an Assertive Attorney

The presumption of innocence alone is enough to acquit a defendant in Minnesota. For a free consultation with an experienced Buffalo, MN lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

Should a Brainerd, MN Criminal Defense Lawyer Represent Me at the DWI ALR Hearing?

Few other offenses have more indirect consequences than DWIs. One such collateral consequence is the Administrative License Revocation process. If the defendant’s BAC level was above the legal limit at the time of arrest, the state automatically suspends the person’s drivers’ license. The same thing happens if the defendant refuses to provide a chemical sample.

However, because of the Fourteenth Amendment, states like Minnesota usually cannot “automatically” do anything. The Fourteenth Amendment requires due process of law, and at a minimum, that means notice and an opportunity to be heard.

This right is an important one, but like so many other rights, it is just ink on paper unless a Brainerd, MN criminal defense lawyer enforces it. ALR hearings are difficult, but certainly not impossible, to win. And, there is more than one way to “win” one of these hearings. Keep reading to learn more about these things.

Possible Defenses

ALR hearings are difficult to win because the administrative law judge is normally a paid DMV employee. Additionally, the ALJ serves as prosecutor, judge, and jury. Finally, this proceeding is not technically a criminal proceeding. So, many of the normal Constitutional protections do not apply. For example, the ALJ may force defendants to testify against themselves.

Moreover, the burden of proof is rather low in ALR hearings. The state must only establish that officers had probable cause to demand a sample and the defendant either failed the test or refused to take it. “Probable cause” basically means officers believed that a crime had been committed.

This standard might be low, but it is higher than a reasonable suspicion, which is basically an evidence-based hunch. So, unless the state presents substantial proof, a Brainerd, MN criminal defense lawyer can challenge the lack of evidence.

The Field Sobriety Tests are a good illustration. Normally, officers depend on these four tests to establish probable cause in a DWI. These tests are:

  • Horizonta Gaze Nystagmus (DWI eye test),
  • Walk and Turn,
  • One Leg Stand, and
  • Portable Breathalyzer.

Some officers administer unapproved field sobriety tests, like Romberg’s balance test (head back, eyes closed, arms extended test). But these controversial test results might not be admissible in the ALR hearing.

Frequently, defendants refuse to perform any of these tests. Or, they perform one or two and then refuse to go on. Either way, there might not be enough evidence to establish probable cause.

There is a preliminary matter as well. Generally, officers pull over DWI defendants because they saw them commit traffic violations or they got caught in a DWI roadblock. Sometimes, however, officers rely on more subjective proof, like furtive movements behind the steering wheel. But a nervous-looking driver is not probable cause in Minnesota.

Why You Should Work with a Brainerd, MN Criminal Defense Lawyer

If left to their own devices, many ALJs would probably ignore these things and always side with police officers. So, a Brainerd, MN criminal defense lawyer must diligently research the law and present these findings in a compelling way.

Once these defenses are presented, the ALJ might at least reduce the suspension period or probate part of the license suspension term.

A Brainerd, MN criminal defense lawyer can also help a defendant obtain an occupational drivers’ license, which is called a work permit in Minnesota. This limited license allows people to drive to and from work, to and from school, to and from the doctor, and to perform some essential household functions, like buying food. A waiting period applies, as follows:

  • Fifteen days for a first work permit,
  • 90 days for a second work permit, and
  • 180 days for a third work permit.

Longer waiting periods apply in complex cases, such as DWI-manslaughter or DWI-collision cases. Defendants cannot drive with their work permits until the waiting period expires.

After a fourth DWI, a work permit might not be available. But that doesn’t matter much, because at this point, the state usually revokes the defendant’s license permanently.

A Brainerd, MN criminal defense lawyer might still be able to help in these situations. A little-used loophole, called the B-card, is available in these situations. If these people complete alcohol treatment and sign alcohol abstinence pledges, the state can issue a limited drivers’ license after a waiting period expires. That waiting period is usually between one and three years.

Any alcohol use, even during something like a religious ceremony, cancels the license. It is a gross misdemeanor to drive with an invalid B-card.

Reach Out to a Dedicated Attorney

A DWI arrest does not necessarily mean an interruption or cancellation of your driving privileges. For a free consultation with an experienced Brainerd, MN criminal defense lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

Evidence in Drugged Driving Cases and Buffalo, MN DUI Lawyers

One day soon, marijuana Breathalyzers might revolutionize drugged driving prosecutions in Wright County. Under current law, if the defendant’s THC level was above five nanograms per milliliter of blood, the defendant was intoxicated as a matter of law. Marijuana, whether it was legally acquired or not, is the leading source of drugged driving prosecutions in Minnesota, followed by prescription medications like Xanax and Oxycontin.

For the foreseeable future, prosecutors must normally rely on rather thin circumstantial evidence to convict defendants in these situations. The burden of proof is very high. So, in order to overcome the presumption of innocence, the amount of evidence must be almost overwhelming.

Given the current environment, a skilled Buffalo, MN DUI lawyer is often able to successfully resolve these cases. That resolution could be a complete dismissal of charges, a not-guilty verdict at trial, or a favorable plea bargain arrangement.

Unapproved Drug Impairment Tests

The National Highway Traffic Safety Administration has approved three field sobriety tests for use in DUI-drug arrests. These tests arguably have some scientific basis, although that basis is rather shaky, as outlined below.

Nevertheless, many Wright County law enforcement officers have defendants perform unapproved tests as well. These tests fatigue defendants mentally and physically, so they do not do as well on the tests that count. Additionally, unless a Buffalo, MN DUI lawyer objects to their use, these test results are usually admissible in court.

Romberg’s balance test is probably the most common unapproved test. A German scientist developed this test about two hundred years ago. Subjects must stand perfectly straight while their eyes are closed and their heads are tilted back. This position robs subjects of the three things needed to maintain balance, which are:

  • Knowing the position of one’s body (proprioception),
  • Knowing one’s head position (vestibular function), and
  • Vision.

Sometimes, officers add additional bells and whistles, like having subjects touch the tips of their noses with their index fingers.

A Buffalo, MN DUI lawyer can normally get this test, and other tests, excluded. However, it’s sometimes best to let an officer try to explain things like “vestibular function” and “proprioception” to jurors. If the officer does not know the underlying principles of this test, which is likely, it looks like the state is trying to railroad the defendant.

Buffalo, MN DUI Lawyers and Approved Drug Impairment Field Tests

The Horizontal Dage Nystagmus test is usually the first approved test in the three-test battery. Subjects must follow moving objects, like ink pens, using only their eyes. If a pupil moves involuntarily at certain angles, the subject probably has nystagmus.

Drug impairment is one cause of nystagmus. But it’s not the only cause. It’s not even the leading cause. Genetic abnormalities and mild childhood brain injuries cause most nystagmus cases. This condition is also known as lazy eye. Many people have a lazy eye, but the symptoms are so mild they do not know it.

The bottom line is that many people “fail” this test even if they are not high or stoned. As a result, many Wright County judges only admit HGN test results for limited purposes.

The Walk and Turn usually comes next. Walking a straight line is probably the signature drug impairment field test. During this exam, officers look for a number of clues, such as swaying or not walking heel to toe, which indicate drug impairment.

Environmental factors often affect this test. It’s very difficult to walk an imaginary line unless the surface is perfectly level and flat. Additionally, it’s hard to maintain concentration when cars whiz by at high speeds and flashing strobe light dance on the top of the squad car.

By the time defendants get to the One Leg Stand, they are usually fatigued mentally and physically, especially if they had to do unapproved tests. Under these conditions, anyone with any mobility impairment will be unable to pass this test. Additionally, officers often issue failing grades on this test because of technicalities, like holding the elevated leg at slightly the wrong angle.

Drug Recognition “Experts”

DREs are police officers who have additional training in this area. That additional training usually comes exclusively from a brief, police-sponsored seminar, so its educational value might be limited.

If the DRE comes to the scene of the arrest early and administers the field sobriety tests, these individuals have some credibility. They are better able to grade tests than officers on the street.

But frequently, DREs arrive after the FSTs are in progress or completed. If they testify in court, a Buffalo, MN DUI lawyer can usually challenge the testimony. Their conclusion is based on hearsay, and under Minnesota law, these police officers normally do not qualify as “experts.”

Contact an Assertive Attorney

It is not easy for the state to prove DUI-drug cases beyond a reasonable doubt. For a free consultation with an experienced Buffalo, MN DUI lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

Drugged Driving Charges and Criminal Lawyers in Brainerd, MN

In many parts of Minnesota, impairing drugs are easier to obtain than alcohol. Two neighboring states, Michigan and Illinois, have legalized recreational marijuana, including marijuana edibles. Prescription drug use is widespread, and behaviors like pill sharing and abuse are all too common. Furthermore, many of the drugs available at corner pharmacies, such as NyQuil and Sominex, could impair drivers and are therefore illegal in this context.

DUI convictions have significantThe state often relies on flimsy circumstantial proof in drugged driving cases. Our Brainerd, MN criminal lawyers know how to challenge this proof. direct and collateral consequences. Even for a first offense, defendants face extended court supervision and drivers’ license suspension, along with other penalties. Indirect consequences include sky-high auto insurance rates, adverse effects on family court parenting time disputes, and possible employment consequences.

Since the consequences are so severe and it’s so easy to fall into the drugged driving pit, aggressive representation from a criminal lawyer in Brainerd, MN is essential. By attacking the state’s evidence, which is usually circumstantial, an attorney can reduce or eliminate these aforementioned consequences.

What Does the Law Say?

The Gopher State’s drugged driving law is rather complex. Largely because there are so many drugs which could seriously impair drivers, there are basically two ways for the state to bring DUI-drug charges:

  • Under the Influence: Almost all DUI-drug prosecutions involve this part of the law. It’s illegal to drive under the influence of an intoxicating substance. That could be almost anything in your medicine cabinet, and many of the things in your kitchen pantry. However, the defendant must know that the substance is potentially impairing. That provision, along with the circumstantial nature of the proof, gives criminal lawyers in Brainerd, MN an opening.
  • Zero Tolerance: It’s also illegal to drive with even a trace amount of a Schedule I or Schedule II substance in one’s body. Most street drugs, like heroin and LSD, are Schedule I drugs. Most prescription drugs, like Vicodin and Oxycontin, are Schedule II drugs. Marijuana is also a Schedule I drug, but it’s specifically exempted from this part of the law. Peace officers rarely order urine or blood tests in drugged driving cases. That’s the only way to establish specific drug use beyond a reasonable doubt.

Minnesota also has a refusal-to-submit law. If officers demand a blood or urine sample and the defendant refuses to provide one, the defendant could be charged with a separate criminal offense. That’s on top of any administrative drivers’ license suspension.

Under Birchfield v. North Dakota, peace officers must obtain search warrants before they extract blood or urine samples. Officers rarely bother with such warrants, except on no-refusal weekends and other heightened enforcement periods.

How Do Brainerd, MN Criminal Lawyers Challenge Drugged Driving Evidence?

Circumstantial evidence of drug intoxication almost always means the three approved Field Sobriety Tests. Most FSTs are divided attention tests which measure physical dexterity and mental acuity. Scientists claim that intoxicated individuals cannot walk and chew gum at the same time. The three approved FSTs, and some ways to challenge them in court, are:

  • Heel to Toe Walk: Generally, officers force defendants to walk an imaginary line in the dark while wearing something other than athletic shoes. It’s almost impossible for anyone, whether they are intoxicated or not, to successfully complete this test under these conditions.
  • One-Leg Stand: It’s very difficult for anyone with any mobility impairment at all to lift one leg and stand as still as a statute for more than two or three seconds.
  • Horizontal Gaze Nystagmus: The DUI eye test is the only FST that’s not a divided attention test. Many people have nystagmus, a condition also known as lazy eye. But they do not know they have it, since the symptoms are so mild. So, they will fail this test whether or not they are intoxicated.

Under the Fifth Amendment, defendants have a right to refuse to perform the FSTs. And, their refusal usually cannot be used against them in court.

Can I Expunge a Drugged Driving Conviction?

Partially. Misdemeanor DUI is usually expugnable. There is usually a two or four-year waiting period. And, the defendant must not catch any new charges during the waiting period. Even after expungement, which is really record sealing in Minnesota, the conviction still appears in judicial records and is still on the person’s driving record.

Expungement is not automatic. Some factors in the decision include the nature of the offense, amount of time that has passed, defendant’s rehabilitation efforts, the probation officer’s recommendation, and the defendant’s criminal history.

Rely on an Experienced Attorney

DUI-drug cases are almost as common as DUI-alcohol cases, and the law is very harsh. For a free consultation with an experienced criminal lawyer in Brainerd, MN, contact Carlson & Jones, P.A. The sooner you call, the sooner we start fighting for you.

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