A Hutchinson, MN Lawyer Talks About Family Law Mediation

In many family law cases, the parties agree on broad, general issues. Parenting time disputes are a good illustration. Most parents agree that these orders should be in the best interests of the children. But most parents disagree as to what constitutes “best interests” in a given situation.

Quite often, a good family law mediator can bridge the gap between an agreement in principle and a specific, enforceable agreed order. In fact, assuming both parties negotiate in good faith, mediation may succeed in as many as 90 percent of cases.

In a nutshell, “good faith” means that both parties are willing to make reasonable concessions to get a deal done. Good faith also means that, especially in property division and other financial matters, both parties place all their cards on the table.

Because of the success rate, and the other benefits of mediation outlined below, Hutchinson, MN lawyers often use mediation to resolve even high-conflict divorce and family law matters.

What Exactly Is a Mediator in Hutchinson, MN?

As mentioned, not all divorces must go to court. Sometimes, when two spouses can work together and compromise, they can go through mediation instead.

In fact, Minnesota typically requires divorcing couples to go through Alternative Dispute Resolution (ADR) before taking a divorce to court. Mediation is one of the types of ADR.

Mediators can be attorneys. Or they can be other types of mediation professionals. Whatever type of mediator you hire, he or she will have one goal: to get you and your spouse to compromise on the terms of the divorce.

One of the key benefits of mediation is that the spouses get full control of the divorce agreement. This is often favorable because most divorcing couples don’t want to give up control over their assets, debts, and children to a judge.

What Do Mediators Do?

As we mentioned, mediators help spouses draft the terms of their divorce. For example, a mediator might help you and your spouse determine one or more of the following divorce terms:

    • Alimony: also known as spousal maintenance in Minnesota), the lesser-earning spouse can earn alimony from the greater-earning spouse in some circumstances.
    • Child Support: one spouse may have to agree to pay child support depending on the number of children produced from the marriage and the income of each divorcing spouse.
  • Child Custody: during divorce, parents must decide who will have primary custody of any children produced from the marriage or whether both parents will share custody.
  • Asset Division: Minnesota is an equitable division state, meaning you and your spouse must divide all marital assets equitably.
  • Debt Division: With the exception of non-marital debts, Minnesota divorce laws also mandate that divorcing spouses equitably divide their liabilities after separation.

 

Divorcing spouses typically set up mediation sessions once every two weeks. Each session lasts an average of 2–3 hours. The majority of spouses come to an agreement and reach a settlement after 2–3 sessions of mediation.

Mediators vs. Regular Divorce Attorneys

Many mediators are lawyers. However, it’s important to understand that some mediators are not educated in legal processes. The state of Minnesota doesn’t regulate the mediator profession, meaning anyone can technically market their services as mediation.

At the same time, not all divorce attorneys also specialize in mediation. Divorce attorneys are experts in the law. Legal expertise can help in mediation, but the more significant factor is how well the divorce attorney can help you and your spouse come to mutually agreeable terms.

Click here to learn more about the benefits of mediation.

How Much Does Mediation Cost?

The cost for mediation varies by region. In general, though, you can expect to pay your mediator by the hour. Some mediators will charge more than a divorce attorney; other mediators will charge a similar per-hour rate as a divorce attorney.

The average family attorney charges $232 per hour in Minnesota. So, you can expect to pay more, but probably not less, for mediation services in Hutchinson, MN.

When Should a Minnesota Mediator Intervene?

In some cases, early mediation is the best way to solve problems and bring the matter to a speedy conclusion. In other situations, however, it is better to wait until the litigation process is at least partially complete.

Pre-filing mediation, the earliest time a mediator may intervene, is often successful in parenting plan modification disputes. Many times, these disputes center around the residential parent’s relocation. If the non-residential parent wants to block the move out of spite, early mediation may be a waste of time. But if the non-residential parent has some legitimate concerns about the loss of parenting time, pre-filing mediation often works.

Assume Mother gets a teaching offer from the University of Wisconsin, and she wants to move to Madison with the children. Madison is not on the other side of the world, but it is far enough away to end weekly visitation. If Father objects, a mediator might convince Mother to offer some concessions, like a longer summer visitation period, to offset the loss.

If pre-filing mediation is successful, the parties can present an agreed order to a McLeod County judge. Since most judges approve agreed orders without a hearing, the process moves much more quickly.

Sometimes, a family law case, especially a divorce, is a complete surprise. Additionally, since no case has ever been filed, a court does not yet have jurisdiction over the parties. Therefore, pre-filing mediation is probably not an option. However, early mediation may still be a good alternative for most Hutchinson, MN lawyers.

Early mediation, perhaps shortly after the judge issues temporary orders, is often effective in these cases. Early mediation maximizes the benefits of mediation. That’s assuming there are no major issues to resolve.

In other situations, the litigation process may need to go further. As mentioned, in financial matters, some spouses try to conceal their assets. Before mediation is effective, the discovery process must go forward in these cases. Quite often, a McLeod County judge must rule on a motion to compel discovery or a similar subject.

When Is Divorce Mediation Not an Option in Hutchison, MN?

Almost all divorcing spouses can work with a mediator. However, here are some cases where mediation may not be ideal in Hutchinson, MN:

  • You and your partner have a history of domestic violence
  • You and your partner aren’t willing to compromise on the terms of the divorce

In all other cases, mediation should always be your first option. Even if you have significant assets on the line, children, or are seeking alimony, mediation can work for you.

Hutchinson, MN Lawyers and Mediation Procedure

Emotional courtroom showdowns make great theater in movies and TV shows. But for Minnesota families with children, such emotional shootouts are usually not a good idea. After a divorce, the parties must be good co-parents. The more hard feelings there are, the more difficult co-parenting becomes.

So, family law mediation is extremely low key. These sessions usually occur in office suites instead of courthouses. Moreover, the parties spend most of their time in separate rooms.

After the Hutchinson, MN lawyers give brief opening statements, the family law mediator usually conducts shuttle diplomacy. The mediator conveys settlement offers and counter-offers back and forth until an agreement is reached. Typically, family law mediation sessions last a full day. Sometimes, they last a half day.

Accommodations are available. For example, if there are verified allegations of domestic abuse, a more secure environment makes everyone more relaxed.

Some Mediation Benefits in McLeod County

Still not convinced that mediation is right for your divorce? Then check out the following benefits of choosing mediation.

Mediation Will Save You Money on Legal Fees

A dissolution of marriage isn’t cheap in Minnesota. Each divorcing spouse must pay $400 just to file the petition for dissolution of marriage. That’s not even to mention filing fees for additional motions and, most expensive of all, court attorney fees.

Reduced cost is probably the most frequently-cited mediation benefit. Hutchinson, MN lawyers may spend several weeks getting ready for trial, but only several hours getting ready for mediation. Additionally, mediation ends the case early, and time is money.

Mediators Can Help Salvage the Relationship

As mentioned, civility is important as well. If the parties are to be good co-parents, there needs to be a solid foundation. Many times, mediation provides that foundation. The parties often believe that, if they solved their problems without going to court once, they can do so again.

Mediated Divorces Allow More Spousal Control

On a related note, mediation increases control over the outcome. A detached McLeod County judge does not dictate orders from the bench. Rather, the parties essentially draft their own orders. This arrangement often increases voluntary compliance, which is good news for everyone.

Mediation Takes Less Time

The average mediated divorce takes about 6–8 hours. You and your spouse can choose to divide up these hours across multiple mediation sessions. Compare this timeline to a divorce that goes to trial, which can take anywhere from six months to more than two years.

The more complicated your divorce gets, the more time you’ll spend in court. This is why it’s always a good idea to try mediation first. Even if it doesn’t work for you and your spouse, you will have saved yourself countless hours on the issues you can compromise on.

Contact a Dedicated Family Mediation Attorney in Minnesota

Mediation is the best option for anyone going through a divorce. It’s significantly less expensive, less time-consuming, and more civil than a court divorce. Plus, you and your spouse will have far more control over the terms of your dissolution of marriage.

If done properly, family law mediation usually works. For a free consultation with an experienced Hutchinson, MN lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

 

Original article published on November 12, 2019 and updated on November 11, 2021 .

Can a Hutchinson, MN Criminal Defense Lawyer Expunge My Record If I Don’t Meet the Statuatory Requirements?

Fifteen years ago, the answer to this question was a resounding “no.” But then, in 2008, the Minnesota Supreme Court decided State v. SLH. This decision introduced the concept of inherent authority expunction. There are basically two big differences between statutory expungement under the Minnesota Statutes and inherent authority expungements.

Statutory expungement is a right. To assert a right, you simply have to ask for it. But inherent authority expungement is a privilege. Unless the defendant gives the judge a good reason for expungement, the judge probably will not do it. Additionally, and perhaps more importantly, statutory expungement wipes out all judicial and law enforcement records. Inherent authority expungement only affects judicial records, at least in most cases.

An experienced Hutchinson, MN criminal defense lawyer can expunge your records if it is at all possible, and also maximize that expungement.

What Are the Requirements for Statutory Expungement in Hutchinson, MN?

Not just anyone can have their record expunged in Minnesota. The law puts in place statutory grounds for statutory expungement. In other words, you must meet certain requirements to have your criminal record expunged.

We’re talking about those requirements next.

A Not Guilty Verdict

You qualify for expungement if a court doesn’t convict you of the crime you’re charged with and issues you a not guilty verdict instead. Also, you qualify for expungement if you never submitted a guilty plea. For example, this may have occurred if a court dismissed your case.

If you received a guilty verdict or have submitted a guilty plea, your conviction will not be eligible for statutory expungement.

You Committed a Petty Misdemeanor With No Subsequent Offenses

Petty misdemeanors may not mean jail time, but they do stay on your record. Employers and anyone else who runs a background check on you will see them on your record.

Luckily, you can get a petty misdemeanor conviction expunged from your record in certain cases. The following crimes are petty misdemeanors in Minnesota:

  • Traffic citations
  • Possession of small amounts of marijuana
  • Possession of drug paraphernalia

You can’t have these petty misdemeanors expunged if you receive a subsequent conviction within the next two years.

You Committed a Gross Misdemeanor With No Subsequent Offenses

Gross misdemeanors are more serious than petty misdemeanors in Minnesota. A gross misdemeanor conviction comes with potential jail time, thousands of dollars in fines, or both. Here are some common Hutchinson, MN gross misdemeanor crimes:

  • A DWI with a blood alcohol content of 2.0 or over
  • A second DWI conviction within 10 years of the first
  • Refusing a sobriety test during a pullover
  • Gross misdemeanor theft, which is theft of property worth $500–$1,000

Like petty misdemeanors, you must go a period without a subsequent conviction. In this case, you must go four years without another offense to qualify for statutory expungement. 

You Committed a Qualifying Felony With No Subsequent Convictions

Felonies are the most serious offenses in Minnesota. They come with fines and/or prison time. Sometimes, felonies even come with mandatory minimum prison sentences.

There is good news, though. Some felonies qualify for statutory expungement in Minnesota, including the following:

  • Fifth-degree drug possession and sale felonies
  • Criminal vehicular operation (CVO) that results in great bodily harm to another party
  • Theft of property worth less than $5,000
  • Criminal property damage
  • Forgery
  • Some financial fraud felonies

 

To get these felonies expunged, you can’t receive a subsequent conviction. You must stay crime-free for at least five years to qualify.

You Received a Qualifying Juvenile Conviction

In some cases, offenders with a juvenile conviction can qualify for statutory expungement. However, this is only the case if you received the conviction as a juvenile and are now facing trial as an adult.

You Completed a Diversion Program

When you receive certain drug possession charges in Minnesota, a court could issue you to complete a diversion program. Completing the diversion program qualifies you for statutory expungement.

You Received Deferred Adjudication

In Minnesota, many people receive deferred adjudication for their crimes. A stay of adjudication is similar to receiving probation for an offense.

The court will issue “terms of the stay,” which, if completed, means you won’t have a conviction on your record. The same is true if you received an adjudicated delinquency as a minor.

Once you complete the terms of the stay, you can qualify for expungement. However, you must first go one year from the date you completed the terms of the stay without committing a second offense.

Have You Exhausted Other Options?

Inherent authority expungement is a last resort. But many people entertain this option before they have gone through all their statutory options. Significantly, very few people try to obtain an executive pardon, even though the process is easier than they think.

You do not need to make a big financial contribution to buy a pardon. Actually, that may be one of the worst things you can do. No governor wants to be accused of favoritism.

Instead, a Hutchinson, MN criminal defense lawyer simply needs to know how to ask. Every situation is different, but here are some general rules:

  • Know Where to Go: A pardon application addressed to the governor will go straight into the trash, and an application addressed to a junior assistant will never see the light of day either. A successful pardon application begins with knocking on the right door, and an experienced Hutchinson, MN criminal defense lawyer knows where to knock.
  • Admit Responsibility: Begin and end your application with a complete and unqualified admission of guilt. Your friends did not entice you and the devil did not make you do it.
  • Explain Extenuating Circumstances: The governor was not there and does not have the trial transcript. If appropriate, the prior obstacles narrative usually works well. For example, perhaps you have overcome a substance abuse problem.
  • Praise the System: If you served time in jail or prison, you had lots of time to think. If you were placed on probation, the court-ordered classes struck a chord with you.
  • Ask For What You Need: Unabashedly ask for a complete pardon. One of the fundamental rules of criminal law is that you never get anything unless you ask.

Pardons are even easier to obtain if you are no longer under court supervision. At that point, a gubernatorial pardon is basically just a rather meaningless gesture. It only has significance if the defendant uses the pardon to obtain statutory expungement.

What Is Inherent Authority?

Since the judge has absolute control over judicial records, it stands to reason that the judge should have the authority to purge these records in certain situations. The S.L.H. court offered practically no guidance in this area. The court simply stated that, under “appropriate circumstances,” judges could use their inherent authority to expunge judicial records.

That lack of guidance is actually a good thing. Appeals courts usually review lower court decisions like these on an abuse-of-discretion basis. With such a broad mandate from the Supreme Court, it is almost impossible for judges to abuse their discretion in these cases.

In other words, the court has almost absolute authority to purge judicial records. A Hutchinson, MN criminal defense lawyer just needs to give the judge a good reason to do so.

Who Can Get an Inherent Authority Expungement in Hutchinson, MN?

If you were convicted of a crime in Minnesota and that crime is on your record, you can qualify for an inherent authority expungement. But if you have statutory expungement as an option, you should seek one. As we’ve discussed, inherent authority expungement should be your Plan B.

Why? Inherent authority expungements aren’t true expungements. In other words, the judge won’t wipe your conviction off your record; inherent authority expungement only seals your records.

Also, keep in mind that just because you seek an inherent authority expungement doesn’t mean a judge will grant you one. Judges take multiple factors into account when making his or her decision.

For example, judges tend to weigh heavily your possibility of re-offense. In other words, if the judge thinks you’re likely to commit another crime, he or she will most likely not grant you an inherent authority expungement.

Why Do You Need Expungement?

In statutory proceedings, this question is relevant but not really controlling. The McLeod County judge just needs to hear a legitimate answer.

But in inherent authority expunction cases, this answer may mean everything. Generally, the defendant must offer a specific reason, such as:

  • Inability to pursue a certain professional occupation that the defendant is otherwise qualified to pursue,
  • Difficulty in finding a place to live (i.e. I tried to obtain a mortgage from this bank or rent from this company but my criminal conviction derailed my application), or
  • Inability to find a job that pays enough to support a family.

If you can articulate this reason for the judge, the judge is quite likely to approve your application, especially if the conviction is at least ten or fifteen years old.

Can a Hutchinson, MN Criminal Defense Lawyer Expand Inherent Authority?

In principle, inherent authority expunctions are limited to judicial records. However, the Supreme Court has yet to directly rule on this issue. Therefore, in a few cases, there may be a workaround.

For example, a dismissal may expand inherent authority to executive records, even if the offense is on the prohibited list. If the court dismisses the case, most defendants reasonably believe that they will suffer no ill effects from the criminal proceedings.

Certain juvenile cases may fall into this area as well. Additionally, if the defendant was discharged at least fifteen years ago and the defendant has taken a number of self-improvement steps, expansion may be available.

Reach Out to Dedicated Attorneys at Carlson & Carlson

A Minnesota criminal attorney can help you get a statutory expungement if you meet qualifying conditions. If you don’t meet these conditions, your lawyer may still be able to seek an inherent authority expungement. Though inherent authority expungement will not eliminate your conviction, it will seal your conviction from public record.

An attorney’s job does not end when the judge’s gavel falls, because there may still be remedies available. For a free consultation with an experienced Hutchinson, MN criminal defense lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Original article published on May 23, 2019 and updated on November 4, 2021.

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

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

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

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

1. Child Abuse in Hutchinson and MN

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

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

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

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

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

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

2. Simple Assault in Hutchinson and Minnesota

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

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

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

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

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

3. Domestic Assault in MN

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

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

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

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

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

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

4. Aggravated Assault in MN

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

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

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

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

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

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

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

5. Vehicular Assault in Hutchinson and Minnesota

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

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

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

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

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

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

What Are the Defenses a Hutchison Assault Attorney Can Use?

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

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

The False Allegation Defense

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

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

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

The Self-Defense Defense in Hutchinson and Minnesota

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

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

The Lack of Evidence Defense in MN

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

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

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

The Consent Defense in Hutchinson and Minnesota

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

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

Work With Experienced Criminal Defense Lawyers in Minnesota

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

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

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

A Hutchinson Criminal Lawyer Looks at the Consent Defense

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

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

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

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

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

What Consent Is

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

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

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

What Consent Is Not

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

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

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

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

Alcohol and Consent

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

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

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

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

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

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

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

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

Sex Crime Penalties in Hutchison, MN

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

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

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

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

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

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

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

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

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

Sex Crimes Against Minors

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

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

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

Position of Authority Sex Crimes

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

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

Significant Relationship Sex Crimes

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

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

Employment Sex Crimes

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

  • Psychotherapists
  • Clergy members
  • Correctional officers
  • Masseuses

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

Rely on a Diligent Attorney

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

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

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

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.

Motorcycle Crash Claims and Hutchinson, MN Auto Accident Lawyers

The vehicle occupant fatality rate has declined since the 1990s, mostly because today’s cars are much safer than they were before. But the motorcycle crash fatality rate has remained largely unchanged. Unlike their vehicle occupant counterparts, motorcyclists are almost completely exposed to danger in a crash. As a result, the death rate for motorcycle riders is almost thirty times higher than the death rate for four-wheel vehicle occupants.

Because of this high death rate and the severity of the victim’s injuries, a Hutchinson, MN auto accident lawyer might be able to obtain substantial compensation in these cases. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages might be available as well, in some extreme situations.

What Causes Motorcycle Crashes?

Driver error causes most of the motorcycle crashes in McLeod County. Generally, that error falls into one of three categories. The nature of the driver error usually affects the amount of damages available.

Behavioral negligence includes things like alcohol or drug use and driver fatigue. Compensation is usually highest in these cases. Arguably, these impaired drivers know that they should not get behind the wheel. Nevertheless, they do so anyway, so they intentionally disregard the safety of other people on the road.

These claims are also very difficult for insurance companies to defend in court. People do not “accidentally” drive drunk. Additionally, even if a legal loophole is available, like contributory negligence, many jurors hesitate to cut drunk or fatigued drivers very much slack.

Especially during certain times of year, environmental negligence is a serious problem in Minnesota. The weather often changes quickly, and many drivers do not adjust to the new conditions, even though the duty of reasonable care requires them to be flexible.

Rain is a good example. When visibility is limited and streets are wet, drivers should slow down. But many drivers fail to do so.

Rain also brings up a point about motorcycle visibility. Many people are not looking out for motorcycles, especially during semi-inclement weather. Most riders who have gone down probably heard the tortfeasor (negligent driver) say something like “You came out of nowhere and I didn’t see you.” These drivers probably were not maintaining a proper lookout, which is part of the duty of reasonable care.

Minimal damages are usually available in operational negligence claims. These instances include things like speeding and changing lanes without signaling. Some jurors think these things are accidents (wrong place at the wrong time) as opposed to negligence (a lack of care). The good news is that these claims are rather easy for Hutchinson, MN auto accident lawyers to prove in court. That’s especially true if the negligence per se rule applies. More on that below.

Hutchinson, MN Auto Accident Lawyers and Ordinary Negligence

A theory of responsibility helps jurors better understand the nature of the claim and makes the claim easier to prove. That being said, a Hutchinson, MN auto accident lawyer must still establish negligence by a preponderance of the evidence. The elements of a negligence case in Minnesota are:

  • Duty: Most noncommercial drivers have a duty of reasonable care. They must drive defensively at all times. Most commercial drivers, such as Uber drivers, have a higher duty of care, especially in motorcycle crash claims.
  • Breach: Duty is a question of law for the judge. Breach is a question of fact for the jury. Some of the common breaches of duty were outlined above.
  • Cause: “But-for” causation means the crash would not have happened but for the tortfeasor’s negligence. Proximate cause means foreseeability. A Hutchinson, MN auto accident lawyer must prove both kinds of cause.
  • Damages: The victim/plaintiff must suffer physical injury. A near miss is not actionable in court. If the damages are related to a physical injury, the monetary award is tax-free.

Victim/plaintiffs must prove all these elements by a preponderance of the evidence (more likely than not).

Negligence Per Se

Sometimes, Minnesota law establishes the standard of care. So, tortfeasors are liable for damages as a matter of law if they violate a safety law and that violation substantially causes injury. There’s no need to prove duty or breach. These are usually the most time-consuming elements of a negligence case. Instead, victim/plaintiffs must only prove cause and damages.

The negligence per se shortcut usually only applies if emergency responders gave the tortfeasor a ticket. Frequently, that’s not the case, even if the tortfeasor clearly broke a traffic law. The motorcycle prejudice often comes into play at this point. In their heart of hearts, many people, including many first responders, believe that motorcycle riders are reckless thugs who do not deserve protection.

Hutchinson, MN auto accident lawyers must overcome this prejudice, and other obstacles as well, to obtain fair compensation in motorcycle wreck claims.

Contact a Tenacious Lawyer

Substantial compensation is available in motorcycle wreck cases, but insurance companies do not simply give this money away. For a free consultation with an experienced Hutchinson, MN auto accident lawyer, contact Carlson & Jones, P.A. You have a limited amount of time to act.

Alimony Modifications and Hutchinson, MN Family Law Attorneys

Income changes cause most spousal support modifications Such adjustments are frequent, since most people change jobs twelve times during their careers. The obligor’s income obviously affects his/her ability to pay. And, the obligee’s income increase might change his/her economic need. Not all income changes qualify as modification events. Under Minnesota law, the change must be unanticipated, permanent, and substantial. These three adjectives rule out a number of events, perhaps even including retirement.

Sometimes, the obligee’s economic need changes in other ways as well. That change could be a close relationship with a paramour or a failure to follow a written rehabilitation plan.

Hutchinson, MN family law attorneys must not only establish a foundation of adjustment. The court normally calculates the amount and duration of the payments as well. These determinations, whether a McLeod County judge performs them or the parties agree to them, must jive with the factors listed below.

Changed Circumstances

Before we get to changed circumstances, we should first take a step back and examine some basic points of initial alimony determinations.

In Minnesota, judges can award temporary, short-term, or long-term alimony. Temporary alimony helps obligees pay divorce-related expenses, such as attorneys’ fees and property rental deposits. Short-term alimony helps obligees with economic needs become economically self-sufficient. Long-term alimony is usually only available if the obligee is disabled, cares for a disabled child, or is otherwise incapable of self-support.

To see how the aforementioned job and life change factors work in McLeod County, let’s look at a couple of examples.

Assume Mike and Karen divorce in their late 50s after many years of marriage. Since Karen was the homemaker and Mike was the breadwinner, Karen has no current job skills and is therefore largely unemployable. So, Mike pays substantial alimony until he turns 65, when he retires.

Mike confidently works with a Hutchinson, MN family law attorney. He assumes the judge will cut off alimony or at least reduce his payments. But not so fast. Retirement is not an unanticipated event. People get older and retire. The judge might still reduce Mike’s alimony payments, but Karen might have something to say about that.

Now assume Karen finds a new boyfriend a few years after she divorces Mike. But she does not marry her boyfriend, so Mike is still technically required to pay spousal support.

But once again, not so fast. If Karen had a long-term relationship with her boyfriend which involved some shared financial matters, such as a joint checking account or joint home purchase, a Hutchinson, MN family law attorney might still be able to reduce Mike’s spousal support payments.

Hutchinson, MN Family Law Attorneys and Amount/Duration Adjustments

So, either former spouse may seek to change the alimony obligation based on changed circumstances. Next, the amount and duration of payments must be re-calculated, as follows:

  • Obligee’s Financial Resources: In emotional modifications, like a new boyfriend or girlfriend, this factor is usually paramount. A new partner’s income is usually not relevant in child support inquiries, but it is incredibly relevant in spousal support matters.
  • Standard of Living During the Marriage: This factor’s significance diminishes in modification proceedings, especially if the parties have been divorced for more than a few years.
  • Relative Earning Capacity: Typically, young, healthy, and well-educated people have significant earning potential. So, if there is a considerable age, health, or other discrepancy between the two former spouses, this gap might justify an increase or decrease in spousal support payments.
  • Contributions to the Marriage: Much like the standard of living factor, this consideration is important in initial determinations, but not as important in subsequent modifications.

Most modification claims settle out of court. That includes both the need for modification and the new amount and duration of payments. As long as each spouse had an independent Hutchinson, MN family law attorney through the whole process, most McLeod County judges approve most of these settlements. Frequently, they do not even require hearings.

So, your Hutchinson, MN family law attorney must be more than a diligent researcher and forceful litigator. Your attorney must also be a good negotiator.

Connect with an Assertive Lawyer

Initial spousal support determinations are not set in stone. For a free consultation with an experienced Hutchinson, MN family law attorney, contact Carlson & Jones, P.A. Convenient payment plans are available.

How Do Hutchinson, MN Lawyers Resolve Truck Crash Claims?

An 80,000-pound vehicle, which is the maximum semi-truck weight, traveling at 60mph brings an immeasurable amount of force to bear in a crash. So, it’s little wonder that truck accidents often cause spine injuries and other catastrophic wounds. The medical bills alone in these cases often exceed $4 million.

Frequently, health insurance companies refuse to pay these costs. Insurance adjusters know that truck accident victims are experiencing financial distress, so they often relentlessly pressure these victims to settle their cases. The offer might be tempting, but victims simply have no way of knowing if the offer is fair or not.

So, a Hutchinson, MN lawyer works diligently to resolve these cases and make sure the victim’s medical bills get paid. Attorneys also address vehicle replacement and other concerns. Every case is different, but they all follow the same general outline.

Evidence Collection

Successful negligence claims usually begin with evidence collection. The victim/plaintiff must establish liability by a preponderance of the evidence (more likely than not). To expedite this process, many Hutchinson, MN lawyers partner with private investigators and other professionals.

Some evidence, such as the police accident report and medical bills, is rather easy to obtain. Generally, attorneys can secure this evidence after just a few phone calls. Then, the accident evaluation process can begin.

Other evidence is much more difficult to obtain. That’s especially true of critical electronic evidence, like the Event Data Recorder. These durable, high-tech gadgets usually survive even the most catastrophic truck wrecks. EDRs measure and record information like:

  • Steering angle,
  • Engine RPM,
  • Brake application, and
  • Vehicle speed.

To obtain this evidence, Hutchinson, MN lawyers must overcome a number of legal and technical hurdles. Minnesota has very strict vehicle information privacy laws. So, attorneys usually need court order to use EDR information in court. Additionally, these devices are extremely sophisticated. A Hutchinson, MN lawyer needs a lot more than a screwdriver and a laptop to access and download EDR data.

Hutchinson, MN Lawyers and Legal Issues

The evidence in a truck crash claim is like the colored squares of an unsolved Rubik’s cube. Until an attorney twists the cube the right way and puts the colors together, they are just a jumbled mess.

Usually, truck crash twists involve ordinary negligence or negligence per se. Ordinary negligence is a lack of care, and negligence per se is the violation of a safety statute. Distracted driving is a good example of the difference between these two doctrines. Minnesota law prohibits any use of a hand-held device. But other distracted driving behaviors, such as using a hands-free phone while driving, are just as dangerous. So, a distracted driving claim could involve either of these theories. Insurance company defenses, like comparative fault, also come into play here.

A few other truck crash claims involve dangerous products, like defective tires. Generally, manufacturers are liable for defective product injuries as a matter of law. Negligence, or lack thereof, is largely irrelevant.

Endgame

Almost all negligence cases settle out of court. These settlements reduce litigation costs, bring about closure, and give the parties more control over the outcome.

After the evidence collection and legal evaluation processes are complete, Hutchinson, MN lawyers usually open settlement negotiations with the insurance company. First, attorneys usually send demand letters. These letters demand a sum of money in exchange for a liability waiver. To calculate noneconomic losses, most attorneys multiply the economic losses by two, three, or four, depending on the facts of the case.

If liability is clear, insurance companies have a legal duty to settle the claim straightaway. However, mostly because of the aforementioned insurance company defenses, liability is usually not crystal-clear. So, to put additional pressure on the insurance company to settle the case, most Hutchinson, MN lawyers file legal paperwork in court.

Generally, insurance company lawyers file procedural motions asking the judge to throw the case out of court. However, if a Hutchinson, MN lawyer was diligent during the evidence collection and legal evaluation process, these motions hardly ever succeed.

If the parties are unable to resolve the case on their own, most McLeod County judges appoint mediators. These individuals meet with both sides and try to facilitate a settlement. Assuming both parties negotiate in good faith, which means they are willing to make compromises to reach an agreement, mediation is usually successful.

Connect with a Hard-Hitting Attorney

Truck crash claims usually settle out of court and on victim-friendly terms. For a free consultation with an experienced Hutchinson, MN lawyer, contact Carlson & Jones, P.A. The sooner you call us, the sooner we start working for you.

How Do Hutchinson, MN Criminal Lawyers Attack the Evidence in Drugged Driving Cases?

Nationwide, drugged drivers cause more fatal crashes than drunk drivers. As a result, law enforcement officers in McLeod County are extremely aggressive in this area. Part of this crackdown includes a new kind of expert witness, as outlined below. And, as technology continues to advance, police officers might have even more anti-drugged driving tools by the end of 2020.

Legally, the Gopher State has one of the broadest drugged driving laws in the country. Under Minnesota law, it is illegal to drive “under the influence of. . .an intoxicating substance (when the person knows, or has reason to know, that the substance has the capacity to cause impairment).” It’s also illegal for drivers to have even trace amounts of most Schedule I (street drugs like heroin and cocaine) or Schedule II drugs (prescription pills like Adderall and Vicodin) in their systems.

Pragmatically, these cases are difficult to prove in court. Generally, prosecutors must rely on circumstantial evidence to establish guilt beyond a reasonable doubt. So, if a Hutchinson, MN criminal lawyer aggressively attacks the evidence, it might be possible to get the charges thrown out of court.

Field Sobriety Tests

The bulk of circumstantial evidence in a DWI case usually comes from the subjective FSTs. Sometimes, officers ask suspects to perform unapproved tests, like balancing with their eyes closed or reciting part of the ABCs. These tests have no scientific basis. The three approved FSTs, however, have at least some scientific basis. They are:

  • Horizontal Gaze Nystagmus: During the DWI eye test, officers look for involuntary pupil movements as suspects track moving objects with their eyes. Nystagmus, or lazy eye, is a fairly common condition. So, many people cannot pass this test whether they are drunk or sober.
  • One-Leg Stand: Somewhat similarly, it’s almost impossible for people with any mobility impairment whatsoever to balance on one leg for more than a few seconds. Officers deduct points for the slightest swaying, as well as for technicalities like holding up the wrong leg.
  • Walk and Turn: The heel-to-toe walk test might be the signature DWI field test. This test is almost impossible to successfully complete unless the defendant is wearing athletic shoes. It’s also very difficult to walk an imaginary line heel to toe, as opposed to an actual line.

This evidence is often unavailable. Defendants have a Fifth Amendment right to refuse the FSTs. And, the refusal cannot be used against them in court.

Hutchinson, MN Criminal Lawyers and Drug Recognition Experts

The sudden uptick in drugged driving cases has created a cottage industry in many police departments. When they stop motorists for suspicion of drugged driving, officers often summon DREs to the scene. There, they observe the FSTs and look for other physical evidence of drug use. Subsequently, they offer their “expert” opinions in court.

There are basically two ways a Hutchinson, MN criminal lawyer can undermine DRE testimony. First, these individuals often have suspect qualifications. They usually learned everything they know about drugged driving at police-sponsored seminars. Furthermore, DREs earn their wings by identifying drugged drivers, not by discerning drugged drivers from sober drivers.

Additionally, and on a related note, a DRE’s job is to confirm drugged driving, not to confirm or deny drugged driving. So, summoning a DRE to the scene is like initiating a self-fulfilling prophecy.

Chemical Tests

Marijuana Breathalyzers are not on the street yet, but that could change by the end of 2020. Several firms, including a California company, have developed prototypes. These gadgets measure THC particles in the breath, just like alcohol Breathalyzers count ethanol particles.

In this area, the law has not caught up with science. Most researchers agree that .08 is a reasonable BAC limit for non-commercial drivers. But there is no such consensus with regard to THC. Minnesota law states that five nanograms per milliliter of THC seriously impairs drivers. But that figure is completely arbitrary. So, before marijuana Breathalyzers appear, Hutchinson, MN criminal lawyers will advocate for clients at the statehouse to change the law, before these cases reach the courthouse.

Rely on Dedicated Attorneys

Drugged driving cases often have shaky evidentiary foundations. For a free consultation with an experienced Hutchinson, MN criminal lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

How does a Hutchinson, MN Lawyer Win Money in Truck Crash Claims?

Evidence is usually the key to a successful outcome in any civil case. Accident victims have the burden of proof. They must establish negligence by a preponderance of the evidence (more likely than not). Imagine two equally-full cups of coffee are on the same table. If the waitress adds one drop of coffee to one cup, it’s fuller than the other one. That’s what a preponderance of the evidence looks like.

The good news is that a preponderance of proof is the lowest standard of evidence in Minnesota. The bad news is that truck crashes are often so catastrophic that little or no physical evidence remains at the scene.

To make up for this lack of evidence, a Hutchinson, MN lawyer must work extra hard to amass the proof necessary to establish negligence. If jurors hear a sufficient amount of compelling evidence, they often award significant damages in these cases. These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Event Data Recorder

After large airplanes crash, investigators often rely on black box flight data recorders to determine what caused the crash. Large truck Event Data Recorders are much the same. Generally, EDRs measure and record key operational information like:

  • Vehicle speed,
  • Steering angle,
  • Engine acceleration or deceleration, and
  • Brake application.

A Hutchinson, MN lawyer, often working with an accident reconstructionist, can use this information like pieces of a jigsaw puzzle. Once an attorney puts the pieces together for jurors, they see a compelling picture of operator negligence.

EDRs are valuable, and Hutchinson, MN lawyers must act quickly to preserve this evidence. As mentioned, truck crashes are often devastating. Following such wrecks, insurance companies usually destroy totaled vehicles, rather than paying to store them. If that happens, the EDR, and all other physical evidence on the truck, is gone forever.

Spoliation letters usually help. These letters create a legal duty to preserve all potential physical evidence, including the EDR.

There is more. Minnesota has very strict vehicle information privacy laws. So, to access and download EDR information, a Hutchinson, MN lawyer typically must obtain a court order.

Hutchinson, MN Lawyers and Electronic Logging Devices

EDRs are usually important in all truck wreck claims. ELDs are often critical in drowsy driving claims. Biologically, driving while fatigued is like driving while intoxicated. Driving after eighteen consecutive awake hours, which is basically a long day on the road, is like driving with a .05 BAC level. That’s above the legal limit for commercial drivers in Minnesota.

Trucking industry executives know how important this issue is. Their lawyers fought the ELD mandate all the way to the Supreme Court. But it finally took full effect in December 2019.

ELDs are basically electronic work logs which are connected to the ignition. If the truck is running, the HOS (hours of service) clock is ticking. Minnesota and the federal government both have strict laws in this area. If a driver does not get enough rest and causes a crash, the driver could be liable for damages as a matter of law.

Furthermore, ELDs are often circumstantial evidence of fatigue. Drivers can technically be in compliance with the HOS rules and still be dangerously fatigued. Research shows that even an hour or two of less sleep makes a difference.

To use this critical data in court, Hutchinson, MN lawyers must overcome the aforementioned vehicle information privacy laws as well as some other privacy laws, mostly regarding medical data.

Safety Maintenance System

Lack of physical evidence is not the only issue in truck crash claims. Generally, these operators have drivers’ licenses in several different states. As a result, it’s difficult or impossible to obtain all relevant driving records.

Several years ago, the Federal Motor Carrier Safety Administration began keeping multistate driving records on all American truck drivers. The SMS database focuses on:

  • HOS compliance,
  • Vehicle maintenance history,
  • Prior collisions,
  • Substance abuse history, and
  • Previous traffic citations.

The SMS relies on law enforcement records as opposed to judicial records. So, it is more accurate. For example, if a tortfeasor (negligent driver) received a speeding ticket and took defensive driving, that citation would probably not appear in a judicial database. But it would pop up in the SMS database.

Connect with a Diligent Attorney

Industrious evidence collection lays the groundwork for fair compensation in a truck wreck case. For a free consultation with an experienced Hutchinson, MN lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

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Buffalo Lawyers

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