Recent Blog Posts

Cameras In Minnesota Courts

Minneapolis Criminal Defense Attorney — Wed, 14 Mar 2012 19:55:00 GMT

Though the majority of court hearings are open to the public, photo and video cameras have not been allowed. That is until recently. Last July, a pilot program was set up that may lead to photo and video cameras becoming a common courtroom occurrence.

However, even though the program has been in place since last July, March 9, 2012 was only the fourth time cameras were present at a live hearing. The pilot program allows for photos and video cameras only in civil cases. Opponents of the pilot program are concerned cameras in the courtroom will dissuade victims or witnesses from testifying or create opportunities for attorneys to play to the cameras. However, the overall consensus from the limited number of judges and attorneys who have been a part of the pilot program was that they forgot the cameras were even there.

Presumably, with concerns about victim and witness involvement begin deterred by cameras in the courtrooms, cameras will continue to be banned from criminal hearings.

Court hearings can be stressful and create anxiety. If you, or a loved one, are facing criminal charges, have the peace of mind to know that someone is looking out for you. Contact Grostyan & Associates today to speak with an experienced attorney.

Things to Consider When Hiring a Criminal Defense Lawyer

Minneapolis Criminal Defense Attorney — Tue, 28 Feb 2012 21:01:00 GMT

If you are seeking an expungement or facing criminal charges, an experienced attorney can be an important factor is helping you to resolve the matter and allowing you to move on with your life. Here are some factors to consider before hiring an attorney:

Experience
- How long the attorney you are considering hiring has been practicing is not the only thing to think about in terms of experience. Rather, how much of the attorney's practice is devoted to criminal defense? Criminal convictions very often have adverse consequences on employment, housing, and professional licensing, has your attorney discussed possible collateral consequences and sanctions with you?
Personality
- This may sound silly, but it is important that you feel that your attorney is intelligent and that after meeting or speaking with your attorney, that you have respect for him or her. In criminal defense, a lot of cases turn on plea negotiations. If your case comes down to entering a plea, you want to know that your attorney is trustworthy and is being honest with you when advising you whether or not a particular resolution is your best option. If you do these feelings, you may later regret taking his or her advice when deciding whether to take a plea deal or not.
Communication
- If you are uncertain about potential consequences from a criminal offense, the last thing you need is to be left in the dark. The most common complaint from clients about their attorney is that the attorney does not communicate with them. A dedicated criminal defense attorney should understand that you are very worried about your case, and that you are uncertain of the outcome. Therefore, you want to make sure that you are able to communicate with your attorney effectively, and be confident that whenever a question arises you can call and speak with your attorney.
Cost
- Cost is a factor that you should weigh last, and should be the least important consideration when hiring an attorney. While you don't want to bankrupt yourself simply to hire an attorney, you also don't want cost itself be determinative as to which attorney your hire. More important than cost is peace of mind - you should be comfortable and confident with your attorney and feel that he or she will do everything possible based on the facts and circumstances surrounding your case to resolve the matter as best as possible. Remember, sometimes cheap really is cheap.

To find answers to the considerations listed above, you should set up an initial consultation with the attorney. Most attorneys are happy to sit down with you for a free consultation to discuss your specific case, what strategies they would employ in you defense, and answer any questions you might have.

Contact Grostyan & Associates, PLC today to set up a free consultation with an experienced criminal defense lawyer.

Supreme Court Rules that Blood Alcohol Concentration Irrelevant to DWI Offense Where Urine Test Conducted

Minneapolis Criminal Defense Attorney — Mon, 13 Feb 2012 20:38:00 GMT

In a decision that completely avoided the real issue, the Supreme Court ruled in State v. Herman Tanksley, Jr. that blood alcohol concentration is irrelevant to a DWI charge of driving with an alcohol concentration of 0.08 or more when the State seeks to prove the offense using only the evidence of the amount of alcohol in the defendant's urine.

Tanksley was charged with misdemeanor driving while under the influence, and misdemeanor driving with an alcohol concentration of 0.08 or more, as measured within 2 hours of the time of driving, after he was arrested for suspicion of driving under the influence. A urine test was conducted after his arrest, and the test results came back at 0.13.

Tanksely filed a pre-trial motion to suppress the urine test results. Tanksley's argument was that the urine test in Minnesota, which uses a person's first-void, is unreliable, inaccurate, and not generally accepted in the scientific community because of urine pooling. Since Minnesota uses the first-void urine sample, the alcohol concentration in a person's urine may be vastly different from the alcohol concentration in a person's blood at the time of testing because any of the alcohol the person has consumed remains in his or her bladder until the bladder is emptied. An example of the pooling argument is that a person could become intoxicated one evening, and then wake in the morning totally sober, but if the person has not emptied his or her bladder, a urine sample would be inaccurate because it would reveal the person was still intoxicated. Tanksley's request for a hearing to challenge the urine test results and the scientific reliability was denied by the district court on the finding that the State is only required to prove that Tanksley's test results were 0.08 or more under any approved method of alcohol concentration testing.

Tanksley was found guilty of the offense of driving with an alcohol concentration over 0.08, and appealed his conviction to the Minnesota Court of Appeals. The Minnesota Court of Appeals reasoned that Tanksley should have been given a hearing on the admissibility of the urine test results, but that the district court's error was harmless because the Minnesota Court of Appeals previously ruled that first-void urine testing was scientifically reliable in State v. Edstrom, 792 N.W.2d 105 (Minn. App. 2010).

The Minnesota Supreme Court, in agreeing with the district court, concluded that since there are three accepted ways to measure alcohol concentration (blood, breath, or urine testing), as long as one of the approved methods of testing is used, the State is not required to determine if an alternative method of testing would have produced different results. The State only needs to show that the defendant's alcohol concentration within 2 hours of driving was at or above 0.08. The urine test results that were obtained within 2 hours of Tanksley driving showed an alcohol concentration of 0.13; therefore, the Minnesota Supreme Court upheld Tanksley's conviction.

The Minnesota Supreme Court completely skirted addressing the issue in this case, which is the accuracy of urine testing. It is generally scientifically accepted blood testing is the most accurate way to ascertain alcohol concentration as, unlike breath testing, other outside factors less often interfere with the test results, and, unlike urine testing, alcohol in a person's blood stream dissipates after a period of time. At the heart of Tanksley's appeals was the idea that these different testing methods should essentially yield the same or very similar results. However, the Minnesota Supreme Court simply decided that the State only has to produce test results that were taken within 2 hours of driving and that are over the legal limit. Since the State has no duty to prove Tanksley would have been at or over 0.08 if a blood or breath test had been taken instead, there was no need to consider Tanksley's blood alcohol concentration and whether it correlated with his urine test results.

A DWI is an enhanceable offense, meaning the more you have, the more serious the consequences. A DWI offense is not limited to a criminal matter either, it also affects your driver's license status, insurance premiums, and very often your license plates, ability to keep your vehicle, and job security just to name a few. Make sure you know your rights. Contact a Minneapolis Criminal Defense Lawyer today.

DNA Sample Required Even Though No Conviction

Minneapolis Criminal Defense Attorney — Tue, 31 Jan 2012 15:00:00 GMT

In an unsurprising set of opinions filed January 25, 2012, the Minnesota Supreme Court upheld the requirement that defendants and juveniles charged with a crime that requires a DNA sample, but not convicted of that particular crime, still need to submit a DNA sample if they are convicted of another crime, even if that crime doesn't require a DNA sample, if it arose out of the same set of circumstances.

The DNA sample is required on certain crimes for identification purposes. The challenge to requiring the DNA sample from defendants or juveniles convicted of a different offense arising out of the same set of circumstances was that the sample constituted an unreasonable search and seizure and violated the Equal Protection Clauses of the U.S. and Minnesota Constitutions. The Minnesota Supreme Court disagreed and upheld the DNA sample requirement even if the defendant and juvenile are not convicted of the offense requiring they provide the sample.

As we have seen before, the Minnesota Supreme Court is hesitant to let defendants or juveniles convicted of crimes arising out of the same set of circumstances out of potential consequences. See previous posts - Predatory Offender Registration Not Required for Defendant and Predatory Registration Required When Defendant Acquitted of Criminal Sexual Conduct Charge?.

While it is obvious that serious criminal convictions can have long lasting, adverse effects on one's livelihood, these rulings by the Minnesota Supreme Court also show that the fact that one is charged with a particular crime, even if there is no conviction, can incur damaging consequences. Innocent until proven guilty doesn't mean much anymore if defendants or juveniles who are innocent of a particular charge still face similar penalties as guilty parties.

Criminal charges are public record. If you have been charged with a crime, the simple fact that there a public record exists can have long term effects. It is important that someone is looking out for you. Call Grostyan & Associates today to speak with an experienced Minneapolis Criminal Defense Attorney.

Vehicle Forfeiture Law to be Reviewed by Supreme Court

Minneapolis Criminal Defense Attorney — Mon, 30 Jan 2012 17:52:00 GMT

The Minnesota Supreme Court will soon be reviewing Minnesota vehicle forfeiture law. The Minnesota Court of Appeals already considered Minnesota vehicle forfeiture law in a decision filed October 31, 2011. The Minnesota Court of Appeals ruled that a Defendant charged with, but not convicted of DWI in which there is a vehicle forfeiture action is entitled to the return of the vehicle. The Minnesota Supreme Court granted review of the Court of Appeals decision on the matter, Laura Patino vs. 2007 Chevrolet.

In the Court of Appeals decision, Patino's roommate was driving the vehicle when he was stopped by police and subsequently arrested for DWI. Patino was not in the vehicle at the time. Patino's roommate was subject to forfeiture because he had a prior DWI and a child in the car, thereby enhancing the DWI charge to a 2nd Degree DWI and permitting the police to seek forfeiture of the vehicle under Minnesota State Law. Patino's roommate was convicted of a 3rd Degree DWI, not the 2nd Degree charge. The issue the Court of Appeals considered was whether the forfeiture action was appropriate in light of the fact that Patino's roommate was not convicted of the 2nd Degree DWI charges, nor did he have the required requisite designated previous offenses to invoke the vehicle forfeiture statute.

Under current Minnesota law, a vehicle is subject to forfeiture if the driver of the vehicle is facing charges of 2nd or 1st Degree DWI. Typically a 2nd Degree DWI charge involves two prior DWI offenses or two prior alcohol-related license revocations. However, a 2nd Degree charge can also come into play if there are enhancing factors. These include previous DWI offenses, but can also arise in cases of a test refusal, a child in the car, and/or a test result over 0.20. A first time offender can be charged with a 2nd Degree if two of the above are present. A 1st Degree DWI is a felony offense and occurs only if the driver has 3 prior designated offenses within a ten year period.

A person may also lose his or her car to forfeiture even if they are not driving. This can occur when the owner is presumed to know that the driver will not use the car lawfully, such as cases where the driver is a housemate and has 3 prior designated offenses. In addition, if the car owner is riding as a passenger in the vehicle with a driver who is facing charges of a 2nd or 1st Degree DWI, the car is subject to forfeiture.

In this case, since Patino was not in the vehicle at the time of the DWI offense, and she is not presumed to know that her roommate will be using the vehicle unlawfully, the only forfeiture issue the Minnesota Supreme Court will be reviewing will be whether a vehicle is subject to forfeiture if the driver is not convicted of the underlying DWI offense. As this issue involves the potential loss of substantial property, we can only hope that the Minnesota Supreme Court comes to the correct conclusion and upholds the Court of Appeals decision.

If you have been charged with a DWI, it is important that you speak to a Minneapolis Criminal Defense Attorney right away to ensure your rights are protected. Call Grostyan & Associates for a free consulation today.

Posting Nude Photos of Ex-Girlfriend is not Harassment says MN Court of Appeals

Minneapolis Criminal Defense Attorney — Thu, 19 Jan 2012 16:56:00 GMT

The Minnesota Court of Appeals recently considered whether posting nude and partially nude photos of an ex-girlfriend at her place of work is harassment in State of Minnesota vs. James Charles Pegelow, Jr.

Pegelow was charged with gross-misdemeanor harassment in violation of Minn. Stat. § 609.749, subd. 2(a)(1) after he allegedly posted nude and partially nude photographs of his former girlfriend in the men's room at her place of employment. The ex-girlfriend was notified by a co-worker of the photos. While they were dating, Pegelow's ex-girlfriend had taken the photos herself and had given them to him. She called the police and told them she suspected it was Pegelow because he was the only one she had given the photos to. The police obtained a copy of the security video and Pegelow was seen entering the men's room at his ex-girlfriend's workplace earlier that same day.

A jury found Pegelow guilty of the harassment charge. Pegelow appealed the jury's guilty verdict on the basis of insufficient evidence arguing there was no evidence that what he did was an illegal act.

The relevant statute, § 609.749, subd. 2(a)(1), states that harassment occurs if the actor "directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act[.]" Though, Pegelow's action may have met the statute's definition of harassment, since there was no independent, unlawful act, the Court of Appeals overturned the jury conviction due to insufficient evidence.

A harassment or stalking charge is serious enough in itself, but a conviction can haunt you forever in attempting to secure employment, housing, and even dating. If you or a loved one are being investigated or have been charged with a harassment or stalking crime, call Grostyan & Associates to speak with an experienced Minneapolis criminal defense attorney today.

What Should I Do if I'm Stopped for DWI?

Minneapolis Criminal Defense Attorney — Thu, 22 Dec 2011 19:33:00 GMT

Particularly during the holidays, it is not uncommon to see reminders that extra DWI enforcement will be out. If after a night of merriment, you happen to be stopped by law enforcement, here are some tips on how best to proceed:

-Have your driver's license and proof of insurance ready for the officer.

-Do not admit to drinking, not even to having had "a couple."

-Politely decline to answer any questions.

-Politely decline to perform any field sobriety tests.

Unfortunately, if an officer believes that you operating a motor vehicle under the influence of alcohol, you will almost certainly be arrested. There is no way to talk yourself out of a DWI. Be respectful and polite to the officer, but do not perform any of the field sobriety tests. These tests are used by officers to strengthen the probable cause to support an arrest. Before an officer can arrest someone the officer must have probable cause to do so. Probable cause means that based on the circumstances a reasonable person would believe it is more likely than not that something occurred. In cases of DWIs, an officer, based on the facts of the stop and his or her own observations, must believe it is more likely than not that you were driving a motor vehicle under the influence of alcohol.

Declining to perform field sobriety tests or admit to drinking may very well make the officer angry; however, if the officer truly thinks you are under the influence, you will be arrested regardless of how well you perform the field sobriety tests or whether or not you perform the tests at all. Therefore, it is in your best interests to not provide more assistance to the police in finding probable cause to arrest you by risking not performing perfectly on field sobriety tests.

If an officer becomes combative with your decision to not perform any field sobriety tests, it may be helpful to tell the officer you do not want to do anything until you have spoken with an attorney.

If you are arrested for suspicion of DWI, prior to being requested to submit to an official test of your blood alcohol content, you will be read the Minnesota Motor Vehicle Implied Consent Advisory. This advisory will inform you that refusal to take a test is a crime and will indicate that you have a right to speak to an attorney. As most people are unfamiliar as to what to do in this situation, you should take advantage of calling on legal counsel to assist you. It does not matter if you do not know any attorneys or that it may be 3 a.m. The officer is required to provide you with a telephone and phone book or directory from which you can find numbers for criminal defense attorneys. Since crimes are not committed exclusively between the hours of 9 a.m. and 5 p.m., most criminal defense attorneys are available 24 hours.

After you have had the opportunity to try and get in touch with an attorney, you will be asked by the officer if you will submit to testing. Testing may be in the form of blood, breath or urine. You should always submit to testing as the consequences for refusing to test are almost always more severe. If you are asked to give a blood test, but you have an aversion to needles, you may ask for a urine test instead. However, under all other circumstances, you must submit to the test offered. You do not have a right to request a specific type of test. After you submit to testing, you can request to make arrangements for an additional test at your own expense.

If you are given a breath test, the results are provided almost instantly. Blood and urine testing results take longer as the sample needs to be sent to a lab for analysis. At this point a number of different things can happen. If you have no prior DWI convictions and you are not too intoxicated, after booking the officer will oftentimes let you call someone to come pick you up. You may be given notice of a court date or one will be mailed to you. In cases where a person is extremely intoxicated or the officer has concerns abut the person's health, a person may be transported to a detox facility or to a hospital. If you have one or more prior DWIs, you may be kept in custody until you can see a judge for a mandatory bail setting. Depending on the circumstances, if you retain counsel early, your attorney may be successful in attempting to get bail set prior to waiting to see a judge.

While DWIs are quite common, they can have far-reaching effects. Therefore, it is important to know your rights and to have someone on your side. There may also be time limitations in effect with respect to challenging a license revocation. If you have been charged with DWI, contact a Minneapolis Criminal Defense Attorney right away.

Predatory Offender Registration Not Required for Defendant

Minneapolis Criminal Defense Attorney — Mon, 19 Dec 2011 22:53:00 GMT

The Minnesota Court of Appeals determined that a district court erred when they ordered a Defendant to register as a predatory offender. See State of Minnesota vs. Stevie Junior Killett.

Defendant Stevie Junior Killett was charged with third degree criminal sexual conduct, third degree attempted criminal sexual conduct, fourth degree criminal sexual conduct, and fifth degree possession of a controlled substance. A jury acquitted Defendant of the criminal sexual conduct charges, but found him guilty of drug possession.

The facts surrounding the incident are as follows: Defendant's ex-girlfriend was living at his home even though the two were no longer together, and he asked her if she would have sex with him. She refused. Defendant and his ex-girlfriend then did some cocaine that Defendant had in his bedroom. After that they smoked some marijuana laced with cocaine in Defendant's basement. Defendant then asked his ex-girlfriend again if she would have sex with him. His ex-girlfriend testified at trial that she again refused and that Defendant sexually assaulted her by forcing her to have sex with him. Defendant testified at trial that he did not sexually assault her because she had agreed to have sex with him. The ex-girlfriend said that at the time that the Defendant sexually assaulted her, she could not longer feel the effects of the drugs.

The next day, the ex-girlfriend told the police that Defendant had forced her to have sex with him. The police arrested Defendant and after getting a search warrant and searching Defendant's house, they found cocaine.

Even though Defendant was found not guilty of the sexual assault charges because he was found guilty of the drug possession charges, he was ordered by the district court that he must register as a predatory offender. Defendant appealed the sentencing order regarding the registration requirement.

Under Minnesota law, if a person is convicted of or pleads guilty to a criminal sexual conduct charge, the person is required to register as a predatory offender for a minimum period of ten years up to lifetime. The predatory registration process consists of notifying community corrections and local law enforcement of the person's home address, as well as work and school information. Under Minnesota State law, predatory sex offender information is available to the public. Even if a person is not convicted of a charged criminal sexual conduct offense, he or she may still be required to register if the offense arose out of the same set of circumstances.

In this case, the district court ordered Defendant to register as a predatory offender because the district court erroneously determined that all charges arose out of the same set of circumstances. Therefore, even though Defendant was acquitted by a jury of the criminal sexual conduct charges, since he was convicted of the drug possession charges the district court ordered that he was required to register.

The Minnesota Court of Appeals previously considered this same argument regarding predatory registration earlier this year in another unpublished opinion, State of Minnesota vs. Matthew Adam David. In that case, the Defendant was also acquitted of the criminal sexual conduct charges by a jury, but he was found guilty of furnishing alcohol to minors and contributing to the delinquency of minors. The Court upheld the registration requirement in that case finding that all the charges arose from the same set of circumstances.

However, the Minnesota Court of Appeals surprisingly overturned the registration requirement set by the district court for Defendant Killett in this matter finding that the alleged sexual assault and the drug possession were "not sufficiently linked to have arisen out of the same set of circumstances." The Court of Appeals found that sexual assault allegations and the drug possession seem to have simply overlapped and were not related. A important differentiating factor in this matter as compared to David, is that the ex-girlfriend in this case testified that when the alleged sexual assault took place she was no longer under the influence of cocaine. So, even though cocaine was present because it did not play a part in the alleged criminal sexual conduct charges, it was not considered to have arisen out of the same set of circumstances. As such, no predatory registration is required for Defendant Killett.

While the Court of Appeals came to the correct determination in this decision by finding no predatory registration is required, it is concerning to think about whether the same decision would have been reached if Defendant's girlfriend would have stated she was still under the influence of drugs when the reported sexual assault allegedly occurred. In cases where a Defendant is acquitted of an offense that would require predatory registration, the registration requirement sometimes goes too far. As is evident by the Court of Appeals very different rulings in these two cases, reviewed in the same year, whether an offense arises out of the same set of circumstances, thereby requiring registration, can turn on some very specific, minute factors. An acquittal of a criminal sexual conduct charge should not result in the same collateral consequences of being a convicted sex offender.

If you are facing criminal sexual conduct charges, there can be devastating effects as far as employment, schooling, and occupational licensing are concerned, not to mention the damage it can do to your reputation. It is essential that you have someone looking out for your interests by contacting a Minneapolis Criminal Defense Attorney right away.

Defendant to be Resentenced after District Court Erred by Imposing Jail in Lieu of Prison

Minneapolis Criminal Defense Attorney — Thu, 15 Dec 2011 15:00:00 GMT

A Dakota County District Court's Sentencing Order was reversed by the Minnesota Court of Appeals because the District Court did not impose prison for the Defendant in a controlled-substance case. State of Minnesota vs. Brett Allyn Michling was reversed and remanded for resentencing because the District Court erred by not ordering Michling be committed to prison for a minimum of 2 years as set by Minnesota law. Instead, the District Court granted a departure from the prison sentence and ordered Michling to serve 1 year in a local jail among other conditions which included 15 years of probation.

Brett Michling plead guilty to a charge of 3rd degree controlled-substance in violation of Minn. Stat. § 152.023, subd. 2(6) (2010). Michling had a previous felony-level controlled-substance conviction within 10-years. His sentence on the previous conviction was discharged meaning he did not serve prison time. Due to the previous conviction, the presumptive guidelines sentence under Minnesota law on the 3^rd degree controlled-substance violation is 45-months in prison. Based on Michling's record, the minimum sentence for a subsequent controlled-substance violation is 2 years in prison as specified by Minn. Stat. § 152.023, subd. (3)b. Michling requested and was granted a downward dispositional departure by the District Court.

The State appealed the Sentencing Order on the basis that the District Court's sentencing discretion was constrained by state law. The Court of Appeals agreed, finding that in this particular case the law governing the offense contained a mandatory minimum sentence.

While the Courts' role is to interpret the law, and the statute on the offense specifies prison, this case is concerning for several reasons. The District Court made specific findings based on the knowledge and facts present as to why the state guidelines should not be imposed. In addition, in a situation involving a controlled substance, treatment and rehabilitation are important aspects in assisting the productive return of the Defendant to society. The Court of Appeals considered this argument, but determined that it is the role of the legislature to determine the appropriate punishment for crimes, and essentially, their hands are tied. Finally, the sentence originally imposed by the District Court provided for more accountability on the part of Michling. Michling would still have to do a year of jail time, and in addition, he was to be on probation for 15 years. The resentencing will very likely afford less accountability as Michling will be supervised for a shorter period of time.

If you are facing drug charges, the consequences can be severe and may result in prison time and a loss of liberties. Make sure someone is looking out for your rights by speaking with a Minneapolis Criminal Defense Attorney right away.

Jail Time Found to be Reasonable Condition

Minneapolis Criminal Defense Attorney — Tue, 13 Dec 2011 17:44:00 GMT

In State of Minnesota vs. David Steven Moody, the Minnesota Court of Appeals upheld the district court's imposition of jail time for a Defendant who had no prior criminal record.

Defendant David Steven Moody entered into an agreement whereby he would receive a stay of adjudication of his guilty plea to a fifth-degree controlled substance possession charge. Under the terms of the agreement the State agreed to limit its jail recommendation to 45 days. The district court stayed adjudication of Moody's guilty plea and placed him on probation for 5 years. As a condition of probation, the district court also ordered Moody to serve 45 days in jail. Moody appealed the district court's order that he serve jail time.

A stay of adjudication is an arrangement where the defendant pleads guilty to an offense, but the Court does not accept the guilty plea. The defendant will be given certain conditions he or she must comply with during a set time period. If the defendant successfully complies with all the conditions imposed, the Court will discharge the defendant and dismiss the charge(s). A stay of adjudication essentially allows a defendant to work toward keeping the charged offense off of his or her record. If the defendant fails to comply with the conditions set, the charged offense may be entered on his or her criminal record as a conviction.

Moody's challenged the district court's order that he serve jail time on the basis that the district court had no authority to order jail time as a condition of probation because there was no conviction. Moody also challenged the order for jail time on the basis that imposing jail time was unreasonable because he had no prior criminal record and was amendable to probation.

The Court of Appeals upheld the district court's order for jail time finding that the statute allowing for a stay of adjudication, Minn. Stat. § 152.18, does not prohibit jail as a condition of the stay. In addition, the Court of Appeals found that the district court is allowed to set "reasonable conditions," and even though Moody did not have any prior criminal record, the jail time was reasonable in light of the severity of the charges. The Court of Appeals was not hesitant to point out that Moody had agreed to the State asking for a 45 day cap of the jail time, too.

Criminal convictions can have lifelong collateral effects on a person's professional licensing, employment and housing. To ensure that your rights are protected, contact a Minneapolis Criminal Defense attorney today.

Criminal Vehicular Homicide Victim's Alcohol Consumption Relevant

Minneapolis Criminal Defense Attorney — Tue, 22 Nov 2011 22:22:00 GMT

The conviction of a Defendant found guilty of 3 counts of criminal vehicular homicide has been overturned by the Minnesota Court of Appeals, and he will be given a new trial. In State v. Jeremy Scott Nelson, the Court of Appeals maintained that the victim's blood alcohol content should also be considered if the jury is allowed to hear evidence of the Defendant's blood alcohol content. The Court of Appeals also found that the district court erred in its' instructions to the jury.

A jury found Jeremy Scott Nelson, hereafter Defendant, guilty of three counts of criminal vehicular homicide for colliding with the victim's vehicle which had entered Defendant's driving path moments before the crash.

The Defendant and the victim had been out drinking together the night of the incident and left the home of a mutual friend several minutes apart. Defendant was driving a pick-up truck and the victim was driving an all-terrain vehicle (ATV). Defendant's pick-up entered a ditch after missing a curve and struck the victim's ATV from behind after it veered into Defendant's path. The victim died several minutes after the collision occurred. Defendant's blood alcohol content almost 6 hours after the accident was measured at 0.056 and 0.058. The victim's blood alcohol concentration as measured after the accident was 0.15.

The district court excluded all evidence of the victim's alcohol consumption from the day of the accident, but allowed for evidence of the Defendant's alcohol consumption to come in at trial. A jury found the Defendant guilty of 3 counts of criminal vehicular homicide. Defendant appealed the jury conviction on the basis that the court erred in excluding evidence of the victim's alcohol consumption and by failing to instruct the jury on the proper definition of causation.

The Court of Appeals agreed with the Defendant finding that since the negligent conduct of both the parties is relevant in the death of the victim, the district court erred by excluding evidence of the victim's alcohol consumption while allowing evidence of the Defendant's alcohol consumption. The Court of Appeals also held that the jury should have been instructed that for the Defendant to be found guilty they must find that his driving conduct played a substantial part in bringing about the death or injury of the victim driver. Because the victim's ATV entered Defendant's driving path just moments before the crash, the jury should have had a specific instruction on causation as it relates to criminal culpability.

Criminal vehicular homicide or criminal vehicular operation charges are very serious and carry hefty potential consequences of prison and fines. If you have been charged with or are under investigation for criminal vehicular homicide or criminal vehicular operation, it is essential to your future liberties that you speak to a Minneapolis Criminal Defense Lawyer right away!

Suppression of Evidence Upheld by Court of Appeals

Minneapolis Criminal Defense Attorney — Wed, 02 Nov 2011 19:43:00 GMT

A district court's order denying the suppression of evidence in a drug crime case was upheld by the Minnesota Court of Appeals in the unpublished decision State v. Ryan Anthony Colclasure.

Defendant Colclasure brought a motion before the district court to suppress evidence seized on the basis that the search of his person was unconstitutional.

On June 8, 2010, Colclasure was laying on a sidewalk in front of a restaurant when police responded to call. The officer who responded knew Colclasure had previous arrests for disorderly conduct, assaultive behavior, and marijuana possession. The officer determined that Colclasure was too intoxicated to be left on his own, and the officer agreed to drop Colclasure off at his mother's house. Before Colclasure got into the squad car, the officer asked him if he was carrying any concealed weapons. Colclasure then placed his hands on the trunk of the squad car consistent with a position that is generally used for police searches. The officer then did a pat-down.

While conducting the pat-down, the officer felt what he believed to be a pill bottle. Colclasure agreed to let the officer remove the bottle from his pocket. After removing the bottle, the officer noticed that the bottle appeared to be a prescription pill bottle without a prescription label. Inside were numerous small white pills and one round orange pill. Colclasure told the officer he had a prescription for the white pills that the orange pill was Adderall. Colclasure was arrested and charged with two counts of fifth-degree possession of a controlled substance.

Colclasure brought a motion to suppress the evidence of pills on the basis that the search was illegal. The district court denied his motion after a hearing finding that the officer had legitimate safety concerns and, therefore, reasonable grounds for conducting the pat-down search. In addition, the officer testified that Colclasure agreed that he could remove the bottle, and when the officer saw that the bottle contained two types of pills with no label, there was a violation of the law. The district court found that these facts were sufficient grounds for the officer to seize the Adderall pill. Colclasure waived his right to a jury trial and submitted the matter to the district court on stipulated facts. The district court found Colclasure guilty of one count of fifth-degree possession of a controlled substance and dismissed the other count. Colclasure then appealed to the Minnesota Court of Appeals.

Pat-down searches by officers are permitted and are not unconstitutional if the officer has an objective reasonable suspicion that the individual may be armed. The officer must be able to point to specific facts to conduct the search. Officer safety is a valid reason to conduct a pat-down, and may not require additional suspicion if the officer has lawfully stopped a citizen and is going to put the citizen in a squad car. The Court of Appeals determined that the pat-down of Colclasure was validated because the officer knew of Colclasure's past assaultive behavior, and Colclasure was very intoxicated. Therefore, the Court of Appeals found there was a reasonable safety concern and thus a basis for the officer to pat-down Colclasure prior to putting him in the squad car.

Colclasure also challenged the district court's findings that he consented to the removal of the pill bottle from his pocket alleging that his consent was not voluntary. No probable cause or reasonable suspicion is required if a person voluntarily consents to a search, but if there is a challenge to the issue of consent, the state bears the burden of proving by a preponderance of the evidence that the consent was given freely and voluntarily. The court will consider the totality of the circumstances to determine whether the consent was given freely and voluntarily. In this case, the Court of Appeals agreed with the district court noting that Colclasure removed the bottle after only being asked to do so once, and there was no evidence that he ever refused to remove the bottle. In addition, he was handcuffed at the time he was asked to remove the bottle or in the back of the squad car yet.

For these reasons, the Court of Appeals found that the district court did not err in denying Colclasure's motion for suppression of the evidence.

Drug possession charges can have severe direct and collateral consequences. To ensure your rights are protected, contact a Minneapolis criminal defense attorney today for a free consultation.

No Marital Privilege for Husband Charged with Disorderly Conduct

Minneapolis Criminal Defense Attorney — Thu, 27 Oct 2011 17:36:00 GMT

In State v. Thomas Allen Zais, the Minnesota Supreme Court held that marital testimonial privilege does not apply in disorderly conduct cases.

Minnesota law has a marital privilege statute which provides that a spouse cannot testify against his or her spouse or be examined about a communication made by one spouse to the other during the marriage without the other spouse's consent. The provision not allowing for one spouse to testify against the other without the other's consent is known as the marital testimonial privilege. However, there is a crime exception to the marital testimonial privilege. The marital testimonial privilege does not apply to a crime committed by one spouse against the other. Minn. Stat. § 595.02.

In this case, the Supreme Court granted review to consider whether the marital testimonial privilege applies in cases involving a disorderly conduct charge.

Among other things, the Defendant Thomas Zais was charged with disorderly conduct arising from an incident on November 15, 2009. Before trial, Zais motioned for the district court to exclude the proposed testimony of his wife on the basis that marital testimonial privilege applied. The district court granted Zais' motion finding that the crime exception to the martial testimonial privilege did not apply to the disorderly conduct charge, and, therefore, his wife could not testify without Zais' consent. The State appealed the district court's order, and the Court of Appeals reversed the finding and remanded the matter.

On review to the Supreme Court, Zais argued that the crime exception to the marital privilege does not apply to a disorderly conduct charge because disorderly conduct is not a crime committed by one spouse against the other. The Supreme Court disagreed. In examining the elements of the crime of disorderly conduct and also the underlying conduct of Zais to determine whether the crime was "committed" by Zais against his wife, the Supreme Court found that Zais' conduct was done against and directed at his wife. Therefore, the disorderly conduct charged offense was committed by Zais against his wife, and the crime exception to the martial testimonial privilege applies and Zais' wife can testify against him at trial.

Get the protection you need. If you have been charged with a crime, contact a Minnesota criminal defense attorney today.

Suppression of statements in 2nd Degree Criminal Sexual Conduct Case Upheld

Minneapolis Criminal Defense Attorney — Tue, 18 Oct 2011 20:32:00 GMT

In an unpublished opinion, the Court of Appeals upheld a district court's order suppressing two interviews in a criminal sexual conduct case involving a minor on the basis that the interviews were conducted in violation of Minnesota state law and were unreliable hearsay. State v. William Franklin Wanner.

On December 31, 2009, William Wanner was charged with two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2008). The charges were based on allegations that Wanner had put his hand inside the crotch area of a ten year-old girl's bathing suit while they were swimming at a club. The incident was observed and reported by a woman also swimming at the club on December 27, 2009.

On December 29, 2009, the ten year-old took place in a CornerHouse interview where she denied that Wanner had touched her inappropriately. She indicated that she and Wanner play games in the pool and Wanner may have accidentally touched her "private" parts during a game. Immediately after the CornerHouse interview, the ten year-old, her parents and a Sergeant from the Minneapolis Police Department went into a private room where the ten year-old was questioned again by the Sergeant and accused of lying during the CornerHouse Interview. The Sergeant attempted to get the ten year-old to admit that Wanner intentionally touched her. Finally, the ten year-old admitted that Wanner had massaged her crotch.

On January 5, 2010, the Sergeant again interviewed the ten year-old at her school. Her parents were not present, but a school counselor and a county child-protection agent were there. The Sergeant again asked the ten year-old more questions about the alleged criminal sexual conduct, and the girl told him that Wanner had shown her his "private" areas, had her touch his "private" areas, and had also touched her in her "private" area several times in his car.

Wanner brought a motion to suppress the two interviews conducted by the Sergeant . The district court granted the motion to suppress the two interviews on the basis that there were unreliable hearsay. The Court of Appeals, in upholding the district court's Order, reasoned that because the interviews were conducted by police to develop a factual basis to bring charges against Wanner, the interviews were testimonial. The Confrontation Clause of the Sixth Amendment of the United States Constitution prohibits the admission of testimonial statements where the witness is unavailable to testify unless there has been an opportunity for the defendant to cross-examine the witness. Therefore, since Wanner did not have a chance to cross-examine the ten year-old at the interviews, they cannot come if the ten year-old does not testify.

Even if the ten year-old were to testify, the Court of Appeals still upheld the district court's Order and suppressed the interviews because under the rules of evidence a prior inconsistent statement by a testifying witness is only admissible if the prior statement were given under oath. Neither of the interviews were given under oath.

Finally, the Court of Appeals analyzed whether or not the interviews would be admissible under an exception to the hearsay rule. However, for an out-of-court statement to be admissible it has to be "equivalent circumstantial guarantees of trustworthiness." The Sergeant was confrontational in the interviews, accused the ten year-old of lying, and asked leading questions, as such, the trustworthiness of the content of the interviews is highly suspect. Therefore, the Court of Appeals upheld the district court's Order suppressing the two interviews.

The direct and collateral consequences of criminal sexual conduct charges are severe. Make sure you do everything possible to protect yourself by contacting a Minneapolis Criminal Defense Attorney right away.

DWI Illegal Seizure Overturned

Minneapolis Criminal Defense Attorney — Sun, 16 Oct 2011 23:55:00 GMT

A district court decision that held a driver charged with DWI had been illegally seized was reversed by the Minnesota Court of Appeals recently in the unpublished opinion Statev. Derek Wayne Johnson.

The stop occurred on April 8, 2011 when a Hibbing police officer was dispatched on a report that headlights had been seen on a mine dump. The officer drove on an all-terrain (ATV) trail to reach the area where the headlights were seen. Because the trail narrowed, the officer was forced to park his squad car and continue on foot to the immediate area where the headlights were seen. Upon approaching the lights, the officer saw an ATV with two individuals on it facing down the trail toward him. There was brush on both sides of the trail, so to leave the driver would have had to reverse and back out on the trail or drive forward directly past the officer. The ATV was not running, but the keys were in the ignition and the headlights were on. Johnson was driving the ATV and said that he and his passenger were out for a drive. The officer smelled alcohol and noticed that Johnson and his passenger had watery eyes. Johnson admitted to consuming a few beers, and the officer asked him to perform some field sobriety tests which he failed. Johnson was arrested and submitted to a breath test which revealed a blood alcohol concentration of 0.22.

Johnson was charged with 2nd degree Driving While Intoxicated (DWI) because he had a prior DWI conviction from 2009 and the high test results constituted an aggravating factor. Johnson brought a motion to suppress evidence and dismiss the charges on the basis that all the evidence was discovered after the officer illegally seized him. The district court granted Johnson's motion and dismissed the charges finding that under a totality of the circumstances the seizure was illegal because "any reasonable person [ ] would have believed that they were not free to leave and that any attempt to leave could subject them to criminal charges of fleeing police officer."

All parties agree that there was no reasonable, articulable suspicion of criminal activity prior to the officer approaching the ATV, so the only issue for the district court and the Court of Appeals to consider is whether the officer's actions constituted a seizure. Minnesota courts have previously held that not all encounters with a peace officer constitute a seizure. "A seizure occurs when an officer, 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). Under the objective reasonable-person standard, a seizure occurs when that person believes that he or she is not free to disregard police questioning or to leave. Id.

Johnson argued that there was a seizure because he was not free to leave because the officer was blocking the trail. However, the Court of Appeals determined that there was no seizure reasoning that the officer did not use any emergency lights, approached on foot, did not make any verbal commands and simply identified himself as law enforcement as he approached.

If you have been arrested for DWI speak to a Minneapolis Criminal Defense Attorney about your rights today.