Monthly Archives: October 2017

How to Get Rid of a Domestic Abuse No Contact Order in Minnesota

In a criminal case with a “domestic relationship” element, it’s common for the court to issue a No Contact Order prohibiting the accused from having contact with the person claimed to be “the victim.”  The person they’re calling their victim is not consulted; is not asked.  In fact, the witness they’re casting in the victim role has no real voice in this – at least not in Minnesota in 2017.  He or she cannot “press charges;” can’t “drop the charges.  The current system takes the control away from him or her, and gives it to the prosecutor.  It’s been that way for decades.

If you are the accused, forget it.  The judge is not going to drop the no contact order for you.  No, this is written for the witness – one forced into the role of victim of the prosecution.

Ain't Nobody's Business If I Do

Ain’t Nobody’s Business If I Do

If you are the witness in a misdemeanor domestic assault case, for example, chances are you want the no contact order dropped.  But how?  The information here should help get you started, regaining control over your life – taking it back from the government.

Does this scenario sound familiar?  You and your other were enjoying some free time together, with adult beverages.  After a few drinks, some conflict and less restraint in expressing it.  Somehow, the police got called.  The 911 call – by whomever – was recorded.  Tempers flared.  Police officers showed up.  They picked someone to arrest, sometimes with help.  In what now seems like no time, it’s over.  They’re gone.  And so is your other, who is now in jail.  Work was missed.  Bail money.  A lawyer.  And – a No Contact Order.  The pretrial No Contact Order could be in place for months.  After that, it may be replaced with a probation No Contact Order for years.

In order to know how to try to get rid of it, it’ll help to understand what it is – to drill down into it.  Here we go.

In a criminal case, any kind of criminal case, the court can and often does set conditions of pretrial release.  Or it can release the accused on their personal recognizance (meaning no conditions, just show up for court appearances.)  One condition of pretrial release the court can require is bail.  Bail can be in the form of cash or a bond.  In Minnesota, we have the right to pretrial release on money only bail, or unconditional bail.

In other words, we have the right to be presumed innocent before a trial and release without any conditions other than bail.  For non-felony cases there is a maximum bail.  (For felony cases, there is no maximum.)  The maximum bail for a non-felony case is four times the maximum fine.  The maximum for a misdemeanor is $1,000 so the maximum bail is $4,000.

For a gross misdemeanor the maximum fine is $3,000 so maximum bail is $12,000.  Since we have the right to money-only bail, without any other conditions, in a non-felony case the maximum bail must be without other conditions.  And, perhaps not coincidentally, when judges set unconditional bail amounts in non-felony cases, it’s equal to the maximum:  $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case.  This is good to know, since most domestic assault cases are non-felony.

It also means that the court cannot issue a no contact order as a condition of pretrial release in a non-felony case if the defendant posts maximum bail.  Some people were not happy with that.  So, several years ago Minnesota adopted a statute authorizing courts to issue a Domestic Abuse No Contact Order – a name so long it soon was more often referenced by an acronym, D.A.N.C.O.  It was modeled after the earlier Minnesota Domestic Abuse Act’s Order for Protection law, a civil case heard in family court but with criminal penalties for violations.

Bottom line, a defendant can now post maximum bail in a non-felony domestic assault (or similar) case, and get no other conditions of pretrial release, yet still be subject to a DANCO.  Minnesota Statutes §629.75, Subdivision 1 (b), says in part:

“A domestic abuse no contact order is independent of any condition of pretrial release or probation imposed on the defendant. A domestic abuse no contact order may be issued in addition to a similar restriction imposed as a condition of pretrial release or probation.”

Perhaps a court will properly strike down the law as unconstitutional one day, but that is beyond the scope of this article.  This is a description of what courts are doing now in Minnesota.

It’s important to understand that in a criminal case there could be two no contact orders: one as a condition of pretrial release, the other as a DANCO.  It may help to understand the distinction by looking at the remedy for a violation to each.  If a condition of pretrial release is violated, the remedy is for the court to issue an arrest warrant, book the defendant into jail, and revisit the issue of pretrial release in a new bail hearing.  If a DANCO is violated, that can be charged as a new, additional crime with a different date of alleged offense (compared to the original criminal charge).  There could be an arrest, jail, a bail hearing, on that new charge of violation of a DANCO.   (The one, same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)

As a result, at least when it comes to the No Contact condition, it may not matter much whether the defendant posts maximum, unconditional bail or not.

Do courts ever rescind or get rid of No Contact Orders?  Yes, sometimes, but they make it difficult.  The reality is that the witness (“the victim” of the prosecution) has no real voice unless they work hard and persevere.  It helps if he or she knows how to go about it.  It also helps to have a witness lawyer helping make sure that he or she will be heard.

Domestic violence cases, perhaps like many things, vary along a continuum.  A few are horrific; but the vast majority are not.  Just ask any police officer what the most common 911 response call is – “a domestic.”  In how many of these cases is alcohol a factor?  Almost all.  The majority do not involve any physical harm or injury or minimal like a slap, bruise or scratch.  The harm caused by the criminal prosecution in response is typically massive and disproportionate.  But you already know that now, don’t you?

The number one question when you go to court will be: “are you afraid of him or her?”  What is written in the police reports will be reviewed, over and over.  People are not always the best historians when they are angry and drinking.  (But discussing the events of the night in question is often not a good idea.  Discuss with your lawyer before doing so.)

“Did you say, ‘when you go to court?”  Yes, you as the witness, were never asked and now the burden has been squarely placed on your shoulders to go to court to plead with the prosecutor, then the judge to drop the no contact order.  It’s your only chance.  (The prosecutor or their “advocate” may discourage you from coming to court to ask the No Contact Order be dropped.  If you don’t come, it won’t get dropped.)

Many prosecutors have people working for them claiming to be “victim advocates.”  Leaving aside the prejudicial “victim” labeling, are they really advocates?  A few good ones are.  But many see themselves as the advocate of the prosecution agenda, whose job it is to control and manipulate “their” victim to serve the ends of the state.  The few good ones actually listen. The best will even fight for the witness’s position and truly advocate for it.  Which type will you get?  Luck of the draw.  If you get a good one, this is good fortune.  The bad ones are best ignored to every extent.

Minnesota has a Victim’s Rights Act, Minnesota Chapter 611A.  One might think that prosecutors claiming to represent “victims” interests would use and cite this law often.  I’ve almost never heard it happen.  But I have cited it in most of my domestic assault defense cases, and every time I’ve represented a witness.  Why?  Because the law says that prosecutors and courts are required to listen to the “victim” and allow them a voice.  But many don’t seem to want to hear it.  Many prosecutors want to use the witness for their purposes and disregard the effect on their real lives, only to discard after use without thought or care.

It helps for the witness to have a lawyer experienced in domestic violence cases.  Your lawyer should know the courtroom, the players, and how to make sure your voice is heard.  We will not be ignored.  We will make your voice heard.

More can be written.  More could be said.  Hopefully this brief discussion has been useful for you.  It’s a stressful situation to call police for help, only to have them and their prosecuting lawyers turn into the enemy that threatens to ruin you and your family.  But there are countermeasures.  You can assert your power.  You don’t need to let them have it.  You can fight back, and regain control over your life.

If you have more questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense to discuss your options.

Thomas C. Gallagher is a Minnesota domestic violence defense lawyer with over 29 years experience with domestic assault and other domestic crime cases and Minnesota restraining orders.  He regularly represents the accused to successful outcomes; and sometimes is retained as a witness lawyer.

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.   But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

What can you do to reduce the chance of getting caught? Here are nine tips:

  1.   Situational awareness.  Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.  Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.  There will be a traffic stop.  When it does happen; marijuana should not be in the car.  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
  2.   Odor.  The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.  Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.  And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.  Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.  It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

    “I’m late, for a very important date.”

  3.   Consent?  “No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.  Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.  Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”   If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
  4.   You can do both: don’t lie and don’t admit. How?    Remain silent.  Or if words come out of your mouth make sure that they are not lies, and do not relate to illegality.  More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong!  Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.  Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe it for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
  5.   Unlawfully prolonged detention: “Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”  Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.Is that legal?  Suffice it to say that the courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.  But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. assert and communicate a desire to end it and leave?”  A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity.Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.  The best way to make a record of that is to ask: “Officer am I free to go now?”  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.  This will help your lawyer challenge the legality of the search and arrest later, should it come to that.  At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)
  6.   “You have the right to remain silent.” When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!  If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.  No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.
  7.   Field Exercises. Sometimes police may want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.  What to do?  Don’t!  Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.  When you do, the police officer may invite an excuse.  But don’t take that bait.  Any excuse could be incriminating, even if falsely.  Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
  8.   Smile, you’re being recorded. From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.  This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.  Phone calls from jail are almost always recorded for potential later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.
  9.   Keep your cool if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm.  The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent.  Most people will be able to get out with a few days or less.

Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

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