Category Archives: Legal Rights

How to Drop a No Contact Order in Minnesota

Can you drop a no contact order in Minnesota?  If you asked for it in family court in the first place, it’s civil and you can drop it.  But if it’s in a criminal case, you’ll need to work at it.  Here’s how.

No Contact Orders in Criminal Cases

A crime with a “domestic relationship” element is a domestic crime.

In domestic crime cases, courts issue a No Contact Order.  It prohibits the accused from having contact with the person claimed to be “the victim.”

They’re not consulting the person they’re calling their victim.  In fact, the witness they’re casting in the victim role has no real voice in this – at least not today.  He cannot “press charges.”  And. she can’t directly “drop the charges.”

The current system takes the control away from her.  And it gives her control to the prosecutor.  It’s been that way for decades.

Your Role in the Drama Makes a Difference

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

Billie Holiday: "Ain't nobody's business if I do."

Billie Holiday: “Ain’t nobody’s business if I do.”

If you are the witness in a domestic assault case chances are you want to drop a no contact order.

But how?  The information here should help you start 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, a call went to the police.  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.

How Long Does a Criminal No Contact Oder Last? 

The pretrial No Contact Order could be in place for months.  After sentencing, a judge may replace it with a probation No Contact Order, for years.

To know how to drop a no contact order, you need to understand what it is.  So let’s drill down into it.

Conditions of Pretrial Release

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.  And 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.

Unconditional Bail

In other words, we are presumed innocent before a trial.  And we have the right to pretrial release without any conditions other than money-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.  For a misdemeanor $1,000 is the maximum fine, 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, in a non-felony case the maximum bail must be without other conditions.

And, perhaps it’s no coincidence.  But when judges set unconditional bail in non-felony cases, it’s equal to the maximum.  That’s $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case.  That could matter, since most domestic assault cases are non-felony.

Therefore, if the defendant posts the unconditional bail, a no contact” cannot be a condition of pretrial release

“Well, we can’t have that.”

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.  That name is so long that we often use the acronym, D.A.N.C.O.

The earlier Minnesota Domestic Abuse Act’s Order for Protection law was the model.  The OFP is from a civil case heard in family court but with criminal penalties for violations.

They got you covered, either way

Bottom line, a defendant can now post unconditional bail, with no pretrial release conditions, but 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 strike down the law as unconstitutional one day.  But that is beyond the scope of this article.  And this is about what courts are doing now in Minnesota.

Two layers of no contact orders

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.  The distinction is clear when we look at the remedy for a violation of each.

If a condition of pretrial release is violated, the court’s remedy is to issue an arrest warrant, jail, and revisit the issue of pretrial release in a new bail hearing. 

But a prosecutor can charge a DANCO violation as a new, additional crime.  The DANCO violation crime will have 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 same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)

As a result, when it comes to the No Contact condition, the defendant gets no benefit from the higher, unconditional bail.

Do courts ever drop a No Contact Order?

Yes, sometimes, but they make it difficult.

The reality is that the witness has no real voice unless they work hard and persevere.  To drop a no contact order, it helps if 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 knew that, didn’t you?

Are You Afraid of Him?

The number one question when you go to court will be: “are you afraid of her?”  Hearsay 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.  So discuss with your lawyer before doing so.)

when you go to court?” 

Yes, you as the witness, were never asked.  And now they’ve placed the burden  squarely on your shoulders to go to court.  You will plead with the prosecutor, then the judge to drop a 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.)

Prosecutors have “victim advocates.”  Leaving aside the manipulative “victim” labeling, are they really advocates?  A rare few are.

But most see themselves as the prosecution advocate, whose job it is to control and manipulate “their” victim to serve 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.

Your Rights under Minnesota’s Victim’s Right Act

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 must listen to the “victim” and allow them a voice.  But many don’t seem to want to hear it.  Many prosecutors just want to use the witness for their purposes.  Prosecutors often  disregard the effect on witness’s real lives.  The prosecutor discards the witness after use, without thought or care.

A Lawyer Can Help You Drop a No Contact Order

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.  And 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 stressful to call police for help, only to have them take over your life.  They and their lawyers turn into an enemy that threatens to ruin you and your family.  But there are countermeasures.  You can assert your power.  Don’t let them have it.  You can fight back, and regain control over your life.

Drop a no contact order in Minnesota

Drop a no contact order in Minnesota

If you have questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense.

Thomas C. Gallagher is a Minnesota domestic violence defense lawyer with decades of 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.

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

“Officer, am I being detained? I’m late, for a very important date.”

As of this writing, ten states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older.  And, most 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 2019 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.  We should re-legalize in Minnesota.  And here is What Marijuana Legalization Should Look like in Minnesota.  In the meantime, watch your six!

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.

Minnesota:  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).

Beware: a “small amount” of marijuana concentrates such as THC oil, dabs, marijuana wax, is always a crime under a loophole in Minnesota’s decrim law.  And over 1/4 gram of the resinous form of marijuana is a felony in Minnesota under that technicality.

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.)

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.

The rape metaphor:  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 do 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 answer!

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 that 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?

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. 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.  It doesn’t matter what the answer is.  If you ask the question, you’re winning.

This will help your lawyer challenge the legality of the prolonged detention, 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 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.  If you do them, you will fail.  If you don’t, you won’t.

What to do?  Don’t! 

Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “One leg stand,” “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.  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.

Important:  (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 recorded for 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, cool, collected.

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 within a few days or less.

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Have a comment?  You are welcome to leave your comments and responses below.

Forfeiture Law: Minnesota Legislature Protects Marriage, Brings Back Innocent Owner Defense

Imagine that you are married to someone who has been struggling with alcohol addiction.  Your spouse has been sober for an encouraging length of time.  Then one day you get a call.  Your spouse has had a slip and been arrested for DWI.

The police have seized your $40,000 car – the one he or she was driving at the time – for administrative forfeiture.  That doesn’t feel right, does it?  Could it be the last straw that stresses and breaks a struggling relationship, leading to another failed marriage?

Effective August 1, 2017 in Minnesota, as an innocent owner you will now be able to challenge the forfeiture of your vehicle to the government in court and assert the “innocent owner defense” even where your spouse was the DWI driver of that vehicle – thanks to the Minnesota legislature and Governor this year.

The new law, which amends Minnesota Statutes Section 169A.63, subdivision 7, effectively overrules a 2009 Minnesota Supreme Court case, Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009).  In that case the court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), did not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle.

The majority’s rule was that all joint owners of a motor vehicle must be innocent in order for any owner to employ the innocent owner defense in Minn. Stat. § 169A.63, subd. 7(d).  For a discussion of the Laase case the day the decision was released click here: Minnesota Supreme Court Rules Against Innocent Spouse under DWI Car Forfeiture Statute.

Though spouses may be the most often affected, as co-owners of a vehicle with a DWI offender, the law in this area goes beyond spouses and applies to “family or household members” of the offender who are co-owners.  The definition of “family or household member” is broad, and includes a parent, stepparent, or guardian; persons related by blood, marriage, or adoption as brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; and persons residing together or persons who regularly associate and communicate with one another outside of a workplace setting.

Who is an “owner?”  The innocent owner defense statute defines “owner” as “a person legally entitled to possession, use, and control of a motor vehicle, including a lessee of a motor vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner.”  Note that the car title is prima facie evidence of ownership.  In other words, it creates a rebuttable presumption.  Ownership can be proven by other evidence as well.

What is the innocent owner defense?   As of August 1, 2017, Minnesota Statutes 2016, section 169A.63, subdivision 7 “Limitations on vehicle forfeiture.” will read:

“(d) A motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence that the petitioning owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the petitioning owner took reasonable steps to prevent use of the vehicle by the offender. If the offender is a family or household member of any of the owners who petition the court and has three or more prior impaired driving convictions, the petitioning owner is presumed to know of any vehicle use by the offender that is contrary to law. “Vehicle use contrary to law” includes, but is not limited to, violations of the following statutes:
(1) section 171.24 (violations; driving without valid license);
(2) section 169.791 (criminal penalty for failure to produce proof of insurance);
(3) section 171.09 (driving restrictions; authority, violations);
(4) section 169A.20 (driving while impaired);
(5) section 169A.33 (underage drinking and driving); and
(6) section 169A.35 (open bottle law).”

The burden of proof is on the owner petitioning to get their car back, to prove by “clear and convincing evidence” either that he or she “did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law” or that he or she “took reasonable steps to prevent use of the vehicle by the offender.”  The term “constructive knowledge” is not commonly used outside a legal context.

“Constructive” here means, essentially, circumstantial evidence proving “knowledge.”  It may refer to the list that follows, for “family or household members” who are  “presumed to know of any vehicle use by the offender that is contrary to law.”  Though that last phrase may be ambiguous, it seems to refer to past (as opposed to future) “vehicle use by the offender that is contrary to law.”

This presumption is rebuttable, however, and so does not seem to change the burden of proof, already upon the owner asserting the innocent owner defense.  In other words, the burden is on the owner asserting lack of knowledge that he or she did not know.

Thomas Gallagher is a Minneapolis DWI Defense Lawyer who regularly represent people in forfeiture cases.

Countermeasures at a DWI Stop: the Party Question

Is it a crime to drink and drive? Of course it is not.  But there are people out there – like MADD people – who appear hellbent upon changing the laws to bring back the Alcohol Prohibition, one step at a time.

It used to be “drunk driving” was a crime. Then in the 1970s the criminal laws were expanded to include “per se impaired driving laws.”   Per se roughly translates from the Latin to “the thing itself” or “by itself.”

A per se drunk driving law is a law that makes driving with an arbitrary alcohol-level a crime – even if the driver is not drunk, not impaired at all. That’s why you don’t hear the term “drunk driving” much anymore.  But why should it be a crime to drive when driving skills are not impaired?

Ok.  So the laws are unfair, and morally bankrupt – punishing the innocent and their families for no good purpose.  Fine.  There it is.  So how can you protect yourself and your family from this potential injustice?

What can a person do during a DWI stop to protect their rights?

This is mostly a question that criminal defense lawyers hear at a party.  Why?  Because almost all people stopped and later charged with DWI didn’t do any of these things.  But it can make for great conversation at a party.  There are a few different approaches and answers to the question.  So let’s narrow our hypothetical, and provide one.

Since most people stopped for a possible DWI have an alcohol concentration of less than 0.15, have no priors, and have not exhibited impaired driving conduct – let’s start with all of those assumptions, as well as assuming Minnesota laws.  Given the low speed limits these days and the most drivers travel faster than the speed limit most of the time, let’s assume a police officer stops the driver for speeding late one Friday or Saturday.   The police squad car take-down lights are visible in the rear-view mirror.  Now what?

The Police Officer Approaches the Vehicle

Police are trained to observe all of your actions and note any that could be interpreted as supportive of suspicion of impairment (and ignore the rest).  At this phase these include:

  • odor of alcohol
  • eyes – “bloodshot, watery”
  • couldn’t find or fumbled with driver’s license and insurance card
  • admitted drinking, coming from a bar, a party

What are some potentially effective countermeasures, then? If the window is not open, or open about an inch or so – that is plenty to pass the drivers license and insurance card through, but not enough to expose the odor of alcohol.  You can refuse to lower the window to force the officer to make a command to do so, making it difficult for them to argue you did so voluntarily.  When speaking to the police officer through the almost closed window, the driver can avoid eye contact.  This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.

It’s a good idea to have the drivers license and insurance card in hand immediately after stopping, well before the police officer walks up to the vehicle to request those.  They are in your hands already, which are in plain sight on the steering wheel.

If asked “have you been drinking tonight?” you are not required to answer or answer responsively.  It is a bad idea to lie, for many reasons, so don’t.  It is also a bad idea to admit facts the officer can use to build “probable cause” to ask you out of the car, or for arrest later.

If you were stopped for speeding, the police officer should just write you a speeding ticket and send you on your way – unless you give him or her probable cause or reasonable suspicion to justify asking you out of your vehicle.

Police ask you to step out of the car.  Now what?

If you use the car or car door for support when getting out or walking, they will note that as suspicious.  So don’t.  They will ask you to walk behind your car, in front of theirs.  Their squad car lights will be on full brightness.  They will ask you to perform field exercises they like to call “Field Sobriety Tests.”  These are not scientifically valid, though the government claims otherwise.  Sober, trained police officers “fail” these “tests.”  How will you “pass” them?  And who is your judge?  The police officer!  What to do then?

Do not perform field exercises when asked to do so.  Do not do “Field Sobriety Tests!”  Common ones include:

  • Nine step walk and turn
  • One leg stand
  • Recite the alphabet, backwards etc.
  • Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
  • Walk a straight line

You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them.   “Why won’t you do them?”  “A lawyer told me that I don’t need to, and shouldn’t.”

“Preliminary Breath Test” (PBT)

Minnesota statutes authorize police officers to require a driver to blow into a PBT machine – a portable breath-alcohol machine only under certain conditions where there is a basis to suspect DWI or selected other alcohol-related offenses.  Don’t worry about whether those preconditions exist at this point.  Your lawyer can do that later if need be.

What is important is that a PBT machine report of 0.08 or more can provide probable cause to arrest for DWI, and so can “refusal” to perform a PBT. Refusing a PBT is not a crime.  That would only provide probable cause to arrest.

One can imagine a logical person, knowing that, deciding to refuse the PBT if they felt sure they would end up with a PBT report of well over .08, for example .16 or more.  That person might feel they would have nothing to lose by refusing – since they would be arrested either way.  Compare that to a person who believed they would get a PBT report of less than 0.08.  That person would be foolish to refuse it, since it could result in their not being arrested.

Keep in mind that the little PBT machine on the side of the road, is not the same as the big, evidentiary breath-alcohol machine at the police station.  If a person is arrested for DWI, they can be asked to submit a sample for alcohol testing again, even though they already submitted to a PBT.  The PBT report is not admissible in a criminal DWI trial because they are deemed too unreliable and inaccurate for that purpose by the legislature.

If arrested, then what?

Every step further in the chain of events described above brings the driver closer to arrest (unless the PBT is less than 0.08).   If the PBT reads too high, that and the rest will be followed typically with handcuffs and the back of the squad car.  Then normally the arresting officer will wait for back up or a tow truck, and leave for the police station once either arrives.  Talking is not a good idea at any point, including while in the squad car.

At or near the police station (or hospital for a blood draw), the police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.

The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.

It is always, always, always – a good idea to call a lawyer first!  The police are required by law to help you do so.  If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.  You should always make every effort to call a lawyer in this situation – even if you are still sitting in the squad car in handcuffs!  Tell the officer you want to call a lawyer.   This part is usually recorded – a good thing.

The other important right is secret in the sense that it is never mentioned in the “Implied Consent Advisory” by the cop.  what is it?  It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.”  Say what?  You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. In this situation, the arrested person should always, always, always request an Additional Test.  If you do, the police are only required to give you a phone to use.  You can use the phone to call whoever you need to call to arrange for an additional test.  See the midnight DWI jail call to a Minnesota lawyer blog post for more on this issue.

Stay safe out there.

By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer.

The Trial of Jesus: A Criminal Law Perspective

The Trial of Jesus is the most famous trial in history – really, two trials. From a criminal law perspective, the trials are fascinating for many reasons, on many levels.

trial of jesus

Witnesses Against Jesus

This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin.  The University of Chicago Press published it in 1931. Radin brings a lawyer’s eye to the historical record.  He cites Christian, Roman, and Jewish sources, as well as succinctly developing the context.

A few areas of interest we shall discuss here include:

  • The Snitch identifies Jesus and betrays him, but later refuses to testify.
  • Prosecutor asks “why would they lie?”
  • Jesus pleads the Fifth
  • The Witness Corroboration Rule stronger then, than now
  • Politics influences criminal law
  • Death Penalty for slaves and foreigners, not Romans

The first trial of Jesus, before the Sanhedrin – a religious crime

“Mark” is the oldest written Christian Gospel.  His account has the most attention to detail.  It also shows the best understanding of the laws and procedures of both the Jewish government and the Roman government.  His writings make clear his motive, however.  He would to persuade us that Jesus was innocent of any crime that a Jewish court could convict a person.

But is it so? Deuteronomy 18:20 prescribes a death penalty for “the prophet which shall presume to speak a word in my name which I have not commanded him to speak.” This false prophesy crime may have been the statutory charge at the first trial of Jesus, before the Sanhedrin.  The Sanhedrin was a group of political leaders acting as a court in Judea.

The Witness Corroboration Rule

Mark tells us: “And the chief priests and all the council, sought for witnesses against Jesus to put him to death; and found none.”

For many bore false witness against him but their witnesses agreed not together

“We had heard him say, I will destroy this temple that is made with hands, and within three days, I will build another made without hands.”

But neither so did their witness agree together.”

Prosecutor asks “Why would they lie?”  Jesus Pleads the Fifth.

Mark continues:  “And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing?  What is it which these witness against thee?”

“But he held his peace, and answered nothing.”

Minnesota abandons the ancient Witness Corroboration Rule – a protection for the innocent

At the time Jewish law required corroboration of a witness’s claims by other witnesses.  One witness cold not support a conviction.  The multiple witnesses must “agree together.” 

Roman law did also, as did the laws of many other ancient civilizations.   This law continued throughout the ages.  It continued through English law which we in the United States inherited, as Common Law.

Later, modern legislatures enacted many Common Laws into statute, including in Minnesota, and including this one.

But in the late 20th Century the Minnesota legislature amended Minnesota Statutes to significantly degrade this ancient legal right.  The right had long served to protect innocents from false witnesses and false charges.

The Sanhedrin council conviction requires a second, Roman trial

The Sanhedrin council deliberates then convicts him of the crime a false prophecy.  They had him bound and sent to Pilate, the Roman Governor.

As a subject state, the government of Judea at the time had no legal authority to execute a death sentence.

Previously, when they did have that authority, the Sanhedrin had four forms of it.  The four forms of the death penalty in Judea were hanging, burning, and decapitation – but not crucifixion.

Since they did not have the legal power to kill him, they brought Jesus to the Roman Governor Pilate.  The Roman overlords could execute a death penalty.  (By this time Rome had long abandoned the death penalty for Roman citizens.  They used it only against slaves and non-citizen foreigners.)

The Second Trial, to the Roman Governor – a political crime

Pilate had the legal authority to execute the Sanhedrin’s death sentence alone (to review the first trial).  But he chose to conduct another Trial, on a different criminal accusation, instead.

At this trial, the Romans accused Jesus of a political (not religious) crime.  The Roman government accuses Jesus of claiming to be The King of the Jews, a rebel against Roman authority. 

The Romans already had a King of the Jews – theirs.  Any challenge to the authority of the Jewish government in Judea was a challenge to Roman authority.  After all, the Jewish King was subject to Rome.

Jesus pleads the Fifth, again

Cross examination of the defendant:  As Mark tells us, 15:2:  “And Pilate asked him, Art thou the King of the Jews?  And he answering, said unto him, Thou sayest it.

“the chief priests accused him of many things but he answered nothing.

“Pilate asked him again, saying, behold how many things they witness against thee.”

“But Jesus yet answered nothing; so that Pilate marvelled.”

So, at the second trial of Jesus, he again refused to answer the accusations.

 The Passover lenity tradition

These trials took place during the week-long Passover time.  Traditionally, the government granted the People the freedom of a condemned person at Passover.

Both Jesus and a rebel named Bar-Abbas were named as a candidates for leniency. 

Though the Roman Governor granted leniency to Bar-Abbas, and not Jesus, many dispute the motivation for this.  The writers of the Christian Gospels seem to want to absolve the Roman Governor and blame the crowd. 

But Radin points out that the crowd was indoors, smaller, with those who had convicted him previously.  And, Bar-Abbas was popular locally.  Jesus was from out-of-town.

Radin also points out that the early Christians were mostly Greek and Roman, not Jewish; and there could have been a motive to slant the story to appeal more to potential Roman converts.  And Christianity did become a religion largely of Rome, not the Middle East.  Some characterize this “crowd pardon” part of the story as another, third, trial of sorts, like a sentencing trial.  Radin is convincingly skeptical of this idea.

Through history, some want to conflate a conflict between Christians and Jews, based upon Faith.  But, the facts don’t support that.  There were few Christians then and many religious leaders with small followings.  It was instead another political killing of a possible rebellion against Roman authority, and its local puppet government.

A Parade of Humiliations and Torture

After the second trial of Jesus, the Roman Governor sentenced Jesus to crucifixion, which included “scourging” before.  But a parade of other humiliations preceded those.

After the Roman Trial of Jesus, the penalty begins: scourging at the post

After the Roman Trial of Jesus, the penalty begins: scourging at the post

The Romans emphasized his conviction for claiming to be the King of the Jews.  Roman soldiers clothed him in purple, like a king, and put a crown of thorns on his head.  Then they hit him on the head.  Then they put him back in his old clothes.  The Romans plucked his beard.  And they scourged him.

The Roman’s crucifixion caused death because of the scourgingIt was a brutal whipping with objects on the whip strands.  The whip barbs would claw away skin, flesh and muscle down to the bone.  The scourging was just short of killing the person. 

At one time, the person scourged was then bound to a tree.  Later they replaced the tree with a timber gallows or Roman cross.  Death was slow, painful and public.  Death was by suffocation.

The small mercy of drugs – refused

Sometimes soldiers or passersby took pity on a person hanging on a Roman cross.   They would give the person “vinegar” – a low quality wine with myrrh.  This would help dull the mind and relieve the pain, and perhaps hasten the death by suffocation.  (The person had to stand on their feet, as hanging by the arms would suffocate them.)  When offered, Jesus refuses the drug.

Roman propaganda

The Romans put up a sign, as they commonly did to deter others.  The sign over the head of Jesus on the Roman cross said, THIS IS THE KING OF THE JEWS.

The location of crucifixions was near a road in a public place.  This made a public warning of criminal behaviors people should avoid.  The Romans crucified Jesus near other convicted criminals, as was commonly done along the roadwayHis accusers came to mock him there, challenging him to come down if he really were Messiah.

Judas the snitch, doesn’t testify

Radin discusses the Judas story with some skepticism. And he provides a basis for that skepticism in his book.  One observation bears repeating here, however.

Judas was one of the twelve disciples at the Last Supper, of course.  He betrays Jesus.  And he becomes a snitch for the authorities, by identifying him at the time of his arrest (before the trials).

Accounts of what happened with Judas after that differ.  But, Judas did not testify at either trial of Jesus.   He didn’t testify at the religious crime trial, or at the political crime trial.

Criminal lawyers are familiar with this phenomenon today, and the various reasons for it.

Lessons for the law today

Radin’s book The Trial of Jesus of Nazareth is wonderful.  It examines the Christian Gospels versions of the trials, written a couple of hundred years after the fact.  But it also covers the limited contemporary commentators, about these events.  He explores the historic and political context.  This helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.

As criminal lawyers, we see the use of criminal trials by religious and political authorities to stop a threat to power.  Along the way, we have a snitch who assists the arrest but won’t testify.

We have a highly intelligent accused.  Without a lawyer, he refuses to answer questions or accusations by witnesses, prosecutors or the authorities.  This was the last story about Jesus acting as a criminal defense lawyer.  But it’s not the first.  You might like our article: Jesus as Defense Lawyer: The Woman Accused of Adultery.

We have documentation of the ancient right to require witness corroboration of the details of an accusation.  And we have an ancient record of the rejection of the death penalty for civilized people.  The Romans limited the death sentence to the “other:” less civilized, subjects.

Yes, there is much more yet, to this great story which truly brings history to life.  The trial of Jesus offers lessons for today, about criminals, criminal law and trials.

Gallagher-Defense-logoBy: Thomas C Gallagher, a criminal defense lawyer in Minneapolis, and a student of history and famous trials.  About Gallagher Criminal Defense.

How to Know > Do You Need a Criminal Defense Lawyer?

Do I need a Minnesota Criminal Lawyer?

Do I need a Minnesota Criminal Lawyer?

Do You Need a Lawyer?

When it comes to criminal law, most people have been fortunate never to have ask themselves that question.  We do not expect the unexpected.  How do you know when, “I need a lawyer!”

Value of Keeping Your Public Criminal Records Clean

With no public criminal record, your potential future employers won’t be scared off by a criminal conviction.  You could be disqualified from certain occupational licenses  in the event you were convicted of a crime.   Certain convictions can also result in: loss of civil rights, such as voting and firearms rights; removal and deportation from the U.S.; denial of naturalization; loss of student financial aid; loss of housing; offender registration, and other negative consequences.

For many, the largest, quantifiable impact will be to future income stream.   How can a criminal conviction affect your future income?  If you assume a person is age 30 and will work until 70, that is 40 years. Multiply 40 years times a conservative $20,000 estimated reduction in annual income as the result of a conviction.  That would amount to $800,000.  At eight percent interest per year, that would be over one million dollars in lost income by age 70. I have had clients suffer a $45,000 per year reduction in income while an expungement proceeding was pending in court, so the real number could be in the millions, depending upon career path.

Is Jail or Prison Time Probable if Convicted? 

If you are charged with a serious criminal offense, there may be a threat of jail or even prison time.  Even for minor crimes, jail can be a real threat, when a person has prior convictions.  The maximum possible incarceration term specified in the criminal statute charged is rarely executed.  In felony cases, the Minnesota or Federal Sentencing Guidelines will provide a “presumptive sentence” after based upon the severity level of the offense of conviction and criminal history score.  Though there can be upward or downward departures from the presumptive sentence, it is useful to look at the presumptive sentence. There are also “mandatory minimum” sentencing statutes in Minnesota and United States Statutes which can be cruel, severe, and lengthier than the presumptive guidelines sentence.  It is vital to consult a criminal defense lawyer to discuss these factors. In non-felony, misdemeanor cases, up to one year in jail can be possible in Minnesota cases.

If It Is Important to You, Then It’s Worth Getting the Best Lawyer You Can to Help

For many reasons, it is valuable to prevent a criminal charge, to prevent a criminal conviction, and to prevent a criminal sentence in Minnesota.  The rule is simple.  If it is important, then it is important to have a good lawyer’s help in protecting it.  You and your family are worth a lot.  A good criminal lawyer can help protect your future, and your future income earning potential.  Protect your good name while you can – before it’s too late, before a guilty plea.  (Keep in mind that in order to qualify for a Minnesota expungement someday under Minnesota’s expungement statute, you’ll need to plan ahead in order to do so, with the help of a good criminal defense lawyer while the charge is still pending.)

This article was written by Minneapolis Criminal Lawyer  Thomas Gallagher.  Gallagher answers questions about Minnesota law court cases and issues every day, free, over the phone.  He also provides free half-hour office consultations by appointment.  You can give Gallagher a call with your question or to make an appointment at 612 333-1500.

The Midnight DWI Jail Call to a Minnesota Lawyer

phoneIn Minnesota, a person arrested on a police officer’s suspicion of DWI has the legal right to consult a lawyer prior to responding to a request by police to consent to chemical testing.  A problem often arises due to the fact that most of these situations happen in the late night or early morning hours when most people – and most lawyers – are asleep.  Most people who find themselves in this unwelcome circumstance never believed they would be, and may not know a criminal lawyer or DWI defense lawyer to call.

Sometimes they call any Minnesota lawyer they can think of, even though they might not be a criminal lawyer, or DWI defense attorney.  This article is intended to help that lawyer.

If possible, refer the caller to a DWI defense attorney to call.  If that does not work, they should call you back.  Here are some basics for the Minnesota lawyer who does not regularly practice DWI defense.

Understand that the purpose of the phone consultation is to help the caller navigate the legal threats presented by the most lengthy and complex set of criminal laws – the DWI laws in Minnesota Statutes Chapter 169A.

Here is a list:

1.  “Was there a collision or accident?”

If no, go to the next question.  If yes, “do you know if anyone was injured?” and “where are you calling from?”  If there was an alcohol-related injury motor vehicle accident, then the caller may be at risk of a felony Criminal Vehicular Operation (or Criminal Vehicular Homicide) charge.  If that is the case, they may be better off refusing to consent to provide a sample for chemical testing.

There is currently in Minnesota, however, a statute defining such a refusal to consent to such a search – a crime, the crime of “Refusal to Submit to Chemical Testing.”  Though this statute seems unconstitutional, in that it makes a crime out of a refusal to consent to a warrantless search, so far the Minnesota Appellate Courts have upheld it.

As a result, the lawyer should exercise caution, and avoid directly advising the caller in such a situation (likely felony CVO) to “refuse” to consent.

Rather, a Minnesota lawyer can safely advise the caller that “Since refusal is a crime, I can’t advise you to refuse.  A lawyer is prohibited from advising a person to commit a crime.  However a lawyer also has a duty of loyalty to the client, and to explain the legal consequences of your actions.  If you submit a sample for chemical testing that may make it easier for the state to convict you of a felony crime.  If you do not consent to giving a sample that may make it more difficult for them to do so, but could also be used to charge with a gross misdemeanor crime of ‘Refusal.’

The question “where are you now,” is intended to discover whether they are at a police station or a hospital.

2.  If you provide a sample, tell the police that you want an additional test.

In Minnesota, a person who consents to a body search by submitting a sample for chemical testing  after a DWI arrest, has the legal right to an “additional test.”  This should always be done, whenever the breath machine report is 0.08 or more, or when a blood or urine sample is collected.

Minnesota Statutes Section 169A.51, subd. 7 (b):  The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

Though this right is statutory, it is also a way to protect the state’s chemical testing scheme from constitutional challenges for violation of the accused’s right to exculpatory evidence and the state’s duty to preserve it, as in the Trombetta case.

How can a person get an Additional Test (as the statute calls it)?  The time-honored method was to get someone to come down to the jail with a clean jar, and collect a urine sample, with the best attention to chain of custody issues, to be refrigerated and tested quickly.

Today, the better method in Minnesota is to call Additional Testing, Inc. – a local company that employs contract nurses to go out to jails, properly collect samples, preserve them, and submit them to a lab for chemical testing, with good chain of custody.  If the evidence is exculpatory, they can testify in court as well.

The Additional Testing Right has been held to only require police to allow an in custody person the use of a phone (again) to arrange an Additional Test.  I recommend calling Additional Testing, Inc.:  24-hour Dispatcher:  Phone: (612) 333-3226 or Toll Free: (877) 333-3226.

3.  “Is the police officer requesting a breath, blood, or urine sample?”

In Minnesota, the police officer may request any of these but if they request blood, the person cannot be deemed a “Refusal” unless the police officer then requests a urine sample which is then also refused.  Similarly, if urine is requested, the person cannot be deemed a “Refusal” unless the police officer then requests a blood sample which is then also refused.

Minnesota Statutes Section 169A.51, subd. 3:  Type of test.  The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.

This is called the “Alternative Test Right.”  It only applies to blood and urine requests.

4.  “Were you involved in a motor vehicle accident?  Was anyone injured?”

Most callers will (a) not have been in a motor vehicle accident, will (b) have no priors, and (c) won’t submit samples that will be claimed to be 0.16 or more alcohol concentration.  These callers will be better off consenting to the search, after consulting a Minnesota lawyer.  Callers not involved in a collision, with priors or 0.16 or more BAC will usually be better off consenting to providing a sample for testing.  The exceptions to that general statement are unusual and beyond the scope of this Legal First Aid article.

5.  Avoid answering questions about drinking, driving, etc.

After the samples for chemical testing are taken, or the claimed “refusal” is done, police officers normally will read a Miranda Warning and ask questions from an “Alcohol Influence Report” form; then write down and audio record the answers.  Callers should be advised to remain silent, and decline to answer any questions.  (The questions relate to drinking, feeling impaired, origin and destination, etc.)

The author, Thomas Gallagher is a Minneapolis DWI Defense Lawyer with decades of experience helping people facing DWI charges and license revocations, and winning more than his fair share of these cases.  You can call him for help or with a question if you like.