Tag Archives: Legal First Aid

Get Out of Jail After Arrest – Tips for Getting Your Loved One Out

liberty-torch2-ps-cr-smOut of the blue – someone you love has been arrested and is in jail.  What should you do?  What do you need to know?  Here is a handy guide with ten tips on how to get your loved one out of jail and other essential information.

He or she is in jail.  That means their ability to act on their own behalf is severely limited – at least until they get out.

Keep these ten tips in mind:

1.  Regain emotional balance

Being arrested and jailed is just about always a huge shock, and an unwelcome one at that.  This may be even more true for loved ones, who may feel a flood of conflicting emotions from anger to sadness to a sense of powerlessness.

But there are things you can do to help.  Gaining knowledge and asserting some control will help you (and your loved one) regain your emotional balance; and your ability to begin problem-solving.

2.  Phone calls from jail

It is vital to understand that phone calls from jail are recorded and generally provided to police investigators and prosecutors.  The last thing a criminal defense lawyer like Thomas Gallagher wants to see is one or more sets of discs labeled “jail calls” provided by the prosecutor as pretrial discovery in one of his cases.

As a result, learn and apply this rule:  “Avoid talking about the incident or alleged offense that led to arrest or criminal charges over the phone when one party is in jail.”

Of course you’re curious.  Of course they may want to tell.  But don’t ask about it until they are out.  And don’t let them tell you or talk about it on the phone!

Patience is even more important when the person is actually innocent, since words can be and often are twisted to help convict the innocent.

3.  Big picture vs. immediate problem

The most important thing in the long run will be how the criminal case turns out in the end, the outcome.  Nothing should be done to jeopardize that in any way (for example, jail phone calls).

In the short run, however, it’s important to get the accused person out of jail quickly if at all possible.  Why?  Having a job not only provides needed income, it also helps reassure that the accused is less likely to break the law in the future.

But most importantly, when people are held in jail waiting trial they generally become demoralized and are more likely to plead guilty – even when they are innocent.

4.  Minnesota criminal defense lawyer

Consulting a criminal defense lawyer is a good idea.  We can help with everything discussed here, and then some.  When someone has been recently arrested we (criminal defense lawyers) should help educate loved ones supporting the accused and the accused about the big picture solutions as well as solving the immediate problem of getting out on a pre-trial basis.

Start with a phone call.  A jail visit may follow.

5.  Bail bond company

When someone has recently been arrested and may have a pretrial release hearing coming up, a good bail bond company can provide helpful services, well beyond simply posting a bail bond with the court.  The criminal defense lawyer should be able to recommend one.

6.  Arrest without an arrest warrant

Many people in jail were arrested without an arrest warrant.  (An arrest warrant would include a preliminary finding of “arrest probable cause” by a judge.)  In Minnesota we have the so-called 36 hour and 48 hour rules limiting how long a person can be detained (in jail) without a judicial finding of arrest probable cause.  Due to rules about which days count towards those limits, you may not need to know right now the specifics of how those rules are applied.

What you really want to know is “how long can they hold my loved one without filing a criminal charge with the court; and without a pre-trial release (bail) hearing before a judge?”

The easiest way to find out is to ask the jail: “what is the deadline for releasing him or her if charges haven’t been filed?”  The Deputy at the jail will normally tell you, “noon,” of such-and-such day of the week.  To go beyond that call Thomas Gallagher or another Minnesota criminal defense lawyer.

7.  Arrest with an arrest warrant

Minnesota Rules of Criminal Procedure, Rule 3.02, Subd. 2. “Directions of Warrant. The warrant must direct that the defendant be brought promptly before the court that issued the warrant if the court is in session.  If the court specified is not in session, the warrant must direct that the defendant be brought before the court without unnecessary delay, and not later than 36 hours after the arrest, exclusive of the day of arrest, or as soon as a judge is available.” See also, Rule 4.01.

8.  Right to Pretrial Release

The Minnesota Constitution includes two clauses guaranteeing the right to bail.  The first says “excessive bail shall not be required.” Minn. Const. Article 1, § 5, similar to the United States Constitutional protection against excessive bail.

The Minnesota Constitution, however, also provides: “All persons before conviction shall be bailable by sufficient sureties, except for capital offenses.” Minn. Const. Article l, § 7. Under Section 7, all persons are entitled to bail except those charged with capital offenses.

Because Minnesota no longer has the death penalty, all defendants have the right to have bail set, to pretrial release.

9.  Pretrial release hearing

A judge determines the conditions of release.

Conditions, including bail, are meant to assure a person’s appearance at future court proceedings. Court rules tell judges to release individuals without conditions unless a judge determines that such a release “will endanger the public safety or will not reasonably assure the defendant’s appearance.”

Though there is no maximum bail for felonies, the maximum bail for non-felonies is four times the maximum fine ($12,000 for a Gross Misdemeanor; $3,000 for a Misdemeanor).  The defendant has the right to unconditional bail.

Most judges will set two bail amounts, one with and one without conditions (sometimes zero with conditions).  If a judge does not set an unconditional bail amount, the defense attorney should immediately request that the judge do so.

The defendant will need to choose one of the two options, and will not be able to change his or her mind later unless a judge allows that.  It is possible for a person in jail presented to a judge to request that the court postpone consideration of pretrial release issues.  Sometimes this is a good idea, but we can leave this as a point for discussion with the defense attorney beforehand.

10.  Remedies

What if these rights are violated by the jail, the police, the prosecution, or the court?  What remedies are available?

One type of remedy is designed to force a hearing or immediate release if an immediate hearing is denied.  A Petition for a Writ of Habeas Corpus, a type of equitable remedy, asks a judge to Order immediate release of a person being illegally detained.

Another approach is for the defense attorney to contact court officials to request and demand that a prompt hearing be scheduled.

If the police get a confession from an illegally detained person, the defense lawyer can ask the Judge to suppress the confession as illegal, coerced and unreliable.

In cases where bail has been set but the amount is beyond the reach of the defendant, Thomas Gallagher has made multiple motions for a speedy trial, or immediate release pending trial in the alternative, with some success.

For more information about pretrial release and bail 

Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

Do you have more questions about how to get your loved one out of jail?

Or do you need to find a good criminal defense lawyer for him or her?

You can call Minneapolis Criminal Lawyer Thomas Gallagher to discuss.  He can help you.

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.”  So 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 ask a driver to blow into a PBT machine – a portable breath-alcohol machine.  But the law requires 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.

“Should I refuse the PBT?”

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 test 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.

Pre-test Right to Legal Counsel

It is always, always, always – best 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.

Right to an Additional Test

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.

Liberty-Lawyer.com logo sm wideIn 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.

Avoiding Traffic Stops – Minnesota Laws 2009

Another year, another truckload of new laws – the usual, right?  How does that affect you?  For the most part, hopefully it doesn’t.

But when you consider the fact that most criminal law problems – large and small – start as vehicle traffic stops; it pays to be aware of new laws allowing police to stop you.  Some of these went into effect June, July and some August 1, 2009.  All represent an expansion of government power and a reduction of your liberty and freedom.

 Do you remember several years ago when advocates of another law to mandate seat-belt use upon penalty of a petty misdemeanor fine, reassured us “don’t worry, we will never ask for a primary seat belt law;”  How long is “never,” again?  Not that long, it seems.

It starts with a traffic stop...

It starts with a traffic stop…

Police now can stop you for merely not wearing a Seat-belt in Minnesota.  A “primary violation” seat belt law gives police the legal right to stop a vehicle if someone in the vehicle appears to not wear a seat belt.  The previous version of the seat belt law did not allow traffic stops solely for the appearance of not wearing a seat belt.  This year’s law does.  The law eliminates personal choice, and personal responsibility.  It hands over more responsibility and more power to the government, taking it away from the individual.  It reduces the need for people to educate themselves, be responsible for themselves, and develop a personal moral code.  It reduces your freedom.  As usual, they claim sacrificing your freedom is worth it – for your own good.

The new “primary” seat belt violation law increases the potential for stops and arrests resulting from racial profiling.  Racial profiling is a real problem – difficult to solve.  Though police generally don’t view themselves as racist (few people do), they are no different from the rest of us, and are no more perfect in relation to racial stereotyping and its effects.

We know that when it comes to race, there is a disparate impact upon people identifiable as part of a racial minority group that can only be explained by race.  Creating more opportunities for police to stop people for petty, technical violations inevitably leads a worsening of the racial profiling problem.

Social control by force – by law enforcement – is corrosive to our culture and our youth.  Why learn responsibility as an individual if the government allows you little of it, and controls ever smaller aspects of your life – year after year, law after law?  This seat belt law gives law enforcement yet another reason to pull someone over, and to find another, bigger reason to interfere with your life.

Expansion of Child Seat law.

Under the new law, children in a motor vehicle must now be in a child passenger restraint system until their eighth birthday or they reach 4 feet 9 inches tall.  Of course, this is yet another reason for police to stop you if it appears you might be in violation of this.

Global Positioning Systems on Windshield .

Global Positioning Systems (GPS) can now lawfully be mounted or located near the bottom-most part of a vehicle’s windshield.  Previously, anything mounted on the front or rear windshield put the driver at risk of a traffic stop by police.  The “obstructed windshield” statute, used by police to justify such traffic stops, does have some language about obstruction to the drivers view – yet, it gave police the legal excuse to stop someone if there was anything on the windshield, or between the windshield and the driver.  These have included RADAR detectors (otherwise legal), notepads stuck to the windshield, air fresheners or other items hanging from the rearview mirror, and the like – in addition to GPS units mounted to the windshield.  At least now there is an exception for GPS units mounted to the lowest portion of the windshield.  Presumably in that location, the driver’s view will not be impeded.

What about a RADAR detector?  Prudence might argue for a newer RADAR detector with a GPS unit incorporated in the same unit.  That – or don’t mount it to the windshield.  (See, Speeding Laws in Minnesota for a discussion of MN speed law and defense.)

Tips for Avoiding Traffic Stops.

Other than changing your race, age, car, etc., how can you minimize your risk of a traffic stop?  Of course, obeying the traffic laws seems obvious.  But what about all of the technicalities the police can use to either ruin your day, or ruin your life?  Here’s a list of a few:

  1. Avoid placing any decals of any kind on your front or rear windshield, even where instructed to do so by a government agency.  Instead, place them on a side window, where necessary.
  2. Make sure there are no cracks in your windshields.  In winter, make sure they are free of ice and snow.
  3. Avoid hanging items from your rear view mirror, like air fresheners.  Place them below the windshield level.  Avoid hanging anything from sun visors.
  4. Make sure all of your lights, brake lights, turn and lane change indicator lights, as well as license plate illumination light – are all working.
  5. Make sure your vehicle is displaying proper license plate or other registration evidence.
  6. Make sure your vehicle’s suspension, alignment and steering are good enough that your vehicle does not weave.
  7. Avoid tinted glass police may view as illegal.  (And work on changing this law.)

Given the plethora of overreaching laws already in existence, it has never been more important to prevent police from violating your privacy and liberty interests.  Traffic stops are the narrow end of the wedge the government can drive into you and your life, to hurt or destroy you.  Every police contact creates a risk of a life-altering criminal charge – innocent or not.  Every smart citizen should strive to avoid these police contacts in the first place.

For further information: Author, Thomas Gallagher, Minneapolis Criminal Lawyer.