Tag Archives: minneapolis criminal lawyer

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.

Thomas Gallagher Elected President of the Minnesota Society for Criminal Justice.

Thomas Gallagher was elected President of the Minnesota Society for Criminal Justice by a unanimous vote of its members on January 8, 2011.

The Minnesota Society for Criminal Justice (MSCJ) is the oldest association of criminal defense lawyers in Minnesota.  It is a lawyers’ College, meeting each month – sharing information and continuing legal education, providing  support for litigation to help protect the rights of Minnesotans.

Leading the Way.

The Minnesota Society for Criminal Justice also fights for justice both legislatively and through the courts.  For example, the MSCJ Source Code Coalition led by MSCJ has been litigating the most significant and expensive fight against Minnesota’s unfair DWI laws in history:  the CMI-Minnesota Intoxilyzer machine computer source code litigation in Minnesota.

Minnesota Society for Criminal Justice attorneys fight for the civil rights and constitutional rights of the People against the government.

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; 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 $10,000 estimated reduction in annual income as the result of a conviction.  That would amount to $400,000.  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 avoid being convicted and avoid a guilty pleayou must plan ahead in order to do so!)

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.

Underage Consumption > Do I Have to Submit a Breath Sample to Police Upon Request in Minnesota?

martiniMost people are aware that if a person is driving a motor vehicle in Minnesota, a police officer can in certain circumstances invoke legal authority under a Minnesota Statute to demand the person submit to a search by providing a breath sample for a Portable (or Preliminary) Breath Test (“PBT”) machine.  If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  There is no statute or law that requires that young person to consent to a search by providing a breath sample simply because they are walking down the street, or found at a house party, with an odor of an alcoholic beverage about them.  A young person in this position can simply refuse to consent to such a search.  Refusal to submit to a PBT does not give police legal authority to arrest a pedestrian (unlike a driver, in certain circumstances).  Note that although the Minnesota Statute in the DWI Chapter concerning Preliminary Screening Tests (link above) does authorize use of these in underage consumption cases in court, it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

An interesting, recent case in Michigan illustrates some of the key points in this type of case, Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  There, the City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors, and this was ruled unconstitutional.  The court in that case notes that police did not claim to have obtained consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

Under the Fourth Amendment of the United States Constitution, in order for police to search a person they must have a search warrant, or a recognized exception to the warrant requirement must a then apply.  Consent can be an exception.  If “consent” is coerced, then it is not real consent.

I know of no statute or local ordinance in Minnesota that gives police legal authority to “require” a breath sample for alcohol testing (unless in connection with weapons or motor vehicles).  Police often will seek actual consent, or sometimes try to coerce “consent.”  The person (with no weapon, or not in relation to a motor vehicle) faced with such a request from a police officer does not have to consent to such a search or provide a breath sample simply because police want it.

The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other available evidence.  (The most damning are verbal admissionsby the accused.)  Regardless, a person accused of this crime could be expected to have a stronger defense case if they refuse to blow into the PBT and refuse to talk about drinking. 

Other problems commonly occurring with these kinds of cases include criminal charges of giving false information or identity to police, and less often, fleeing.  I know of no law in Minnesota that requires a person to identify themselves to police (except in certain circumstances such as driving, hunting, carrying, etc.)  If a person is not driving, they need not carry a drivers license or other ID.  A person should be careful to avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.  If a police officer asserts their authority as a police officer, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.

In general, a person suspected of a crime cannot be compelled to talk or provide information, or consent to a search (and this is normally the best approach); however, any information that is provided should be truthful.  When in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

Author: Thomas Gallagher Minneapolis Criminal Lawyer

Minnesota Super Lawyers rating awarded to Thomas Gallagher again for 2009

 
Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

Minnesota Law & Politics magazine has again awarded Thomas C Gallagher its Minnesota Super Lawyers rating in Criminal Defense for 2009, in its August issue.  This is awarded to the top 5% of lawyers in Minnesota.  Gallagher is grateful to all those who voted for him.

Gallagher, with over 20 years of experience as a Minneapolis Criminal Lawyer, has been awarded this top-rating many times over the years.

For Further Information about other ratings of Thomas Gallagher, click this link: top-rated Minnesota defense attorney.

Minneapolis police investigate MyFastPass.com

According to recent news reports on press releases from Minneapolis police; local and federal law enforcement have arrested at least one suspect and executed search warrants – yielding a database of subscribers to My Fast Pass, apparently in connection with claimed criminal prostitution. An interesting twist in this case, police have publicly declared:

“As part of our ongoing criminal investigation, it is our intention to have face to face contact with people on this list, to include men and women. If you feel it is in your best interest to have input into the time and place of this meeting you can email [minneapolis police].”

I guess you can’t blame a fellow for trying, right?  One must wonder though – what kind of person (in that database) would find it in their best interest to set up an appointment for a police interrogation?  Why help the government take you down?

BillofRightsMost everyone realizes their sacred Constitutional right to silence in the face of police questioning, and their right to have a lawyer present from television and movies.  Unfortunately, many of those entertainments show the fictional suspect waiving their rights, to quickly commit legal suicide – but it does help move the story along, doesn’t it?

Too few movies and television stories show the innocent bullied or tricked into confessing or admitting facts by trained police officers. Criminal defense lawyers generally advise people suspected by police to (a) remain silent; (b) do not consent to any search of person or property; and (c) consult and retain a good criminal lawyer as soon as possible. In pre-charge, investigatory cases, an ounce or prevention is worth much more than a pound of cure.

FFI about Prostitution Laws in MinnesotaMinneapolis criminal law: www.Mpls-Criminal-Lawyer.com

(Note: This was originally posted on another of the authors blogs on June 20, 2009 – moved to here, deleted there.)