MN DWI Law - The 2011 Changes

Come July 1, 2011, the State of Minnesota, in what some are calling an effort to demonstrate a new seriousness (see: increase revenues) when it comes to the offense of Drunk Driving, is making major changes to the DWI laws.  In future posts, I'll go into some of the new ins-and-outs but until then, here's some reading material to prepare you for lesson number one. 

Shoplifting - Explained

Retail theft, or as it is commonly called Shoplifting, is a serious criminal charge. Although the penalties may vary, based on the value of the item allegedly taken, the long term consequences (beyond the sentence imposed by the court) can be detrimental to you, to your family and to your future.

Should You Hire an Attorney?

This is a question I get more times than I can count. Let me put it to you this way - if you even think that you might need an attorney - you need an attorney.

Sure, on its face, a Shoplifting charge may seem like a small matter.  However, there is more to it that meets the eye; because, although you may just get a slap on the wrist from the judge - know this --- any conviction for Theft can remain on your criminal record - forever.

What this means is that "small matter" isn't really so small - right?  Envision looking for a job, applying for a scholarship, renting an apartment or any other situation someone might do a simple background check on you - does it seem so "small" now?  And heaven forbid, you should face a similar-type accusation in the future.  Seriously, if that does turn out to be the case, not only is your creditability brought into question - because who is going to listen to a person with a prior Theft conviction - you could also be risking some serious jail time.

So, back to the question of whether you should have an experienced Minnesota Criminal Defense Attorney on your side, fighting for you if you're charged with Shoplifting?  The answer is simple - right?

Can a Shoplifting Charge Be Beat?

As a former prosecutor, I've seen these cases from the inside.  I appreciate how hard it is for the government to prove that an individual is guilty, beyond a reasonable doubt. And, those circumstances can be exploited - to your advantage.

Although the specifics of a good defense depend on the facts of your case, generally speaking, there are any number of different defense strategies one can employ against these charges. For example, a motion can be brought to have the case dismissed for a lack of evidence or to have certain evidence dismissed because your constitutional rights were violated.  Also, a thorough examination can be done of the evidence gathered against you, and the individuals making those who collected that evidence and/or made accusations asserting that you in fact stole. 

On the odd chance that the facts aren't necessarily on our side, the challenge does not end there.  I have negotiated many settlement agreements and I've been successful in getting the charges and/or the fines reduced. 

An attorney can look out for your best interests, he can argue for leniency and he can make sure that a minor mistake doesn't have to follow you around for the rest of your life.

What Should You do?

As with any case, an experienced Minnesota Criminal Defense Attorney is your best ally.  He or she can fight to preserve your right and your future.  He can pour through the government's evidence and help develop the best defense strategy possible.  He can also be you voice when working out a deal with the government - if it comes to that. 

Dear Potential Client...

I've been doing this long enough to know that someone who has been charged with a DWI and/or Drunk Driving has A LOT of questions.  Although no two cases are the same, the concerns by those that I represent are often quite similar.  As such, I thought I would take some time to offer a few thoughts on the three most frequently asked questions and/or concerns.  Hopefully, you'll not only better be better able to know what you need when you're considering hiring a Minnesota DWI Attorney - if you choose to retain The Rolloff Law Office, you'll know upfront what you're getting and what your money is going toward.

#1.  If You're Only Thinking About Price - You're Not Thinking Right

Believe it or not, the most expensive attorneys are not always the best attorneys.  However, when you only think about price - and you're dead set on going with the least expensive option - you often end up getting just what you pay for.  Understanding that, what's an individual to do?  

As a former prosecutor, I saw that too many defendants were overcharged and underserved by their lawyers.  That is why, when I set up my office, I looked at those things that were essential to defending my clients and I set my fees with that in mind. I like to say, I put my money where my heart was.  As such, if you visit my office, you're not going to see fancy pictures on the walls or fountains in the lobby - that stuff doesn't protect you or your family or your future.

That being said, I'm certaninly not the most expensive Minnesota Criminal Defense Attorney out there - but I'm not the cheapest either. 

Here is something to consider - the legal services provided by an experienced Minnesota Criminal Defense Attorney are not a commodity.  What one attorney does is unique to him or her - no two lawyers are the same.  Some are better than others, some actually answer the phone when you call and some actually take the time to explain what's going on with your case - and how that effects you.

Because we're not all the same - we all don't charge the same price. Like with professional atheletes, if you want a "Joe Mauer" you have to pay for that premium talent. But, that's not to say, you can't find a hardworking up and commer at a steal, who'll put his heart and soul into your case - and you'll know that your money was well spent. 

If you or someone you love has been charged with a Minnesota DWI and you're only considering the cheapest attorneys out there to help you - then you might not want to call me. But, that being said, if you want your hard earned money going entirely toward defending your future and your rights - with someone one who puts your questions, and your concerns 1st - then maybe we should talk.

Remember, a Drunk Driving conviction will be with you for a long time. In addition to the penealty imposed by the court, your driving privileges, employment opportunities, and ability to travel internatinally may also be impacted. In addition, there could be immigration and addional financial consequences to consider.  Therefore, when choosing an attorney to help you - focusing on the short term (ie., price) should not be your only consideration; you also need to consider the long term ramifications and how an attorney will assit you down the road.

#2 - I Can't Guarnetee That You'll Beat Your DWI Charge

Don't get me wrong, I believe that every DWI case can be won. But, because the government essentially holds all of the cards, and in their minds an arrest all but equals a conviction, victories don't come easy. What this often means is that, if you want to win your case - if you want to beat your DWI outright - you're probably going to have to dig in for the long hall and push the matter to trial (and even then, nothing is a given.)

I understand that time are tough, financially and otherwise.  The same goes for us Minnesota Criminal Defense Attorneys. For some, tough times, often call for desperate measures. 

Oh, the things I've heard about how other attorneys often try to get business - offering up any and everything to get a fee - by all but insuring that they will get their clients a NOT GULTY result.  Maybe they can back that up, but because my experience is that nothing in the law is certain, to me - it smacks of desperation.  And, the last thing someone facing all of the turmoil that often accompanys a DWI arrest needs is a representative who is desperate - who is only looking out for that next fee and who after getting their client's money does little in the way to have actually earned it.  Often, fee generation, and not what's best for their client is the number one motivator. This does not help you.

The reality of Drunk Driving defense work is that there is no such thing as a guarentee. Often the final result will depend on factors outside the control of even the best attorneys. Therefore, to get good results, you need a lawyer who will be willing to put in the time and effort to root out the weaknesses in your case - someone who'll put in the time and effort to get ytou the results you desire. 

It might sound corny, but I treat my clients like family - and like you, I'd do anything for my family.  But there are also those times, you need to "cut to the quick" and talk straight.  If you want someone by your side - figthing to get you the best possible result under the circumstance, and who'll tell you the truth no matter what - then maybe we should talk.  

3. Choose the Minnesota DWI Attorney Who Sent You that Mailer at Your Peril. 

There's a plan that Minnesota DWI Lawyers can buy into that daily checks out a county's arrest records and then sends out a letter to anyone who has been arrested for Drunk Driving.  These mailings usually try to scare the crap out of you - screaming that because of your arrest your life is ruined, telling you that you must act immediately to get help and asserting that (although they know nothing about the facts of your case) they can take care of evey aspect of your case and an unbelieveably low price.  

The lawyers that use this type of service arent bad guys, but I do question their tactics.  Fear, although a strong motivator, is not the best way to demonstrate the sort of care and compassion you need when facing this sort of dillema.  Also, I have an issue with the "low prices" often cited in these mailers. How can someone quote you a price without knowing a little something about your case, about your questions and about your concerns?  No two DWI cases are alike, therefore, how can someone - based on your arrest alone - know the things that are necessary to you and your case?  Somone who quotes you a price, without knowing anything about you and your case - in my humble opinion - is someone you should look out for - because odds are - they're not to keen about looking out for you.

Sure, lawyers need to advertise their services to be seen - to let people know what it is that they do. But if they are already playing to the lowest common denominators - before you even talk to them (price, fear, connections,) in my opinion, that's not a good sign.

If you or someone you care about is facing criminal charges, contact me, a Minnesota Criminal Defense Attorney and DWI Lawyer, to set up a free – no obligation - consultation.  Feel free to reach me in confidence at 612.234.1165 or jay@rollofflaw.com

Bail - Explained

If you're arrested, taken in to custody - and held in a cell until you get before a judge - odds are you'll be subjected to some conditions of release. Often these can included restrictions on your behavior - such as in the case of a DWI or Drunk Driving arrest - where you could be ordered to abstain from using alcohol.  You might also be ordered to pay some sort of "reasonable" bail.

Why Do I Have to Pay a Bail?

Bail is generally imposed in situations where public safety is implicated or if there's some doubt that the arestee might not return for future court dates. There are also situations where judges must - by law - impose a mandatory bail.

Arrested individuals have a right to a “reasonable” bail. Usually, the judge initially sets it according to a pre-determined county-wide bail schedule. However, a judge can deviate from that schedule. Usually, this is done after examining the facts surrounding the crime charged and the background of a particular party.

For example, a defendant charged with a first time DWI - who has no criminal history and extensive ties to the community such as a family, job, and property ownership - will likely be able to have his bailed reduced to nothing. When bail is reduced to zero, the judge is releasing the the person “on his own recognizance.”

A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that an individual has a lengthy criminal history, is a risk to flea the community and not appear for court in the future, or may be likely to harm another person while out on release. When someone is facing a lengthy sentence - like life in prison - bail can even be denied altogether.

What to Do if You're Arrested

When a person is arrested and taken into custody, their most pressing concern is often getting out jail. However, it is often a wise decision to make your first call to a Minnesota Criminal Defense Attorney - first - and the bail bondsman - second. This is because an experienced lawyer will be able to negotiate the possibility of lowering your bail and/or maybe get you released with no bail at all.  Additionally, an attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.

Buying a Bond

When an arestee "makes bail” this means that he has put forward a specified amount of money (to the court) in exchange for being let out of jail - promising to return to court in the future. If and when the case is ultimately resolved, the bail is "exonerated" - and the full amount of money is returned (minus any fines that the court might impose.)  If the arestee fails to appear in court - the bail can be forfeited and as such the money is kept by the court.

Individuals who cannot afford to pay their bail - because the don’t have large amounts of cash just lying around - often will contract with a bondsman to put up the money for them. Generally, a bondsman will charge 10% of the total bail - and require that some sort of collateral is also promised - before doing as much. For example, if the bail is $12,000 (the common amount of bail sought for a 2nd time DWI charge), the arestee must pay to the bondsman $1,200 - plus put up some form of collateral, such as the title to their car or right to other valuable property. If and when the case ultimately resolves itself - and the arestee does not skip out on bail and returns to court as scheduled - he will get his collateral back but the $1,200 he paid to the bondsman stays with him or her.

Your First Best Call

If you or someone you love has recently been arrested and taken into custody, you owe it to yourself to contact an experienced Minnesota Criminal Defense Attorney.

DWI Field Sobriety Tests - The One Leg Stand (Explained)

Just like with the the Walk & Turn test, another standard Field Sobriety Test you should prepare yourself for - as you would "study up" before any sort of examination - is the One Leg Stand Test.  To do your best on this task, an experienced Minnesota Criminal Defense Attorney is going to tell you that it is important that you understand not only the procedures involved but also what the cops are really looking for when they have your perform this test.  Plus, like with the other Drunk Driving tests, this one also makes for a fun party game, no?

One Leg Stand Test (Explained)

As with any of these tests, the officer who has you perform them will most likely will read from a set of instructions much like those offered here - straight from the standard field manner for how to administer such exercises.

First, before having your perform the test, the officer should make sure that you are on a hard, level, non-slippery surface. (Special consideration should also be given to those individuals over a certain age, of a certain weight and/or those who have a physical impairment that would affect their performance.)

As with the Walk & Turn Test, this test also consists of two stages: instruction and performance.

The Instructions

During this stage, you will be the told what to do and and ways to score.  In addition, these instructions should not only be explained to you, the officer should also demonstrate the test . Here's what you should be tasked with.

1. Stand with your feet together and your arms down at the sides, (like this.)
2. Do not start to perform the test until I tell you to do so.
3. Do you understand the instructions so far?
4. When I tell you to start, raise one leg, either leg, with the foot approximately six inches off the ground, keeping your raised foot parallel to the ground."
5. You must keep both legs straight, arms at your side.
6. While holding that position, count out loud in the following manner: 'one thousand and one, one thousand and two, one thousand and three, until told to stop.'
7. Keep your arms at your sides at all times and keep watching the raised foot.
8. Do you understand?
9. Go ahead and perform the test.

In addition, you should also be told that if you put your foot down while taking the test, that you should pick it up and continue counting from the point where your foot touched the ground.

The Performance/Scoring

As with any test, you're going to want to know how it's score - so you can do what's necessary to pass, right? Not knowing the criteria - coupled with trying to perform this test at night, with a cop bearing down on you, and traffic whizzing by - is bound to impact even the best test-takers performance. So, try this, before you read ahead, take a stab at the test. Then, after you've read the "teacher's guide" try it again.  My guess is, your performance will improve. 

During this test, the officer is looking for these behaviors: 

• Raising your arms in order to gain your balance
• Hopping on one-foot
• Swaying
• Putting your foot down and/or touching the ground
• Failing to complete the test 

This is what your performance will be graded on. And, believe it or not, two or more of these "signs" can equal a FAIL and give the officer probable cause to arrest you. 

What To Do

If your not doing some pre-test studying - but rather you've been arrested for Drunk Driving after failing this silly examination, your next, best step should be to contact an experienced Minnesota DWI Defense Attorney. The One-Leg Stand Test - like nearly all of these tasks - is entirely subjective, and a person could fail it for many reasons other than being intoxicated. An attorney can investigate whether the test was administered properly and what your performance really showed.

But, just as I explained before, in the State of Minnesota taking these tests is completely voluntary. As such, my advice to you is: Don't take these tests - they cannot help you. As a matter of fact, they'll often only hurt one's chances of beating a Drunk Driving charge because the cops tend to pay more attention to every little slip or misstep you make and they often ignore or disregard every correct one - o paint a picture of you as a drunk driver. 

Just say no!

Cats

Cats

Assault - Defenses (Explained)

A charge of Assault - even if it is a Misdemeanor - is a serious offense. Not only can you suffer consequences in court (such as the imposition of a fine and/or jail time) but you could also be subject to collateral consequences - such as the loss of your privilege to own and possess fire-arms, your job, and in some instances even your home.

That being said, Assault is often a very difficult offense for the government to prove - especially if there are no witnesses to the incident and/or there are no physical injuries as a result of it.

When fighting these charges, an experienced Minnesota Criminal Defense Attorney should explore a number of possible defenses, including:

• That There Was No Intent

An Assault charge requires that the government prove that you intended to put someone in reasonable fear of physical harm and/or that you intended to use unlawful physical force on someone.  As such, one way to fight this charge is to demonstrate that you lacked intent.

An example: You're playing pool. Intending on taking a shot, the cue leaves your hands and strikes another patron who walks by at just that moment. The other person is struck by the cue and as a result is harmed. In this case, the prosecutor would have a difficult time arguing that you committed an Assault because the act (the pool cue leaving your hands and striking the other patron,) it could be argued was an accident; you never intended it to happen.

• The Harm Was Not Immediate

Under Minnesota Law, Assault is defined as is putting someone in fear of immediate bodily harm or death. Therefore, the way you fight this charge is to demonstrate that the believed harm was not immediate - nor was harm or death the intent of the act.

For example, you approach someone who owes you money - stomping your feet and stating loudly, "If you don’t pay your debt to me before the end of the day, you'll regret it!"  As a result, you're charged with Assault. 

Here, I'd argue that no such Assault occurred because the "harm" you sought to do wasn’t immediate enough. As a matter of fact, any harm that would take more than a few seconds to occur often disqualifies Assault as a possible charge. Furthermore, any fear the victim would have felt from your "threat" probably isn’t even reasonable since "you’ll regret it" is a fairly vague statement.

• Self-Defense

Another powerful argument is the one of self-defense. Often it can be asserted that although an Assault did occur, the person charged with it only acted as such because the "victim" had threatened him. In cases such as this, it is often a question for the judge (or jury) to determine. In doing so, they'll look at: Who was the aggressor? Was the belief that self-defense was necessary a reasonable one?" (and/or) Did the defendant use only reasonable force to defend himself?

You do have a right to defend yourself; however, you have to be cautious when doing as much. Self-defense does not give you a license to kick-ass.

Additionally, you also have the right to defend others - but (again) an analysis similar to that used when self-defense is raised is employed by the trier of fact.

• Attack the Witnesses' Credibility 

One of the best defenses is to challenge the credibility of witnesses - including members of law enforcement.  An experienced Minnesota Criminal Defense Attorney will probe any and all aspects of a witness' statement and the police reports - to root out any inconsistencies and/or the omissions. 

What Should You Do?

If you or someone you love has been charged with Assault, the first, best step you should take is to speak with an experienced Minnesota Criminal Defense Attorney. He can  help to preserve evidence, investigate and interview witnesses that you cannot or should not talk to yourself.

You can also help yourself by staying away from the alleged victim, following any conditions imposed upon you by the judge and avoid consuming any mood altering substances. In addition, NEVER talk to the police.  Statements that you provide them often will do more harm than good. You have the right to remain silent - use it.  Let your attorney do the talking for you.

DWI Field Sobriety Tests - The Walk and Turn

Falling somewhere between the "Hokey-Pokey" and "Simon Says" - Field Sobriety Testing for Drunk Driving is an integral element in DWI prosecution - and defense. The tests are often used by an investigating officer to establish probable cause to arrest someone for DWI; and, in cases where no test of someone's blood, breath or urine was collected - one's performance on said tests can be used to ultimately determine whether there are sufficient indicia of intoxication to establish a per se violation of the Drunk Driving law.

With this awareness of the test's importance in mind, you would be suprised how many how many police officers, prosecutors, attorneys and judges lack even a basic understanding of their procedures and what one's performance on these tests actually determines.

So, even though it may feel a little silly, the next time you're throwing back a few "pops" - you might want to consider making yourself something of an expert on Field Sobriety Tests by practicing them - at a time in which your not under the watchful eye of a police officer.

Seriously, the better you understand the tests - the more familiar you are with the instructions, the performance thereof and what's expected of you- the better your chances might become at passing them. As my dad used to loved to repeat - practice makes perfect.

In the end, would that you and I were to be able to discuss taking these tests at all - I'd advise you (in no uncertain terms) to NOT take them.  However, if you feel you need to try and impress your new friend in law enforcement - I would suggest that you become intimately familiar with what these tests are really trying to reveal --- your ability to perform a task - at a time in which your attention is being pulled in more than one direction at a time.

The Walk & Turn Test - Explained

So as not to screw this up, police officers often read from a standard set of instructions when asking a driver to perform these tests.  (Click HERE for a video explanation.) What I would suggest of you - is that prior to performing this test, make yourself familiar with the instructions, and then attempt the test.  The better you understand what will be asked of you - I would posit --- the better your chance at success.

1. Place your left foot on the line (real or imaginary).
2. Place your right foot on the line ahead of the left foot, which heel of right foot against toe of left foot.
3. Place your arms down at your sides.
4. Maintain this position until I have completed the instructions. Do not start to walk until told to do so.
5. Do you understand the instructions so far?
6. When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.
7. When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot. (Often the officer will demonstrate the exact turn he would like you to perform - pay attention.)
8. While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.
9. Once you start walking, don't stop until you have completed the test.
10. Do you understand the instructions?
11. Begin and count your first step from the heel-to-toe position as one.

Now try the test.

What the Officer is Looking For

While your walking the line, this is what the police are keeping the closest eye on:

• Did you keep your balance - while being instructed in the test?
• Were you able to touch heel-to-toe - what was the largest distance between the two?
• Did you keep your balance - while performing the test? 
• Did you sway?
• Did you "use" your arms to balance; did you raise them more than six-inches from your side?
• Did you start the test - before being instructed to do so?
• Did you stop in the middle of the test?
• How did you execute the turn - was it as instructed?
• Did you take the proper number of steps - or too few/many?

If an officer observes two or more of the above listed "clues" --- you have FAILED the test.

Now, knowing what you know, you may want to retake the test --- and in the privacy of your own home, you have that option. However, believe it or not, the certification manual for Field Sobriety Testing asserts to officers that if someone struggles with this test that he or she should NOT have a driver them re-take it - because the test loses its "sensitivity" if repeated.  Therefore, if you don't get your practice in now - odds are you're not going to get a 2nd chance to make a 1st impression on an officer in the field.

What You Should Do  

At the end of the day, as any experienced, Minnesota DWI Attorney will tell you, by performing these tests -  you cold do more harm than good to your case. However, if your so inclined - understanding what you might be in for - if you do choose to take these tests - could go along way toward keeping you from a DWI arrest.