What Is Expungement, And How Can It Help Me? Expungement is the process of sealing your criminal record.  People make mistakes, but should those mistakes brand them for life on their criminal record?  Not always.  People change, move on, and learn from their mistakes.  But unless your criminal record is expunged, employers performing a background check will assume that if you have a criminal record, then you are not worth hiring.  Nowadays the internet makes information easily accessible, and  criminal records are available for the entire world to see.  Expungement can help prevent this.

 Mistakes from long ago are standing in the way of people with convictions getting jobs, housing, state licenses, school admission, bank loans and limits political and community involvement. With a poor economy and a housing crisis, people now, more than ever need to present themselves in the best way possible.  Record of an arrest, criminal charges, or conviction could be the difference in an employer, landlord, or bank taking a chance on you.  There are ways to wipe away the mistakes of the past to stay competitive in this ever-changing job and housing market.  If you have experienced problems getting a job, housing, state licensing, or loan because of a prior criminal conviction, you should consider getting your record sealed through an expungement.

Are Certain Convictions or Court Outcomes Treated Differently Than Others? Yes.  The law separates expungement eligibility requirements into several categories:

1. conviction as a result of finding of guilt at trial or a plea of guilty;
2. criminal proceedings not resulting in a conviction;
3. certain controlled substance offenses; or
4.  juveniles prosecuted as adults. 

 Conviction

  If you plead guilty to a crime or if you are found guilty at trial, a permanent criminal record is established.  Through expungement proceedings, the court can seal some or all of those records, so they are not accessible to the public.   

 Criminal Proceedings Not Resulting in a Conviction:

 Did you know that if you were arrested but never charged, or if you were even found not guilty, that the records still exist and anyone doing a background check on you can still find out about it? Fortunately, Minnesota law allows expungement of criminal records when a case is resolved “in favor” of the defendant. 

 Some examples of “criminal proceedings not resulting in a conviction” include:

1. A person was arrested and never charged.  Many people don’t realize that even though they were never charged, arrest records exist and employers, lenders, etc. can find them when searching an employee or applicant’s background.

1. A person is charged but the charges are later completely dismissed.  Records still exist regarding the arrest, investigation, original charges, court filings, and dates of dismissal.  Although the case was ultimately dismissed, the records of arrest can potentially influence employees and applicants.

1. Found Not Guilty (Acquitted): A person is charged, prosecuted, and found not guilty (acquitted) at trial.  Again, records exist regarding every part of the allegations, arrest, indictment, and criminal proceedings.    

1. Continuance for Dismissal.  A negotiation is worked out with the prosecutor to continue the case for a period of time (typically one (1) year) and if the defendant pays a fine and has no similar offenses, the case is dismissed.  As long as the defendant followed all requirements and the one year has passed, the case is considered to have been resolved “in the defendant’s favor.” 
   

Certain Drug / Controlled Substance Offenses. 

 Sometimes a case including allegations of drug possession or sale is resolved in a fashion that will dismiss the case if certain requirements and a probationary period are completed. This is often called a “Stay of Adjudication,” “Continuance for Dismissal,” or “Diversion.” As long as  requirements have been fulfilled and the case dismissed, the person is considered eligible for an expungement.

 Juveniles Prosecuted as Adults:

What we’re talking about is when a person isunder 18 at the time the crime was committed, but is certified as an adult and convicted.  Once released from probation the person is eligible to request an expungement.  Contrary to popular belief, the records are not automatically sealed when the juvenile turns 18.

Criminal cases result in many different scenarios and can be confusing. At Ryan Pacyga Criminal Defense, P.A., Attorney Page Haswell can access your Minnesota Court Record and figure out which category you fall into and whether you are eligible.  Please call Ms. Haswell at 612-339-5844 with questions.

 What Agencies Have Record Of My Arrest? People are often shocked when they find out how many government agencies have record of their contact with police, investigation, arrest, charges, court process, and conviction (if applicable).  The records are divided into two government bodies: (1) Judicial Branch (court) and (2) Executive Branch (crime lab, local and state police departments, Attorney General, County Attorney, and more). Additionally, private data collection companies collect and sell this information to the public through paid criminal background checks.  Information about your incident is only a click away for employer, landlords, admissions departments, and licensing boards.

How Does The Expungement Process Work? The expungement process will take approximately four to sixmonths start to finish.  A formal motion to the court must be drafted (including all legally required sections).  The motion must then be served on each government agency who has a record regarding the incident.  If even one agency is missed, the motion can be denied by the court.  Properly serving each agency is extremely important.  After the motion is properly served, a hearing date is set.  By law, the hearing can be not less than 60 days from the date of service.  On the day of the hearing, the attorney for the defendant (called Petitioner) argues to the court why the court should grant the expungement request and seal any records regarding the incident / arrest / conviction.

After the hearing, the judge will issue an order granting or denying the expungement motion.  Regardless of the decision, the order does not go into effect for 60 days.  If the motion is granted, records are sealed after 60 days.  If the order is denied, the defendant has 60 days to appeal the court’s decision

Do I Need A Lawyer To Do This? Minnesota law regarding expungement motions is constantly changing.  An experienced expungement attorney, current on the law, may significantly increase the chances a motion will be granted.  Of course, some expungement requests are easier than others.  The most difficult arise when requesting records of a conviction to be sealed.  However, it is still possible.  At Ryan Pacyga Criminal Defense, we stay current on the expungement caselaw and we have had extraordinary success arguing client’s expungement motions and getting the expungement granted, even in unlikely cases.     

No one wants a criminal record and not everyone who has been charged or convicted of a criminal offense needs to live with it on their permanent record.  Expungement provides a way to put the past IN THE PAST.  If a criminal record is interfering with your ability to get a job, housing, licensing, or loan you should consider expungement. 

Remember, the information above is just a basic summary of what you can expect if considering an expungement.  There are too many fact-specific variables to cover every situation in one document.  Therefore, this information should not be relied upon for legal advice.  The best thing you can do to find out if expungement is right for you is to hire an experienced expungement attorney.  If you have further questions, feel free to call Ryan Pacyga Criminal Defense at 612-339-5844 for a free consultation, or visit our website at www.arrestedmn.com. 

Earlier this year, the Department of Justice announced its intention to focus on white collar investigations and prosecutions.  Minnesota’s U.S. Attorney, B. Todd Jones, recently echoed this sentiment.  Accordingly, local companies (including small businesses) can expect an increase in the number of subpoenas from the Department of Justice, the SEC, and other federal regulators investigating fraud and other white collar crimes.  If your company does not create a record that demonstrates “good faith” compliance, the consequences can be severe. 

Preparing a written policy regarding subpoenas, in advance, is vital to minimizing efficiency and maximizing the chance that your company (and its officers) can avoid an indictment.  A written policy gives the company and its employees something favorable to point to which negates a finding of “corrupt mental state” (a required element for any federal obstruction of justice prosecution).  Non-compliance with a federal subpoena can result in charges of obstruction of justice, witness tampering, and a wide array of other federal charges against both the company and its employees.  Fortunately, a small investment in time on the front end can prevent costly mistakes on the back end.

There are essentially two goals when responding to a subpoena: 1) furnishing the documents that are responsive (and not privileged); and 2) documenting the steps taken during the process, such as who was involved in the process, where the documents were searched for (emails, off-site storage), etc.

As far as policies go, there are a few basic rules that should always be followed.  First, have a proactive plan.  Your company should have attorneys, not employees, tightly control the document gathering and production process.  The attorney(s) should be familiar with your company’s business, document retention plan, document storage methods, and the overall structure of your corporation.  The attorney(s) should put the plan in writing, and have each employee sign an acknowledgement that they have reviewed it.  Do not wait until you receive a subpoena, because there will be plenty of chaos by that time.  The better practice is to put the plan into place now, so you can hit the ground running in the event your company receives a subpoena.

Second, it is not okay to hide your head in the sand by not reading the subpoena and attempt to argue that you did not know its precise contents.  Federal courts have ruled that it is enough if the employee knows that a subpoena calls for a category of documents or even one particular document, and then takes steps to place those documents beyond the reach of the party requesting the subpoena.  Therefore, do not destroy documents when your company receives a subpoena, even if it is consistent with your regular document retention/destruction policy.  Instead, any time an investigation is going on, your document retention/destruction policy should be suspended, and all documents should be preserved.

Third, indentify in advance the people that will be instrumental in assisting the attorney when responding to a subpoena.  They may include a person from IT, administrative assistants for key executives, and supervisors of various departments.  This will help to make sure the gathering process is thorough. 

After the subpoena arrives, the plan will save your company money, prevent mistakes and minimize anxiety.  Remind employees, in writing, that no documents should be destroyed, including emails.  Direct all questions to the attorney in charge of the response team.  All versions of documents should be gathered, including drafts and copies with differing handwritten notations.  You should also remind your employees of their confidentiality obligations, since subpoenas often generate media interest.  All comments to media should be directed to your attorney(s) or corporate spokesperson. 

Prosecutors and regulators often do not know exactly what they’re looking for when they draft a subpoena.  For this reason, they will often make the subpoena broader than necessary.  To avoid the expense of unnecessary production, a criminal defense attorney that is well versed in your company’s business and record keeping practices should begin a dialog with the prosecutor or regulator.  This helps to narrow the scope of the subpoena, thereby conserving your resources.  Another benefit to having a criminal defense attorney involved is that we can assess the threat of the subpoena to your company.  We should be able to determine whether your company is subject to potential prosecution, or if your company is merely being asked to provide documents as a “witness,” i.e., assisting in the investigation of another entity or individuals.  Either way, it is good to know where you stand.  An ongoing dialog between the defense attorney and the prosecutor/regulator helps to provide a regular status update for your company, and helps to correct any misunderstandings and maximize the chances of avoiding an indictment. 

Ryan Pacyga is a criminal defense attorney practicing in White Collar Criminal Defense in State and Federal Court.  His recent clients include Parish Marketing (the largest mortgage fraud case in the history of the upper Midwest); and representation of persons and businesses involved in the Tom Petters and Denny Hecker federal criminal cases.  His law firm, Ryan Pacyga Criminal Defense, is located downtown Minneapolis, MN.  He has been featured as a Rising Star by Super Lawyers in 2008, 2009 and 2010.  Visit his website at www.arrestedmn.com

Every State has different laws regarding what amount of force you can use to defend your home.  Some States require you to retreat before you use any force.  Others do not.  Some States limit the amount of force you can use depending on the circumstances.  Others do not.

In Minnesota, the law permits you to defend your home, even with lethal force, under certain circumstances.  Here's what Minnesota's Jury Instruction says with regard to Defense of a Dwelling:

No crime is committed when a person takes the life of another person, even intentionally, if the defendant's action was taken in preventing the commission of a felony in the defendant's (dwelling) (place of abode).

In order for a killing to be justified for this reason, three conditions must be met.  First, the defendant's action was done to prevent the commission of a felony in the dwelling. Second, the defendant's judgment as to the gravity of the situtation was reasonable under the circumstances. Third, the defendant's election to defend (his) (her) dwelling was such as a reasonable person would have made in light of the danger perceived. All three conditions must be met. The defendant has no duty to retreat. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

Here's what this means in English: It's not a crime to kill someone intentionally if you do it to protect yourself in your home and you meet three conditions:

1. You have to be preventing a felony in the house (burglary, robbery, rape, and assault with a weapon are some examples);
2. Your judgment about how serious the situation is must be reasonable under the circumstances; and
3. Your decision to defend your home must also be reasonable given the perceived danger.

How Do I Know If I'm Preventing a Felony? This sounds trickier than it really is.  For one, a burglary is a felony.  So if someone breaks into your home and it appears that they intend to steal, rob, or assault you (or your guests), that qualifies as a burglary as defined by Minnesota Statute 609.582.  You don't have to wait for them to actually assault you before you take action, as long as you meet the other conditions.

Seriousness of Situation: Obviously, if a child wanders into your home because they're lost, or if you get into an argument with a guest at your home but you're not fearful that they will seriously harm you, then it's not reasonable to view the situation as a serious one.  On the other hand, if a stranger uses a crow bar to pry open your door and comes into your house, it is reasonable to think the situation is serious. 

Decision to Defend: This is a judgment call, but it must be reasonable.  If an 80 year-old frail man breaks in and it's obvious that he is not armed, and you are a stong, 25 year-old man and 4 of your friends are with you, then it's probably not a reasonable decision to defend your home by shooting the 80 year-old intruder.  If that same 80 year-old man has a gun, then it's probably reasonable to shoot him. 

These are just some examples.  The best thing to do is call 911 if you have the time and are able.  But if you find yourself in a situation where your safety is on the line, it is good to know that you are able to defend your home with force, and that you do not have to retreat first.  It would be fun to see some comments to this blog post with other fact scenarios, and I would be happy to give you my opinion on whether it's okay to use deadly force based on the facts that you give me, so please feel free to post a comment. If you have been charged with murder, manslaughter or assault, feel free to call Ryan Pacyga Criminal Defense at 612-339-5844 for a free consultation, or visit my website at www.arrestedmn.com You can also follow me on Twitter @arrestedmn

What is Sentencing Entrapment? Drug sententences are based on the amount and, in some cases, purity of a drug.  The greater the amount and purity, the longer the sentence.  For this reason, law enforcement agents have a motive to increase the amount and purity of a drug when they are attempting a set up a reverse-sting operation or a controlled buy.  The Sentencing Guidelines have a “terrifying capacity for escalation of a defendant’s sentence” as a result of government misconduct.  United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993) (internal quotations omitted).  “The Guidelines link drugs to specific sentencing ranges based primarily upon the sheer quantity or kind of drugs involved in an offense.  Therefore, relatively small differences in the quantity or kind of drugs involved in an offense may dramatically alter a defendant’s prison term.”  United States v. Searcy, 233 F.3d 1096, 1099 (8th Cir. 2000).  The danger of government abuse is great because “the government may influence, and in some cases control, the quantity and kind of a drug involved in the offense.”  Id. Sentencing entrapment “occurs when official [government] conduct leads a defendant predisposed to deal only in small quantities of drugs to deal in larger quantities, leading to an increased sentence.”  United States v. Berg, 178 F.3d 976, 981 (8th Cir. 1999) (citing United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993)). 

Downward Departure. In order to ameliorate the dangers of government abuse, the Eighth Circuit has recognized sentencing entrapment as a viable theory for a downward departure.  See United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.), cert. denied, 499 U.S. 968, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991).  The Sentencing Guidelines also recognize sentencing entrapment as a viable basis for a downward departure.  See U.S.S.G. § 2D1.1, comment (nn. 12, 14).  Under Application Note 12, the district court “shall exclude” from the calculation the amount of drugs that flow from sentencing entrapment.  It states, in relevant part: "If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing." U.S.S.G. § 2D1.1, comment. (n. 12).  This guideline, in part, focuses on the defendant’s intent or predisposition.  Further, under Application Note 14, a downward departure is warranted when a form of sentencing entrapment occurs: If, in a reverse sting … the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant’s purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted. U.S.S.G. § 2D1.1, comment. (n.14). 

The Defendant's Predisposition is Key. The sentencing entrapment analysis focuses on the defendant’s predisposition. “[T]he government’s conduct is relevant in a sentencing entrapment analysis, but only insofar as it provides the inducement.”  Id.  The defendant bears the burden to prove by a preponderance of the evidence that he lacked the predisposition to sell a larger quantity or different type of drug.  U.S. v. Martin, 583 F.3d 1068, 1073 (8th Cir. 2009). Berg, Stavig and Searcy – when read in context – provide a “litmus test” in determining what facts constitute sentencing “entrapment.”  In Berg, the defendant and cooperating informants discussed a “large [meth cook] where everyone would make a lot of money.”  Berg, 178 F.3d at 978 (emphasis added).  A transcript of the recorded conversation revealed that the defendant suggested cooking as much as twelve pounds of methamphetamine, even though he usually dealt in “small amounts.” The Eighth Circuit acknowledged reverse-stings are especially prone to questions of sentencing entrapment, but found “no indication that [the government] set up Berg to manufacture a greater amount of methamphetamine than he was otherwise contemplating. The Court finally noted that even had the government minimally enticed Berg to act in a manner out of accord with his proclivities, it required “no great amount of persuasion.”

The Eighth Circuit was presented with a closer question of sentencing entrapment in Stavig. There the defendant argued he only wished to purchase four ounces of cocaine from a CI but was compelled to purchase a kilogram. Specifically, the defendant argued the government continuously insisted on kilogram sale quantities and but for a favorable “payment schedule” he would not have purchased a kilogram of cocaine.  At a sentencing hearing the defendant testified he had never dealt in kilogram quantities, and he was not interested in purchasing an entire kilogram. The government provided hearsay testimony indicating the CI had dealt kilogram quantities to the defendant in the past. The District Court refused to depart from the sentencing guidelines, holding the defendant was “worked over some” but ultimately desired to deal with kilograms rather than smaller quantities. While expressing “extreme discomfort” with the situation, the 8th Circuit affirmed the District Court. In so doing it relied on the fact that government used an amount of cocaine “consistent with” the defendant’s previous dealings with the CI. However, the three judge panel was reluctant to condone the reverse sting outright, repeatedly noting that sentencing entrapment did not occur based on the  findings of fact that were not “clearly erroneous.”

Finally, in 2000, the Eighth Circuit found a fact scenario that established “sentencing entrapment.” In U.S. v. Searcy, the defendant originally refused to sell the CI crack-cocaine, repeatedly insisting that he only dealt powder cocaine.  For four weeks the CI, at the direction of the DEA officer involved with the investigation, insisted that the defendant sell him crack cocaine.  The defendant finally succumbed to this pressure and delivered 8.6 grams of crack-cocaine to the CI. The defendant was arrested several days later when he attempted to deliver 28 grams of crack-cocaine to the CI.  The district court refused to depart downward from the sentencing guidelines on the basis of sentencing entrapment, holding that there was no “outrageous conduct” which induced the defendant’s actions.  The 8th Circuit reversed and remanded, eliminating the “outrageous government conduct” prong from a sentencing entrapment analysis.  The court explained that the crux of a sentencing entrapment issue turns on the defendant’s predisposition to commit the crime. Finally, it noted that insofar as government conduct is relevant, it is relevant only to illustrate whether the defendant’s actions were volitional or induced. See also, U.S. v. Staufer, 38 F.3d 1103 (9th Circ., 1994). (Relying on 8th Circuit case law the 9th Circuit adopted the doctrine of sentencing entrapment and noted the defendant was probably entitled to downward departure based on the fact that he had never engaged in a drug deal even nearing the magnitude of what the government induced through continued contact from a CI).

Factors to Consider. Ruiz lists a number of factors to aid the determination of a sentencing entrapment claim. When determining whether a defendant was “predisposed” to deal in a smaller drug quantity, a court should consider not only the defendant's cash on hand, but also other facts indicative of intent and resources, including whether:

• the government's agent pressured the defendant;
• the defendant desired the alleged quantity of drugs;
• the defendant communicated an ability to repay the debt within a reasonable time;
• the defendant has previously distributed substantial quantities; and
• the defendant expressed his intent to engage in future dealings of similar size or scale.

Ruiz at 775. The Ruiz factors are nearly comprehensive, but I would add that the arbitrariness of the government’s conduct is crucial in determining whether a defendant has been “induced” to deal in the type and amount of narcotics involved in the sting or reverse sting. (Was there evidence known to police that supported decision to request and/or offer the type and amount of narcotic involved in the sting? Is this a case where a meth dealer is inclined to make and deal 12 pounds of meth (Berg) or a where a known coke dealer is repeatedly pressured to deal crack (Searcy)?).

Remember to Look for Sentencing Manipulation. Sentencing Manipulation is wholly different than sentencing entrapment, although the two are not necessarily mutually exclusive.  Sentencing Manipulation occurs when the government intentionally prolongs an investigation in order to aggregate the number of offenses or amount of drugs, thereby hiking the guidelines up. 

This information should not be relied upon for legal advice.  If you have particular questions, feel free to contact Ryan Pacyga Criminal Defense.

The short answer is "it depends." In January, 2010, the Minnesota Supreme Court issued a new decision on this very issue.  While the Court did not go so far as to say that everyone can get a DWI for sleeping in their car, it did send a shocking message to the public: if you're drunk or over the .08 limit and you are found in a car, even if you did not drive it, you might be convicted of a DWI in Minnesota.

The case is called State v. Fleck.  In that case, Mr. Fleck's car was parked in his assigned parking space of his apartment's parking lot.  A neighbor called the police because they saw Mr. Fleck asleep in the driver's seat of the vehicle with the driver's door open.  When the police arrived, they woke Mr. Fleck up and noticed that he was drunk.  Fleck had not been driving the vehicle, and the officers believed this because the vehicle was "cold to the touch," the lights were not on, and it was not running.  His keys were on the center console between the driver and passenger seats.  Before the trial, the police tried to start the vehicle, but it would not start.  There was no proof that it was operable.

It's not only illegal to drive or operate a vehicle while under the influence of alcohol or over the .08 limit, it's also illegal to be in "physical control" of a vehicle while you're impaired or over the .08 limit.

What is "physical control?" According to Minnesota courts, physical control is meant to cover situations when an intoxicated person "is found in a parked vehicle under circumstances in which the [vehicle], without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). So you're in physical control if you have the means to initiate any movement of the vehicle, and you are in close proximity to its operating controls.  

Is there any good news? Some.  First, the court recognized that the law does not apply to passengers who give control of the vehicle to another driver.  State v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981).  Second, just because you're in or around the vehicle is not enough to show physical control.  Starfield, 481 N.W.2d at 838.  Rather, the courts consider the overall situation, including but not limited to:

• a person's location in proximity to the vehicle;
• the location of the keys;
• whether the person was a passenger in the vehicle;
• who owned the vehicle; and
• whether the vehicle was operable.

What if I didn't intend to drive the car? I've had quite a few cases dealing with that issue. You've had a few drinks, and just wanted to rest in your car, but you weren't going to drive anywhere.  In Starfield, the Minnesota Supreme Court ruled that it doesn't matter whether you intended to operate the vehicle or not.  I still think juries care though, and it's something they probably won't ignore when deciding whether someone is guilty of DWI for being in "physical control."

So what should I do if I want to rest in my car? If you think you're over the .08 limit or impaired, try to avoid going around your car, even if you don't intend to drive it.  If you decide that you need to be in your car and you don't have a sober driver, then do NOT have the keys anywhere in the car.  Give them to somebody else or throw them away.  If the keys aren't around the car when the police come, chances are they won't charge you with DWI, and if they do, you have a good chance of beating it with an experienced DWI lawyer.  I'm not writing about taking a cab or not getting drunk, because you wouldn't be reading this if that was the case. 

I was charged with DWI and my keys were in the car, am I out of luck? No, not necessarily.  You should talk to an experienced DWI lawyer right away.  While it is a factor that will be considered, it is not the only factor, and just because the keys were in the car does not mean that you are guilty of DWI.

When the Star Tribune covered the Fleck case, many readers wrote comments about how unfair it seemed to give someone a DWI in that situation.  I'm interested to know what you think when you read this, and I'm interested to know whether this blog is helpful.  Please feel free to comment on it because it helps me decide what to include in future articles.

I wouldn't be a lawyer if I didn't include a disclaimer: there are too many fact-specific variables to cover every situation in one document.  Therefore, this information should not be relied upon for legal advice.  The best thing you can do to protect yourself is to hire an experienced DWI lawyer.  If you have further questions, feel free to call Ryan Pacyga Criminal Defense at 612-339-5844 for a free consultation, or visit my website at www.arrestedmn.com You can also follow me on Twitter: arrestedmn

If the police pull me over, should i take the roadside field sobriety tests? Do I have an option? Before I answer those questions, you should know this: In Minnesota, the police have to have a reasonable, articulable suspicion that you are actually impaired or over the .08 blood alcohol limit before they can ask you to get out of the car and take field sobriety tests.  Why is that important? Several DWI cases have been thrown out of court because the police officer illegally asked the driver to get out of the car.  How? Because it's not illegal to drink and drive, it's only illegal to be over the limit or impaired.  The officer actually has to prove to the judge that he or she had specific facts to believe that you were over the limit or impaired, not just that you drank before you drove.  If they can't prove that, then they had no right to get you out of the car and a good lawyer may be able to get your case thrown out.

There are usually 4 roadside field sobriety tests:

• the Horizontal Gaze Nystagmus (where they look for jerking in your eyes);
• the One Leg Stand;
• the Walk and Turn; and
• the portable (or preliminary) breath test (the handheld breath test on the side of the road or in the squad car, called the PBT).

Okay, now to the questions. 

Should I take the roadside field sobriety tests? It depends, but usually no.  If you are confident that you will not be over the limit and you feel in control of your body, then you may be okay taking the field sobriety tests.  On the other hand, if you think there's even a chance that you may be at or over the limit, then you have nothing to gain by taking the tests.  Why? Even when people do well on the tests, I've never seen an officer let them go without having them take the hand-held breath test (the PBT).  So even if you walk and balance perfect, the officer will ask you to take that roadside breath test, and if you fail it by blowing .08 or more, they'll arrest you for DWI.

If I take the roadside field sobriety tests, do I have to take the PBT? No.  You don't have to take it.  If you think there's even a chance that you're at .08 or more, then there's no benefit to taking the roadside breath test.

What if I refuse the roadside field sobriety tests? The police have the right to arrest you if you refuse the tests or the PBT.  When you read this, I'm sure your reaction is "then why would I refuse those tests?" Here's why: the FSTs are tricky and they're not natural (who walks heel to toe and turns in a military-style pivot?).  If you take those tests, you're likely to fail them because you've never practiced them before.  If it turns out that you're under the limit, then it doesn't matter that you refused them.  If it turns out you're over the limit, then all you've done is make it that much harder to win your case.  So if you think you are even close to the .08 limit, you are better off politely telling the officer that you are not going to take the field sobriety tests or PBT.

It is important to understand the distinction between refusing the field sobriety tests and PBT, and refusing the blood, urine or breath test at the police station or hospital.  If you're arrested for DWI, the officer will then ask you to take a blood, urine or breath test (on the Intoxilyzer 5000 machine).  The Intoxilyzer breath test is a different test than the roadside PBT.  It is a crime to refuse the blood, urine or Intoxilyzer test after you have been arrested for DWI.  Also, you have the right to consult with an attorney within a reasonable time before you make a decision about the blood, urine or breath test.  You should make every effort to get a hold of a lawyer before making that decision. 

This is confusing, so here's an example:
You've just been pulled over.  The officer asks you to get out of the car because they suspect that you are driving while impaired.  They ask you to stand and they start to give you one of the 3 roadside tests above (the walk and turn, the one-leg stand, or the HGN).  You can politely decline their request.  Then they ask you (or tell you) to blow into a hand-held PBT.  You can politely decline that.  At that point, they will arrest you. 

After you are arrested, the officer will read you a form and tell you that you have been arrested for DWI and that refusal to take a test is a crime.  This usually happens at the police station or hospital, but sometimes it happens in the squad car.  They will tell you that you have the right to contact an attorney before making your decision, and then they will ask you to take a blood, urine or breath test.  I am not recommending that you refuse this test.  If you do not take this blood, urine or breath test, your license will be revoked for one year and you will be charged with a more serious crime.  This is the actual test that counts against you in court, and if you pass it, you're in good shape.  If you fail it, you should get a lawyer because you will be charged with DWI.

I wouldn't be a lawyer if I didn't include a disclaimer: there are too many fact-specific variables to cover every situation in one document.  Therefore, this information should not be relied upon for legal advice.  The best thing you can do to protect yourself is to hire an experienced DWI lawyer.  If you have further questions, feel free to call Ryan Pacyga Criminal Defense at 612-339-5844 for a free consultation, or visit my website at www.arrestedmn.com You can also follow me on Twitter: arrestedmn

Did you know that the police can charge you with domestic assault even if you never touched anyone? If the alleged victim even thinks that you were going to hurt them, the police will usually charge you.  A lot of domestic assault cases start when two people get into a loud argument and someone calls the police.

What is required for Domestic Assault? A couple things.  First, the person that you allegedly assaulted has to be a family or household member.  Otherwise, it's just regular assault instead of "domestic" assault.  Second, you have to do one of these two things:

1. commit an act with intent to cause fear in another of immediately bodily harm or death (for example, if you say "I'm going to kick your ass" or if you push someone or raise a fist at them and intend to scare them, that could be enough); or
2. intentionally inflict or attempt to inflict bodily harm upon another (for example, if you try to punch them and miss or you actually do punch them or push them into a wall).

What is a Family or Household Member? It's more than you think.  In Minnesota, a "family or household member" is any of the following:

• Spouses and former spouses;
• Parents and children;
• Persons related by blood;
• Persons who presently live together or have lived together in the past;
• Persons who have a child together regardless of whether they have been married or have lived together;
• A man and woman if the woman is pregnant and the man is alleged to be the father; or
• Persons involved in a significant romantic or sexual relationship.

What is the penalty? The first time is a misdemeanor, and the maximum is 90 days in jail and a $1,000 fine.  If you get a second conviction within 10 years of the first conviction, then it is a gross misdemeanor, and the maximum is 1 year in jail and a $3,000 fine.  A third offense is a felony with a maximum of 5 years in prison and a $10,000 fine.

Also, if you threatened the alleged victim with a gun, then the penalties are worse, and the gun can be forfeited.

In addition to criminal penalties and having a criminal record, you have to watch out for two more things: A No Contact Order and a ban on possessing firearms. 

What's a No Contact Order? If you're charged with domestic assault, the judge will usually issue a "No Contact Order."  This means that you are prevented from having any contact with the alleged victim, even if it is your wife or husband.  The judge will issue this order as soon as you're charged, they will not wait to see if you're actually guilty.  If the judge issues a No Contact Order, then you cannot contact the alleged victim in any manner.  You cannot call them on the phone, go near them, text message them, instant message them, email them, have your friend call them, write them a letter, or have any other form of contact with them. If you violate the No Contact Order, the judge could send you to jail and you could be charged with an additional crime.  You cannot live with them if there is a No Contact Order, so you might have to move out of your own house unless and until the judge gets rid of the No Contact Order.

I can't have a gun? If you are convicted of domestic assault, federal law prohibits you from possessing a firearm.  You can't even have a BB Gun, because they are considered a firearm.  You also can't hunt with a firearm or have a permit to carry a pistol.  I know a guy that had a domestic assault on his record, and years later he was shooting a bb gun at targets in his yard.  A neighbor told on him, and the police charged him with possessing a firearm.  The judge sentenced him to 5 years in prison for possessing a bb gun because he had a domestic assault on his record.

How can a lawyer help me? An experienced criminal defense lawyer can make a big difference in your case.  Often times, we can help to get the charges lowered or dismissed.  We are familiar with the defenses that are available, includiing but not limited to self defense, defense of another, and no intent to cause fear or harm or actual harm.  We also know how to maximize your chances of having the judge get rid of the No Contact Order.  If your case goes to trial, we have the experience of defending domestic assault cases and know what jurors are looking for in order to increase your chances of getting a not guilty verdict.

The information above is just a basic summary of what you can expect for a domestic assault in Minnesota.  There are too many fact-specific variables to cover every situation in one blog.  Therefore, this information should not be relied upon for legal advice.  If you have further questions, feel free to call Ryan Pacyga Criminal Defense at 612-339-5844 for a free consultation, or visit my website at www.arrestedmn.com You can also follow me on Twitter: arrestedmn

A Third Degree DWI is a more serious DWI than your typical first-time DWI.  You face up to a year in jail and a $3,000 fine, having your driver's license revoked for 180 days (or 1 year if you refused) and having whiskey plates put on all of your vehicles. 

How do I get a 3rd Degree DWI? To be charged with a third 3rd degree DWI in Minnesota, one of these things must have happened:

• You have a prior DWI or alcohol-related loss of license within the past 10 years;
• You had a passenger age 16 or younger at the time of the DWI;
• You took a blood, urine or breath test with a result of .20 or more; or
• You refused to provide a blood, urine or breath test after the officer asked you to.

If none of the above apply to your situation, then you should have been charged with a fourth degree DWI. 

What if I'm charged with a 3rd degree but I haven't had a DWI before? If you are convicted of a third degree DWI and do not have a prior DWI or alcohol related loss of license within the past 10 years, then the mandatory minimum does not apply and the judge does not have to sentence you to at least 30 days.  Beware that many prosecutors will still ask the judge to put you in jail if you plead guilty to a 3rd degree DWI even if this is your first DWI becuase it's a more serious type of DWI than the normal first-time DWI.  An experienced DWI lawyer will fight against this.

Could anything else happen to me besides jail? Yes. Regardless of whether you have a prior DWI or not, if you plead guilty or are found guilty of a third degree DWI, here are some other consequences you face besides jail and a fine:

• Your driver’s license being revoked for 180 days (see my Implied Consent article) or 1-year if you refused the test;
• Having a gross misdemeanor on your criminal record;
• Sentence to Service (picking up garbage on the side of the road, scrubbing urine off of walls, removing graffiti, shoveling snow, cutting grass, etc.);
• Loss of your job and loss of income;
• Whiskey Plates; and
• Increased insurance costs

How can a lawyer help? Just because you tested over the limit does not mean that you are guilty of DWI. There are many defenses to DWI, and it is possible to have your case entirely thrown out (dismissed), have the charges lowered to speeding, no brake light, no headlight, failing to signal, careless driving, a lower degree of DWI, and a number of other lower charges instead of a DWI.  They’re all better than getting a DWI on your record, but if you go into court without a lawyer, the odds of you getting a lower result are extremely low, not to mention that you will still have a DWI on your driving record and still be revoked because you probably didn’t file an “Implied Consent” challenge (see my Implied Consent article).

In addition, even if you ultimately plead guilty to a DWI, you are better off doing it with a lawyer.  Why? First, the prosecutors are more likely to make a better offer to you if you have an experienced DWI lawyer, because they know that the experienced lawyer is better at defending the case than you are.  Second, an experienced DWI lawyer knows each judge’s tendencies.  That is important because judges have discretion on what sentence to give you, and an experienced DWI lawyer can keep you away from the judges that are especially tough on DWIs.  Third, an experienced DWI lawyer can give you an idea of everything to expect and can tell you whether the proposed sentence is fair or not before you plead, so you know if you are making a good decision or not. 

Remember, the information above is just a basic summary of what you can expect for a third degree DWI in Minnesota.  There are too many fact-specific variables to cover every situation in one document.  Therefore, this information should not be relied upon for legal advice.  The best thing you can do to protect yourself is to hire an experienced DWI lawyer.  If you have further questions, feel free to call me or visit my website at www.arrestedmn.com You can also follow me on Twitter: arrestedmn

If you're charged with a DWI in Minnesota, you're not only facing potential jail and fines, but your driver's license can be revoked for between 90 days and a few years, and you could have a DWI on your driving record for the rest of your life.  Minnesota law says that you give “implied consent” to to have your blood, urine or breath tested if the police believe that you're over the .08 limit or under the influence of alcohol or a drug while you're driving.  If you test over .08 or if you refuse the test, your license can be revoked for at least 90 days.

Why is this important? When you're charged with a DWI, you have two things to worry about: the criminal case and the Implied Consent case.  The criminal case deals with jail, fines and probation.  The Implied Consent case deals with your right to drive and your driving record.  Even if you win your DWI criminal case or you get a lower plea (like a careless driving), unless you also fight and win your Implied Consent case, you still get a DWI on your driving record for the rest of your life, and you also still get revoked. That's why you have to fight the Implied Consent case, and realistically, you need an experienced DWI lawyer to do it for you.

Once you're notified that your license is being revoked, you only get 30 days (for a breath test) or 33 days (for blood or urine tests) to file the Implied Consent challenge.  Don't wait until you get a court date in the mail to call a lawyer, because if you wait you might miss the deadline and then you’re stuck with the revocation and the DWI on your driving record for the rest of your life.  If you gave a blood, urine or breath sample, or if you refused to give a sample, you should call an experienced DWI lawyer to file your Implied Consent challenge right away.

1. If you took a breath test on the Intoxilyzer 5000 and your result was .08 or more, then the officer probable gave you a white piece of paper that says “Notice and Order of Revocation” at the top; or
2. If you took a blood or urine test and the results come back over .08 or you had a drug in your system, then you will eventually receive a letter in the mail from the Department of Public Safety indicating that your driving privileges are being revoked.  So if you took a blood or urine test, you won't be revoked on the day you were arrested, but you will eventually get a letter; or
3. If the officer thinks you "refused" the test, then they will give you a piece of paper that tells you your license is being revoked for one year.

I also have a link on my website to the DMV where you can check the status of your driver’s license.  To access the link, go to www.arrestedmn.com and click on the “links” page.

I failed the test or I refused.  Should I really get a lawyer? Yes.  Protecting your license and driving record is important, and there are a lot of ways to win the Implied Consent case.  Even if you allegedly failed the test or refused, you could win the case if:

• The police pulled you over for an illegal reason; or
  
• The police did not have enough cause to ask you to get out of the car to take field sobriety tests; or
  
• You did well on the field sobriety tests; or
• The police did not properly inform you of your rights and the consequences of taking or refusing a blood, urine or breath test; or
• The police did not give you an opportunity to consult with an attorney before deciding whether to take the test; or
• The police coerced you into taking a test; or
• The test was not valid or reliable; or
• The police prevented you from getting an additional test.
  

Those are only a few examples.  An experienced DWI lawyer will make every challenge that applies in your case and will maximize your chances of protecting your driver's license and record.

But what if I got my DWI lowered to a careless driving or it was thrown out? The Implied Consent law does not care if you were never charged criminally with a DWI, does not care if your DWI was dismissed in the criminal case, does not care if you pled your DWI down to a lower charge such as a careless driving or a speeding ticket, and does not care if you went all the way to trial and were found not guilty.  The Implied Consent law will still keep you revoked and will still keep the DWI on your driving record forever, unless you make a timely challenge to the Implied Consent revocation and actually win at the Implied Consent hearing.

Some lawyers will tell you they got you a “deal” because they got your DWI down to a careless.  In most cases, that is not a “deal” at all.  Why? Because unless they also fight and win your Implied Consent, you still have the DWI on your driving record for the rest of your life, and you are still revoked for at least 90 days, and your insurance will skyrocket.  I have seen too many people think they were not getting a DWI by pleading guilty to a careless or a lower charge, only to find out later that their lawyer never advised them that they were still getting a DWI on their driving record.

Can a public defender do my Implied Consent case? No.  It is not because they do not care, quite the contrary.  Rather, it is because their budgets do not allow them to fight a civil case for you, and you have no constitutional right to a public defender in a civil case.  So even if you qualify for a public defender in your criminal DWI case, be aware that no matter what happens in that criminal case, if you do not also fight and win your Implied Consent case, the DWI and revocation will stay on your record forever. 

This is a general summary of Minnesota’s Implied Consent law, it should not be relied upon for legal advice.  If you want specific legal advice, please contact me for a free consultation.

There are four degrees of DWI in Minnesota: Fourth, Third, Second and First.  In Minnesota, your first DWI is a fourth degree misdemeanor unless you:

1. have a prior DWI within last 10 years;
2. have a passenger age 16 or younger with you in the car at the time of the DWI;
   
3. tested over .20; or
   
4. refused to provide a sample of your blood, breath or urine after the police asked you for one.
   

If any of the above happened then you could be charged with a more severe DWI. If so, please see my other articles discussing third, second and first degree DWI. Otherwise, read on.

Here's a couple of things you might not know:

1. In Minnesota, there is no such thing as a DUI. We only have DWI, although it is common for people to use DUI and DWI interchangeably.
2. Yes, you can be charged with a DWI even if you are under the .08 limit.  That's because there are two forms of DWI: driving over the .08 limit, and driving while under the influence of alcohol or a drug.
3. Your license will be revoked for 90 days unless you make an "Implied Consent" challenge and win.
   

What's the penalty for a misdemeanor DWI? The maximum penalty for 4th degree DWI is 90 days in jail and a $1,000 fine. If you plead guilty, or if you're found guilty, you will have a criminal record, your license will be revoked for 90 days, you face potential jail time, and these additional counsequences could happen:

• Sentence to Service (think of it as picking up garbage on the side of the road, scrubbing urine off of walls, removing graffiti, shoveling snow, cutting grass, etc.)
• Probation for 1-2 years, and if you violate any of the terms, the judge could give you additional jail time
• A “no alcohol” restriction, meaning the judge orders you not to consume any alcohol for 1-2 years, with random checks by probation
• Attending and paying for a MADD panel
• Paying for a chemical dependency evaluation and following the recommendations (they can range from an alcohol class all the way to inpatient treatment)
• Loss of your job, loss of future employment opportunities and loss of income
• Having a DWI on your driving record for the rest of your life
• Higher insurance costs
  
• Miscellaneous consequences that differ from case to case

What if I tested over the legal limit? Just because you tested over the limit does not mean that you are guilty of DWI. Even if you tested over the limit, there are still many defenses that apply. Here’s a short list of the most common defenses:

• Did the officer have a legal reason to pull you over?
• Did the officer have the right to ask you to get out of the vehicle and take field sobriety tests? Remember, drinking and driving is not illegal. The officer has to be able to prove that they thought you were actually drunk or over the .08 limit before they have the right to ask you to get out of your car.
• Did you do well on the field sobriety tests?
  
• Did the officer have the right to ask you to take a roadside breath test and arrest you for DWI?
• If you were legally arrested, did the officer read the Implied Consent Advisory to you in the correct manner, give you enough time to contact a lawyer before deciding if you should take a blood, breath or urine test, mislead you on whether you should or should not take the test, or interfere with any of your other rights when making your decision whether to take a test?
• Did the officer administer the blood, breath or urine test in the right way?
• Is the blood, breath or urine test admissible in evidence?
• Is the blood, breath or urine test reliable?
• Did the officer interfere with your right to get an additional test?

DWI’s have been thrown out for each of the above reasons, as well as many others, even when people test over the limit. An experienced DWI lawyer knows how to examine each of these issues and try to:

1. Get your case thrown out; or
   
2. Have the charges lowered to speeding, no brake light, no headlight, failing to signal, careless driving, or a number of other lower charges instead of DWI.  I think you'd agree, they're all better than getting a DWI on your criminal record and being revoked for 90 days.

Do I really need a lawyer? If you go into court without a lawyer, the odds of getting a lesser offense or getting your case thrown out are extremely low. Can you really take the risk of having a criminal record, having a DWI on your driving record forever, and losing your license for 90 days? An experienced DWI lawyer knows all of the defenses to DWI, knows how to spot those issues in your case, knows what is needed to present those issues in court, and knows how to go to trial and present the best possible defense.

If you wait and don't hire an attorney right away, you might lose your right to fight the Implied Consent case. You only have approximately 30 days from the notice of your revocation to file a consent challenge. After that, you lose the right to make the Implied Consent challenge, and the DWI will be on your driving record even if you win the criminal case! It’s not fair, but it’s the law.  For more information about that, see my Implied Consent article.

In addition, even if you ultimately plead guilty to a DWI, you are better off doing it with a lawyer. Why?

• Prosecutors are more likely to make a better offer to you if you have an experienced DWI lawyer because they know that the experienced lawyer is better at defending the case than you are.
• An experienced DWI lawyer knows each judge’s tendencies. That is important because judges have discretion on what sentence to give you, and an experienced DWI lawyer can keep you away from the judges that are especially tough on DWIs.
• An experienced DWI lawyer can give you an idea of everything to expect and can tell you whether the proposed sentence is fair or not before you plead, so you know if you are making a good decision or not.
• An experienced DWI lawyer will also explain all of the other effects of a DWI to you. Judges and prosecutors are not required to tell you about those.

This is just a summary of what you can expect on your first DWI in Minnesota.  For more specific information, you can contact me for a free consultation.