In June, the US Supreme Court ruled on a number of cases that had been brought before them. One of the most visible cases was Missouri v. McNeely. McNeely is, at its core, a 4th Amendment "search and seizure" case. I touched on this case last fall, and promised to give updates on its progress, so here we go!
The SCOTUS ruled against the state of Missouri in this case and affirmed the Missouri high-court's decision to throw out the results of blood tests that involve a warrantless blood draw from the suspect in DWI cases. As you can see by reading my previous post, this is in line with what I assumed would happen. Allowing law enforcement to forcibly take blood, urine, or breath would give them an unprecedented amount of discretion. Because the Court ruled in favor of the private citizen, this decision becomes the unequivocal law of the land. States will have to abide by the ruling set forth in McNeely or be subject to having their decisions overturned by Federal courts.
While this may seem like somewhat of a narrow ruling, nothing could be further from the truth. I, along with hundreds of other DWI attorneys across the state of Minnesota, are excited about the possible ramifications this ruling will have on DWI law in our state. Essentially, the general feeling is that the Court ruling that blood samples require either permission from the suspect or a warrant could extend to breath and urine tests, as well. This would change the process for a DWI arrest immensely and could turn the entire area of law on it's head.
You may be asking yourself, "But, Brodie, won't cops just start calling judges to get warrants on their way back to the station and get permission to take samples that way?" Maybe, but they're not doing it right now. Police are not making it their policy to obtain warrants for any kind of BAC sample. This means that if you are currently facing DWI charges, or if you are arrested in the near future for DWI and the police do not obtain a warrant to take your BAC sample, you may be in line to have your test thrown out and get off scot-free. If you're in this situation, get yourself an Minnesota DWI attorney right now and allow them to file the correct paperwork to get your challenge of your BAC test rolling. It's called a McNeely challenge, and attorneys all over the state of MN are filing dozens of them everyday.
As always, the content of this blog is for entertainment purposes only and is not to be construed as legal advice, nor does reading this blog create an attorney/client relationship between the author and the reader. If you or a loved one are dealing with a DWI charge and are looking for legal advice or representation, contact a Minnesota DWI Attorney as soon as possible.
Showing posts with label 4th amendent. Show all posts
Showing posts with label 4th amendent. Show all posts
Tuesday, August 13, 2013
Friday, April 27, 2012
Knowing Your Rights, Part 4: Stopped on the Street
Welcome to the final installment of this series intended to examine your rights when speaking with police officers in different situations. In previous installments, we've looked at what you do and don't have to do during a traffic stop, when the police come to your front door, and when you meet with officers at the police station. This week, we'll take a look at your rights when stopped while walking on the street/sidewalk.
As a general rule, police don't stop people on the street just to have a chat about something. If you're stopped by an officer while walking down the sidewalk, chances are they suspect that you have either committed a crime, are currently committing a crime, or are about to commit a crime. This changes the dynamic of your meeting, in that you need to be a little more on guard in this situation than you do when police come to your home. Similar to a traffic stop, you need to assume you're being investigated in regards to a crime, and subsequently, you need to act accordingly.
Just like in other the other situations we've covered, you're under no obligation to speak with police if they stop you on the street. You never have to answer an officer's questions other than to give him or her your identifying information. The big difference when you've been stopped on the street when compared to the other scenarios is that a Supreme Court case called Terry v. Ohio. The case sets legal precedent that officers can engage in custodial searches of criminal suspects on the street that included a pat down of their outer clothing and the removal of any potential dangers they discover. If this sounds pretty broad to you, that's because it is. There are specific circumstances that must be realized in order for the officer to have this power, but they aren't very stringent. Basically, if the officer has a reasonable suspicion that the suspect may have a weapon on his person, he's allowed to conduct the search. This "reasonable suspicion" can be founded based on the experience of the officer, the observations he's made, the behavior of the suspect, or any other number of things that don't have very strong roots.
Personally, I feel that Terry represents a pretty significant infringement on the rights of US citizens. It gives officers a right to a search that is less restrictive than the right the courts have to issue a search warrant. The reason it exists is noble. It is intended to make a dangerous job safer. Police officers must always be vigilant and aware of the presence of a weapon for obvious reasons. Allowing them this search privilege is intended to reduce their chances of being hurt (or worse) while questioning a suspect. I don't have any facts or figures as to whether this aim has been successful, but it certainly has good intentions.
The problem, as I see it, is that this "reasonable suspicion" doesn't have to be based in much fact. It's difficult to get the results of a search conducted subsequent to a Terry stop. The reason for this is that the discretion of police officers is rarely questioned by the court when the issue involves protecting their safety. This, again, is a noble theory, but the end result is that a lot of otherwise inadmissible evidence is allowed due to this decision.
What this means for you is that if the officer decides to pat you down when he stops you on the street, you don't have much to say about it. The best thing to do if this occurs is to simply comply with the orders of the officer and allow the search. If the rationale for the search is poor, any evidence found can be challenged in court by your Minnesota criminal defense attorney.
One of the biggest issues people face when stopped by police in this fashion is that it's hard to know whether or not they're being detained. If you face this quandary yourself, this is a great time to break out your "am I free to leave?" question. We talked about this tool when discussing your rights down at the station, but they hold equally well, here. If you are not under arrest and are not being detained, you have every right to leave. If you're not free to leave, then you shouldn't be speaking with the officer. It's a simple concept that becomes hard to execute when you're in the moment. Knowing what you do and don't have to say is a huge advantage in this situation. By determining whether you are free to leave, you will better understand the motives of the officer and be able to more effectively protect your rights.
(Quick aside: Traffic violations are essentially all Terry stops as well. What this means is that if an officer has a reasonable suspicion that you are carrying a weapon when he stops you in your vehicle, the same search rules apply. When dealing with a vehicle, the officer is also authorized to check the passenger compartment for weapons. This gives him access to your center console, glove box, the compartments in your doors, and under the seat. If any of these compartments are locked, he no longer has access to them. The point of giving him access is to take away your access to weapons. If the compartments are locked, you couldn't exactly quickly grab something from these places. So, this privilege extends to the vehicle, as well, but is most commonly exercised in on the street stops.)
So, to recap, police stops of pedestrians are usually a little more purposeful than other interactions. They aren't stopping you to shoot the breeze. They likely have a suspicion that you were, are, or are going to be involved in the commission of a crime. You are required to identify yourself to the officer, but are not obligated to say anything else. This included saying where you are going, where you just came from, what you are doing, or anything of that nature. If the officer continues to question you after you've told him you'd prefer not to answer any questions, ask the officer if you're free to leave. If he says you are, take the opportunity to do so. If he says you are not, then politely tell him that you will not speak to him without a Minnesota criminal defense attorney present. If he has reasonable suspicion that you have a weapon, he will be able to pat you down and search your clothing. You should comply with this search and worry about what he may find later. As with any other situation, it's important to remain polite and courteous with the officer at all times. Being difficult and disrespectful will get you nowhere.
So, if you are stopped on the street by a police officer and are detained, or if you believe that further investigation may follow, contact a Minnesota criminal defense attorney immediately in order to best serve your interests. Many times, by contacting a lawyer before being charged with a crime, your lawyer can advise you in a way that will avoid any charges ever being brought. It's impossible to call a lawyer too soon when dealing this these kind of issues. Take care of yourself and get someone in your corner making the right decisions.
As always, the content of this website is not intended to act as legal advice or legal advertising, nor does the viewing of it create an attorney/client relationship between the author and the reader. If you or a loved one are in need of legal advice, contact a licensed attorney in your jurisdiction for specialized legal advice.
As a general rule, police don't stop people on the street just to have a chat about something. If you're stopped by an officer while walking down the sidewalk, chances are they suspect that you have either committed a crime, are currently committing a crime, or are about to commit a crime. This changes the dynamic of your meeting, in that you need to be a little more on guard in this situation than you do when police come to your home. Similar to a traffic stop, you need to assume you're being investigated in regards to a crime, and subsequently, you need to act accordingly.
Just like in other the other situations we've covered, you're under no obligation to speak with police if they stop you on the street. You never have to answer an officer's questions other than to give him or her your identifying information. The big difference when you've been stopped on the street when compared to the other scenarios is that a Supreme Court case called Terry v. Ohio. The case sets legal precedent that officers can engage in custodial searches of criminal suspects on the street that included a pat down of their outer clothing and the removal of any potential dangers they discover. If this sounds pretty broad to you, that's because it is. There are specific circumstances that must be realized in order for the officer to have this power, but they aren't very stringent. Basically, if the officer has a reasonable suspicion that the suspect may have a weapon on his person, he's allowed to conduct the search. This "reasonable suspicion" can be founded based on the experience of the officer, the observations he's made, the behavior of the suspect, or any other number of things that don't have very strong roots.
Personally, I feel that Terry represents a pretty significant infringement on the rights of US citizens. It gives officers a right to a search that is less restrictive than the right the courts have to issue a search warrant. The reason it exists is noble. It is intended to make a dangerous job safer. Police officers must always be vigilant and aware of the presence of a weapon for obvious reasons. Allowing them this search privilege is intended to reduce their chances of being hurt (or worse) while questioning a suspect. I don't have any facts or figures as to whether this aim has been successful, but it certainly has good intentions.
The problem, as I see it, is that this "reasonable suspicion" doesn't have to be based in much fact. It's difficult to get the results of a search conducted subsequent to a Terry stop. The reason for this is that the discretion of police officers is rarely questioned by the court when the issue involves protecting their safety. This, again, is a noble theory, but the end result is that a lot of otherwise inadmissible evidence is allowed due to this decision.
What this means for you is that if the officer decides to pat you down when he stops you on the street, you don't have much to say about it. The best thing to do if this occurs is to simply comply with the orders of the officer and allow the search. If the rationale for the search is poor, any evidence found can be challenged in court by your Minnesota criminal defense attorney.
One of the biggest issues people face when stopped by police in this fashion is that it's hard to know whether or not they're being detained. If you face this quandary yourself, this is a great time to break out your "am I free to leave?" question. We talked about this tool when discussing your rights down at the station, but they hold equally well, here. If you are not under arrest and are not being detained, you have every right to leave. If you're not free to leave, then you shouldn't be speaking with the officer. It's a simple concept that becomes hard to execute when you're in the moment. Knowing what you do and don't have to say is a huge advantage in this situation. By determining whether you are free to leave, you will better understand the motives of the officer and be able to more effectively protect your rights.
(Quick aside: Traffic violations are essentially all Terry stops as well. What this means is that if an officer has a reasonable suspicion that you are carrying a weapon when he stops you in your vehicle, the same search rules apply. When dealing with a vehicle, the officer is also authorized to check the passenger compartment for weapons. This gives him access to your center console, glove box, the compartments in your doors, and under the seat. If any of these compartments are locked, he no longer has access to them. The point of giving him access is to take away your access to weapons. If the compartments are locked, you couldn't exactly quickly grab something from these places. So, this privilege extends to the vehicle, as well, but is most commonly exercised in on the street stops.)
So, to recap, police stops of pedestrians are usually a little more purposeful than other interactions. They aren't stopping you to shoot the breeze. They likely have a suspicion that you were, are, or are going to be involved in the commission of a crime. You are required to identify yourself to the officer, but are not obligated to say anything else. This included saying where you are going, where you just came from, what you are doing, or anything of that nature. If the officer continues to question you after you've told him you'd prefer not to answer any questions, ask the officer if you're free to leave. If he says you are, take the opportunity to do so. If he says you are not, then politely tell him that you will not speak to him without a Minnesota criminal defense attorney present. If he has reasonable suspicion that you have a weapon, he will be able to pat you down and search your clothing. You should comply with this search and worry about what he may find later. As with any other situation, it's important to remain polite and courteous with the officer at all times. Being difficult and disrespectful will get you nowhere.
So, if you are stopped on the street by a police officer and are detained, or if you believe that further investigation may follow, contact a Minnesota criminal defense attorney immediately in order to best serve your interests. Many times, by contacting a lawyer before being charged with a crime, your lawyer can advise you in a way that will avoid any charges ever being brought. It's impossible to call a lawyer too soon when dealing this these kind of issues. Take care of yourself and get someone in your corner making the right decisions.
As always, the content of this website is not intended to act as legal advice or legal advertising, nor does the viewing of it create an attorney/client relationship between the author and the reader. If you or a loved one are in need of legal advice, contact a licensed attorney in your jurisdiction for specialized legal advice.
Monday, April 9, 2012
Know Your Rights, Pt. 2: At Your Home
Today, we'll continue on with our dissection of your rights regarding contact with the police. Last week, we kicked this series off by look at what you have to do and what you don't have to do when pulled over in your vehicle. Today, we'll examine the less common but more "fraught-with-potential-disaster" situation of police showing up at your home in an effort to speak with you. Again, keep in mind, this information is intended to be used only as a rough guideline to use if you're put in a situation like this. If you encounter a situation where police show up at your home to speak with you about your involvement in a crime or your knowledge of a crime, the best thing you can do is contact a Minnesota criminal defense attorney immediately in order to best protect your rights.
We'll set the stage. You're at home on a lazy Thursday evening preparing dinner and watching your favorite television program (maybe "Family Feud with Steve Harvey") when, all of a sudden, there is a loud knock at your front door. You walk over to the door, look through the peep hole, and see two uniformed police officers standing on the other side. At this point, you're mind is racing. "What could they want?" you wonder. Every little misdeed you've ever committed is now at the forefront of your mind. Startled and vulnerable, you open the door. (Note: You're not required to open the door. You can tell them through the door that you'd prefer to not open it for them, but unless you've got marijuana smoke billowing out of your front door or something like that, just open the door.)
You greet the officers with a simple "Good evening." They ask if you are you, to which you reply "yes." The officer on your left (who's clearly in charge of this show) tells you that they're investigating a break-in that occurred down the street a couple of nights ago and were wondering you could answer a few questions for them. This is the beginning of when you need to be vigilant regarding your rights. What you tell the officers will be used by them to attempt to solve the mystery of the break-in. Whether or not you are a suspect in the crime doesn't matter. The job of police is to solve crimes, and if you give them a reason to wonder whether you were involved, they will.
Your response to their initial questions should be something along the lines of "I'm not sure I'll be of much assistance to you, officers, but I'll do my best to help." Police have a tough job, and offering to help them in any way you can will go a long ways. Whether you are a suspect or not, it's likely that you will be asked if the officers can come inside. You do not have to let them into your home, so it's completely up to you whether you choose to allow them in. There are two reasons officers want to come inside to question you. One is comfort, both theirs and yours. Sitting on your couch and talking is much more comfortable than standing outside in the cold to speak with you. You will probably be more comfortable, as well, because sitting in your living room with the police is a lot less intimidating than going to the station to give a statement. The second reason is that by gaining entrance to your home, the officers will have the opportunity to look around and see if any of the missing items from the burglarized house are in your home. I know the odds seem small that the actual thief would be dumb enough to leave stolen materials laying around their house, but you'd be surprised. Police don't use this trick because it's a waste of time. Even if you aren't the person who broke into the house in question, it's possible that you have the same television, pewter picture frame, or Target-issue lamp that the victims had taken from them. You can save yourself the hassle of proving that your property is, indeed, your property by just telling the officers that you're perfectly comfortable speaking in your doorway.
By talking to the officers at your doorstep, you might encourage them to be a little quicker with their line of questioning. If it's cold or there's precipitation falling, they likely won't take too much of your time. Unless you're a suspect, it's unlikely they'll ask you to accompany them to the station to speak, but we'll get to that scenario on Wednesday. For the time being, offer to speak to them at the doorstep. If you'd be more comfortable speaking with the door chain connected, feel free to do so. Do not walk outside and don't let them inside.
Now, once they start asking questions, it's very important to listen carefully to what kinds of things they are asking you. If, in your opinion, the questions they are asking you are intended to determine your level of involvement in the crime they are investigating, you should refuse to answer any more questions without your attorney present. Questions that should trigger this concern are things like "where were you the night of...," or anything that seems overly broad. If they ask something like "Do you know anything about the burglary?" you need to be wary about how long of an answer you give. This type of questions encourages the questioned party to offer up a lot of information without a specific path. The best thing to do is to keep your answers to any questions short to avoid offering up information you didn't intend to disclose.
If the officers are asking questions like "Did you see or hear anything out of the ordinary" or "Have you noticed any suspicious people in the neighborhood in recent days," it's unlikely they consider you anything other than a potential witness. Many times, people witness a crime without even realizing it. Police know this, so they ask these kinds of questions to see if you noticed something that you didn't realize might be connected with the crime. Feel free to answer these questions.
If you are the focus of a criminal investigation, the officers might not be so friendly. If the officers really want entrance into your home, they will say a lot of things to try to get you to consent. It's much easier for them to get permission to enter than it is for them to go to a judge and get a warrant. They'll say things like "This will go a lot easier if you just let us in," "We just want to ask you a few questions. You don't have anything to worry about," or "If you don't let us in, we'll just go get a warrant and try this again." Remember that no matter what the police say to you, they don't have the right to enter your home without your permission unless they have a warrant. Tell them to get the warrant and then come back. Again, if they want to talk to you bad enough, they will ask you to come with them to the station. I'll tell you what to do in that situation on Wednesday.
If the police just want to know if you saw anything that could be useful to them, the conversation will likely be pretty quick. If they are investigating you to determine if you had any involvement in the crime, it may be a more lengthy conversation if you allow it to continue. Again, if you believe that the line of questioning being utilized by police is an attempt to build a case against you or support a charge against you, refrain from answering any further questions and contact a Minnesota criminal defense lawyer immediately. Even if you KNOW you are not responsible for the crime in question, this won't protect you from being charged, or even from being convicted. Don't leave your freedom up to chance. Contact your local Minnesota defense attorney to make sure you are protected.
As always, none of the information contained within this article is intended to act as legal advice or advertising. Minnesota Criminal Law Blog is intended to be used for entertainment purposes only. If you are in need of legal advice or representation, stop looking to internet articles for answers and call or email a Minnesota criminal law attorney today.
We'll set the stage. You're at home on a lazy Thursday evening preparing dinner and watching your favorite television program (maybe "Family Feud with Steve Harvey") when, all of a sudden, there is a loud knock at your front door. You walk over to the door, look through the peep hole, and see two uniformed police officers standing on the other side. At this point, you're mind is racing. "What could they want?" you wonder. Every little misdeed you've ever committed is now at the forefront of your mind. Startled and vulnerable, you open the door. (Note: You're not required to open the door. You can tell them through the door that you'd prefer to not open it for them, but unless you've got marijuana smoke billowing out of your front door or something like that, just open the door.)
You greet the officers with a simple "Good evening." They ask if you are you, to which you reply "yes." The officer on your left (who's clearly in charge of this show) tells you that they're investigating a break-in that occurred down the street a couple of nights ago and were wondering you could answer a few questions for them. This is the beginning of when you need to be vigilant regarding your rights. What you tell the officers will be used by them to attempt to solve the mystery of the break-in. Whether or not you are a suspect in the crime doesn't matter. The job of police is to solve crimes, and if you give them a reason to wonder whether you were involved, they will.
Your response to their initial questions should be something along the lines of "I'm not sure I'll be of much assistance to you, officers, but I'll do my best to help." Police have a tough job, and offering to help them in any way you can will go a long ways. Whether you are a suspect or not, it's likely that you will be asked if the officers can come inside. You do not have to let them into your home, so it's completely up to you whether you choose to allow them in. There are two reasons officers want to come inside to question you. One is comfort, both theirs and yours. Sitting on your couch and talking is much more comfortable than standing outside in the cold to speak with you. You will probably be more comfortable, as well, because sitting in your living room with the police is a lot less intimidating than going to the station to give a statement. The second reason is that by gaining entrance to your home, the officers will have the opportunity to look around and see if any of the missing items from the burglarized house are in your home. I know the odds seem small that the actual thief would be dumb enough to leave stolen materials laying around their house, but you'd be surprised. Police don't use this trick because it's a waste of time. Even if you aren't the person who broke into the house in question, it's possible that you have the same television, pewter picture frame, or Target-issue lamp that the victims had taken from them. You can save yourself the hassle of proving that your property is, indeed, your property by just telling the officers that you're perfectly comfortable speaking in your doorway.
By talking to the officers at your doorstep, you might encourage them to be a little quicker with their line of questioning. If it's cold or there's precipitation falling, they likely won't take too much of your time. Unless you're a suspect, it's unlikely they'll ask you to accompany them to the station to speak, but we'll get to that scenario on Wednesday. For the time being, offer to speak to them at the doorstep. If you'd be more comfortable speaking with the door chain connected, feel free to do so. Do not walk outside and don't let them inside.
Now, once they start asking questions, it's very important to listen carefully to what kinds of things they are asking you. If, in your opinion, the questions they are asking you are intended to determine your level of involvement in the crime they are investigating, you should refuse to answer any more questions without your attorney present. Questions that should trigger this concern are things like "where were you the night of...," or anything that seems overly broad. If they ask something like "Do you know anything about the burglary?" you need to be wary about how long of an answer you give. This type of questions encourages the questioned party to offer up a lot of information without a specific path. The best thing to do is to keep your answers to any questions short to avoid offering up information you didn't intend to disclose.
If the officers are asking questions like "Did you see or hear anything out of the ordinary" or "Have you noticed any suspicious people in the neighborhood in recent days," it's unlikely they consider you anything other than a potential witness. Many times, people witness a crime without even realizing it. Police know this, so they ask these kinds of questions to see if you noticed something that you didn't realize might be connected with the crime. Feel free to answer these questions.
If you are the focus of a criminal investigation, the officers might not be so friendly. If the officers really want entrance into your home, they will say a lot of things to try to get you to consent. It's much easier for them to get permission to enter than it is for them to go to a judge and get a warrant. They'll say things like "This will go a lot easier if you just let us in," "We just want to ask you a few questions. You don't have anything to worry about," or "If you don't let us in, we'll just go get a warrant and try this again." Remember that no matter what the police say to you, they don't have the right to enter your home without your permission unless they have a warrant. Tell them to get the warrant and then come back. Again, if they want to talk to you bad enough, they will ask you to come with them to the station. I'll tell you what to do in that situation on Wednesday.
If the police just want to know if you saw anything that could be useful to them, the conversation will likely be pretty quick. If they are investigating you to determine if you had any involvement in the crime, it may be a more lengthy conversation if you allow it to continue. Again, if you believe that the line of questioning being utilized by police is an attempt to build a case against you or support a charge against you, refrain from answering any further questions and contact a Minnesota criminal defense lawyer immediately. Even if you KNOW you are not responsible for the crime in question, this won't protect you from being charged, or even from being convicted. Don't leave your freedom up to chance. Contact your local Minnesota defense attorney to make sure you are protected.
As always, none of the information contained within this article is intended to act as legal advice or advertising. Minnesota Criminal Law Blog is intended to be used for entertainment purposes only. If you are in need of legal advice or representation, stop looking to internet articles for answers and call or email a Minnesota criminal law attorney today.
Thursday, April 5, 2012
Know Your Rights: Traffic Stop
I'd like to preface this article by saying that police are not bad people. I know the tone of a lot of my articles is that of the badgering police officer harassing the unassuming citizen, but this is far from the norm. Police provide a vital service for our society, and do a fantastic job of keeping us safe. I would never speak an ill word about the work police, especially Minnesota police, do on a day to day basis. Whenever you're dealing with police, be polite, be attentive, and be respectful. They've earned at least that from everyone.
Having said that, a lot of what officers are asked to do involves a certain level of prying into the private lives of people. If a crime is being investigated and you "meet the description" or are in the wrong place at the wrong time, it is the job of police officers to do their due diligence and find out what you know. If you ever find yourself in this situation, whether it's the result of being stopped on the street, greeted at your front door, or called in to the police station for questioning, it's important to know what you must do and what you may do. I use those words because just because you aren't required to provide certain information doesn't mean you shouldn't. In this article, I will go over what you are required to provide to police when asked and what is completely optional. Over the next few articles, I'll touch on one of the four most common situations in which one may be questioned by a police officer. We'll start with the most common.
The Traffic Stop
Let's start with when you're pulled over while driving. There could be any number of reasons you were pulled over: Speeding, running a red light, weaving, cutting someone off, or even something silly like a broken tail light. The point is, unless you know how long the officer has been following you, you might have committed any number of infractions he could call you out on. The key is not to help him out. The officer is likely going to ask you something along the lines of "Do you know why I pulled you over?" Your answer should be "No, I don't." If you say "yes" and them give him the reason, that's all he needs to know to write that ticket with confidence. Even if you think you are 100% sure you know why you've been pulled over, you could still be wrong. Don't be that guy who gets pulled over for a flickering tail light who ends up driving away with a ticket for running a stop sign. So one "don't" to remember if you get pulled over is don't give the officer reasons to write you tickets. Another don't is don't go on the offensive. The last thing an officer wants to hear is you questioning his motives. He's probably got perfectly fine motives, and eventually he'll let you know what they are. By asking "What did I do?" or "Is there a problem, officer?" you are making your first contact with the officer aggressive. Questions like that might seem harmless enough, but the best thing to do is let the police officer lead the conversation. When you are waiting for the officer to come to your vehicle, simply get your driver's license and insurance card out, roll your window down, and wait.
That brings us to your first required action -- giving the officer your license and proof insurance. If you've been pulled over while operating a motor vehicle, state law requires you to present both of these things. This is called the implied consent law. If you have both a license and valid auto insurance but don't have them with you in the vehicle, you do have time to show them to the court before additional citations are issued. In most cases, providing proof of license and proof of insurance for the date of the traffic stop before your first court date is sufficient. If you have your license and insurance and just don't want to show the officer, then you're crazy. Just show him. If you've got warrants, outstanding tickets, or something of that ilk, they're going to find out, anyway. Just cut to the chase and take your medicine.
Another thing that technically you don't have to do, but it's certainly in your best interests, is to exit the car if the officer asks you to. Basically, you don't have to comply with his request, but if you choose not to, it will no longer be a request. Make sure to close the door behind you, however, as leaving it open could lead to the officer using plain sight to see something you'd rather him not see.
There are a number of things you don't have to allow the officer to do. First and foremost, you have no obligation to agree to any search of your vehicle. Even if you have nothing to hide, there is no reason to allow an officer to rifling through your personal property. If he asks to search the interior of your vehicle, politely turn him down. If he asks you to open your trunk, politely decline. If he asks you to open your glove compartment, politely decline. Sometimes, officers will phrase such requests as statements, saying something blunt like "Open your trunk, sir/ma'am." Don't be fooled. A police officer can not order his or her way onto or into your personal property. If they would like to search your vehicle, they'll have to get a warrant. If they tell you they have probable cause to search your car and forcibly enter your vehicle to do so, contact a Minnesota criminal defense attorney immediately. The search taking place is likely illegal. There are some certain circumstances where courts have allowed officers to search cars, but that is for another day.
Lastly, the best way to avoid saying or doing something dumb is to remove yourself from the situation as soon as possible. In most traffic stops, the end is very apparent. The officer will talk to you, get your information, write you a ticket/warning (or not if you're lucky) and tell you to be on your way. In some circumstances, however, the nature of the stop is more ambiguous. If the officer is asking you a lot of questions, asking to search your vehicle, or threatening to bring in back up if you don't adhere to his instructions, you need to determine what kind of trouble you're in. The easiest way to do this is to ask the officer if you are being detained. If the officer says that you are not being detained, politely ask if you are free to leave. If the answer to this is "no," then disregard the officer's first answer. You are being detained. If this is the case, assert your right to speak with your Minnesota defense attorney immediately. If the officer says that you are free to leave, simply get in your vehicle and slowly drive away. If he says you are free to leave but continues to ask questions, keep asking if you are allowed to leave until he stops. Never walk away while still being spoken to. As always, if you have to have this exchange with an officer, be polite and courteous.
Being armed withe knowledge of your rights is very important, but can also be detrimental. All too often, citizens will get "snippy" with officers in an effort to protect their rights. Your first instinct when dealing with police should not be to get defensive and assume that they are trying to take advantage of you. Police exist to help in our society. Always assume that they are doing things the right way until they give you reason to believe that they are not. By keeping these simple concepts in mind, however, you could avoid putting yourself in more trouble than you deserve the next time you're pulled over when driving.
As always, the views expressed in this blog are not intended to be legal advertising or legal advice. The Minnesota Criminal Defense Blog is intended solely for entertainment purposes. If you have been charged with traffic violations or believe that your rights have been infringed upon by an officer of the law, contact a Minnesota criminal defense lawyer directly in order to get the legal guidance you will need in order to obtain the best possible result in your situation.
Monday, January 16, 2012
Do DWI's Really Get Dismissed?
I would guess that over half the legal questions I get asked (at least those not regarding people like OJ Simpson, Michael Jackson, or Jerry Sandusky) are about DWI's in one way or another. This isn't surprising, seeing as in 2010, almost 30,000 DWI's were issued to drivers on Minnesota roads, according to the Minnesota Department of Public Safety's "Impaired Driving Stats" (you can check out all the stats for 2010 here). 42% of those DWI's were issued to drivers who had already been charged with at least one prior DWI. Clearly, DWI's affect a large subsection of the population and are, therefore, a popular discussion topic as soon as folks find out what I do for a living.
The most common question is whether, even if you fail the field sobriety test or submit a Breathalyzer test that registers above Minnesota's legal limit of .08 BAC, the case can still be dismissed or the charges reduced? The short answer is yes. Being guilty of impaired driving doesn't necessarily mean that a DWI charge will hold up against you. Obviously, being in the wrong makes things more difficult, and your best bet is to always find a designated driver or call a cab, but there can be ways to avoid the devastating effects of a DWI conviction.
Make no mistake: DWI convictions are bad news. Even the lowest DWI charge in Minnesota (4th degree DWI -- first offense with no aggravating factors or test refusal) is a misdemeanor that can carry with it a 90 day jail sentence and a $1,000 fine. Subsequent offenses or aggravating factors can hike the penalties up exponentially and make for a very uncomfortable time in front of the judge. Hiring a Minnesota DWI lawyer should be your first step when facing a DWI conviction. However, just being guilty doesn't necessarily mean you're guilty.
The most common way to get a seemingly valid DWI charge dismissed is by challenging the grounds for the initial traffic stop. Because we live in a country and a state that protects the rights of citizens, the ends do not always justify the means in the law enforcement world. If you are stopped by a police officer and are subsequently found to be driving while impaired, it is still necessary for the officer to have stopped you for a valid reason. Simply being drunk or impaired upon being stopped does not give the police officer rationale for stopping you in the first place.
A recent case I found illustrates this well. A driver was seen to be traveling in an interesting manner by an officer in St. Peter, MN. The driver made a couple of u-turns, delayed at a light, and changed directions a few times for seemingly no reason. As the court opinion states (you can check that out here), however, the driver never committed a traffic violation that would give the officer reason to pull him over. Simply driving with nowhere to go is not a crime, and therefore, the charges were dismissed for lack of probable cause for a traffic stop.
In this case, once stopped by the officer, the driver failed to pass a field sobriety test. There seems to be little question that the driver was intoxicated at the time of his stop, but because the officer was found to have no evidence for the basis of his stop, the charges against the intoxicated driver were dismissed. The case outlined here is just one in many cases of this kind. Law enforcement must have a reason to make a traffic stop. It cannot be based solely on suspicion or curiosity.
Seems easy enough, right? Wrong. The problem is that your average citizen likely doesn't know what constitutes a legal traffic stop, what they can be stopped for, or how to respond to an officer's requests during a stop. A lot can go wrong if you try to defend your DWI charge on your own. Your best bet, as it is with any criminal charge, is to contact an experienced Minnesota criminal defense lawyer. If you have recently been charged with a DWI and have yet to contact an attorney, do it as soon as possible to ensure that everything can be done to win your case is done.
As always, this article in and of itself should not be construed as any kind of legal advice. Every criminal defense situation is different. If you have a situation that requires legal advice, please contact a Minnesota criminal defense attorney and make sure you have all the help you will need.
The most common question is whether, even if you fail the field sobriety test or submit a Breathalyzer test that registers above Minnesota's legal limit of .08 BAC, the case can still be dismissed or the charges reduced? The short answer is yes. Being guilty of impaired driving doesn't necessarily mean that a DWI charge will hold up against you. Obviously, being in the wrong makes things more difficult, and your best bet is to always find a designated driver or call a cab, but there can be ways to avoid the devastating effects of a DWI conviction.
Make no mistake: DWI convictions are bad news. Even the lowest DWI charge in Minnesota (4th degree DWI -- first offense with no aggravating factors or test refusal) is a misdemeanor that can carry with it a 90 day jail sentence and a $1,000 fine. Subsequent offenses or aggravating factors can hike the penalties up exponentially and make for a very uncomfortable time in front of the judge. Hiring a Minnesota DWI lawyer should be your first step when facing a DWI conviction. However, just being guilty doesn't necessarily mean you're guilty.
The most common way to get a seemingly valid DWI charge dismissed is by challenging the grounds for the initial traffic stop. Because we live in a country and a state that protects the rights of citizens, the ends do not always justify the means in the law enforcement world. If you are stopped by a police officer and are subsequently found to be driving while impaired, it is still necessary for the officer to have stopped you for a valid reason. Simply being drunk or impaired upon being stopped does not give the police officer rationale for stopping you in the first place.
A recent case I found illustrates this well. A driver was seen to be traveling in an interesting manner by an officer in St. Peter, MN. The driver made a couple of u-turns, delayed at a light, and changed directions a few times for seemingly no reason. As the court opinion states (you can check that out here), however, the driver never committed a traffic violation that would give the officer reason to pull him over. Simply driving with nowhere to go is not a crime, and therefore, the charges were dismissed for lack of probable cause for a traffic stop.
In this case, once stopped by the officer, the driver failed to pass a field sobriety test. There seems to be little question that the driver was intoxicated at the time of his stop, but because the officer was found to have no evidence for the basis of his stop, the charges against the intoxicated driver were dismissed. The case outlined here is just one in many cases of this kind. Law enforcement must have a reason to make a traffic stop. It cannot be based solely on suspicion or curiosity.
Seems easy enough, right? Wrong. The problem is that your average citizen likely doesn't know what constitutes a legal traffic stop, what they can be stopped for, or how to respond to an officer's requests during a stop. A lot can go wrong if you try to defend your DWI charge on your own. Your best bet, as it is with any criminal charge, is to contact an experienced Minnesota criminal defense lawyer. If you have recently been charged with a DWI and have yet to contact an attorney, do it as soon as possible to ensure that everything can be done to win your case is done.
As always, this article in and of itself should not be construed as any kind of legal advice. Every criminal defense situation is different. If you have a situation that requires legal advice, please contact a Minnesota criminal defense attorney and make sure you have all the help you will need.
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