Trial of the Month: Jeffery Trevino Murder Trial

As a Minnesota Criminal Defense Attorney, I like to stay up-to-date on the big upcoming trials in Minnesota.  Clearly, the one to keep an eye on right now is the murder trial of Jeffery Trevino.  If you're not familiar with the name, Trevino is the man accused of killing his wife and then leaving her car in the parking ramp of the Mall of America.  His wife, Kira Steger, was found in early May in the Mississippi River, although Trevino had been charged over 2 months prior to her discovery.

There appears to be the potential for some very emotional testimony from Steger's family members and co-workers during this trial, but the big issue may be how the evidence police found in the Trevino/Steger home is dealt with.  In the complaint, police note that there was blood in the home and evidence of an attempted clean up.  Trevino's defense attorney, John Conrad of Woodbury, MN, has indicated that forensic evidence regarding the couple's home may play a role in Trevino's defense, but has understandably not elaborated on that issue.

Ultimately, it's the forensic evidence that will most interest me about this case.  Any time cases get very scientific, I'm interested to see how juries handle the evidence.  Emotion is a much easier thing for everyday people to understand, so sometimes good scientific evidence is given less weight than powerful testimony by still grieving friends and family.  I'm very interested to see how this case plays out.

As the trial moves forward, I will try to give updates as to how the proceedings are going in this space.  So, if you want to get a Minnesota Criminal Defense Attorney's take on one of the most interesting criminal trials of the year, stay tuned for further details.

If you or a loved one are facing criminal charges ranging from DWI's to serious felonies, hiring a Minnesota Criminal Defense Attorney is of the utmost importance.  Call or email a criminal defense attorney practicing in your jurisdiction today to ensure the best possible defense moving forward.

Missouri vs. McNeely Decision and How it Affects You

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.

Amy Senser Trial: Senser Found GUILTY on 2 of 3 Felony Charges

The Amy Senser hit-and-run saga has come to an end today with the jury on the case coming back with guilty verdicts on the charges of leaving the scene of the accident and failing to immediately report the accident.  Senser was found not guilty on the third felony charge, which was driving in a grossly negligent manner.  State guidelines for the charges Senser was found guilty of recommend a four year prison sentence.  Senser was released on her original bail until her scheduled sentencing on July 9th.

I predicted in this space a little less than a week ago that it would be difficult for the prosecution to get a conviction in this case, and it was nothing but that.  However, the prosecution's theory of the case clearly won over the jury to the point that they decided it simply wasn't reasonable for Senser to be unaware that the object she hit was a person.

For those of you still trying to get caught up on this thing, for Senser to be guilty of the two charges she was convicted on, she had to knowingly leave the scene of an accident that she knew was likely to have caused significant bodily harm or death to a person and fail to report said accident to the police.  The defense theory throughout the case was not that Senser didn't strike the victim with her SUV, but that she had no reason to believe that what she'd hit was a person.

I was obviously not in the jury room during deliberation, but if I had to guess, I would assume that the bottom line for the jury was that the collision was severe enough that it warranted more than a shrug of the shoulders and a "whoopsy daisy" to Senser's husband the next morning.  Photos showed the extent of the damage to the front of the Senser's SUV to be significant.  Senser herself said that the crash was somewhat jarring.  Experts testifying on behalf of the prosecution opined that given the specifics of the crash, Mr. Phanthavong's body would have appeared above the hood of the SUV after contact for at least a moment or two.  Senser testified that her speed at the time of the accident was roughly 50 mph.  When you combine all of these elements, it would be easy to see how the jury could conclude that Senser either had to have known that she hit something significant, or that such an accident at least required her to stop and investigate.

I based my prediction last week on the theory that it would be difficult for the prosecution to prove that Senser knew she'd hit a person without a reasonable doubt due to the lack of physical evidence, witnesses, or testimony stating as much.  In the end, it turns out that they didn't have to.  The prosecution did a great job of painting a picture for the jury that allowed them to put themselves in Senser's shoes and determine what would be a reasonable reaction to a collision of this magnitude.  Clearly, the decided that driving away without giving the incident a second thought did not qualify as "reasonable" in their minds.

The length of jury deliberation was not surprising, given the high profile nature of the case.  You'll often hear the adage that a long deliberation is good for the defense (at least that's what prosecutors say).  Defense attorneys will tell you that the opposite is true; that a long deliberation is indicative of a jury trying to hammer out a conviction.  I'm not sure there's a right or wrong way to look at this, but in this case, my hunch is that most of the deliberation was spent going over the prosecution's expert testimony and deciding whether or not it added up to knowledge.  In the end, it did, and they convicted.

This is a huge win for the prosecution, as they were ridiculed by some (including me to some extent) for their decision to charge so aggressively in this instance.  Criminal vehicular homicide has long been a difficult conviction to get based on the foggy nature of what someone knows and what they don't know.  If any good is going to come out of this, it's that a precedent has not been set that fleeing from an accident isn't going to get you out of trouble.  You can still be convicted of a crime.

The general consensus was that Senser was hiding something by fleeing; either her being intoxicated or her being under the influence of some sort of narcotic due to a headache of which she'd been complaining.  Ultimately, the reasons for her decision won't matter.  It's a good day for Hennepin County prosecutors, and a bad day for the Senser family.

If you or a loved one find yourself charged with a crime or are the subject of a criminal investigation, it is imperative that you speak withe a qualified Minnesota criminal defense attorney as soon as possible.  Don't wait around for police to convince you to say something you shouldn't.  Get the help you need to be successful in your case.

As always, the contents of Minnesota Criminal Defense Blog are intended for entertainment purposes only and are not designed to be legal advice or legal advertising.  The viewing of this website does not create an attorney/client relationship between the author and the reader.  If you are in need of legal advice, stop surfing the internet for answers and speak with a licensed attorney in your jurisdiction.

Amy Senser Trial: Jury Deliberations

We're winding down the trial of the year here in Minnesota as the Amy Senser case went was handed off to the jury Tuesday afternoon.  One of the things folks seem most confused about is what, exactly, is the jury deciding?  I'll go through the things the jury must determine real quickly this morning.  If we get a verdict today, I'll post a response to that, as well.

I think one of the most frustrating thing for a lot of people regarding this case is the fact that Senser has stipulated to the fact that she was driving the vehicle that killed Mr. Phanthavong.  I have gotten some emails from people asking me how this admission doesn't end this case and constitute a guilty plea.  The easy answer is that whether or not she killed the victim isn't at trial.  Hitting someone with your car and killing them isn't necessarily a crime.  Crime requires an element of intent or negligence, which isn't necessarily satisfied by the act of killing someone.  Accidents do happen, and getting into an accident isn't a crime.  The alleged crime in Amy Senser's case would be if she knew she hit Mr. Phanthavong, knew that she likely had caused him severe bodily harm (or worse), and made a decision to drive away without telling anyone.  The jury's job is to decide whether she knew she hit a person.  They're not deciding whether or not they think she should have known, or whether she may have known.  This knowledge has to be certain in the eyes of the jurors in order to convict Senser of the first two felony charges (leaving the scene and failing to report).  If they determine that there is a reasonable doubt regarding whether she knew she hit a person, she must be found not guilty of both of these charges.

As for the third charge, gross negligent operation of a vehicle holds a different standard.  The jury would have to decide that, based on the evidence of the case, Mrs. Senser was driving in a manner that would "shock the conscience."  This typically involves driving at an excessive speed, not being in control of your vehicle, weaving in and out of traffic, squealing your tires when you turn, and other things of that nature.  Without any witnesses that saw the accident, it's probably going to be difficult to have enough evidence to get a conviction on this charge.  Amy Senser did testify that she was looking over at a bridge when she was turning onto the Riverside ramp, which would indicate that her eyes were not on the road at the time.  This momentary glance away from the road is at the crux of her explanation of how she failed to see Mr. Phanthavong.  It's possible that the jury could come back and say that this action constitutes negligent driving, but I'm not sure such a decision could withstand a motion for directed verdict by the defense.  Gross negligence is a hard standard to meet, and without further evidence (which we're not getting at this point), it's going to be tough to expect the jury to come back with anything other than a "not guilty" on this charge.

So, in summation, the jury will really be deciding two things.  The first is whether or not Amy Senser knew she hit a person that night.  If they determine that she did, then they must find her guilty of leaving the scene and failing to report.  If they determine that she did not know she had hit a person, then they must find her not guilty of both charges.  Second, they must decide if her driving was so erratic that it would constitute gross negligence.  If they determine that it was, then they must find her guilty of gross negligent operation of a vehicle.  If they determine that it was not or that they do not have enough information to make a clear determination, then they must find her not guilty.

This should be an exciting day at the Hennepin County Courthouse.  If there is a verdict today, stop back here afterwards to read my response and reaction to the case.

If you or a love one have been charged with a crime or are the subject of a criminal investigation, don't hesitate to call a Minnesota Criminal Defense Attorney to help you through your difficult situation.  Hiring a lawyer before charges come, as Mrs. Senser did, can often keep you from saying or doing things that you shouldn't.  Don't try to take on criminal charges on your own.  Call or email a Minnesota Criminal Defense Attorney today.

As always, all content on the Minnesota Criminal Defense Blog is for entertainment purposes, only, and is not intended to be legal advice or legal advertising.  Reading Minnesota Criminal Defense Blog does not create an attorney/client relationship between the author and the reader.  If you are in need of legal advice or legal representation, stop surfing the internet for answers and contact a licensed attorney in your jurisdiction for personalized service.

Amy Senser Trial Update: Amy to Take the Stand

After a weekend of recess from court for Amy Senser, the defendant in Minnesota's most high-profile criminal trial, Senser herself will take the stand today in her own defense.  This move, while not necessarily surprising, will probably be the "make or break" moment in this trial.

Again, Senser is faced with three felony charges stemming from an incident on the Riverside ramp off of I-94.  One is for leaving the scene, one is for failure to call for help immediately, and one is for gross negligent operation of a vehicle.  The first two crimes require the suspect to know that their accident could have reasonably resulted in severe bodily harm or death or another person, whereas the negligence charge does not.  However, for Senser to be found guilty of grossly negligent driving, the prosecution will have to show that her driving would "shock the conscience."  This will be a difficult standard to meet, seeing as there were no witnesses of the accident.  The prosecution did introduce testimony from someone who was trailing Senser on I-94 a few miles before the accident, but ultimately, Senser's testimony will have more to do with this charge than any other evidence.

Senser's testimony will be important because this entire case is based on what she did or didn't know.  If the prosecution can get her to slip up during cross-examination, it could mean a victory for Hennepin County.  Senser essentially has to take the stand in order for her defense (didn't know she hit someone) to even be entered into evidence.  There will be some interesting things to keep an eye on today:

1.  Will the prosecution grill her about her drinking the evening of the accident?
One of the big question marks in this case is whether alcohol was a factor in this deadly accident.  If the prosecution can get Senser to admit to having a few drinks on the night in question, it will turn this into a nearly impossible conviction into essentially a slam dunk.  Don't expect this to be the case, however.  Defense attorney Eric Nelson wouldn't be putting Senser on the stand if she was going to admit to consuming alcohol that night.  She will deny drinking, but how convincing will she be?

2.  How will Amy Senser do when questioned about "getting lost?"
For a person living in Edina who is supposed to be on their way to downtown St. Paul, going west on I-94 in downtown Minneapolis wouldn't be the most efficient path.  Senser explains her unusual route by claiming that she was lost on her way to the Xcel Center and was trying to find her way back onto eastbound I-94.  Senser has lived in the metro for years, so getting lost on the Twin Cities' main drag is a bit surprising.  Her husband, former Viking tight end Joe Senser, already testified that such an event was not out of character for her, but it was hard to tell if he was referring to her actually getting lost or her claiming that she'd gotten lost.  How Senser holds up when pressured on the timeline of that evening will go a long ways towards determining the outcome of this case.

3.  Will Senser be "believable" with her testimony?
So much attention gets put on what people say as opposed to how they say it.  The true test of any witness is whether they can get the jury to buy into their story.  Senser's biggest challenge will be to keep her story consistent, stay even-keeled, and to avoid embellishing on the questions asked of her.  The worst thing a defendant on the stand can do is answer more than the questions asked.  This is probably the biggest benefit to hiring a Minnesota criminal defense attorney when facing criminal charges of this nature.  A good lawyer will prepare you for what you can expect while you're on the stand and can get you ready to be successful when the questions get intense.

Monday is sure to be an exciting day in the Amy Senser criminal vehicular homicide trial.  We should know a lot more about her chances of earning an acquittal after she steps down either today or tomorrow.  If you've got any questions regarding the case, you can leave them in the comments section or you can shoot me a line via email.  I can't promise I'll be able to respond to every email or comment, but I'll surely do my best.

If you or a love one are dealing with criminal charges or are the subject of a criminal investigation, don't wait too long to speak with a Minnesota criminal defense attorney.  Minnesota criminal defense attorneys can help you get your defense on the right track from the start so you have the best chance to be successful.

As always, all material on Minnesota Criminal Defense Blog is intended to be for entertainment purposes, only.  It is not intended to be construed as legal advice or legal advertising, nor does viewing this website create an attorney/client relationship between the author and the reader.  If you are seeking legal advice, contact a licensed attorney in your jurisdiction to get the specialized legal service you require.

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.

Amy Senser Trial Continues...

Since writing about Amy Senser's trial before it began last week, I've been getting a few emails from people with questions regarding the actual trial itself.  I thought I would touch on a few of these quickly today before sending out the final installment of the "Know Your Rights" series tomorrow.

Again, my opinion on this trial is just that; opinion.  I have no inside information about the case.  I do not know Eric Nelson (Senser's defense attorney), nor do I know the prosecutors on the case.  I'm simply looking at this from the point of view of a Minnesota criminal defense attorney and opining on it as I see fit.

I've been getting emails for the past 2 days regarding the strategy behind Joe Senser's testimony.  A few people have noted to me that his testimony seems to be against his wife as opposed to in favor of her.  I'm not so sure this is the truth.  Some of his testimony this morning (4/26) may seem a bit peculiar, but it appears to be very carefully crafted, to me.  He testified that his wife is "fiercely independent" and that it was not uncommon for her to get lost/flake out/do her own thing.  This sounds like he's ripping on his wife, but what he's really doing is helping her to make the case that she just didn't know what had happened.  If she's a cold, calculating, reliable person, it makes it harder for the defense to suggest that she simply didn't know that she hit a person with her vehicle that night.  By painting her as an aloof, self-serving, flaky person, the defense can more easily make the claim that she didn't have actual knowledge that what she hit was a person, nor would she have considered stopping to investigate.  Remember, the issue at trial isn't whether she hit the victim.  The issue is whether she knew she hit the victim.  Joe Senser's testimony isn't going to do his wife any favors in regard to the negligence charge against her (inattentiveness is not a defense to negligence), but it will help her in the charges against her regarding leaving the scene of an accident which she knowingly may have resulted in significant bodily harm or death to another person.

Joe Senser's Wednesday testimony did even more to help her wife, despite his claim that he "knew" that she had hit more than a traffic barrel.  Joe Senser's understanding of the situation is, again, not what is at issue.  His testimony furthered the theory that Amy Senser was adamant that she couldn't have struck a person.  She was steadfast in her claims to her husband that she hit construction equipment, even after seeing a report on television of the deadly accident.  His skepticism aside, his recounting of her reaction to the incident lends to the defense's case.  So, while Joe Senser's testimony may not shine the most flattering light on his wife's personality, it has gone a long way towards helping Amy Senser and her attorney poke holes in the prosecution's case.

The most difficult thing for any prosecutor to prove is the intent/knowledge of a defendant.  It's not always that difficult to prove that a certain event occurred, but a major element of nearly every criminal charge is mens rea, which is Latin for "guilty mind."  In the Amy Senser trial, the mens rea necessary to prove is that Mrs. Senser knew she hit a person and made a conscious decision to leave the scene and continue driving.  The strategy of the prosecution has been to use circumstantial evidence to piece together the events of the evening and make an appeal to the jury to put themselves in Amy Senser's shoes.  Basically, they want the jury to ask themselves "If I was driving 50 mph and struck a person, wouldn't I know that I did it?"  The psychology behind this is that people (in general) like to rate themselves against others.  If you can get them to put themselves in the shoes of Amy Senser, they're going to want to believe they would have acted properly in this situation.  You want them to think "I would have stopped," or "I wouldn't have hit the person in the first place."  If the prosecution can accomplish this goal, they greatly increase their chances of getting a guilty verdict.

With the trial winding down, I suppose it's time to offer up my opinion on how things will end.  I believe that it's going to be difficult for the prosecution to prove beyond a reasonable doubt that Amy Senser left the scene of an accident that she knew resulted in the severe bodily harm or death to another person.  I think the circumstantial evidence is impressive, but ultimately, circumstantial evidence doesn't usually win trials.  Without a witness who can testify to her knowledge, all the prosecution has is circumstantial evidence.  The appearance of the vehicle, the missing text messages, the failure to pick up her daughter, and her erratic behavior following the incident likely won't be enough to slam the door on this case.  I think Mrs. Senser is acquitted of all three felony charges against her.  If she is convicted of anything, it will be the gross negligence charge.  Negligence is always an easier charge to get to stick because it is so all-encompassing.  I think the task in front of the prosecutors is just a little too daunting.  I believe their strategy has been sound throughout, but I feel like this specific charge is extremely difficult to prove.

Amy Senser isn't the only person in this state facing criminal charges.  If you or a loved one have been charged or may soon be charged with a misdemeanor, gross misdemeanor, or felony charge, do what Amy Senser did and call or email a Minnesota criminal defense attorney to get someone on your side.

As always, content on the Minnesota Criminal Defense Blog is not intended to be viewed as legal advice or legal advertising.  Use of this website does not create an attorney/client privilege between the author and the reader.  If you are in need of legal advice, call or email a Minnesota criminal law attorney to get personalized advice tailored to your exact situation.

Amy Senser Trial Update

We'll take a break this week from the series on your rights, finishing that up next week with your rights when police stop you while on foot in public.  In the mean time, I want to take a quick peak at the Amy Senser trial in Hennepin County in light of the flurry of activity with that case in the past couple days.

I had an article almost completed yesterday on the surprising ruling by the judge in the case that would have allowed the prosecution to use Senser's unwillingness to speak with investigators against her in trial.  It was a very odd ruling and was against most precedent on the subject.  The 5th Amendment of the Constitution protects us from self-incrimination.  It gives us the right to decline to speak with law enforcement officials in order to protect our interests.  However, as I was about to start writing my final paragraph, I took a quick constitutional over to the Star Tribune's website, only to see that the judge had reversed his ruling and had allowed the motion by the defense to preclude the prosecution from using Senser's silence against her.  As an advocate of justice, I was pleased.  As a writer who had spent the better portion of my morning researching the precedent behind the ruling and the consequences of such a decision, I was a little bitter that my hard work was for naught.  Either way, Thursday was an important day in the Amy Senser trial.  Here are a few of the big decisions made by the judge regarding motions made by both the defense and the prosecution.  I won't go through all 16 of them, just three that I found particularly important.

1.  The defense's motion to disallow the prosecution from using Amy Senser's silence as incriminating evidence was ultimately upheld.  What this means is that the old adage of "what you say can and will be used against you in a court of law" doesn't hold up to what you don't say.  This isn't anything new.  Any attorney worth his or her salt would have instructed Mrs. Senser to refrain from contact with investigators.  This was a case in which there is a dearth of concrete evidence.  There is a lot of circumstantial stuff that points to Mrs. Senser's guilt, but without her statements to bind everything together, I think it's going to be very difficult for the prosecution to prove that she knew she hit Mr. Phanthavong.  Her knowledge of having hit a person is necessary to create the duty for her to stop and attend to the victim.  By not allowing into evidence the fact that Mrs. Senser didn't speak with investigators, it takes away the theory that her silence has been intended to hide something.  This is important for the defense in a case that will be built so much around what the prosecution can prove, not what the defense can disprove.  I think the judge's reconsideration of this motion was clearly the correct ruling.  It's good that he was able to realize his mistake before this went to trial.  Such an error would have given the defense a clear issue to appeal upon a guilty plea.  Kudos to the judge for doing the right thing and reversing his initial decision.

2.  A motion to prevent the defense from introducing evidence that Mr. Phanthavong had a large amount of cocaine in his system at the time of his death was upheld.  This isn't a surprising ruling.  Such evidence would be more useful to the defense in a civil trial, where they could argue that the victim was guilty of contributory negligence, which would lessen the culpability of Mrs. Senser.  In a criminal case, however, such evidence would clearly be prejudice against the prosecution.  Whether Mr. Phanthavong had cocaine in his system does not change the alleged actions of Mrs. Senser.  If she indeed knew that she hit a person on that night, the condition of the person has nothing to do with her decision to flee the scene.  The only purpose for such evidence would be to prove that the accident itself was not the fault of Mrs. Senser, but since that fact isn't at issue in this trial, the prejudicial effect of such evidence outweighs its exculpatory elements.

3.  Judge Mabley has agreed to allow the prosecution to show video clips of vehicle-pedestrian accident recreations.  Not having seen the actual video, I can't comment on its content.  I can say, however, that recreation videos like this are typically the bane of defense attorneys' existence.  They tend to be incredibly prejudicial towards the defense and paint the picture the prosecution wants painted.  Senser's attorney, Eric Nelson, has said that he feels the clips do not accurately depict the crash scene.  The prosecution, on the other hand, says that the videos are intended only to bolster the credibility of a specific expert witness they plan to call and that it should be viewed by the jury in that limited scope.  I understand the point made here by the prosecution, but I can assure you that it is nearly impossible to tell something to the jury but inform them only to consider it through a limited lens.  Once the jury learns something, it colors the way they think about the case in its entirety.  However, I assume that Judge Mabley took into consideration any prejudicial affect these videos could have and weighed that against their necessity.  I will say that this is something to keep an eye on during the trial.

There were numerous other motions ruled on by Judge Mabley, but most of them were either pretty straight-forward or inconsequential.  This thing is close to getting very interesting, however, as the trial won't be too much farther down the road.  I'll keep adding commentary to the proceedings as it moves along, as this case interests me greatly.  As a defense attorney, it's always useful to get a high-profile case to follow in order to get some insight into how other lawyers handle certain situations.  In our profession, you either continue to learn new techniques or you become obsolete.  I'm excited to see how everything plays out in this trial.

If you or a loved one find yourself in the middle of a criminal investigation, you should follow Amy Senser's lead and contact a Minnesota criminal defense attorney before you offer any information to law enforcement.  Doing so could be the difference between innocence and guilt.

As always, the contents of this blog are not intended to be legal advertising, legal advice, nor does the reading of this information create an attorney/client relationship between yourself and the author.  If you are in need of legal advice, stop browsing the internet for information and get on the phone with a qualified Minnesota criminal defense attorney.  Your situation is unique and you should treat it as the serious threat to your liberty that it is.

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.

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.

Pulled Over, and You've Been Drinking: Do's and Don'ts

I really do love what I do.  Helping people who have been charged with crimes give each day a fresh feel to it.  I've handled cases ranging from simple traffic violations to complex felony situations.  My work is often very exciting and interesting.  One area that is less exciting than the others is DWI defense.  It's not that DWI's are less serious than other crimes or that they involve any less work.  It's just that they tend to be very similar and often lack the opportunity to really get involved with investigating, fact finding, and witness interviews.  They tend to follow a pretty specific pattern (unless there are challenges to the actual arrest...then it can get fun) and end in similar ways.  However, regardless of how interesting some of the cases I've worked on in the past may be, when people find out that I handle DWI cases, they all want to ask about how I would handle being pulled over after having consumed a few adult beverages.  In light of this, I thought sharing my answer with my blog community would be a useful exercise for me and for my readers.


Keep in mind, the following is not intended to be construed as specific legal advice.  Every person's situation is different, so following one set of rules doesn't make any sense.  If you are dealing with a DWI charge, please contact a Minnesota DWI attorney in order to get specific, individualized advice on how to handle your situation.


The situation I'm about to cover is going to make the assumptions that I have indeed been drinking and believe strongly that if I submit to field sobriety or a preliminary breath test (PBT), I will fail.  If you have, in fact, not been drinking, or you believe strongly that you have not drank enough alcohol to fail these tests, my advice for you would be different.  I'll touch on that situation at the end.  But, first, I've been drinking, I could very well be legally drunk, and the police are hot on my trail.  What do I do?


I get pulled over by the officer.  After a short burst of curse words and self-loathing, I gather my license and insurance information.  In Minnesota (and all other states, for that matter), one thing you are required to tell an officer of the law is your personal information when asked for it.  If you are pulled over while operating a motor vehicle, you are also required to show proof of valid insurance on your vehicle.  No questions asked, there.


The officer will usually read your license to get your name, address, and whatnot, and then ask you a question along the lines of "Do you know why I've pulled you over, today?"  Whether or not I know why he pulled me over, I would answer in the negative.  If you start rattling off reasons for the officer to have pulled you over, that's not going to help your cause.  On the other hand, if the officer asks something like "Do you know how fast you were going," always answer "yes."  If you answer "no" to a question like that, even if you avoid a ticket for speeding or DWI, you could get one for inattentive driving.  After I say I don't know why I've been pulled over, the officer will usually give you a reason for pulling you over.  Whether you were speeding, weaving, driving without headlights on (hey, it happens), or even going too slow, they'll come up with something that gave them probable cause to pull you over.  


The questions that comes next is one that people almost invariably answer wrong.  If the officer believes you've been drinking, he'll say something like "I notice your speech is a big slurred.  Have you had any alcohol to drink this evening?"  Most people who have been drinking and are asked this question say something along the lines of "I've had a couple (fill in your beverage of choice here)," believing that if they fess up to drinking a small amount that the officer will appreciate their honesty and let them go on about their merry way.  The proverbial "couple drinks" is a very non-committal amount of alcohol and is a seemingly benign quantity, at that.  What you've actually done by answering in this manner is validated the officer's suspicion that you've been imbibing and given him more than enough reason to ask you to submit to field sobriety tests or a breath test.  In all truthfulness, your answer here may not matter much, anyway.  Minnesota courts have concluded time and time again that things like bloodshot eyes, slurred speech, or even the mere presence of an odor of alcohol are more than enough for an officer to justify administering field sobriety tests.  Regardless of this, your answer to the question of "have you been drinking?" or "how much have you had to drink this evening?" should be no answer at all.  You have no obligation to answer any of the officer's questions after he has your personal information.  I would simply say "I would prefer not to answer that question at this time."  This probably isn't going to save you from being arrested, but it's best to assume that you're not going to avoid that at this point, anyway.  It is best to stay quiet and keep from further incriminating yourself.


After I have refused to answer any questions regarding the amount of alcohol I've consumed, the officer will likely ask me to step out of the car.  You can decline a request to do this, but all that will lead to is the officer ordering you out of the vehicle.  It's best to just comply with this request and step out of the car.  Make sure the door is closed behind you to ensure the officer isn't able to get a clear view of the entire interior of your car.  Even if you have nothing to hide, that is your private space.  Any search they want to do should be done the right way.  Close the door and save yourself some hassle later.


After I've stepped out, the officer is likely to ask me to submit to a field sobriety test (FST).  There are three parts to an FST.  


1) The Horizontal Gaze Nystagmus Test.  This is the test where the officer takes a pen, penlight, or their finger and asks you to follow it while they move it left to right across the front of your face.  What they are looking for here is the way your eyes follow the object.  If your eyes jerk around a lot, or if the jerking around occurs when the eye is within a certain amount of center, it can create probable cause to arrest you under suspicion of DWI.  This is the most effective test to determine whether someone is intoxicated, statistically.  


2) The Walk and Turn Test.  This test is really an exercise in multitasking.  You will be instructed to take a specified number of steps along a straight line by touching your heel to your toe on each step.  While you are walking, you will be given instruction on what to do when you reach your final step.  Usually this instruction is to turn around on a certain foot, turn back around on a certain foot, and continue a specified number of steps in the original direction.  Things the officer is looking for in order to confirm their hypothesis that you are intoxicated are:

• If you cannot maintain balance while listening to the instructions
• If you begin before instructions are finished.
• If you stop while walking to regain balance.
• If you do not touch heel-to-toe.
• If you use arms to balance.
• If you lose balance while turning.
• If you take an incorrect number of steps.

If you fail 2 or more of these, there exists sufficient probable cause that you will test over the legal limit for BAC.  

3)  The One-Leg Stand Test.  This test is something of a combination of the first two.  It is intended to test your dexterity, as well as your ability to listen and follow directions.  You will be instructed to lift a certain foot about 6 inches off the ground and hold it there for about 30 seconds.  You will be instructed to count out loud while doing this, usually in a specific manner (i.e. one-one thousand, two-one thousand, three-one thousand, etc...) until you are done.  The officer will be looking for you to sway, use your arms to balance you, hop to keep your balance, or put your foot down to avoid falling.  If you do two or more of those things, that's enough for them to arrest you.  

That's it.  Any other tests administered to you are bull.  Close your eyes and touch your nose?  Bull.  Recite the ABC's backwards?  Bull.  Rub your stomach and pat your head at the same time?  Bull.  None of those are part of the Standardized Field Sobriety Test, and while they may help to indicate whether you are intoxicated, none can be used as evidence in court because of their lack of reliability.

In my hypothetical situation, I would choose to decline participating in these tests.  You have Constitutional right to refuse to take the tests.  The officer may say things like "If you decline these, you will be arrested for DWI and tested at the station."  My answer would be, "That's fine," because he's going to arrest me when I fall on my ass trying to walk a straight line, too.  By declining, I'm giving myself a little more time for my blood alcohol content to drop (although, studies on alcohol metabolism show that depending on when you quit drinking, your BAC may actually rise on the way to the station), and I'm depriving him an extra piece of evidence to use against me at trial.  My unwillingness to submit to these tests can't be used against me in trial.

The final thing the officer will likely try to get you to do is submit to a Preliminary Breath Test (PBT).  The PBT is the small, cellphone sized machine that officers use to get an idea of what your blood alcohol content.  I say they use it to get an idea of what your BAC is because these things are not terribly accurate.  Many factors can cause you to have a falsely high reading on the PBT.  Having traces of alcohol in your mouth, having recently vomited, or even having recently used mouthwash can cause your BAC to spike according to a PBT.  My response to the officer's request to administer this test will be (you guessed it!) "no thank you."  Again, they're going to tell you things like "If you don't comply, I'll arrest you," but they're probably going to arrest you either way, and giving them a positive PBT isn't going to help your lawyer's cause when he's trying to challenge your arrest.

After you refuse the FST and the PBT, you will almost assuredly be arrested and charged with a DWI.  You'll be brought to the station/hospital/jail in order to undergo your evidentiary test, which will either consist of a urine test, blood test, or breath test, or some combination of the three.  The urine and blood tests are pretty self-explanatory, but the breath test is a little different than the one you would encounter on the side of the road.  The machine used for this test looks sort of like a big inkjet printer with a keyboard on the front.  This machine is about 100x more accurate than the portable device you would have blown into during your traffic stop.  Generally speaking, it is a horrible idea to decline one of these tests.  If you have an aversion to needles or feel like you will not be able to produce the necessary urine for those tests, you can request the other.  If you choose to decline all three tests, you will lose your driving privileges for no less than one year.  For some context, if you are convicted of a simple DWI with no aggravating factors, you'll only lose your license for 90 days.  If you've got multiple offenses or were more than double the legal limit, that suspension time will go up.  Simply submitting to the tests may constitute essentially giving up, but it's better than the alternative.  Breath tests are, by a wide margin, the most common type of test used by officers.  Blood and urine tests are both subject to chain of command issues (think Ryan Braun), making them less of a sure thing, so officers usually try to avoid administering them.  Many states have rules that state the breath test is the one that must be used unless the suspect is unconscious.  

While this more or less ends your participation in the DWI arrest process, the process itself can be far from over.  While breath tests come back almost immediately, urine and blood tests can take weeks to come back.  During this waiting period, you'll likely have your arraignment hearing, giving you a chance to enter your plea and whatnot.  The trial wouldn't start until the results are back, obviously, so it could give you an opportunity to have your attorney (you should really have a Minnesota DWI defense attorney hired before going to your arraignment) come up with a strategy.  Either way, now that you know what I would do, you'll be equipped with the information necessary to make good decision when dealing with the officer.

An important thing to note is that while you're not required to submit to much of anything, nor are you required to answer the officer's questions (other than the personal info stuff), you don't have to be a jerk to the officer, either.  The old saying that you catch more flies with honey than with vinegar holds especially true when dealing with the police.  While being agreeable and pleasant may not keep you from being arrested, it will at least decrease the wrath you'll catch from the arresting officer.  Police have a difficult enough job without people hassling them or giving them a hard time while they're doing it.  Be polite, be cooperative, but be careful.  

If you have, in fact, not been drinking at all or have consumed such a small amount of alcohol that you are certain you will pass any field tests or PBT, by all means, go ahead and take them.  Just remember that passing these tests doesn't necessarily mean you aren't going to be brought in for chemical tests.  If you are innocent, however, this should be nothing more than an inconvenience to you.  Another thing to remember is that FST's can be difficult to complete under no influence of alcohol and in optimum conditions.  If you throw in a drink or two, wind, ice, snow, rain, and cars whizzing by you on the road, you could easily fail these tests regardless of whether you're actually inebriated.  Proceed at your own caution in this circumstance.

Knowing what to do when you're pulled over under suspicion of impaired driving should not be viewed as a ticket to go out and drink and drive.  The reason it's illegal to drive while under the influence of drugs or alcohol is because you can be a serious danger to not only yourself, but to the other motorists on the roads.  The only sure way to make sure you're never charged with a DWI is to completely refrain from drinking and driving.  There's always an alternative.  Get a sober ride.  Call a cab.  Take public transportation.  Find a way to avoid drinking and driving.  Every time you take your chances by drinking and driving, you not only increase the liklihood that you'll get caught, but also that you'll hurt yourself or someone else.  That being said, people do make mistakes, and it's important to know your rights if you make such a mistake.  

If you or a loved one have recently been charged with a DWI and have yet to hire legal representation, contact a Minnesota DWI lawyer today to get someone working with you to ensure the best possible outcome.  Don't be a victim of your own hesitation.  Get a qualified Minnesota defense attorney on your side today.

As always, no information on this website is intended in any way to be construed as legal advice.  If you or someone you know is facing a situation that requires legal advice, contact a Minnesota criminal defense lawyer today.  Each legal situation is different, so it's important to get advice tailored to your individual set of circumstances.

Ultimate Showdown! Private Defense Attorneys vs. Public Defenders

Many shoppers out there believe they have two options in choosing an attorney to defend them in a criminal case.  1) Hiring their own private defense attorney, or 2) Choosing to go with the public defender provided by the state/county.  People believe this to be true because of the case Miranda vs. Arizona which states that every accused person has the right to an attorney.  If one cannot afford an attorney, one will be provided for them.  It's that last sentence that gets a lot of people in trouble.

The general consensus among people unfamiliar with the legal system is that YOU get to decide whether or not you can afford a defense attorney.  This, as you may be realizing, is not the case.  Requirements vary depending on the state, county within the state, and type of crime you have been charged with, but in Minnesota, there are very strict income limits for people receiving free legal representation.  In other words, being able to afford an attorney is different than not wanting to pay for one.  Even if you don't make too much money, if you have assets you could liquidate (an extra vehicle, a boat, a cabin up north that you use for recreation, your first born child), the courts are well within their rights to ask you to liquidate them before they will offer you free legal services.  So, most people charged with crimes do not qualify for public defenders.  This leaves you with two options: 1) Hire your own lawyer, or 2) represent yourself pro se.  I would NEVER recommend representing yourself in any case that could carry with it significant fines or jail time.  The average citizen, as bright as he or she may be, simply is not equipped to deal with all the ins and outs of criminal defense.  They don't make us lawyers go to law school for three years before we can even sit for the bar for no reason.  Practicing law is tough and, in most cases, should be left to the professionals.  You wouldn't perform your own heart surgery.  You shouldn't defend your own criminal cases, either.

So, now you know that you likely don't qualify for public defender services.  But what if you do?  What if you have been struck down by the economy, are having a tough time making ends meet, and got mixed up in something for which you are being charged with a crime.  Should you go with the public defender if you qualify for one?  I know if I recommend "no," that may ring a bit hollow, seeing as BDH Law Office is a for-profit private law firm that benefits from people deciding not to employ a public defender.  However, I truly do believe that if you can scratch up enough money to pay for a private attorney, whether it be by borrowing from friends or family, or even asking from donations from people from your local church, it will be worth it for you in the end.

I would never disparage the work that public defenders do.  Public defenders are one of the reasons the legal system works.  They often work for much less than they are worth and work too hard for what they are paid. They don't get to choose their clients -- they care chosen for them.  They do an admirable job considering the circumstances under which they are required to operate.  If it wasn't for public defenders, innocent people would be sent to jail FAR more frequently.  The problem with accepting a public defender to defend your case is that the system is broken.  Funding for PD's has gone down significantly over the years and there simply aren't enough public defenders to handle the case load they are burdened with.  This lack of time, resources, and flexibility make juggling the workload very difficult for most PD's.  They put in every bit as much effort as a private attorney, but their time is simply stretched too thin for them to give every client they have the attention they deserve.  This often can lead to missed details, delays in your trial (if indeed your case goes to trial), and a weaker relationship between you and your attorney.

Private attorneys have the ability to limit their case load to a number of clients they are comfortable with.  If they don't have room, they often will refer you to an attorney who might.  You are paying for the services of a private attorney, unlike with a public defender, but you get a lot for your money.  You get someone who will put in the necessary time to make sure all the "i's" are dotted and "t's" crossed regarding your defense.  While there are obvious benefits to a public defender settling a case just to get it over with (lessening their caseload, helping their client end the proceedings quickly, creating more time for other clients), private attorneys need to be successful to continue to get clients.  The last thing any Minnesota criminal defense lawyer wants to do is get a reputation as someone who pleads out every case they handle.  A lawyer who recommends accepting a plea all the time isn't an attorney who seems willing to go to war for you.  You need a lawyer who will help you find the best possible outcome for your case and then fight to get it.  If your attorney feels the best you can do is accept a plea offered up by the prosecution, then so be it.  What you don't want is an attorney who is suggesting a plea because they don't have time to handle your case properly.

If you've been charged with a crime, be it a felony, misdemeanor, or DWI, it's important to have legal representation.  If you really cannot afford an attorney, then it's certainly better to work with a public defender to make sure you have a competent, experienced attorney on your side.  However, even if you do qualify to use a public defender, if you think you can make it work financially, hiring a private Minnesota criminal defense attorney is going to give you the piece of mind that you get from knowing someone is willing to battle for your rights.


As always, none of the proceeding is intended to act as legal advice in any way.  If you have been charged with a crime or fear that you may be charged with one soon, please contact a Minnesota criminal defense lawyer immediately to set yourself up with the best possible opportunity to succeed in your defense.