Minnesota DWI Defense Attorneys Lose Source Code Challenge

Last week the Minnesota Supreme Court issued its highly anticipated decision in the DWI source code litigation.  You can read a previous post about the oral arguments here.  The Court affirmed the district court’s order, which held mostly for the State.  Briefly, the Court held that the source code challenge did not raise questions as to the testing machine’s reliability when calculating a defendant’s blood alcohol concentration level (BAC).  However, the Court did find that the source code may improperly classify certain tests as insufficient.  These tests will be excluded unless the State can show that the particular test did not arise from a source code error.

Here’s the not so brief version: Continue reading

Minnesota Court of Appeals Okays a Gun in Your Front Yard Without a Permit

The Court of Appeals recently issued a decision holding that a person’s front yard is not a “public place” under a statute making it a crime to carry a gun without a permit in a public place.  In State v. Yang, someone called 911 after seeing the defendant carrying a gun at his house.  Police went to the house and saw a group of men on the front steps leading into the front yard of the house.  The police ordered the men on the ground and found that the defendant was in possession of a gun in his front yard.

At issue in this case was whether the police had reasonable suspicion to seize Yang by ordering him to the ground.  The police relied on the fact that Yang was allegedly in violation of Minnesota Statutes § 624.714, subd. 1a, which makes it a crime to possess a firearm without a permit in a public place.  “Public place” is defined in Minnesota Statutes § 624.7181 subd. 1(c).  The Court rejected both the defandant’s and the State’s proposed definitions of “public place” and instead proposed two categories of land that qualify as a public place: 1) government-owned property and 2) private property dedicated to public use.  The Court found that Yang’s front yard fit neither category, so it was not a public place under the statute.  Accordingly, the Court found that the police did not have sufficient cause to seize Yang because he did not possess a weapon in a public place.

The Court’s ruling is helpful to clarify the rather ambiguous language within the definition of “public place.”  The Court noted, the statute has “a substantial gap between the included and excluded classes of property, describing narrowly what is a public place and describing narrowly what is not a public place; many properties seem to fit neither class.”  Hopefully, this new framework will lead to more consistent determinations of what is a public place under the statute.  Personally, I think the Court got the issue right by focusing on a property’s function as public or private place, rather than getting bogged down in the ambiguity of the statutory language.  Now, we can walk proudly with unpermitted firearms knowing that much of the ambiguity between public and private places in the statute has been cleared up.  If you find yourself in a public place without a firearm permit, however, make sure to call a Minnesota criminal defense attorney.


5 Things to Know About Minnesota DWIs

As a Minnesota Criminal Defense Attorney, I get quite a few calls about DWIs.  Minnesota has some of the strictest DWI laws in the country and the best way to handle a DWI arrest or charge can be quite confusing.  I get many referrals from other attorneys whose clients are facing DWIs wanting to know what they should do and what will happen to them.  If you have a client that runs into DWI trouble, here are five things to know about DWI laws in Minnesota:

1.  The best way to beat a DWI is to prevent it.  Honestly, you’ll have the best chance of beating a DWI if you avoid it in the first place.  Minnesota’s legal limit is 0.08 — which could be as few as 2 or 3 drinks depending on the person.  I’ve had a number of cases where the person didn’t feel intoxicated or show any signs of impairment but tested above 0.08.  If you feel impaired at all, don’t drive — wait it out or have someone else take you home.  Be aware that a police officer can stop you even if you don’t show signs of intoxication.  A minor traffic violation is enough to pull you over and investigate.

2.  Don’t give statements but don’t refuse the test.  One of the most confusing parts of DWI law is that refusing the DWI test allows the State to prosecute you as if you had tested over 0.20.  I always tell my clients not to give statements to the police that they could use against you (such as the fact that you’d been drinking).  However, make sure that you take the alcohol test.  It is usually your best option to challenge the arrest later, even if you fail the test.

3.  DWIs are enhanceable offenses.  Minnesota has four degrees of DWI.  They start out small and get progressively harsher.  There are two common ways that a DWI charge will be enhanced: 1) prior DWIs within 10 years and 2) testing over 0.20 (or refusing a test).  Just because your first DWI wasn’t too bad, don’t think your next one will be treated similarly.

4.  There are criminal and civil penalties.  Most people I talk to aren’t aware that a DWI charge results in criminal and civil proceedings against you.  The criminal charge concerns what will go on your criminal record and whether you’ll do any jail time.  The civil side could result in your license being revoked, your car receiving whiskey plates, or your vehicle being forfeited and sold at auction.  In addition, you only have 30 days from the date you receive the notice of civil penalties (usually the date of arrest) to bring a challenge in court.  If you don’t, you lose your option to challenge it before a judge.  Often, the 30 days will expire before the first court date in the criminal matter.

5.  A Minnesota DWI lawyer can help with the procedural defenses.  Minnesota DWI cases rarely come down to innocence or guilt at trial.  Rather, most cases are thrown out on procedural challenges such as whether the police stopped you properly or correctly administered the DWI test.  A Minnesota DWI lawyer can help evaluate the strength of these challenges and put you in the posture to get the best resolution.

Although DWIs can bring stress and uncertainty, I can often help my clients get through them with as little impact as possible to their other aspects of life (work, family, etc.).  If you have further questions about DWI charges or laws you can reach me at (651) 998-9660, eric@ricedefense.com, or ricedefense.com.

Amy Senser Post-Conviction Work Starts With Subpoena

Update (June 1, 2012): After a hearing, Hennepin County District Court Judge Mabley denied Senser’s motion for acquittal or a new trial.  The judge said that the verdict itself was based on jury instructions that were a correct statement of Minnesota law, so the verdict should be upheld.  The judge found no support for Senser’s motion despite the fact that jurors believed that Senser knew she hit a vehicle and not  a person.  He explained that this reaffirmed that the jury correctly applied the law that they were given.

Because Senser’s motion was denied, she will be sentenced on July 9.  However, an appeal is certain, and her attorney can ask that her sentence be stayed pending the appeal.  We’ll see how the case continues on July 9.

Original Post (May 16, 2012): Eric Nelson, Amy Senser’s attorney, recently sent a subpoena to Kare 11 requesting video of an interview with a juror after Senser was found guilty in two of three felony counts in connection with a fatal hit-and-run accident.  Specifically, Senser was found guilty of criminal vehicular homicide based on failing to notify authorities and leaving the scene of the accident in violation of Minnesota Statutes § 609.21 subd. 1(7).  This statute was interpreted by the Minnesota Supreme Court in State v. Al-Naseer, 734 N.W.2d 679 (Minn. 2007), to require that the offender know that she either hit a person or a vehicle.  At Senser’s trial, the attorneys focused solely on whether Senser knew she hit a person.  However, it recently came out that the jurors found Senser guilty because they thought that she hit a vehicle but not a person.

It’s early in the process, but my best guess is that Nelson is going to argue that there was no evidence presented that Senser knew or should have known that she hit a vehicle.  Rather, the evidence could only, at most, suggest that she knew she hit a person.  Because the jury found that she did not know she hit a person, the verdict should be set aside because there is no factual basis to find that she hit a vehicle.  However, the law allows a person to be found guilty if they knew they hit a vehicle, so I’m sure that the State will argue that the jury had sufficient facts and correctly found Senser guilty.

It will be interesting to see how this issue and other post-conviction issues develop.  Regardless of the victor, it should be a close legal question.  Personally, I see the lesson that  Minnesota criminal defense lawyers should carefully consider jury instructions at trial.  This would not be an issue if the attorneys had deleted the clause that referred to Senser’s knowledge of hitting a vehicle.  If the attorneys agreed that was not at issue, it should have been removed.  Next up, Senser is set to be sentenced July 9.

Minnesota Courts’ Expungement Authority Expanded — Will it last?

For years, prosecutors and defense attorneys have battled over the sealing and expungement of executive branch records.  It is well settled that Minnesota courts can expunge judicial records, but Minnesota Supreme Court decisions had suggested that executive branch records could not be touched due to the separation of powers.  In practice, this meant that a person seeking to hide their criminal convictions from potential employers and landlords could only remove the court records.  However, the executive branch records (those kept by police, corrections, and agencies) would remain permanently available and easily accessible, thus greatly undermining the purpose of an expungement.

A few days ago that all changed.  In State v. M.D.T., the Minnesota Court of Appeals affirmed a district court’s order to seal executive branch records.  The court based its reversal of course on a few reasons.  First, it said that it had misinterpreted Minnesota Supreme Court expungement law.  The court explained that rather than prohibiting courts from expunging executive records, the Supreme Court merely meant that it should only be done in very limited circumstances.  Second, the court reasoned that the purpose of an expungement (to allow an offender to rehabilitate themselves and not be saddled with a conviction forever) was impossible to achieve unless executive records were also able to be sealed.  Third, a person’s criminal record can now be obtained far more easily than in the past, so a criminal conviction can cause a greater impact than before.  Finally, the court explained that expunging executive records was necessary for a court to exercise its inherent authority to protect fundamental rights, such as employment and housing.

Over the strong objections of the State, the court affirmed the expungement and the sealing of the executive records.  Because this is such a contentious issue, it would not be surprising for the Minnesota Supreme Court to step in and clarify the court’s authority over the executive branch.  The Court of Appeals made some good arguments, but the issue mostly turns on what exactly the Supreme Court meant when it restricted the expungement of executive records in earlier cases.  I’m sure the Supreme Court will take the opportunity to clarify its earlier holdings.  Until then, though, it might be a good time to file for an expungement if you were thinking of doing so.