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Upholding individual rights in Hennepin County

Misdemeanor or felony criminal charges are extremely frightening. The direct and collateral consequences are bad enough. But most people are even more confused about the nuts and bolts of a criminal matter, such as the criminal procedure in Hennepin County and hiring a lawyer.

At Gerald Miller, P.A., we take all these frightening things and simplify them as much as possible. We review your case and lay out all your legal options. Furthermore, we proactively communicate with you at every step. And, most importantly of all, we never stop fighting for you.

Jail Release

Prompt jail release jumpstarts an effective criminal defense.

In Rem Possession and Property Crimes

Theft and drug possession are among the most common property crimes in Hennepin County.

In Personam Assault and Injury Crimes

Assault, sex crimes, DWI, and other in personam crimes have significant direct and collateral consequences.

Post-Trial Matters

A successful appeal can reverse an adverse trial court judgement, and an expungement petition can erase it.

How Minneapolis Criminal Defense Lawyers Help with Jail Release

Extended pretrial detention has more than personal and professional consequences. It has legal consequences as well. If they are behind bars, rather than fully taking advantage of all possible defenses, many defendants accept unfavorable plea bargain agreements just to “get it over with.”

Furthermore, incarceration affects physical health. When cell doors close, stress hormone production increases exponentially. If you have known someone who went to jail and seemed to be a different person when s/he returned, that’s probably because the person was a different person, thanks to a stress-induced brain injury.

These two areas overlap. The brain injury often clouds judgement, making simple things difficult to process and easy decisions seem difficult. Furthermore, the brain injury often affects communication, making it hard for incarcerated individuals to participate in their own defenses.

Minnesota lawmakers recently expanded the state’s pretrial release program. Nonviolent, first-time offenders are almost always eligible for Own Recognizance release. OR release essentially transforms an arrestable offense into a traffic ticket. If these defendants promise to appear at trial, the sheriff releases them.

The nonviolent and first-time labels apply to most Hennepin County jail inmates. In a borderline case, the mere presence of an attorney often improves the chances for OR release. The review board knows the defendant takes the charges seriously. Moreover, in some cases, a Minnesota criminal defense attorney can directly advocate for these individuals.

Cash bail or a bail bond are typically an option as well. Cash bail is essentially a security deposit. If the defendant posts the amount and complies with all conditions, the sheriff refunds most of the balance when the case is resolved. These conditions vary, but they usually include:

  • Appearing at the trial and all mandatory pretrial hearings,
  • Remaining within the county,
  • Personally checking in with a bond agent, and
  • Avoiding further trouble with the law.

A bail bond, which is much like an insurance policy, usually has roughly the same conditions. Most local bonding companies charge a 15 percent premium for such insurance policies. If the defendant does not comply with the conditions, including appearing at trial, the bonding company bears the financial risk.

In some cases, mostly extremely violent felonies, there is no possibility for OR release and there is either no bail set or it is too high to afford. At the arraignment, which usually occurs within forty-eight hours of the arrest, a Minneapolis criminal defense attorney can ask the judge to set or reduce bond. In making this decision, the judge looks at a number of factors, such as the defendant’s:

  • Ability to pay,
  • Contacts with the community (e.g. local job and family),
  • Ability to flee (e.g. does the defendant have a passport), and
  • Threat to the community at large or individual witnesses or victims.

Generally, Minneapolis criminal defense lawyers and prosecutors compromise and resolve these matters out of court. For example, the state might agree to a much lower bond if the defendant agrees to wear an ankle monitor.

In Rem Possession and Property Crimes in Minneapolis

About half of the offenses in Hennepin County are technically “victimless” crimes. However, although there is no individual victim, the state is a victim. And the prosecutors, who are the state’s attorneys, act very aggressively to uphold their client’s interests.

Drug Possession

These matters, which account for over 80 percent of all the drug arrests in Minnesota, are a good illustration of the three basic elements in an illegal possession prosecution. These three elements are:

  • Produce the Substance in Court: Generally, physical evidence is only admissible if officers had a valid search warrant or a narrow search warrant exception applied. Warrants must be based on affidavits which show probable cause. Search warrant exceptions include plain view, consent, and exigent (emergency) circumstances.
  • Prove the Substance was Illegal: Arresting officers invariably claim that the substance “field tested” positive as drugs. Subsequent chemical tests often tell a different story. This “field test” is usually just a physical examination. Marijuana is in a special category. This substance, which is illegal for most purposes, is physically indistinguishable from hemp, which is legal for most purposes. Only an expensive THC content test, which is unavailable in many cases, determines the difference beyond a reasonable doubt.
  • Establish Possession: In everyday language, possession is synonymous with proximity. But the legal definition of possession is different. In addition to proximity, the state must also establish knowledge and control. So, a person could literally be sitting on illegal drugs and not legally possess them.

Common drug possession enhancements include drug trafficking upgrades and drug-free zone enhancements.

To upgrade charges from possession to distribution or trafficking, prosecutors normally look to circumstantial evidence, like the amount of drugs and the presence of guns, shipping materials, cash, or scales.

Some drug-free zones include schools, corrections facilities, playgrounds, and public housing projects. All these places have specific definitions. For example, a playground must be a public playground. Private playgrounds, like church, homeowners’ association, or apartment complex playgrounds, do not count.

If you’re facing drug-related charges, you should consult an experienced drug crime lawyer in Minneapolis right away.

How a Minneapolis Criminal Defense Lawyer Can Help with Weapons Possession

These same basic principles apply in weapons possession matters. Weapons seizures are almost always warrantless seizures. So, let’s examine the more common search warrant exceptions more closely:

  • Consent: Owners can give officers oral or written permission to search their property. That could be a motor vehicle, a house, or a backpack. Consent is an affirmative, voluntary act. People cannot limit the scope of consent (e.g. you can look here but not here). However, they can revoke consent at any time.
  • Plain View: If officers are legally in a certain place, they can seize any contraband they see in plain view. So, if the stop was illegal, any plain view seizure was also illegal.
  • Exigent Circumstances: If officers feel someone is in danger, they can enter a dwelling without a warrant for a security sweep. While inside, they may seize contraband that’s in plain view. A sweep is a quick walk-through. Officers definitely cannot open cabinet or pantry doors. They probably cannot open closet doors either.

The other two Ps apply here as well. Prosecutors must also establish that the weapon was illegal, which is usually a straightforward showing, and also establish all the legal elements of possession. If Frank was in the driver’s side rear seat and there was a gun under the passenger side front seat, Frank might not have legally “possessed” the weapon.

Depending on the details of your case, a firearms weapons defense lawyer in Minneapolis may be able to help you.

Theft

Essentially, theft is the taking of another person’s property without the effective consent of the owner. These key elements break down as follows:

  • Taking: Moving the property, perhaps from the regular-price rack to the discount rack, constitutes theft. So does altering a price tag. Many store resource officers wait until shoplifters leave the store to detain them. These cases are easier to prove in court.
  • Lack of Consent: Returning rental property late violates owner consent and is therefore technically theft.
  • Owner: Legally, an owner is anyone with a superior right of possession. So, Hennepin County prosecutors often name the store detective or manager as the owner. These names are usually in the police report. By the time the trial rolls around, these individuals have often left the jurisdiction.

Petty theft is usually a misdemeanor and grand theft is normally a felony. The value of the property usually determines the difference. Some types of property, such as motor vehicles, are always grand theft, regardless of their cash value.

Related offenses include embezzlement and fraud. Embezzlement is usually theft plus the violation of trust. Fraud could include check fraud, which is altering a check, credit card fraud, mortgage fraud, and insurance fraud.

Robbery, another related offense, is an in personam crime. Typically, robbery is breaking and entering a dwelling to commit theft or a felony. “Breaking” and “Entering” are very broad words. Opening an unlocked door and peeking inside is usually breaking and entering. Reaching into the open bed of a pickup truck is also breaking and entering.

Get in touch with a theft lawyer in Minneapolis to understand and discuss your case

In Personam Assault and Injury Crimes in Minneapolis

In rem cases are a mixture of misdemeanors and felonies. For example, most drug possession cases are felonies. A few, such as marijuana possession, are normally misdemeanors. Likewise, in personam infractions are a combination of misdemeanors and felonies. However, regardless of the legal level, all of them have serious direct and collateral consequences.

DWI

Driving While Intoxicated could be considered an in rem or an in personam offense. However, since DWI-collision cases are clearly in personam offenses, we’ll discuss it here.

“Driving” actually means “operating.” If the defendant was passed out behind the wheel, DWI charges could hold up in court, if the defendant had the keys and the car was drivable. Furthermore, that driving must occur in a public place. Large apartment or townhome complexes, even if the streets have names and stop signs or other traffic control devices, are not public places.

“While intoxicated” means a loss of normal physical or mental faculties or a BAC above the legal limit. Field sobriety tests, such as the walk and turn (walking a straight line), usually provide circumstantial evidence of loss of faculties. The state must prove the tests were fair and that the defendant did poorly on them because of intoxication as opposed to fatigue, nervousness, or clumsiness.

For noncommercial drivers, the BAC level is usually .08. Breathalyzer tests are not always accurate, and blood test results are not always accurate either.

First-time DWI with a BAC under .16 is normally a misdemeanor. Aggravated DWI is usually a felony. Aggravating circumstances include multiple prior convictions in the last ten years and special facts, like a very high BAC, a collision, or a minor passenger under 16.

DWI convictions also have substantial collateral consequences. Frequently, these convictions cause auto insurance rates to triple. These individuals also have a hard time finding jobs, particularly jobs which require any driving or exercise of discretion.

Assault

Ordinary assault, including most domestic assaults, is a misdemeanor. Aggravated assault, which could involve the nature of the alleged victim or the extent of injury, is a felony.

Ordinary assault is basically common-law battery. That’s any harmful or offensive touch. Bodily injury is not an element of assault. An injury simply makes the case easier to prove. Furthermore, maliciousness is not an element. Prosecutors must only prove the touch was intentional (i.e. not accidental).

Domestic assault, or domestic battery, almost always involves a husband and wife. Other relationships, such as two people related by blood or marriage, are protected as well.

Aggravated assault could mean using a dangerous weapon during the assault, causing significant injury, or assaulting a person in a protected class. Almost any object, such as a golf club or a frying pan, could be a dangerous weapon. Significant injury could mean first aid, an ER visit, or hospital admission. Protected classes include emergency responders and prison guards.

Since the burden of proof (beyond a reasonable doubt) is so high in these cases, a lack of evidence is often an effective defense. Many times, especially after a bar fight, the alleged victim only got a glimpse of the attacker. Voluntary intoxication is a defense in certain aggravated assault matters. Legally, intoxicated people cannot intend both the conduct (hitting a person) and the result (seriously injuring the person).

Minnesota has relatively broad self-defense laws. Defendants may use a subjectively reasonable amount of force to fend off a threat to themselves, their property, or other people. Minnesota is not a stand-your-ground state. So, defendants have a duty to retreat, if possible, before they may use force.

On a related note, alleged victims cannot “drop” assault charges. Alleged victims are basically witnesses. Witnesses cannot drop charges. Only prosecutors have this authority. In fact, if alleged victims refuse to cooperate, prosecutors can subpoena them and force them to testify.

Depending on the circumstances surrounding your case, an assault lawyer in Minneapolis may be able to help you.

Criminal Sexual Conduct

CSC is an umbrella term which covers everything from reckless indecent exposure, which is a relatively minor misdemeanor, to aggravated sexual assault, which is one of the most serious felonies in Minnesota.

A so-called “rape kit” is not proof of rape. This evidence proves the two people had intercourse and might even prove the intercourse was violent. But it cannot prove or disprove consent. Legally, consent is a voluntary, overt act. Consent in the past might be relevant to present content, but it certainly does not establish this fact. Some individuals, usually because of age or an incapacitated state, cannot consent.

Sex offender registration is probably the worst collateral consequence of a CSC. In Minnesota, most offenders must register for at least ten years. There are three registration levels, as follows:

  • Level I (registration information is not publicly available),
  • Level II (this data is publicly available), and
  • Level III (publicly-available data and law enforcement officers usually hold town hall meetings and other such events).

Risk of re-offense is the main factor. So, an indecent exposure conviction could mean Level III registration. At a subsequent hearing, a Minneapolis sex crimes defense attorney can lower the risk level.

How Minneapolis Criminal Defense Lawyers Help Post-Trial Matters

All crimes of moral turpitude (which does not include DWIs) and violent felonies could trigger immigration or deportation proceedings. Significantly, even if the defendant received deferred disposition, that finding of guilt could lead to adverse action.

Probation Revocation

Prosecutors normally file these motions because of technical violations, such as failure to report, or because the defendant was convicted of another offense.

The burden of proof is rather low in these situations. The state must only establish, by a preponderance of the evidence (more likely than not), that the defendant violated probation in some way.

Normally, Minnesota criminal defense lawyers resolve such motions out of court. Some possibilities include extending the supervision period, serving a few days in jail as a condition of reinstatement, or proceeding to judgement in a deferred disposition matter. More on that below.

Criminal Appeals

These matters are difficult, but not impossible, to win. Essentially, a Minneapolis criminal defense lawyer must show that the judge made such a bad decision that s/he abused his/her discretion. This standard usually applies to unfavorable pretrial decisions, such as the admission of physical evidence or a coerced confession. Possible technical grounds for an appeal include:

Failure to timely advise defendants of their Miranda rights,

  • Using illegally-seized evidence in court,
  • Prosecutor’s failure to turn over exculpatory evidence,
  • Illegally excluding jurors, perhaps because of their race, and
  • Illegal jury arguments, such as an appeal to class.

Ineffective assistance of counsel is another possible basis for appeal. Lawyers are not incompetent because they lose the case or even because they do “bad” jobs. Instead, attorneys are incompetent if their representation falls below the standard of care. Examples include lack of a law license or being intoxicated during the trial.

Expungement

Minnesota law allows either judicial or statutory expungement. In the Gopher State, expungement is more like sealing. The records still exist, but they are not publicly available.

Judicial expungement could involve deferred disposition. The defendant pleads guilty or no contest but the judge does not officially find the defendant guilty. Instead, the judge places the defendant on probation. If the defendant successfully completes court supervision, the judge dismisses the case.

Judicial expungement could also be a separate proceeding. After a waiting period expires, judges have absolute authority to expunge judicial records. That includes records in cases which are normally not expungable, due to the person’s criminal background or the nature of the offense.

Statutory expungement addresses both judicial and law enforcement records. For most nonviolent misdemeanors, except DWI, defendants are eligible for expungement if they have no criminal history. Moreover, a Minneapolis criminal defense lawyer must convince the judge that expungement is in the best interests of the defendant and the best interests of the public.

Minneapolis Criminal Defense FAQs

Cost depends on several factors, the most important of which are usually the attorney’s experience level and the severity of the offense. Experienced Minneapolis criminal defense lawyers charge more than inexperienced attorneys. Additionally, felonies usually cost more than misdemeanors, because most felonies are more complex than most misdemeanors.

Criminal defense attorneys basically stand up for individual rights against the state. Obtaining convictions is the best way for prosecutors to move up the ladder. So, many of these individuals will do almost anything, including cheat, to convict defendants. A Minneapolis criminal defense lawyer protects your rights, such as your right to remain silent and the presumption of innocence.

Experience, location, and commitment are usually the three best things to look for in a Minneapolis criminal defense lawyer. Experienced lawyers know how to evaluate cases and identify defenses. They also know all the written and unwritten procedural rules. Furthermore, it is much easier to work with an attorney who has an office nearby as opposed to a lawyer who is on the other side of town. Finally, for many lawyers, criminal defense is a sideshow. You need a lawyer who is committed to individual rights and committed to an effective defense.

At the initial consultation, Minneapolis criminal defense lawyers evaluate your case, identify defenses, and answer your procedural and other questions. At a subsequent pretrial hearing, defense lawyers challenge the state’s case on legal and procedural grounds. At trial, attorneys challenge the state’s evidence, so prosecutors cannot establish guilt beyond a reasonable doubt.

Some attorneys charge by the hour. Other attorneys charge stairstep flat fees, such as X for a negotiated plea bargain, X+Y for a trial before the judge, and X+Y+Z for a trial before a jury. It is illegal for criminal lawyers to charge contingency fees. So, unless the attorney is a public interest lawyer, you will almost always pay something upfront.

Some factors to consider in your choice include the amount of money the lawyer charges and the attorney’s track record. You probably do not want the cheapest lawyer, and you probably do not want the most expensive one either. You definitely do not want a lawyer with little or no trial experience.

Online reviews are helpful. But anyone can write anything in an online review. Honors and awards are important too. But frequently, attorneys win these “awards” because they buy a book. Instead, finding the best criminal defense lawyer in Minneapolis usually requires a personal consultation. The attorney must have a clear vision for your case and your defense.

Most cases have either procedural or substantive defenses, and many cases have both. Procedural defenses include things like an unlawful arrest or an invalid search warrant. Substantive defenses could be affirmative defenses, such as self defense in an assault, or a lack of evidence.

A criminal lawyer is an attorney and counsellor at law. Attorneys stand up for defendants in court. An effective defense usually hinges on thorough preparation. A lawyer is also a counsellor. That means your attorney should give you solid legal advice.

Absolutely. There is a difference between morally guilty and legally guilty. Many people are morally guilty but not legally guilty. The state cannot prove all elements of the crime, beyond a reasonable doubt. Additionally, Constitutional rights apply to all people, whether they are “good” or “bad” people.

Proven Lawyers, Proven Results

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