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Our team find the weak link in the state’s case and exploits it

Law enforcement officers very aggressively arrest suspects. In the never-ending War on Crime, the number of arrests is the only measurement of victory. Likewise, prosecutors are very aggressive in court. Convicting defendants is the only way of moving up the corporate ladder. The good news is that aggressive police and prosecutors often take illegal shortcuts in their relentless quests to arrest and convict people.

At Gerald Miller, P.A., our professional team is equally as aggressive. Hard work is the foundation for our assertive posture. The aforementioned shortcuts usually create a number of procedural defenses, as outlined below. Additionally, the state must amass overwhelming evidence to convict defendants. Frequently, that level of proof is unavailable.

Pretrial Matters

You have a number of important rights in criminal cases. Even one violation could invalidate the entire case.


Assault and DWI are two of the most common misdemeanors in Minnesota. These offenses are punishable by up to one year in jail.


A conviction for drug possession, criminal sexual conduct, or another felony usually has severe direct and collateral consequences.

Resolving a Criminal Case

Our Minnesota criminal defense lawyers usually resolve criminal cases out of court.

Our Minnesota Criminal Defense Lawyer Explains Pretrial Matters

From the stop to the filing of charging instruments in court, criminal pretrial procedure is much like a string of Christmas lights. If one bulb is removed, the whole string often goes out. So, a Minnesota criminal defense lawyer must simply find the right bulb to unscrew, or the right procedural irregularity to attack.

Reasonable Suspicion

Before they pull over motorists on the street or detain people on the sidewalk, officers must have reasonable suspicion of criminal activity. Courts define this standard as “specific, articulable facts.” In reality, reasonable suspicion is essentially an evidence-based hunch.

Nine times out of ten, especially with regard to motor vehicle stops, a traffic violation serves as reasonable suspicion. Such infractions could be non-moving violations, like an expired inspection sticker, or a moving violation, like speeding. Additionally, the Traffic Code is awash in ticky-tack violations, such as failing to stop prior to exiting a private driveway or a license plate frame which obscures the information on the plate.
Note that the traffic violation usually has nothing to do with the charged offense. For example, an officer might pull a motorist over for a burned-out taillight and arrest the motorist for DWI. In this case, the officer must also have reasonable suspicion that the driver is intoxicated. Evidence on this point includes things like erratic driving prior to the stop and the motorist’s bloodshot eyes.

Overall, reasonable suspicion is a very low standard. However, there are a few things which do not constitute reasonable suspicion, either at the initial stop phase or the investigation phase.

  • Unreliable Tip: Information provided by anonymous tipsters is presumptively unreliable. If the tipster did not vouch for the information, there’s no reason for a judge to give it greater weight. So, these tips usually require some independent corroboration.
  • Profiling: This illegal practice is rather hard to prove. Examples include a DWI roadblock in a predominantly nonwhite area (almost all DWI defendants are white) and officers who pull over a disproportionate number of ethnic motorists.
  • Furtive Movements: When officers stop them, many people get nervous. Their eyes dart into their rearview mirrors or they dig through their glove boxes for insurance forms. Such furtive movements can be misinterpreted, and they never constitute reasonable suspicion of criminal activity.

Reasonable suspicion shortcuts are especially common during STEP campaigns and saturation enforcement campaigns. During these efforts, police officers are redirected to a certain area of town and instructed to make as many DWI arrests or write as many speeding tickets as possible. To justify the enormous effort, many officers take illegal shortcuts to inflate their arrest tally.

Physical Evidence and Search Warrants

During the colonial era, British authorities used writs of assistance, which were essentially blank search warrants, to rummage through private property whenever they pleased. The Founding Fathers included the Fourth Amendment in the Constitution specifically to end this practice. Now, only judges can issue search warrants, and only if officers show probable cause. More on the probable cause standard below.

However, the Fourth Amendment only prohibits “unreasonable” warrantless searches and seizures. Over the years, courts have carved out a number of exceptions to the search warrant requirement, as follows:

  • Consent: Owners of apparent owners can voluntarily consent to property searches. Apparent owners are people like drivers who do not own the vehicle. Property includes everything from a smartphone to a house. In all cases, consent is an affirmative, voluntary, and revocable act.
  • Plain View: This exception usually comes up during the aforementioned reasonable suspicion stops. If officers are legally in a certain place (e.g. if they had reasonable suspicion), they may seize weapons, drugs, or other contraband they see in plain view.
  • Emergency Circumstances: If officers respond to a disturbance call, they may sweep through a dwelling or other building to ensure that everyone inside is unhurt. During such safety sweeps, they may seize any contraband they seize in plain view.

Other exceptions include limited searches incident to lawful arrests, weapons pat-downs, and hot pursuit searches. Prosecutors have the burden of proof to show that the search or seizure was reasonable under the Fourth Amendment.

Testimonial Evidence and the Miranda Rights

Most people are familiar with confessions and other testimonial evidence, as well as the right to remain silent and other Miranda rights. But many people do not realize how broad these words are.

Testimony applies to more than oral statements. The right to remain silent also includes the right to refrain from certain conduct. Everyone must comply with basic “step out of the car” police commands. Other than that, however, the Fifth Amendment applies. That includes the right to refuse to appear in a lineup, pose for a picture, perform a DWI field sobriety test, or provide a chemical sample.

Sometimes, there are strings attached. For example, since Minnesota is an implied consent state, a chemical test refusal could have some consequences, like a drivers’ license suspension.

Additionally, police officers must administer the Miranda rights before custodial interrogation begins. Let’s look at these terms more closely.

  • Custody: The c-word does not mean handcuffs clinking or a cell door closing. Rather, custody begins when reasonable people do not feel free to leave. Frequently, when people see flashing lights in their mirrors, they do not feel free to leave.
  • Interrogation: Skilled investigators know how to interrogate suspects without asking questions. They also know how to extract damaging information from seemingly innocuous inquiries. So, as a rule of thumb, before officers say anything, they should arguably read suspects their rights.

Much like consent to search, an assertion of your Miranda rights must also be clear and unequivocal. Suspects must say something like “I am asserting my Constitutional rights” or “I refuse to say or do anything until I talk to a lawyer.” Courts consider silence to be a waiver of the Miranda rights.

Probable Cause

Minnesota courts have never defined this standard of evidence, which is the standard for an arrest. However, it is somewhere between reasonable suspicion, which was discussed above, and beyond a reasonable doubt, which is the standard for guilt or innocence.

Let’s return to the DWI example. Evidence like an odor of alcohol and bloodshot eyes, at best, only proves recent consumption. It does not prove intoxication, which is a loss of mental or physical faculties due to excess alcohol consumption.

The probable cause standard requires more. In most cases, the “more” comes from the walk and turn and other field sobriety tests. These tests are scientifically designed to detect alcohol intoxication.


These infractions are punishable by up to a year in jail. Although the direct consequences are somewhat low, do not be deceived. A year in jail is a very long time. Additionally, many misdemeanors have collateral consequences which, in many cases, are worse than the direct consequences.


Ordinary assault and domestic battery are two of the most commonly charged misdemeanors in Hennepin County. Typically, both infractions are verbal arguments which got a little too heated. Frequently, alcohol is involved as well.

Essentially, ordinary assault is the statutory equivalent of common-law battery. That offense is a harmful or offensive touch. Physical injury is not a requirement. Any touch suffices. Physical injury simply makes the offense easier to prove in court. Malice is not a requirement either. Prosecutors must simply prove the touch was offensive (i.e. not accidental).

We all know that words can hurt. But verbal assault is not punishable under this statute. It might be punishable under a different statute, such as reckless conduct. Acts like knocking a person’s hat off his/her head might constitute ordinary assault in some cases.

Assault is a crime of moral turpitude which could have immigration and naturalization consequences.

In terms of criminal law, domestic battery is the same offense as ordinary assault. However, these cases are different procedurally. Normally, designated family violence judges preside over these cases. Therefore, things like probation conditions are often unique. Additionally, domestic battery has significant collateral consequences in family court.

Furthermore, police officers in most jurisdictions must share protective order information with alleged domestic battery victims. Typically, judges issue ex parte protective orders based on the alleged victim’s affidavit. After a full hearing, they may expand the order both in terms of length and content. A permanent protective order might last up to two years. Additional orders could include surrendering firearms, vacating a shared residence, and paying financial support.

In addition to reckless conduct, other assault-like offenses include stalking, violating a protective order, and criminal trespass. These are all misdemeanors.

Consulting an accomplished Assault lawyer in Minnesota is crucial to understanding your case and protecting your rights.


In many jurisdictions, DWI defendants make up about half the probationers. Authorities are this aggressive because alcohol or drug use is a factor in about half of the fatal car accidents in Minnesota.

To establish guilt beyond a reasonable doubt, prosecutors can use circumstantial or direct evidence. “Beyond a reasonable doubt” basically means an abiding conviction of guilt and that the evidence is so overwhelming the prosecutor’s version of events is the only reasonable explanation.

Circumstantial evidence usually involves the field sobriety test results. As mentioned above, physical evidence of consumption does not constitute probable cause. To meet this higher standard of evidence, prosecutors normally rely on:

  • Horizontal Gaze Nystagmus: During the DWI eye test, officers look for involuntary pupil movements at certain viewing angles. These movements indicate that the subject has nystagmus, a condition also known as lazy eye. Alcohol is not the only cause, or even the leading cause, of nystagmus. Furthermore, roadside HGN tests are not conducted under controlled conditions, so their results are suspect.
  • One Leg Stand: Suspects must stand on one leg for about fifteen seconds without swaying or using their arms for balance. It is almost impossible for people who are not in excellent physical condition to pass this test, whether they are drunk or sober.
  • Heel to Toe Walk: Somewhat similarly, people with any mobility impairments cannot walk a straight line, especially an imaginary line.

Furthermore, it’s very hard to walk a straight line while wearing anything other than athletic shoes. The test environment matters as well. Very few parking lots and street shoulders are perfectly flat. Test-takers must also deal with distractions, like flashing squad car lights in the background.

If officers suspect that the driver is impaired because of drug use, the field sobriety tests work a bit differently. Frequently, arresting officers summon DREs (Drug Recognition Experts) to the scene. These individuals invariably testify that the defendant did poorly on the field sobriety tests because of drug impairment. However, their opinion is usually a self-fulfilling prophecy. They know they are at the scene to make such a determination. And, if you look for evidence of something, you typically find it, even if you have to stretch the facts.

Furthermore, DWI-drug cases almost always rely on circumstantial evidence. A blood test could detect the presence of drugs, but blood tests are rare in DWI cases. More on that below.

Minnesota has a very broad DWI-drug law. In addition to driving under the influence of street drugs, it’s also illegal to drive under the influence of legally acquired painkillers and other prescription drugs. Certain over-the-counter drugs, like NyQuil and Benadryl, might also qualify as dangerous drugs under this law.

Direct evidence of alcohol intoxication almost always involves a Breathalyzer test. Much like its predecessor, the 1920s Drunk-O-Meter, a Breathalyzer measures breath alcohol level and uses that number to estimate blood alcohol level, which is the legal standard in Minnesota. Typically, the limit is .08 BAC. The limit is lower for commercial operators and minors under 21.

Much like the Drunk-O-Meter, the Breathalyzer has a number of scientific and technical flaws. Some of them include:

  • Mouth Alcohol: A burp or belch in the fifteen minutes prior to the test floods the mouth with alcohol particles from the stomach. As a result, the BAC estimate might be artificially high.
  • Improper Calibration: All scientific instruments, including the Breathalyzer, are rather delicate. Improper calibration is especially a problem for portable Breathalyzers. As a rule of thumb, the more bells and whistles a gadget has, the more technical attention it requires.
  • Ketone Levels: Diabetics, smokers, and other individuals have naturally high ketone levels in their bodies. Breathalyzers register these particles as ethanol. So, once again, the BAC estimate might be artificially high.

To drive home these and other flaws with jurors, many Minnesota criminal defense lawyers partner with degreed chemists. These professionals carry much more credibility than the police Breathalyzer techs that prosecutors rely on.

Make it a point to get in touch with a Minnesota DWI defense lawyer to understand your options and defenses.


Normally, theft is the taking of property without the effective consent of the owner. Taking property is not synonymous with removing it. Moving an item from the regular rack to the discount rack constitutes theft. So does keeping rental property past the due date and joyriding in someone else’s car.

Petty theft is a misdemeanor. Prosecutors can upgrade charges to grand theft, which is a felony, based on the value of the item or its membership in a certain category. For example, auto theft is always grand theft, regardless of the car’s value.

Delay, which is frustrating for everyone, is usually the best defense in a theft case. Prosecutors normally allege that the security guard mentioned in the police report is the property’s “owner.” There is usually a gap of several months, or even a year, between the incident and the trial. During that time period, many of these people relocate beyond the court’s subpoena power. If that happens, the state cannot produce the owner, and the case collapses like a house of cards.

Robbery, which is theft plus force or the threat of force, is a felony.

Depending on the case facts, a Theft lawyer in Minnesota may be able to defend you and get positive outcomes.


All felonies have severe direct and collateral consequences. A conviction could mean confinement in the state penitentiary. A conviction could also mean the inability to vote, own firearms, and exercise other privileges.

Aggravated Assault

Whenever possible, prosecutors upgrade misdemeanor assault charges to felony charges based on the following facts:

  • Manner of Assault: It is a felony to use a dangerous weapon during an assault. Almost any household object, such as a frying pan or a TV remote, could be a dangerous weapon in some situations.
  • Extent of Injury: As mentioned, physical injury is not an element of misdemeanor assault. But it could be an element of aggravated assault. Voluntary intoxication is a defense to these infractions. Legally, intoxicated people cannot commit specific intent crimes (the defendant intends both the conduct, which in this case is hitting someone, and the result, which is serious injury).
  • Victim’s Identity: Most government employees, such as police officers and probation officers, are in a protected class if they are discharging their official duties. An illegal stop is not an official duty. Furthermore, police officers moonlighting as security guards are not discharging their official duties, even if they are in uniform.

Assault victims cannot “drop” charges. It does not matter if the defendant is charged with a misdemeanor or felony. These individuals are only witnesses in criminal cases, and witnesses do not have such authority. Only the state has the power to voluntarily and arbitrarily dismiss charges.

Enhanced DWI

Multiple prior convictions or certain aggravating facts could enhance DWI charges from a misdemeanor to a felony.

In terms of prior convictions, Minnesota has a ten-year lookback period. If John was convicted of DWI in 2010 and he is arrested again in 2021, the new DWI is a first DWI. However, prosecutors could still use the prior DWI as leverage during plea negotiations. More on this method of resolving criminal cases below.

Aggravating facts include a collision and a minor passenger under 16. Frequently, prosecutors have a hard time establishing the “driving” element in a DWI collision case. Normally, responding officers did not see the defendant driving the motor vehicle. So, the state must call a credible civilian witness to provide such testimony. The minor passenger under 16 does not need to be a close family member or other kin.

Criminal Sexual Conduct

Like many other jurisdictions, Minnesota has several different levels of criminal sexual conduct. They are rather complex, but here they are in a nutshell:

  • Fourth Degree: Probation is possible for this felony offense, which is usually either statutory rape or sexual conduct without penetration. Minnesota does not have a Romeo and Juliet exception. If two 15-year-olds engage in consensual sex, they could both face CSC charges.
  • Third Degree: Unconsented sexual penetration is a felony which carries a mandatory prison sentence. This offense also applies to situational CSC, such as an incapacitated victim or a psychotherapist taking advantage of a patient.
  • Second Degree: This form of unconsented sexual assault usually involves force, or the imminent threat of force, and any violence without penetration. Second degree CSC charges could also involve statutory rape.
  • First Degree: The most serious CSC offense carries a presumptive twelve years in prison and a maximum thirty years. It is sexual penetration of a person under 13. The penetration could be with something other than a sex organ.

Minnesota law defines consent as a present, voluntary agreement to engage in certain sexual conduct. A Minnesota criminal defense lawyer may use circumstantial evidence to establish consent.

Sex offenses that require registration also include indecent exposure, possession of illegal pornography, and online sex crimes. Indecent exposure is normally a misdemeanor. Pornography possession charges usually involve search and seizure issues, which were discussed above. Online solicitation of a minor could involve the entrapment defense.

Depending on the risk of re-offense, a sex crime conviction could mean Level I, Level II, or Level III registration. Level I information is not publicly available. At a subsequent hearing, a Minnesota criminal defense lawyer could lower the rating and therefore ease the registration requirements. Most offenders must register for at least ten years.

If you’re involved in a criminal sexual conduct case, you may turn to a Minnesota Sex Crimes defense attorney for help.

How Do Minnesota Criminal Defense Lawyers Resolve a Criminal Case

Thorough preparation is usually the key to a successful resolution. The more procedural or substantive defenses that a Minnesota criminal defense attorney locates, the easier it is to resolve the case.

Plea Bargains

Most judicial cases, whether they are civil or criminal, settle out of court. These settlements end the case sooner and give the participants more control over the outcome. Contrary to popular myth, making a plea bargain is not like surrendering. It’s simply a negotiated pretrial settlement. Most such settlements involve one or both of the following:

  • Sentence Reduction: Probation instead of jail time is the most obvious example of a sentence reduction. A Minnesota criminal defense lawyer can also reduce the length of incarceration or court supervision, largely depending on the facts of the case, the input of any victim, and the defendant’s criminal record.
  • Charge Reduction: Reducing a felony to a misdemeanor is the most common form of charge reduction. That could be reducing aggravated assault charges to ordinary assault or grand theft to petty theft. Charge reduction affects both direct and collateral consequences. For example, an attorney could reduce DWI charges to reckless driving. This offense does not have the same collateral consequences, such as drivers’ license suspension, as DWI.

Procedurally, Minnesota criminal defense attorneys negotiate with prosecutors. Then, the attorney conveys the offer to the defendant along with a recommendation to accept or reject it.


Less than 10 percent of all criminal cases go to trial. However, a good Minnesota criminal defense attorney always assumes the case will go to trial. That posture ensures thorough preparation. The trial could be:

  • Bench Trial: The judge serves as both legal referee and factfinder. Bench trials are less time-consuming and more predictable than jury trials. A bench trial in a misdemeanor might last less than an hour. And, it’s much easier to predict how a judge will react to evidence as opposed to the way strangers will view it.
  • Jury Trial: Typically, misdemeanor trials have six jurors and felony trials have twelve jurors. Jury trials take much longer than bench trials and their results are almost impossible to predict. Pretrial focus groups and mock juries are immensely helpful to Minnesota criminal defense attorneys.

In both jury trials and bench trials, the factfinder must find the defendant guilty beyond a reasonable doubt, a standard of evidence discussed above. Jury verdicts must be unanimous in Minnesota.

Our Minnesota Criminal Defense Lawyer Elaborates on Post-Trial Matters

The case does not end just because the judge’s gavel falls. In fact, in many situations, the case is just beginning.

Probation Violations

To stay out of jail or prison, the defendant must comply with a number of supervisory conditions which vary in different jurisdictions. Some common ones include:

  • Reporting to a probation officer,
  • Paying money, like fines, restitution, and fees,
  • Avoiding further convictions,
  • Remaining in the county,
  • Working and/or attending school full time, and
  • Avoiding “disreputable” people and places.

Most probation violations involve either a failure to report or a new conviction, but other technical violations are not uncommon.
Out-of-court settlement possibilities include an extension of the period of probation and serving a few days in jail as a condition of reinstatement.

Criminal Appeals

Appealing an adverse trial result is difficult, but certainly not impossible. Courts have consistently held that a defendant is entitled to a fair trial, but not a perfect one. Many appeals cite technical flaws which made the trial unfair. Some common flaws include:

  • Prosecutor’s failure to timely turn over exculpatory evidence,
  • Judge’s failure to move the proceedings to a neutral location,
  • Juror misconduct, such as jurors who do their own research into the case,
  • Improper jury selection, and
  • Illegal jury arguments.

Lack of evidence might also be a basis for appeal. As mentioned, the state must prove guilt beyond a reasonable doubt. That’s a very high standard. If there is any indication that the judge or jury relied on anything other than the evidence, a Minnesota criminal defense lawyer has a good chance to overturn the verdict.

Ineffective assistance of counsel is the third possible ground for appeal. The lawyer must have been so bad that the representation fell below the standard of care. Examples of such incompetency include an unlicensed lawyer or a lawyer who was under the influence of a substance during the trial.

Minnesota Criminal Defense FAQs

Most private criminal defense attorneys charge fees according to the amount of time involved in the case and their experience level. The state usually pays public interest lawyers, like public defenders and court-appointed lawyers.

A criminal defense lawyer is an attorney and a counsellor. That means a Minnesota criminal defense lawyer challenges the state’s evidence and stands up for your legal rights. As a counsellor, your lawyer gives you solid advice about your legal options.

The exact cost varies according to the complexity of the case, the attorney’s experience level, and a few other factors. In general, you should select a lawyer who charges a moderate fee. You do not want the cheapest one, and you do not want the most expensive one.

The Sixth Amendment guarantees the right to counsel in criminal cases. A lawyer stands up for your rights in court and serves as your negotiating agent during settlement talks.

Criminal defense usually involves a procedural defense, like an invalid search warrant, or a substantive defense, such as a lack of evidence.

That is certainly a matter of opinion. Generally, the best Minnesota criminal defense lawyers are experienced attorneys who are dedicated to the practice of criminal law and have a clear vision for your defense in a specific case.

Typically, if the infraction includes possible jail or prison time, self-representation is a very bad idea. A lawyer is a highly-trained advocate, and a lawyer also knows all the written and unwritten procedural and evidentiary rules.

Most attorneys charge a fee based on their experience level and the complexity of the case. Typically, you should expect to pay several hundred dollars in a misdemeanor and several thousand dollars in a felony.

Legal fees vary based on the attorney’s experience level and the complexity of the case. Typically, you should expect to pay several hundred dollars in a misdemeanor, several thousand dollars in a low-level felony, and even more than that in a high-level felony, like murder, or a federal felony.

Look for an attorney who has substantial criminal trial experience, is located near your home or office, is not too busy to give your case the proper attention, and is dedicated to the practice of criminal defense.

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