Third Degree Assault in Minnesota most commonly occurs when a person assaults another and inflicts substantial bodily harm. There are two other ways that someone can be charged with third degree assault and they deal with assaults on minors. If someone assaults a minor (person under the age of 18) and there is a past pattern of child abuse against a minor, then the person can be charge with third degree assault without a showing of substantial bodily harm. Additionally, if a person assaults a child under the age of four and causes bodily harm to the child’s head, eyes, neck, or causes multiple bruises to the body. Thus, the big factors making an assault rise to the level of third degree is an assault to a minor or substantial bodily harm to the alleged victim.

What are the possible consequences?

Third Degree Assault is a felony and carries a maximum penalty of 5 years imprisonment and a fine of $10,000. This is the maximum sentence so often it is possible to receive a sentence lower than the 5 years. As a felony the Minnesota Sentencing Guidelines apply so the maximum possible punishment may not be imposed depending on the defendant’s criminal history score. Third Degree Assault is a severity level four crime according to the guidelines. Which does not typically carry with it a presumptive prison sentence, unless the offender’s criminal history score is four or higher. If convicted, there is an option to file a motion for a sentencing departure and ask the court to deviate from the guidelines and sentence lower than what the guidelines call for in your particular situation. Meaning in short, the maximum sentence will neither always apply, nor will the guideline sentence always employ.

What is considered child abuse?

Any act that constitutes an assault (in the first, second, third, or fifth degree), domestic assault, criminal sexual conduct (in the first, second, third, or fourth degree), malicious punishment of a child, neglect or endangerment of a child, or a threat of violence is considered child abuse. Meaning that any assault, sexual contact, neglect, or threat to commit violence can be considered child abuse. The act does not need to take place in Minnesota and for third degree assault, but there needs to be a pattern of abuse.

What is substantial bodily harm?

Substantial Bodily Harm in terms of the law means a temporary but substantial disfigurement, a temporary but substantial loss or impairment of the function of any bodily member or organ, or a fracture of any bodily member. So, a chipped tooth, a broken arm, or an injury that causes loss of physical function like to someone’s shoulder can all be classified as substantial bodily

Second Degree Assault is a felony and it occurs when someone assaults another with a dangerous weapon. The person does not need to be injured by the dangerous weapon to meet the statutory requirement of second degree assault. So, the main factor raising an assault to the level of second degree is the use of a dangerous weapon.

What are the possible consequences?

Second Degree Assault is a felony with a maximum penalty of either 7 years and a fine of $14,000 or 10 years and a fine of $20,000. The difference depends on whether substantial bodily harm is inflicted on the alleged victim. So, if there is substantial bodily harm then the maximum penalty is increased to 10 years and a fine of $20,000.

It is important to know that these are the maximum penalties which often are not always imposed by a Judge. In felony cases like second degree assault the Minnesota Sentencing Guidelines apply. This means that a defendant’s criminal history score will determine whether the maximum possible punishment will be given. It is also possible to request a deviation from the sentencing guidelines by the way of a motion. By filing a motion, the Judge can decide to sentence lower than what the guidelines call for in your particular situation. In short, the maximum does not always mean the maximum will apply.

What is a dangerous weapon?

A dangerous weapon is a firearm, loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm including combustible or flammable liquids. A firearm is always considered a dangerous weapon, but a hammer or glass bottle can also be a dangerous weapon. A motor vehicle has also been considered a dangerous weapon meaning that hitting someone or attempting to hit someone with your car can constitute second degree assault.

What is substantial bodily harm?

Substantial Bodily Harm in terms of the law means a temporary but substantial disfigurement, a temporary but substantial loss or impairment of the function of any bodily member or organ, or a fracture of any bodily member. So, a chipped tooth, a broken arm, or an injury that causes loss of physical function like to someone’s shoulder could all be considered substantial bodily harm. The injury does not need to be permanent so even though a broken arm will heal, the fracture is still considered substantial bodily harm. Therefore, without substantial bodily harm the maximum consequence is decreased from 10 years and $20,000 to 7 years and $14,000.

First Degree Assault occurs when one person assaults another and inflicts great bodily harm. In rarer circumstances it can occur when someone uses or attempts to use deadly force against a peace officer, prosecuting attorney, judge, or correctional employee who is engaged in the performance of their job.

What level of crime is First Degree Assault?

First Degree Assault is a felony meaning the maximum penalty is over one year in prison. Specifically, for First degree assault the maximum sentence is 20 years and a fine of $30,000 or both. If the assault was against a peace officer, prosecuting attorney, judge, or correctional employee then there is a minimum sentence of 10 years in prison, but the maximum of 20 years still applies.

Importantly, the Minnesota Sentencing Guidelines applies to felony cases, including first degree assault. This means that the maximum possible punishment may not be imposed depending on the defendant’s criminal history score. In some cases, there is also a possibility to file a motion for a sentencing departure and ask the court to deviate from the guidelines and sentence lower than the guidelines call for in your particular situation. In short, the maximum does not always mean the maximum will apply, just as the minimum does not always mean the minimum will apply.

What does great bodily harm mean?

Great bodily harm is any bodily injury which creates a high probability of death, causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any bodily member or organ. In short this means that a person’s life is at risk based on the injury or there is some lasting permanent damage to the person whether it is noticeable like a physical disfigurement or internal.

What does deadly force mean?

Deadly force is force used with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm. Discharging a firearm at a person or an occupied vehicle would constitute deadly force. The maximum sentence someone can receive is 20 years in prison, a fine of $30,000, or both. If the charge is connected to assaulting a peace officer, prosecuting attorney, judge, or correctional officer the minimum sentence is ten years. Similarly to first degree assault resulting in great bodily harm, keep in mind the Minnesota Sentencing Guidelines and how they may apply to your case.

What are the main factors making an assault First Degree?

The big factors that raise an assault to first degree are the injury that occurs, the type of force used, and whether the assault was done to a specific group of people.

A consequence of breaking a DANCO is a new criminal charge. This is a new domestic violence-related offense which can be a misdemeanor, gross misdemeanor, or felony. Domestic violence-related offenses are enhanceable, meaning the more you get within a 10-year period the more severe the consequences. If you violate a DANCO within 10 years of a prior domestic violence-related offense conviction, or adjudication of delinquency, you can be charged with a gross misdemeanor and subject to mandatory penalties.

A qualified prior domestic violence related-offense can be a violation of an order for protection, murder (first or second degree), assault (first, second, third, fourth, or fifth degree), domestic assault, female genital mutilation, domestic assault by strangulation, criminal sexual conduct (first, second, third, or fourth degree), malicious punishment of a child, terroristic threats, violation of a harassment restraining order, harassment or stalking, nonconsensual dissemination of private sexual images, and violation of a DANCO and any similar laws of other states or the United States or territories.

The mandatory-minimum penalty for a second offense is 10 days imprisonment (jail) and court ordered counseling. The maximum sentence is up to 365 days of imprisonment. Often the counseling is either domestic violence counseling or anger management. If a person violates a DANCO within 10 years of two prior domestic violence-related offense conviction or while possessing a dangerous weapon they can be charged with a felony. A felony DANCO violation comes with a maximum penalty of five years imprisonment, a fine of $10,000, or both. A felony level DANCO violation also comes with a mandatory minimum penalty which is at least 30 days in jail and court-ordered counseling.

Since DANCO violations are considered severity level 4 crimes, a person’s criminal history score can impact the amount of time someone has to do. Somebody with four prior domestic assaults or DANCO violations, is facing roughly a 24-month sentence (based on their criminal history score) not a 30-day sentence. Having four prior domestic related-offenses is not as crazy as you think, considering two are needed to get to the felony level (unless a weapon was the enhancing factor). This also does not take into account other prior convictions a person has which can also go into a person’s criminal history score, thus impacting the amount of time someone is sentenced to.

It is not just prior domestic related-offense convictions that go into someone’s criminal history score, it is a person’s full criminal history. It is important to remember that it takes very little to violate a DANCO and every violation of a DANCO is its own charge which can quickly increase the number of priors somebody has. On top of the mandatory minimum imprisonment period, a felony conviction can create issues for people outside of criminal court. The most common issues people incur is difficulty finding employment and housing, because these often require criminal background checks, as well as the inability to vote while on felony probation.

Also, if a person is convicted of any domestic assault (excluding DANCO violations) they would be ineligible to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime unless their firearm rights have been restored under the law. Plus, the person who violates the order can be arrested on the original case and their bail or conditions of release can be changed by the judge. Heightened conditions can include drug testing and electronic monitoring, usually through the use of a GPS monitor. So, in all a DANCO violation doesn’t just lead to a new misdemeanor charge, instead it can lead to months of jail especially if the violation or violations occur after the underlying domestic case has already led to a conviction.

A frequently asked question by all parties involved in a domestic abuse no contact order (DANCO) is: how do you remove a DANCO? Commonly, one of the parties needs to bring a motion before the court asking that the DANCO be lifted (removed). The judge will listen to the parties at the hearing about the request before making a decision. Ultimately, it is up to a judge to remove a DANCO as a judge is the one who created it in the first place.

The protected party in the DANCO is often heard through a victim’s advocate. They should relay the victim’s wishes to the judge. Victims are also allowed to appear in court and request to address the court on your own. As the person who cannot have contact, you can request a modification or removal of a DANCO at any court hearing but no matter what any party says it is ultimately up to the judge to remove the order.

Another thing to remember is that DANCOs often have expiration dates, and if they do not, then their expiration is usually connected to some event. DANCOs created during a criminal case last either until the criminal case is over or until a judge removes it. This does not mean someone should plead guilty to a criminal charge just to try and remove the DANCO. Often a new Probationary DANCO is put into place at sentencing. This Probationary DANCO often has the same restrictions and exceptions as the prior DANCO but it lasts for the length of a person’s probation.

If a person is sentenced to a two-year probationary period, then the new DANCO will exist until the person finishes their two years of probation AND a Judge signs a cancellation of the DANCO. Even if you finish probation, the DANCO may still be in place if a judge has yet to sign the cancellation order. Thus, it is very important to make sure a cancellation order is signed and to carry the cancellation order with you for a few weeks as the computer systems do not update very quickly.

DANCOs are serious judicial orders that carry potentially serious consequences. However, they are not to be feared so long as you understand them. While they can have a major impact on a person’s life and their residency, they do not last forever, and certain steps can be taken to try and limit the severity of their impact. The goal is to ensure the safety of the protected party not to punish people. With the right knowledge and legal guidance, a judge can draft a DANCO that is both limited and protective. Importantly, a judge decides to create the order, change the order, and remove the order, not an individual simply asking that it be removed.

A Domestic Abuse No Contact Order, commonly referred to as a DANCO, is a specific order that limits the contact one person can have with another. DANCOs are commonly issued in assault-related cases. DANCOs typically state that person X is not allowed to have any contact with person Y, either directly or indirectly. This means person X cannot text, call, send letters, or have any other type of contact with person Y. Some Judges will tell people that if Person Y gets in Person X’s car at a stoplight, Person X will have to get out and walk away. Other Judges state that even if Person Y is stranded in the middle of nowhere, Person X is not allowed to go pickup them up. A DANCO only goes one way so it does not prevent a protected party from contacting the person issued the DANCO (person X). Thus, extreme caution is advised when a DANCO is in place.

DANCOs also restrict indirect contact. This means no contact through a third party either. Nobody, not even friends or family members, can contact person Y on behalf of person X. Often, DANCOs state that person X cannot go to person Y’s home or work and that person X cannot go within a certain distance of person Y’s home or work. This means that if person X and person Y live together, then person X will have to find somewhere else to live or risk breaking the Judge’s order (and the law).

How does a DANCO start?

DANCOs exist in connection with a criminal case, typically a domestic-violence-related charge. Domestic assault charges can range from misdemeanor to felony based on the number of priors a person has and the specific facts of the case, like is a weapon is used or if a form of strangulation occurs. Once charges have been filed, a hearing is scheduled, and then a judge will determine whether a DANCO is necessary. The protected party (Person Y) often gets to provide their input on whether a DANCO should be issued, often this is through a special advocate. In some situations, a protected party states they do not want a DANCO, but a judge issues one anyway, because the judge makes the ultimate decision about whether to impose a DANCO.

What are the limits on a DANCO?

DANCOs can be modified to include special exceptions. The most common exception to the rules is the “police escort” exception. This exception allows person X to go to person Y’s home to get clothes, toiletries, and other personal items with a police officer or sheriff. Person X does not get to bring a U-Haul and move out, they just get to grab the items they need for their daily lives. It also means person X will have to contact local law enforcement schedule a time to make this happen. Other exceptions are phone contact and limited third-party contact. Often these exceptions are limited to certain topics like childcare or finances.

A continuance for dismissal, or agreement to suspend prosecution, is the next best thing to an outright dismissal or acquittal of criminal charges in Minnesota. A continuance for dismissal is self-defining, the prosecution agrees to continue (or suspend) your case for a period of time. At the conclusion of that time, the charges against you will be dismissed. This agreement often comes with a condition that you not commit any same or similar offenses during the suspended time and pay costs, which are usually no more than a few hundred dollars. Under this agreement, you do not have to admit any fault. You do not have to say you are guilty. The court does not find you guilty. You merely have to abide by the terms of the agreement and the charge(s) will be dismissed.

However, prosecutors may require you to stipulate to certain facts in your case as part of an agreement to suspend prosecution. The agreement must include a waiver of your right to a speedy trial. You have the right to demand a speedy trial within sixty days of making such a demand. If you enter an agreement to suspend prosecution, the court will want to make sure you are not coming back later, if the agreement is violated for some reason, and claiming your speedy trial rights were violated.

If you sign an agreement for a continuance for dismissal, or agreement to suspend prosecution, and you later violate that agreement, then you run the risk of being brought back into court to face the charges. You still have the right to have a pre-trial hearing to contest the admissibility of evidence and eventually a trial, if you wish. But, the guaranteed dismissal you were afforded at the inception of the continuance for dismissal agreement is gone at that point. You may also voluntarily void your continuance for dismissal agreement during the period of the agreement, if you so choose by making such a request to the court. Similarly to violating the agreement, you would have the right to pre-trial hearings and a trial. It is practically unheard of to voluntarily want to void a continuance for dismissal agreement early, because you are giving up the guaranteed dismissal possibility, so be sure to consider everything before deciding on this route.

For people looking to preserve their criminal background, continuances for dismissal are great. You get the chance to have the charges dismissed and you and you will have a good chance to obtain an expungement. One year after successful completion of a continuance for dismissal, and you have not been charged with any new crimes, you will be eligible for a statutory expungement. You will have a solid case for an expungement, because any objecting party to your expungement bears the burden of proving why you do not deserve it. This is the opposite burden compared to expungements of actual convictions.

Obtaining a result with no conviction is an excellent outcome for the vast majority of people. Continuances for dismissal (agreements to suspend prosecution) achieve that result. You can happily say you were not convicted of the crime and you can shortly thereafter move to have your entire case expunged.

A stay of adjudication in Minnesota is an excellent outcome in many cases. A stay of adjudication means there will be no conviction for the offense and the charge will ultimately be dismissed if the terms of the stay are met. This type of outcome still requires you to admit fault in the case by saying you are guilty, but the judge will not accept your guilty plea (i.e. stay adjudicating your case).

Some level of probation still accompanies a stay of adjudication. This can be informal, or unsupervised probation. Or, it can be formal supervised probation, which may require routine check-ins, random alcohol or drug testing, programmings, such as treatment or other educational classes. You can also bet on there being a condition of remaining law-abiding for the terms of the stay of adjudication. If any of the probationary terms are violated, then you run the risk of a probation violation. If a probation violation occurs while on probation for a stay of adjudication, the court may revoke the stay of adjudication and enter a conviction for the offense and impose additional penalties.

All levels of offenses in Minnesota receive a stay of adjudication. All the way from a petty misdemeanor traffic citation up to a felony criminal sexual conduct charge. Minnesota also has a mandatory stay of adjudication law for certain first-time drug offenders. For many fifth-degree controlled substance offenses, an offender may qualify for the mandatory stay of adjudication, also known as a 152.18, which references the statute number. There are criteria to qualify for a 152.18, such as not having any prior felonies, prior diversion program participation, or prior stays of adjudication under this law.

For those looking to keep a conviction from hitting their criminal background, stays of adjudication are incredibly important. Not only do you get an opportunity to have the charge against you dismissed, but you also put yourself in strong footing to obtain an expungement. One year after successfully completing the terms of a stay of adjudication, if you have not been charged with any new crimes, you will be eligible for a statutory expungement. What makes it a strong case for an expungement, is that the prosecution will have to demonstrate if they or any other party objects to the expungement, why you do not deserve to have an expungement. This is a different burden compared to cases where a person is convicted of an offense.

During plea negotiations, there are many outcomes available. Obtaining one that results in no conviction is often a win for our clients. These outcomes include a: stay of adjudication, continuance for dismissal, or diversion programs. Absent that, or the prosecution just being willing to dismiss your case outright, then you will have to litigate your case to obtain a dismissal through pre-trial contested hearings or argue for acquittal of all charges at a judge or jury trial if you are seeking a criminal background with no guilty findings on it.

 

A common question we get is: how can you get a DWI if you were not even driving your vehicle? These scenarios often arise when someone is sleeping in their vehicle, they are walking somewhere near the vicinity of their car, or they are stuck on the side of the road. For some of those situations, the prosecution will attempt to prove that you were recently driving or operating your vehicle. For others, such as being asleep in the driver’s seat, the answer is Minnesota’s DWI laws include prohibiting a person from being in physical control of any motor vehicle while under the influence of alcohol, a controlled substance, an intoxicating substance, or with an alcohol concentration of .08 or more within two hours of being in physical control.

Minnesota’s rationale behind creating a physical control DWI law is that a person can make a vehicle a source of danger with little effort if they are in physical control of a car. Therefore, it creates a danger to others if a driver is under the influence and has the means to start operating their vehicle.

Applying Minnesota’s definition of physical control to fact-specific scenarios, however, has created a litany of precedent. One of the preeminent physical control cases is State v. Starfield. In this case, the Minnesota Supreme Court suggested a supplement to the standard jury instructions on physical control. This included considering:

  • defendant’s location in or by the vehicle,
  • the location of the keys,
  • whether the defendant was a passenger in the vehicle before it came to rest,
  • who owned the vehicle,
  • the extent to which the vehicle was inoperable, and
  • whether the vehicle if inoperable might have been rendered operable so as to be a danger to persons or property.

Importantly, intent to operate is not an element. The court reasoned that a “drunken intent is highly problematic and too easily manipulated after the fact.” However, in Snyder v. Commissioner of Public Safety, the court decided no physical control where a person was walking to their car and threw their car keys to their wife before they even entered the vehicle. The court reasoned that the person was not alone on the side of the road, did not enter the vehicle, the keys were not in the ignition, and gave the key to someone else.

In State v. Woodward, the court of appeals held a person in physical control of a motor vehicle after she was found outside her car with a flat tire. The keys were in the ignition and the engine was running. The court explained that having a flat tire “does not mean the car was incapable of movement and incapable of posing a threat to public safety.”

Minnesota courts tend to cast a wide net on physical control cases. Even so, the specific facts of your case will determine whether you are likely to succeed in challenging a physical control issue for your Minnesota DWI. Please contact us for a consultation at no charge.

Law enforcement officers across the country are trained on how to spot drivers who may be under the influence of alcohol or a controlled substance. Overwhelmingly, the first observations by those officers are when they see someone driving. We recently covered the 24 driving cues of DUI detection published by the National Highway Traffic Safety Administration (NHTSA). Those cues included driving conduct, such as weaving, straddling lane lines, drifting, and varying speeds. However, the DWI investigation does not stop there. Officers then approach the driver to see if that person is indeed impaired. NHTSA trains officers to look for 10 post-stop cues of DWI detection.

The post-stop cues of DWI detection are important to evaluate whether it was legally proper to expand the detention of a driver. Each incremental intrusion during a traffic stop must be justified by one of the following: “(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry.” Askerooth. Evaluating the validity of the DWI investigation at the roadside can be important if you are seeking to challenge your DWI in a pre-trial suppression hearing, at jury trial, or at implied consent hearings.

The 10 post-stop cues published by NHSTA include:

  • difficulty with vehicle controls;
  • difficulty exiting the vehicle;
  • fumbling with driver’s license, registration, or insurance;
  • repeating questions or commands;
  • swaying, unsteady, or balance problems;
  • leaning on the vehicle;
  • slurred speech;
  • slow responses to the officer or asking the officer to repeat themselves;
  • providing incorrect information or changes answers; and

(10) odor of alcoholic beverage from the driver.

Difficulty with the vehicle controls can include failing to put the vehicle in park and having trouble turning the radio down. Officers also like to note if someone fumbles with getting their driver’s license out of their wallet or purse. If a driver is not exhibiting those cues, such as managing their vehicle’s controls well and having no problems getting their driver’s license out, then you can argue they do not have the symptoms of an impaired driver.

Once an officer asks a driver to step out of the vehicle to investigate a possible DWI further and begin field sobriety testing, the cop may note whether someone stumbles out of their vehicle. They will also observe if someone is unsteady on their feet and has trouble balancing. Besides visual indicators of a person’s physical impairment, the officer will also listen to hear whether someone sounds impaired if the driver is slurring their words or provides slow responses to questions. They will also often note whether they smell an odor of alcoholic beverage coming from the driver. Not listed in the 10 post-stop cues by NHTSA is whether someone has bloodshot and watery eyes, even though it is a very common trait recounted by law enforcement in DWI arrests.

Not every DWI case is the same. Not every post-stop cue is as bad as it seems.

Difficulty exiting a vehicle can be extreme or incredibly minor. Retrieving any video and audio evidence of a DWI arrest can be crucial in evaluating whether law enforcement followed proper protocol.

© 2016 AMBROSE LAW FIRM, PLLC | MINNEAPOLIS, MN

STAY CONNECTED WITH US:              g+