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.
Law enforcement personnel across the county receive training on National Highway Traffic Safety Administration (NHTSA) published material. The NHTSA develops training manuals focused specifically on how to detect whether a driver may be drunk. In one such guide, it lists twenty-four driving cues of DWI detection.
The NHTSA breaks down the cues into categories of driving behavior, such as problems maintaining proper lane position, speed and braking problems, vigilance problems, and judgment problems. These cues can be important if you are challenging the basis for a police officer to pull you over and investigate for DWI in a suppression hearing, at trial, or at an implied consent hearing.
Problems maintaining proper lane position include the following seven cues: weaving, weaving across lane lines, straddling a lane line, swerving, turning with a wide radius, drifting, and almost striking a vehicle or other object.
Speed and braking problems include these four cues: stopping problems, such as too far, too short, or too jerky, accelerating or decelerating for no apparent reason, varying speed, and slow speed under ten miles per hour under the limit.
Vigilance problems include the following six cues: driving in opposing lanes or wrong way on a one-way, slow response to traffic signals, slow or failure to respond to officer’s signals, stopping in lane for no apparent reason, driving without headlights at night, and failure to signal or signal inconsistent with action.
Judgment problems include these seven cues: following too closely, improper or unsafe lane change, illegal or improper turn (too fast, jerky, sharp, etc.), driving on other than the designated roadway, stopping inappropriately in response to an officer, inappropriate or unusual behavior (throwing, arguing, etc.), and appearing to be impaired.
The inverse of each cue is what can be difficult for an impaired driver to do. Staying within one’s lane on the road can become challenging for someone under the influence of alcohol. Maintaining proper speed and distance from other vehicles can be arduous for a drunk driver. Failing to turn your headlights on can be indicia of impairment. The more cues an officer sees, is shown on camera, and is testified to by an officer, the more challenging it is going to be for you to dispute the basis for the traffic stop. There can often be innocent explanations for driving behavior, such as I simply forgot to turn my headlights on because my two-year old was playing in my car and flipped the dial that automatically turns my lights on. But, if an officer sees you driving at night without any headlights on, impaired by alcohol or not, it is going to justify the basis for the stop. In these situations, it will be up to your DUI attorney to develop issues to challenge occurring after the officer stopped your vehicle. This can include the basis to expand the seizure into a DWI investigation, the validity of the field sobriety testing, allegations of impaired behavior observed by the police officer, verbal advisories, and evidentiary testing procedures.
If you lose your criminal case, an incredibly popular issue on appeal is ineffective assistance of counsel. That is, defendants believe their lawyer did such a poor job that it negatively affected the outcome of their case. To determine whether an attorney was ineffective, appellate courts use a two-part test.
First, the defendant must prove that their lawyer’s representation fell below an objective standard of reasonableness. Second, the accused must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of their case would have been different. Some reviewing courts may not even analyze the former prong, because they believe the outcome of the case would not have been any different but for the lawyer’s alleged mistakes. When reviewing the latter requirement, the court must consider the totality of the evidence presented at trial. In doing this, the court will basically sit down and review the transcripts of the trial and evidence presented. It will then determine whether the evidence was sufficient to convict the defendant regardless of any errors by the defendant’s attorney. Some courts will go directly to this analysis, because then it does not matter whether the lawyer’s representation fell below an objective standard of reasonableness.
Claiming ineffective assistance of counsel often includes these common allegations: failure to file suppression motions prior to trial, failing to challenge for cause certain prospective jurors, failing to call supporting witnesses at trial, failing to make evidentiary objections during trial, failing to make particular arguments during trial, failing to do a proper investigation prior to trial, failing to communicate with the defendant, and failing to abide by the defendant’s wishes. Even if the reviewing court determines that a lawyer reasonably should have done any of those things, the court has to determine whether it would have likely changed the outcome of trial. Therefore, the court will engage in analyzing whether a motion to suppress evidence would have been successful, and if so, if it likely would have changed the outcome of trial. The same analysis follows for every single claim of ineffective assistance of counsel. Some issues are easier to analyze than others. Determining whether keeping a certain juror on the jury panel likely changed the outcome of the trial is more difficult to determine than whether making proper evidentiary objections altered the result of trial. The reasoning often relies on how strong the prosecution’s evidence was at trial. The stronger the evidence, the less likely an appellate court is going to determine that failing to call a certain witness would have changed the outcome
After being unsuccessful at trial, defendants feel like they have nothing to lose. They often turn to blaming their lawyer for doing a bad job, which triggers the ever popular ineffective-assistance-of-counsel claim as a method to try and get a new trial. In many situations, even if the attorney’s performance fell below an objective standard of reasonableness, it still was not bad enough to likely change the outcome of the case.
From start to finish, the duration of a DWI case varies broadly depending on particular factors. These include: the severity of your DWI charge, the specific facts of your case, the jurisdiction, and how quickly the charges are filed in your case.
There are four levels of DWI. Generally, the least severe cases will take the shortest amount of time to resolve. Fourth Degree DWI is a misdemeanor and the least severe DWI in Minnesota. These cases can often move more quickly, because the prosecution generally does not file the charges against you. Fourth Degree DWIs are often charged by citation issued from the law enforcement agency that arrested you. The citation then gets entered into the court’s computer system and a first court date is scheduled. Getting the first court date scheduled is a significant factor in determining how long your case will last. Most Fourth Degree DWIs will finish within three to nine months. If there are legal issues in your case being contested, you end up in trial, or you appeal an issue, then your case may very well take a year or longer to finish.
First Degree DWI is a felony and most severe DWI in Minnesota. These cases will often take longer than any other DWI to complete. In these cases, the prosecution will file the charges against you. At your first court appearance, bail and other conditions of release are frequently imposed on you until your case resolves. These conditions usually include monitoring your alcohol and non-prescribed drug use. Thereafter, many pre-trial hearings can occur, such as a Rule 8 Hearing, Omnibus Hearing, Pre-Trial Hearing, and Contested Omnibus Hearing. If you reach an agreement in your case at any one of those hearings, then you will often have a separate Sentencing Hearing. If your case does not resolve at any of those pre-trial hearings, then you will end up in a trial in front of a jury or a judge. If you lose your trial, then you will have a Sentencing Hearing at a later date. Because of all these factors, felony DWI cases will frequently take at least a year to conclude.
Second and Third Degree DWIs are both gross misdemeanor offenses. These fall between First and Fourth Degree on the severity scale. Third Degree DWI cases occur when someone tests at least double the legal limit, they refuse to take a test, they have a prior DWI conviction or driver’s license revocation deriving from a DWI within the past ten years, or they had a child in the car during their DWI. Second Degree DWI’s happen when someone has two prior DWI convictions and / or license revocations stemming from a DWI within the past ten years, a prior plus a refusal in their instant case, at least double the legal limit in their current case plus a prior, double the legal limit or a refusal plus a child in the car, or a child in the car plus a prior. Because Second and Third Degree DWIs are aggravated offenses, these cases will often take longer to complete than Fourth Degree DWI cases. The possibility for incarceration also increases with these cases. Therefore, these cases will vary greatly in how long they take to resolve. It is not uncommon to see gross misdemeanor DWIs take three months, six months, or even much longer to complete.
The jurisdiction your DWI case occurs in also impacts the length of your case significantly. Some counties are notorious for processing cases quickly, such as Ramsey County, while others may take longer to schedule court dates. Once the court process starts, you do have the right to demand speedy hearings. You can demand a speedy trial, which requires the court to hear your trial within sixty days of your demand with limited exceptions. In gross misdemeanor and felony cases, you can also demand a speedy omnibus hearing, which must take place within twenty-eight days of scheduling. Most times, these speedy requests are made by those sitting in jail awaiting final disposition of their case. For those out of custody defendants, it may still be advisable to demand a speedy hearing in some situations.
A common misunderstanding is that if you get released from jail without charges, then you will never be charged at a later time. While it is certainly possible that you may never face charges later, the more likely answer is that the prosecution did not get charges filed against you in time. Either that, or the officers typically book and release people in situations like yours.
In a DWI arrest for example, the officer often takes you to the police station for breath testing or to the hospital for a blood test (urine tests are becoming incredibly rare). After testing, if your breath test revealed an alcohol concentration under .16 and no aggravating factors are present, then you are only subject to a 4th Degree DWI, which is a misdemeanor level offense. In the overwhelming majority of those cases, the officer will release you from custody. Sometimes, they will give you a citation that lists the charges against you. Other times, you will receive the charges in the mail with a notice of a court date.
In Gross Misdemeanor, or Felony, level DWIs, the law enforcement agency may very well decide to hold you in jail until you see a judge so that conditions of release or bail is set. However, in some gross misdemeanor DWI cases, the officer will release you without any charges. It is then often up to the prosecution to file a complaint with the court that lists the charges against you. Once that happens, the court sends you a copy of the charges and a notice of a hearing to you to your last known address. In some circumstances, the prosecution will file a complaint warrant. This means that once the charges are filed, a warrant is issued. Often, a complaint warrant will include an amount of bail that you can pay to clear the warrant and get a court hearing date scheduled. Otherwise, you may have to turn yourself in to the county that issued the warrant. If that happens, then you often have to wait until you see a judge to have bail set or conditions of release.
The thirty-six- and forty-eight-hour rules play a large role in why people get released without any charges in gross misdemeanor and felony cases. Under the thirty-six-hour rule, a person arrested must be brought in front of a judge or charged without unnecessary delay. Importantly, a person’s thirty-six hours does not include the day of arrest, legal holidays, or Sundays.
Under the forty-eight-hour rule, a judge must make a probable cause determination on the person arrested without unnecessary delay. Different from the thirty-six-hour rule, a person’s forty-eight hours starts immediately upon arrest. Whether a person is in jail on a Sunday or legal holiday does not matter for this rule. Practically, probable cause is often found by a judge for a person to be continually detained. However, it is not entirely uncommon for a person’s forty-eight hours to expire, be released, and charged at a later time.
If you are wondering how long the prosecution has to charge you without violating the statute of limitations, then you need to look at the statute governing these time periods. The most serious violent felonies will often have no statute of limitations, which allows the prosecution to bring charges at any time. Most misdemeanors and gross misdemeanors carry a three-year statute of limitations. If a prosecutor charges you after the statute of limitations expires, then you may have grounds to get your case dismissed. Importantly, the statute of limitations applies for when you are charged. If you let your case go to warrant status at any point, or otherwise do not resolve your case within the statute of limitations, then you will very likely not have an argument for dismissal based on this rule.
“Don’t talk to the police without a lawyer.” Generally, the best piece of advice a person can follow when interacting with law enforcement. After all, the Sixth Amendment guarantees the right to counsel and you have the right to not incriminate yourself under the Fifth Amendment. But when do these rights attach during a DWI arrest? If a cop approaches your car during a traffic stop, can you invoke your Fifth and Sixth Amendment rights immediately?
In Minnesota, your right to talk to a lawyer during a DWI investigation does not begin until it reaches a critical stage. Almost all cops will not let you talk to an attorney during a DWI arrest until you reach that critical stage. In Friedman, the Minnesota Supreme Court decided a DWI investigation does not obtain critical-stage status until a cop asks a driver to take to an evidentiary chemical test. This will not happen until the officer reads the Breath Test Advisory (BTA) after a DWI arrest occurs. After a DWI arrest, and in breath-test scenarios, the officer will read the BTA either in the squad car or at the police station. An important question during the BTA is: before deciding to take a breath test, do you wish to consult with an attorney?
If you do want to talk to a lawyer before deciding to take a breath test at the police department, then the police must give you a reasonable amount of time to consult with a lawyer. What is a reasonable amount of time? In Kuhn v. Comm’r of Pub. Safety, the court determined a specific number of minutes alone is not proper to determine whether an amount of time is reasonable. The court evaluated these factors in determining reasonableness: (1) whether the driver made a good faith and sincere effort to reach an attorney; (2) the time of day; and (3) the length of time the driver was under arrest. This is a nonexclusive list; therefore, a court should evaluate the totality of the circumstances in each case to determine whether a reasonable amount of time passed.
Often, if you ask to speak with a DWI lawyer during this critical stage, then you may get access to your own phone. You can then search the internet for a DWI lawyer and call them for advice. You can also call a non-lawyer and ask them to contact a lawyer for you. In these situations, State v. Karau, requires you to tell the cop you are calling a non-lawyer to get an attorney for you. If you frustrate the process, or unreasonably delay it, the officer may end your attorney time. If they do not let you use your own phone to contact a lawyer, law enforcement must provide you access to a phone and phone books to find an attorney. There are many recent developments in Minnesota DWI laws; thus, staying current on your rights is important. Contact us for a consultation at no charge.