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.
Short answer: yes.
Longer answer: it depends on where your DWI happened, whether you have prior DWIs, what your alcohol concentration was, whether there were kids in the car, if you refused the test, among other circumstances.
Most 4th Degree DWI cases do not result in jail time in Minnesota, although they are misdemeanor offenses with a maximum punishment of up to 90 days in jail and a $1,000 fine. These are first-time offenses where a person’s alcohol concentration is under .16. After the DWI arrest, and after a person takes a breath, blood, or urine test, the police will often let a person leave once they sober up or within a few hours to a sober party. In a small minority of jurisdictions in Minnesota, a person will have to wait until bail is paid or they see a judge after an arrest for 4th Degree DWI. Once the court process begins, most counties will not impose jail time in 4th Degree DWI cases. They may impose probation, a fine, community service, chemical dependency evaluation, and attendance at a MADD Victim Impact Panel.
Your biggest risk of serving jail time is if you have a 1st, 2nd, or 3rd Degree DWI charge. A 1st Degree DWI charge is a felony offense. A first-time felony DWI (fourth DWI in ten years) triggers a mandatory minimum jail sentence of at least 30 days in jail and 150 days of house arrest. A second felony DWI offense is a presumptive commit to prison offense. There will also be significant probationary conditions or supervised release commitments for felony DWI convictions, including chemical dependency evaluations, alcohol-use monitoring, fines, and other programming.
2nd Degree DWI cases are gross misdemeanor offenses that have a maximum punishment of up to a year in jail and a $3,000 fine. You can receive a 2nd Degree DWI charge if you have three DWIs in ten years. In that scenario, a mandatory minimum jail sentence of 30 days in jail and 60 days of house arrest is required by law. You can also get a 2nd Degree DWI case if you have one prior DWI within the past ten years and your new offense is a refusal case, you test at least double the legal limit, or you have a child in the car. In those scenarios, there is a mandatory minimum jail sentence of 48 hours in custody and 28 days of house arrest. There will also be probation, including fines, chemical dependency evaluations, and other programming.
3rd Degree DWI cases are also gross misdemeanor offenses. You can receive a 3rd Degree DWI charge if you have a prior DWI within the past ten years and you tested under double the legal limit in your new case. In that instance, you face a mandatory minimum sentence of 48 hours in jail and 28 days of house arrest. You can also get a 3rd Degree DWI on your first offense, if you tested at least .16 or more, had a child in the car, or refused the alcohol concentration test. In those situations, there is no mandatory minimum jail time to serve. But depending on the county where your offense happened, it is possible the prosecution will seek jail time on a first offense charged as 3rd Degree DWI.
In all these situations, the county where your offense happened, the judge who presides over your case, the prosecutor you have, and the defense you put forth can have a tremendous impact on whether you end up serving any jail time. Some jurisdictions, and some judges, flat out will not impose house arrest and will only sentence jail time. In either event, local jail and house arrest time often comes with work release privileges that allow a person to go to work and then back to jail or home. To better understand your situation, and for a case evaluation at no charge, contact the Ambrose Law Firm by phone or email at the Minneapolis location.
If you are eligible under Minnesota’s expungement law to seal your record, then it will generally take at least 4 – 6 months to complete the process. Once you, or your attorney, file and serve your expungement petition and supporting documentation, then the court will not hear your expungement hearing for at least 60 days. At the conclusion of your expungement hearing, the judge often takes the matter under advisement and issues a written ruling at a later date. If the judge rules in your favor, then the agencies have 60 days to comply with the order or appeal the case. If you lose your expungement, then you have 60 days to file an appeal.
Before you, or your lawyer, file the expungement petition, determining your eligibility for expungement is a crucial first step. Determining whether you qualify for a statutory expungement is as follows:
• Misdemeanors and Petty Misdemeanor offenses = at least two years since your probation completed (discharge of sentence) without being convicted of a new crime.
• Gross Misdemeanor offenses = at least four years since your probation completed (discharge of sentence) without being convicted of a new crime.
• Felony offenses = offense must be one of the fifty felonies eligible for expungement plus at least five years since your probation completed (discharge of sentence) without being convicted of a new crime.
If you received a stay of adjudication or completed a diversion program, then you only need to wait one year after since completion without committing a new crime to be eligible for an expungement.
If all the proceedings resolved in your favor, dismissal, acquittal, etc., then there is not a waiting period for a statutory expungement.
The prosecution may also stipulate to an expungement, which will often speed the expungement process up. The agencies served with the expungement petition still need to be served 60 days in advance of a hearing, but the lag time to receive an order in this situation is often much shorter.
There are also expungements granted by the inherent authority of the court, if the person does not qualify for a statutory expungement based on the reasons stated above. Importantly, these expungements often clear judicial records only. Without a full expungement, background checks can still show offenses on a person’s record. Call Ambrose Law for a Free Consultation!
In Minnesota, a petty misdemeanor is not a crime. They are less serious than misdemeanors. There is no possible jail time or probation associated with petty misdemeanors. There is a maximum fine of up to $300 for such an offense. The most common petty misdemeanors are violations of traffic regulations, such as speeding, driving with due care, careless driving, and vehicle equipment violations. Other petty misdemeanors include possession of a small amount of marijuana and possession of drug paraphernalia.
In most petty misdemeanor cases, the cops will issue you a citation and release you from the scene. Infrequently, you will receive the citation in the mail at a later date. In either event, petty misdemeanors are almost always payable offenses that do not require an appearance in court. However, by paying a petty misdemeanor citation it almost always results in a conviction for that offense. Depending on the type of misdemeanor, this can result in adverse driver’s license consequences.
Instead of merely paying a petty misdemeanor ticket, you can setup a hearing officer appointment or an appearance in court. At that hearing officer appointment or court appearance, you can see if you can avoid a conviction for the offense by obtaining a continuance for dismissal or stay of adjudication. Sometimes, they will also offer less of a fine. If no outcome is agreeable to you after seeing a hearing officer or at your first court appearance, then you have the right to schedule a court trial.
A court trial, or bench trial, is a trial in front of a judge only. That judge will be the sole decider of your guilt. The burden is on the prosecution to prove your guilt beyond a reasonable doubt at the trial. They will attempt to do that by putting witnesses on the stand to testify and by submitting evidence to the court. You, or your attorney, will have the opportunity to cross examine the prosecutor’s witnesses, call witnesses on your behalf, and submit evidence to the court. You, as the defendant, will also have the chance to testify, if you wish. But you are not forced to testify. You have the Fifth Amendment right against self-incrimination and can remain silent.
You can get a petty misdemeanors expunged from your criminal record. Two years after being discharge of that sentence, if you have not had any new criminal offenses, then you are statutorily eligible to expunge the petty misdemeanor offense. Minnesota modified is expungement laws in 2015, which made it easier for people to expunge their criminal records.
In Minnesota, a misdemeanor offense is a crime that has a maximum penalty of up to ninety days in jail and a $1,000 fine. Misdemeanors are less serious than a gross misdemeanor, but more severe than a petty misdemeanor. Common misdemeanors include Fourth Degree DWI, Domestic Assault, Disorderly Conduct, Fifth Degree Assault, Theft less than $500, Obstructing Legal Process, Driving After Revocation, Careless Driving, Reckless Driving, Possession of Marijuana in a Motor Vehicle, and many more.
In most misdemeanor cases, the cops will issue you a citation. This often results in being booked and released from jail or even simply being released after the initial police contact. In some situations, you may receive a summons in the mail along with a citation or complaint as notice of the charges. Domestic Assault charges, upon the initial arrest, often result in staying in jail until a judge places conditions of release on the individual, which can often lead to a Domestic Abuse No Contact Order (DANCO). Some jurisdictions may require a very minimal amount of bail to be paid for release upon arrest for a misdemeanor offense.
A First Appearance is the first court date in the process in misdemeanor cases. If you hire a private attorney, you can often waive your appearance at that court date. Your attorney can enter a not guilty plea on your behalf and schedule your matter for a Pre-Trial Hearing. A not guilty plea is not uncommon at your First Appearance, even if you are present, especially if the prosecution has yet to provide all the discovery (evidence) they have against you at that point.
At your Pre-Trial Hearing in a misdemeanor case, plea negotiations with the prosecutor often take place. If you do not reach an agreement, you can either request another Pre-Trial Hearing, set the matter for an Evidentiary Hearing to challenge the admissibility of evidence or probable cause, or set the matter for Trial.
In a misdemeanor case, you have the right to a trial by jury or judge. A jury trial in a misdemeanor case will be made up of six jurors. If you choose a trial by judge, often referred to as a bench or court trial, the judge will be the only person deciding your guilt.
Misdemeanors are often enhanceable offenses, which means future offenses can be made more serious if you are convicted of the current offense. Examples of enhanceable offenses include DWI and Domestic Assault. In Fourth Degree DWI cases, they likely revoked your driver’s license. If that happened, there are options to get a restricted driver’s license (limited license / work permit). You also have the ability to challenge your license revocation through the implied consent process. Importanly, you only have sixty days to challenge your license being taken away from the effective date of the revocation.
You can get a misdemeanors expunged from your criminal record. Two years after being discharged from probation, if you have not had any new criminal offenses, then you are statutorily eligible for an expungement. Minnesota modified is expungement laws in 2015 making it easier for people to expunge criminal records for employment and housing purposes.
In Minnesota, a gross misdemeanor offense is a crime in which no more than one year in jail and a $3,000 may be imposed. Gross misdemeanors are more severe than a misdemeanor, but less serious than a felony. Common gross misdemeanors include Second and Third Degree DWI, Driving After Cancellation Inimical to Public Safety, Violating an Order for Protection within ten years of a prior offense, Theft over $500 but less than $1,000, and Criminal Vehicular Operation Bodily Harm, among others.
In gross misdemeanor cases, you have the right to a trial by jury or judge. Jury trials for gross misdemeanors consist of six jurors. At trial, the presumption of innocence applies and the burden of proof for the prosecution to find you guilty is proof beyond a reasonable doubt. In a judge trial, or bench trial, the judge will be the sole decider on guilt, even though the same presumption of innocence and burden of proof applies.
Gross misdemeanors are often enhanceable offenses, which means future offenses can be made more serious if you are convicted of the current offense. Examples of enhanceable offenses include DWI, Violating an Order for Protection, and Domestic Assault. DWIs can become a gross misdemeanor, even on a first-time offense. If your alcohol concentration is .16 or more, you refuse to take the evidentiary breath test, or if you have a child under the age of 16 in your car at the time of the DWI, the charge will be either a Second or Third Degree DWI. In Second Degree DWI cases, the vehicle you were driving may be subject to forfeiture. In that event, you have sixty days to file a challenge against your vehicle being taken away or else you lose that ability. In Second and Third Degree DWI cases, your driver’s license is often revoked. If that happens, there are options to get a restricted driver’s license; and importantly, you have the ability to challenge your license being taken away through the implied consent process. Similar to vehicle forfeitures, you have sixty days to challenge your license being taken away from the effective date of the revocation.
If you are looking to get a gross misdemeanor cleared, or expunged, from your record, then you are statutorily eligible for an expungement four years being discharged from probation if you have not had any new criminal offenses. Minnesota’s widely acclaimed second chance law revised the expungement framework in 2015 making it easier for people to get their records cleared for employment and housing purposes.
In Minnesota, a felony offense is a crime in which more than one year of imprisonment may be imposed. When you receive a sentence of more than a year of incarceration it means you are going to a state prison facility and not a local county jail. How much prison time you may receive is governed by the Minnesota Sentencing Guidelines.
The sentencing guidelines are based on a person’s criminal history score and the severity level of the offense. The more serious the crime, and the higher a person’s criminal history score, the more likely they will go to prison. For example, a person who commits a felony theft of $1,000 and has no prior criminal history, will not go to prison if convicted according to the sentencing guidelines. They will fall into the presumptive stayed prison sentence (i.e. the judge will stay potential prison time for the period of the person’s probation). On the other hand, if someone commits criminal sexual conduct in the first degree, then they fit into the presumptive commit to prison portion of the sentencing guidelines.
Even if someone is facing a presumptive commit to prison sentence, a judge may decide to keep them out of prison if they grant a motion for a downward dispositional departure. They may also reduce the amount of time in prison by granting a motion for a downward durational departure. However, if prosecutors seek an aggravated departure and the judge grants it, a person may get more prison time than what is called for in the guidelines.
A felony conviction has a significant impact on a person’s civil rights. They cannot vote until their civil rights have been restored, which is often not until a person completes probation. They often cannot possess a firearm or ammunition. They often must provide a DNA sample. And, they often can never get their felony conviction cleared from their record, unless it is one of the fifty felonies eligible for expungement.
Thankfully, felonies allow a person to have a jury trial in front of a jury of twelve people. Unlike misdemeanors and gross misdemeanors, which only allow a jury of six people. That means in a felony case, all twelve jurors must unanimously find the person guilty beyond a reasonable doubt for a felony conviction to occur.