“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.
If you are arrested for a criminal offense, you cannot be held in jail forever without seeing a judge. The 36 and 48-hour rules protect against such inhumane scenarios. If someone you know has recently been arrested, understanding these time limitation rules and how each county applies them, will help you understand when that person may see a judge or be released.
36-Hour Rule: Appearance Before a Judge
Within 36 hours of arrest, a person must be brought in front of a judge without unnecessary delay. Importantly, the 36 hours does not include the day of arrest, Sundays, or legal holidays. For example, if you are arrested at 11:30 p.m. on a Tuesday, your thirty-six hours will start running at midnight on Wednesday and expire Thursday at noon. If you are arrested on Saturday at 11:30 p.m., the 36 hours will start running at midnight on Monday and expire Tuesday at noon.
What happens if a person is held in jail in violation of the 36-hour rule and you have not seen a judge yet? In felony, gross misdemeanor, and misdemeanor cases (DWI), the person arrested must be released if the 36-hour rule is violated. The court may order an extension of time “for cause” in some cases (See Rule 34.02).
48-Hour Rule: Probable Cause Determination
Within 48-hours of arrest, a judge must make a probable cause determination without unnecessary delay. Unlike the 36-hour rule, the 48 hours starts immediately upon arrest and includes the day of the arrest, Sundays, and legal holidays. If charges are filed within 48 hours, or probable cause for the charge is found during that time period, then the person will remain in custody. However, the 36-hour rule will still apply in that scenario.
In practice, probable cause for continued detention is often found within 48 hours of arrest (also known a PC hold). In that event, the 36-hour rule will then take over. In serious felony cases, prosecutors may request a time extension for cause if they are unable to get charges filed within the applicable time period. Sometimes within 36 or 48 hours of arrest, bail is set either by a judge, the jail, or with help from the defendant’s lawyer.
If you are trying to figure out when will bail get set for someone, the quickest way to find out is to either call a criminal defense lawyer or call the sheriff’s office where the offense occurred. Most criminal defense attorneys worth their salt will have an idea of when bail may get set or at least be able to find out without too much difficulty. Most sheriff’s offices can also be helpful in giving you information about when bail may be set for someone.
The other variables in determining when bail may get set for someone depend on the level of the offense and the jurisdiction where the offense occurred. The vast majority of misdemeanor level offenses, such as 4th Degree DWI, Disorderly Conduct, and Criminal Damage to Property do not require bail in most counties. For those crimes, most officers will give someone a citation and release them after a brief period of time.
A majority of Gross Misdemeanor level offenses will require bail, conditions of release, or both. Examples of Gross Misdemeanors are 2nd and 3rd Degree DWI and aggravated Domestic Assault crimes. In some counties, bail will automatically be set for offenses such as these. In other counties, an on-call judge may be available to request bail being set. Another possibility is that a reviewing judge will examine all the recent in-custody cases and determine on their own whether they should set bail. In a fair number of counties, a judge will not set bail unless and until the person appears in court. Importantly, a person recently arrested cannot be held in jail indefinitely without seeing a judge. The 36- and 48-hour rules require that a person be charged, released, or seen by a judge within a certain period of time.
In the vast majority of felony cases, people will be held until they see a judge at a Bail Hearing to determine whether bail should be imposed. However, the same 36- and 48-hour rules also apply in felony cases. Some jurisdictions will not get a person charged within the required time period. In those situations, the person may still be charged later and may be required to pay bail or abide by conditions of release at their First Appearance.
In Minnesota, a person has a constitutional right to unconditional bail in a criminal case (State v. Pett). This means that if the maximum amount of bail imposed by the court is paid, then the person will just need to appear at all future court appearances and potentially abide by a no contact order – if the case warrants one.
For most misdemeanor offenses, the person arrested will often be released from custody after a few hours. This includes Fourth Degree Misdemeanor DWI, Misdemeanor Theft, Misdemeanor Drug Possession, Disorderly Conduct, and minor traffic offenses. If you are trying to figure out how to get someone out of jail that was arrested for one of these offenses, then you can call the jail, sheriff’s office, or police department where the incident took place (often county jail, county sheriff’s office, or city police department). If you are lucky enough to have someone answer the phone, you can simply ask when they expect the person you are calling about to be released.
On few of those misdemeanor offenses described above, the jail requires a very small amount of bail to be paid before they allow the person to be released. This often has to be paid in an exact amount of cash or certified funds.
Some misdemeanor offenses, such as assault and domestic assault, will most frequently result in a longer custody stay. In those cases, the person arrested will wait to see the judge on the next scheduled court day, or the day after. At that court appearance, the judge will often impose conditions of release on the person arrested, such as a no contact order with the alleged victim among other conditions. Bail is also a possibility in that scenario.
In many Gross Misdemeanor cases, the person arrested will also have to wait and see the judge for conditions and possibly bail to be set. In some Gross Misdemeanor DWI cases, such as 2nd Degree DWI and 3rd Degree DWI, an attorney may be able to get bail set over the weekend or during a non-court day. Depending on the county and its procedures, the attorney may be able to contact a judge to get bail set during those times. In some other counties, a judge will come in and review cases of people who have been recently arrested and determine on their own whether bail will be set. Furthermore, in some counties a conditional release officer will come by and ask the person whether they want to accept conditions of release, such as no-use of alcohol or non-prescribed drugs to get out of jail.
In the overwhelming majority of Felony cases, the person arrested will have to wait to see a judge to find out whether bail will be required or if they will be allowed to be released on their own recognizance and promise to appear at future court hearings. The more serious the felony, the more likely bail will be set along with conditions of release while the court process plays out.