When a criminal defense attorney is called, the person on the other end of the phone is often times in a place of vulnerability and needs someone to be in their corner. Defense attorneys are able to act as that person Erin Powers - Headshotwho is on their side and can make a huge difference in this person’s life. Defense attorneys are able to form relationships with their clients, unveiling the good in each and every one of those in need of legal service. I believe that by having the ability to form these personal connections, criminal defense attorneys are able to see past their actions and are able to impact their client’s lives.

Similar to most aspiring attorneys, the reason I wanted to become a lawyer was to help people. I have always wanted to provide competent legal service to those who are in need because that is what the Constitution calls for. I knew I wanted to go to law school before I started undergrad, but I never knew exactly what area I wanted to go into. When I started law school and took Criminal and Constitutional Law, I became very interested in criminal defense work.

In addition to wanting to help those who are in a vulnerable place, my interest for criminal defense work was sparked when I learned more about the Constitution, and Constitutional Law. I was a Constitutional History major in undergrad and was always interested in this area. When I took Constitutional Law, I began to learn more about individual rights. I read a lot about cases where the person who was accused was wrongfully convicted of the crime. Wrongful Conviction cases became my number one interest.

After taking Constitutional and Criminal Law, I wanted to start exploring my options in criminal defense. Although there are many ways to learn about this area, I knew I wanted to work in a firm. Working for criminal defense firms allows you the opportunity to see cases up close, and work on multiple cases at a time with the different attorneys. In addition, I have always been interested in Expungements and wanted to find a firm where I could work on these cases and see them in court.

The courtroom has always been the scariest part of being a lawyer to me so I wanted to become more comfortable with the judicial process and being in front of the Judge. As a clerk, I have been given opportunities to see the courtroom process, as well as the process leading up to the courtroom. These courtroom experiences have helped me make sense of the procedural aspect of the law and understand the law as to how it is to be applied. These experiences combined with learning from Attorney Ambrose, Attorney Kujawa, and Attorney Koll has deepened my passion for criminal law, and I am excited to continue to learn and explore this area.

When I started law school, I did not know what type of law I wanted to practice. During my first year of law school, we practiced appearing in front of judges and arguing like we were in Court. From that experience, I knew I wanted to do that type of work, I wanted to be in front of a judge arguing and helping people. After my first year of law school, I started working for the public defender’s office in Washington County. This is where I got to see what the criminal justice system was really like and sent me on my path to being a criminal defense attorney.Ben Koll-MN Criminal Defense Attorney Image

While working at the public defender’s office I saw people at the lowest points of their lives. People who had made mistakes, people who were not getting a fair chance, and people who were facing criminal charges that should not be. The one thing all those people had in common was they were looking for help and I got to provide that. I have always enjoyed helping people whether it was teammates in sports, classmates in school, or my younger sisters. Criminal defense work for me is another way I get to help people. Specifically, help people get back on their feet and on a positive forward-looking path. Sometimes this means helping people who made a bad decision and trying to make sure the consequences do not ruin their lives. Other times it is helping people who did nothing wrong and should not have to face criminal charges at all. That last situation is probably the biggest reason I am a criminal defense attorney; the ability to make change and ensure the criminal system is fair for everyone.

Anyone charged with a crime is presumed innocent until proven guilty. But if you ask people charged with a crime, they likely will tell you that is not how it feels. A criminal defense attorney gets to bring the criminal justice system back to the way it is supposed to be. We get to hold the other side of the case accountable for their actions whether it is a prosecutor, police officer, or an accuser. Just as there are laws people are not supposed to break, there are rules prosecutors and police Officers are supposed to follow. The biggest of these rules are the protections embedded within the Constitution. Every lawyer takes an oath to uphold the Constitution and I think many lawyers lose sight of that. But as a criminal defense attorney I get a chance to uphold the Constitution everyday and ensure that every person gets the same protections. Everyone learns about the Constitution at some point but not everyone gets to learn the ins-and-outs of it like lawyers do, and I take joy in ensuring that everyone receives those protections.

I get to help people who potentially had their Constitutional protections violated, often by someone who was educated in the Constitution. I get to make sure that everyone who is charged with a crime gets a fair chance at having their story heard. I get the opportunity to help people that were failed by the state and defend them against people who refuse to look beyond the charging paperwork. I get the opportunity to help people facing some of the toughest situations of their lives and ensure that they are treated fairly. I get to ensure that the system of Justice we have created is done correctly.

Innocence is the starting point for any case, not guilt.

Adam Kujawa-MN Criminal Defense AttorneyI am a criminal defense attorney because Defendants are not numbers, they are human beings. They are community members, family, and friends and they deserve a voice. They are often frightened, confused, and nervous and they deserve comfort, support, and zealous advocacy. A person is neither defined at their lowest point, nor by the crime someone accuses them of committing. We are all better than that. We all deserve to be treated as our best.

Although I decided to become a criminal defense attorney when I was 16 years old, it took me 25 years to become that person. When I was a juvenile, I had the misfortune of finding my way into the justice system. Although my trouble was minor, I was afraid. I had never been in this situation and neither had my parents. My attorney answered our questions, provided support, and, most important, fought for me. I walked away from that experience wanting to help others caught in the justice system, like my attorney did for me.

While in law school, I had the opportunity to work as a certified student attorney with a county prosecutor’s office. I remember how in my interview I talked about wanting to protect public safety while upholding the constitutional rights of defendants. After law school, I landed a job prosecuting at the State level. As a prosecutor, it is easy to get caught up in group think. You feel good about your role in “protecting public safety.” Doing your job effectively often means dehumanizing defendants by viewing them as the crime they are accused of rather than the person they are, and their rights can get lost in the shuffle. Having a view of “justice” that differs from your colleagues is difficult and your discretion to do the right thing is never boundless. Your boss is an elected official and the public, driven by newspaper headlines and sensationalized local news, has a hard time sympathizing with “criminals.”

Please understand that I am not saying prosecutors are bad people. I have many friends who are prosecutors, and they are good people with strong morals. But my moral compass steered me in a different direction – back to the lawyer I dreamed to be as a 16-year-old kid. People sometimes ask how morally I can defend “criminals.” My answer is always the same, it’s easier to stand up for the rights our Constitution affords ALL individuals, than throw a human being behind bars for someone else’s version of “justice.”

My career experiences have given me many opportunities. I have had the fortune of many wins (and losses). I have appeared in over 60 of the 87 Minnesota county courts, argue cases in front of over a hundred judges, and argue numerous cases at the court of appeals. I even had the opportunity to appear in front of the same judge I appeared in front of as a juvenile defendant and to argue against the attorney that stood by my side and argued for me as a kid. I have been named a “Rising Star” by Super Lawyers and “Top 10, Under 40” by the National Association of Criminal Defense Attorneys. But I am proud to be an attorney, not because of these accomplishments, but because there is no better feeling and no better success than standing tall beside someone and fight for them. I get the fortune of seeing my clients as human beings. I hope 16-year-old Adam would be proud.

The Fourth Amendment protects against unreasonable searches and seizures. Absent a warrant, or an exception to the warrant requirement, law enforcement is not allowed to enter your home. There are also areas immediately surrounding your home, known as curtilage, that enjoy the same constitutional protections as your house.

Courts often look at the Dunn factors when determining what constitutes curtilage: (1) proximity to the home; (2) how is the area being used; (3) is the area surrounded by an enclosure; and (4) what steps are taken to exclude others from the area. Generally, curtilage will include areas around the house where the activities of being at home extend. This can include areas such as a detached garage, front or back porch, and driveway in certain circumstances.

These Fourth Amendment protections are not absolute, however. The general public, and law enforcement, can go onto a person’s property. Solicitors stop by. Kids selling things for their schools or extra-curricular activities. Canvassers for political campaigns. A neighbor to tell you about a neighborhood meeting. These people are all using what is called an implied license. This implied license allows people to approach and knock at the front door of a house. A totally reasonable thing to do.

The implied license is limited in time and purpose according to social norms. Florida v. Jardines, a United States Supreme Court case, reasoned that “[c]omplying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” An implied license does not extend to all hours. If there is an emergency, then it is a different story. If the homeowner routinely accepts visitors at all hours, and there is evidence of that, then it is a different story.

Florida v. Jardines involved a drug-sniffing dog on a front porch. It was not a simple approach to the homeowner’s front door. The cops do not need typically need a warrant for that. The implied license is not unlimited in scope. Officers cannot enter a constitutionally protected area without a customary invitation to conduct a search. In Jardines, the officers’ entry onto the curtilage of the home was not explicitly or implicitly invited.

Recently, the Minnesota Court of Appeals addressed implied licenses in LaClair v. Commissioner of Public Safety. In this case, our firm successfully obtained a reversal from the court of appeals when the police officer exceeded the scope of an implied license. The cop patrolled a neighborhood and saw a car parked in a driveway with its headlights on. An hour later, the same officer drove by and saw the headlights still on. He parked at the end of the driveway, activated his squad’s spotlight and approached the home. He walked up the driveway and noticed a puddle, which he thought was urine near the vehicle. He went to the passenger side and saw a person in the driver’s seat slumped over the center console. He then opened the driver’s door without knocking or announcing.

In LaClair, the district court judge reasoned that the driveway is a place an ordinary visitor would be expected to go. The court of appeals did not agree. The court of appeals reasoned that the district court did not consider time the officer entered the driveway for a non-emergency situation, which was at one in the morning. The court of appeals decided these were not circumstances where a person would approach a home in the middle of the night; and reversed the driver’s license revocation stemming from the DWI arrest.

This depends on why they were taken away. For a Minnesota Felony Conviction, you can restore your gun rights in two ways. One is by receiving a pardon or by Court Order. Pardons require a person to have a clean record for 5 or 10 years (depending on the charge) and a person must apply to the Pardon Board. However, crimes of violence especially those involving firearms are very rarely granted. Second is by a request for Judicial Restoration or Court Order. This has less requirements than a Pardon, because it only requires that the person has been released from physical confinement and that they can make a showing of good cause to have their gun rights returned. This often involves a petition, a hearing, statements from the person requesting restoration, and potentially statements form other community members.

If you have a misdemeanor conviction that Federally restricts you from possessing firearms a Court Order in Minnesota will not help as Minnesota does not consider you ineligible. But there are a few potential other options to restore your gun rights when you are considered ineligible under Federal Law. Typically, this is done by trying to change the underlying misdemeanor conviction or having that conviction set aside.

How can I lose my Civil Rights, including my Firearm/Gun Rights, in Minnesota?

A person can lose certain civil rights by Judicial Order or by conviction for a felony in Minnesota. Often times a Judge will place restrictions on people as part of their sentence, for example a condition of probation on a domestic case may be that you are not allowed to possess, own, carry, or use firearms. A probationary condition like this is removed once you have successfully completed probation and been discharge. The other way a person can lose their civil rights, including voting rights and gun rights, is when they have been convicted of a felony. In Minnesota, a person who is convicted of a Felony automatically has their civil rights restored upon discharge of their sentence (by Court Order or expiration of their Sentence). However, if you have been convicted of a Crime of Violence you have a lifetime ban on shipping, transporting, possessing, or receiving firearms unless you restore your civil rights.

What is a crime of violence?

A Crime of Violence is always a felony conviction but it only applies to certain offenses. Examples of those offenses are: Murder, Assault, Robbery, Kidnapping, Criminal Sexual Conduct, Arson, Harassment, and Controlled Substance (Drug) Offenses. Additionally, people who have pled to one of these types of offenses under a Stay of Imposition, meaning after probation it is considered a misdemeanor, will still be ineligible even though the conviction does not appear to be a Felony.

I am not a Felon, but I still cannot get a firearm. Why is that?

Often, if a person has a misdemeanor conviction for a crime of violence, then it is possible their firearm rights were taken under Federal Law. Federal Law states that a person is ineligible to ship, transport, possess, or receive firearms if they have been convicted of a Misdemeanor Crime of Domestic Violence. A Misdemeanor Crime of Domestic Violence must be a conviction for an offense where physical force, attempted use of physical force, or threatened use of a deadly weapon was used against a current or former spouse or partner, guardian, parent of a child in common, or someone who lives in the same household. This includes misdemeanor assault, domestic assault, and even disorderly conduct conviction.

 

Upon arrest for a DWI, the worry is not only about what might happen in the criminal case, but also about how long you will lose your driver’s license for a DWI in Minnesota. The main factors influencing the length are whether you took a breath, blood, or urine test, the alcohol level of that test, and how many prior DWI offenses you have on your record.

As a default, you can look at the Notice and Order of Revocation, which is what the Minnesota Department of Public Safety enters as the length of time your license is revoked. If you want to double-check that number or ensure its accuracy, the following principles apply.

First Offense

A first-time DWI with an alcohol concentration of .15 or lower, will be subject to a 90-day revocation period in Minnesota. The same length of time applies for first-time controlled substance and hazardous substance DUIs. If those drivers later plead guilty to a Fourth Degree DWI offense, then there will be an administrative reduction to 30 days for the license revocation. In either event, the person is eligible to drive on a limited license after 15 days of the revocation period accrue.

If your alcohol concentration is .16 or more, then a first-time DWI will have a driver’s license revocation period of 1 year. In this scenario, the driver is not able to obtain a limited license, but can partake in Minnesota’s Ignition Interlock Program. There is no waiting period to become a participant in ignition interlock, you just have to fulfill all the requirements as quickly as you can to get up and running on the device.

If you refuse to submit to an evidentiary breath, blood, or urine test, then you will receive a revocation of 1 year. You will also be eligible to drive on a limited license after 15 days of the revocation period pass. Further, if you later plead guilty to a Third Degree DWI Refusal or Fourth Degree DWI, then you will receive an administrative reduction for your license revocation period if you have no prior DUIs or implied consent revocations in your lifetime.

Second Offense

A second-DWI offense within a ten-year period will result in a license revocation of 1 year, if the person’s alcohol concentration was under .16 for their present offense. If the driver tested .16 or more or refused the test, then the revocation period is 2 years. In all of these scenarios, the person is eligible to get on the ignition interlock device for this time period. 

Third Offense

A third offense within a ten-year period will result in a cancellation of the person’s driver’s license for 3 years. Regardless of the person’s alcohol concentration level or whether they refused a test, the cancellation period of 3 years applies. A difference between a cancellation period and a revocation period is that a cancellation the requirement for a person to get their regular driver’s license back is that they have to become a participant in Minnesota’s Ignition Interlock Program. And, the 3-year cancellation period does not begin to accrue until the driver is on that program. For a revocation period, a driver can just decide not to drive for the length of the revocation period and apply for their regular driver’s license thereafter.

Fourth Offense or More

A person’s fourth DWI or more will also result in a cancellation. This time for 6 years. The same mandatory ignition interlock restrictions apply, except the limited license stays in effect for the first 3 years.

In any scenario, a driver has a right to challenge their driver’s license revocation or cancellation through the implied consent process. To read more about that, Click Here to Read More

Importantly, if you are under twenty-one years old at the time of the DUI, then the revocation periods will double in time. Additionally, the laws on revocation periods in Minnesota can change through the legislative process. In the past decade, this occurred multiple times. If there is a question about whether the law has changed in this regard, please contact us for the most up-to-date information.

A PSI, or presentence investigation, occurs after a conviction and before sentencing. In virtually all felony cases, a PSI will take place before the judge pronounces the sentence. In domestic abuse cases, regardless of the level of offense, a domestic abuse PSI will generally occur before sentencing. In some counties, the court will require a PSI for misdemeanor and gross misdemeanor DWIs – however, that is not the norm statewide.

What Happens During a PSI?

A PSI is an interview with a probation officer. That probation officer will want to get information about your background, including criminal history, employment, addresses, etc. They will also want to discuss the incident with you. They usually ask you to write out your recollection of the events leading up to and including the incident that resulted in the charges in your case. They will also want to talk about the incident either in person or over the phone. For those that plead guilty to the offense, some sense or remorse or taking responsibility during this part of the process is generally not a bad idea.

If alcohol or drugs were involved in the incident, the probation officer will also want to gauge your past and current level of chemical dependency. This can be as simple as asking you how often you drink or use drugs, what you use, why you use, and how much you have used in the past. The probation officer will also ask for collateral contacts, usually at least two people, that know you well. They will then want to contact those people to try and verify the information you provided.  They will then use this data, along with their own observations and research, to determine what level of chemical dependency programming to recommend.

In domestic abuse cases, the PSI will include past and current issues surrounding anger management and abuse. As with chemical dependency, some level of programming may be recommended by the probation officer to address those potential issues. Additionally, the victim in the case will be contacted to address whether they want to provide an impact statement to the court either in writing, or in person, for sentencing. The victim will also provide input about whether they desire a probationary DANCO (domestic abuse no contact order). Further, victims can provide input about whether they request any restitution, which would cover out-of-pocket expenses for such things as medical bills or property damage.

What Happens After a PSI?

Prior to the sentencing hearing, the probation officer will file with the court the PSI report. The prosecutor, judge, and defense attorney should all get a copy of it. Sometimes, it does not get filed until the day before, or day of, the sentencing hearing. In some counties, the court requires judge approval to share the PSI report with the defendant.

One of the most important parts of the report is the recommendations from the probation officer. When there is not an agreement on jail or prison time, this recommendation can carry significant weight as to what the judge may impose. The report will also recommend how long probation should be and the probationary conditions requested, such as whether they believe a no use of alcohol or non-prescribed drugs condition should be imposed and treatment recommendations. Regardless of what the recommendations of the PSI are, your attorney, and you, will be able to make arguments to the judge to ask what you think the sentence should be.

Fourth Degree Assault occurs when someone physically assaults and inflicts demonstrable bodily harm or intentionally throws or transfers bodily fluids upon a specific class of people. Bodily harm is any physical pain or injury, illness, or any impairment of a physical condition. It can be as basic as a red mark or a bruise.

Fourth Degree Assault can be a gross misdemeanor or a felony depending on the act, who the victim is, and whether the actor has any priors. In short, Fourth Degree Assault is any assault against a special protected class where some evidence of harm can be shown.

What makes up this protected class of people?

The list of protected people is expansive. An assault against an employee of the Department of Natural Resources, school official (like a teacher, school administrator, or school employee), a public employee with mandated duties (like a child protection worker, animal control officer, agricultural officer, etc.), community crime prevention group member, vulnerable adult, reserve officer, utility and postal service employees, and transit operators is considered a gross misdemeanor.

An assault against firefighter, healthcare provider (like a nurse, EMT, doctor, etc.), correctional employee, prosecuting attorney, judge, probation officer, and personnel of a secure treatment facility is a felony. An assault against a peace officer (or police officer) or an assault motivated by bias relating to a person’s race, color, religion, sex, sexual orientation, disability, age, or national origin can be a gross misdemeanor or felony depending on if someone has a prior or if they throw/transfer bodily fluids as part of the assault.

It is important to note that in most circumstances the people within these protected groups must be acting within their duties at the time of the assault or the actor knows the person is one of these protected people. However, that does not always mean they are in uniform or specifically at their workplace.

What are the possible consequences?

Fourth Degree Assault is a gross misdemeanor or a felony. The maximum penalty for a gross misdemeanor is 365 days imprisonment and a fine of $3,000. While the maximum penalty for a felony ranges from 366 days to three years and a fine of $3,000 to $6,000. Keep in mind, the maximum punishment rarely gets handed down from judges. Most plea bargain offers are less than the maximum and most straight pleas to a judge result in less than maximum punishment. Even if you have a jury trial and are not successful, the judge may not sentence the maximum punishment. Often, sentences result in stayed jail time. This means that if you comply with your probationary conditions, then you will not have to end up serving the duration of the stayed jail time.

Unlawful Assembly is a misdemeanor and occurs in three different situations. In all three situations a common factor is that three or more people assemble. The difference from there depends on what that group of people are doing. You can be found guilty of unlawful assembly if the group assembles with the intent to commit any unlawful act by force or with the intent to carry out any purpose in such manner as will disturb or threaten the public peace. Additionally, if the group assembles without an unlawful purpose, but the participants conduct themselves in a disorderly manner as to disturb or threaten the public peace. As Unlawful Assembly is a misdemeanor the maximum punishment is ninety (90) days in jail, and a fine of one-thousand dollars ($1,000), or both. However, a person charged with unlawful assembly rarely does any jail time and often pays a fine much less than the maximum, if convicted.

What if I am present but not partaking in the assembly?

When a person without lawful purpose is at an unlawful assembly and refuses to leave when directed by law enforcement they can be charge with the crime of Presence at an Unlawful Assembly. Presence at an Unlawful Assembly is also a misdemeanor carrying a maximum of 90 days in jail, and a fine of $1,000, or both – also with the same caveats of potential jail time and fine amounts as Unlawful Assmebly

What about your First Amendment Constitutional Rights?

The discussion of free speech and assembly were discussed regarding the charge of Unlawful Assembly by the Minnesota Supreme Court in the 1970s in State v. Hipp. The Minnesota Supreme Court reviewed the law and decided that it was not a restriction on speech but a restriction on conduct. While the Constitution protects people’s rights to assemble and protest, it does not protect every type of conduct related to assembly. The Minnesota Supreme Court determined that the conduct that was prohibited and not protected by the Constitution was such that threatened or disturbed the “tranquility enjoyed by a community when good order reigns amongst its members”. Additionally, this meant that a group threatens or disturbs the peace when the conduct “unreasonably denies or interferes with the rights of others to peacefully use their property or public facilities without obstruction, interference, or disturbance”. It is the impact the assembly has on other people’s ability to peacefully use the area (most often streets or sidewalks) that determines if the conduct is constitutionally protected. Thus, blocking of sidewalks and roads could be Unlawful Assembly depending on the impact it has on other people’s peaceful use of that area.

What is the difference between Unlawful Assembly and Rioting?

Rioting and Unlawful Assembly are similar criminal charges in that both need three or more people to assemble. The difference is that with rioting the group disturbs the public peace by an intentional act or threat of unlawful force or violence to person or property. So unlike Unlawful Assembly the conduct needs to go beyond just disturbing the peace. Additionally, rioting comes in three different levels based on if someone in the group has a dangerous weapon and if a death occurs. Unlike with Unlawful Assembly a conviction for rioting starts as a gross misdemeanor and can become a felony which carries a maximum punishment of twenty (20) year in prison and a thirty-five thousand dollar fine ($35,000) or both. Contact Ambrose Law Firm if you have been accused of unlawful assembly.

Domestic Assault by Strangulation in Minnesota is a felony. It is essentially a heightened version of domestic assault where the physical act used is strangulation. To be found guilty, a person has to allegedly assaulted a family or household member with the use of strangulation. The charge most commonly results as Second-Degree Assault.

What Constitutes Strangulation?

This is the most important factor and it is why this version of domestic assault is separate from the standard crime of domestic assault. Strangulation occurs when someone intentionally impedes the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person. This means that strangulation can occur even if the person is still able to breath or talk, because only a person’s normal breathing needs to be interfered with. Choking someone with your hands, pushing on someone’s neck with your knee, or covering someone’s face with a pillow or bag can all be considered strangulation.

What Constitutes Assault?

Assault can be difficult to understand but generally it consists of either an intentional infliction or attempt to inflict bodily harm upon another or an act done with intent to cause fear in another of immediate bodily harm or death. In the context of domestic assault by strangulation you really are looking at an intentional infliction of bodily harm upon another. Specifically, the intentional infliction of harm by strangulation.

What Constitutes a Family or Household member?

While this seems very straightforward and easy to understand the term “family or household member” goes beyond the simple common-sense definition. The term includes spouses, former spouses, parents, children, relatives by blood, people you currently live with or have lived with in the past, someone whom you share a child with, people you have a significant or sexual relationship with, and if a woman is pregnant either the woman or the alleged father.

What are the Possible Consequences for Domestic Assault by Strangulation?

As a felony a person found guilty is looking at a maximum consequence of three years, a fine of $5,000, or both. It is important to note though that in Minnesota felony convictions are subject to the Minnesota Sentencing Guidelines. This means that the amount of prison time a person must do is determined by looking at a person’s prior criminal history score. The period of time is not always the final amount, as a deviation from the sentencing guidelines can be requested by a motion to the court. When a departure motion is filed, a Judge can decide to sentence lower than what the guidelines dictate for that specific situation. Therefore, while the guidelines typically determine the maximum, the maximum does not always apply.

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