Minnesota Supreme Court Holds Oral Arguments Today Regarding Minnesota's DWI Laws

Home > Fourth Amendment > Minnesota Supreme Court Holds Oral Arguments Today Regarding Minnesota's DWI LawsPosted on December 10, 2014 by Chuck Ramsay

Big things are about to happen at the Minnesota Supreme Court, and the most visible evidence is going on this morning in two cases: In State v. Larson, the Court will address whether Minnesota should adopt the "good-faith" exception to the rule that the State cannot use unconstitutionally obtained evidence against an individual in court. In State v. Lindquist, the Court will address the same issue, with the added wrinkle of determining if the McNeely decision was "retroactive" (applies to cases that came before the United States Supreme Court issued its decision). 

While many are eagerly awaiting the Minnesota Supreme Court's decision on Bernard (determining the constitutionality of making test refusal a criminal act), the Minnesota Supreme Court is quietly considering other cases as well, cases dealing with 1) Exigency; 2) this "Good Faith Exception"; and, 3) specific application of the McNeely decision in a variety of other cases.

If I was a betting man, here's what I'd predict: I expect the Court to simultaneously issue its decisions in the cases being argued today alongside the Bernard decision argued in September. That would set the stage for the Court to: 1) finally strike down the criminal refusal law as unconstitutional; 2) more carefully define what does and does not constitute "exigency" in the DWI context; and 3) adopt the good-faith exception.  

While recognizing the absurdity of the criminal test refusal law (which makes it a crime for citizens to refuse to waive their fundamental constitutional right against warrantless searches), the court will “save” pending cases by recognizing the good-faith exception. Drivers who were duped into “consenting” to DWI blood, breath or urine tests will be unable to avail themselves of the court’s recognition that police cannot obtain consent by threatening them with an unconstitutional law.  

Such a resolution would add a much needed touch of finality to the current state of confusion regarding Minnesota's DWI laws. From that point forward, the government could no longer charge drivers with the crime of test refusal (but they could still revoke their licenses and use the fact that they refused against them at trial). And in the same breath, it would clear the courts of the backlog of criminal cases building up as attorneys and judges wait for further guidance from the highest court in Minnesota.

This is not what I would like to see, this is just what I am predicting. Soon, we'll explain exactly why a "good faith exception" is anything but good, and how the best way to maintain a free society is to continue to attach real consequences to the government when someone's Constitutional rights are violated.

But today, if you have the time and the inclination, stop by the Minnesota Supreme Court and watch two oral arguments that are going to lead to some pretty groundbreaking decisions in the near future.

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Start the New Year With a New You: Minnesota's New And Improved Expungement Law

We first mentioned it last May: After years of effort, the Minnesota Legislature finally passed a bill making it substantially easier to for Minnesotans to finally be allowed to leave their past behind them and seal (expunge) certain records of prior criminal convictions. If you’ve ever been denied a job or housing because of an old conviction on your criminal record, this law is for you.

The process for sealing a criminal conviction, referred to as an “expungement,” can be time consuming, but with the radical new changes to Minnesota’s Expungement Law (which go into effect January 1, 2015), the legislature made it much, much easier to earn a clean slate.

This post is not designed to provide any legal advice – if you want to find out if you are eligible for an expungement of your criminal record, and want help getting it done, please call our office for a free consultation. That being said, it’s helpful to see exactly how the new law is laid out, and by providing the public with an easy-to-digest version of a fairly complicated law, we hope that more people that are now eligible for an expungement will take advantage of this opportunity as soon as possible.

One additional note: when we’re speaking about “expungements” in this post, we’re specifically talking about judges using the new power granted to them by the legislature to seal criminal convictions, hiding these convictions from background checks performed by employers or landlords. There are other types of expungements that apply to people who were never actually convicted (or never admitted any guilt in court) that are much easier to obtain, follow a simpler process - and that we'll talk about at a later date. This post is for those people who are stuck behind the 8 ball and need help erasing their criminal history.

EXPUNGEMENT PROCESS IN GENERAL: HURRY UP AND WAIT

Assuming you are eligible for an expungement, we’ll get to work on collecting the necessary information, filing the petition, and getting ready for the court hearing. But be ready to wait, because the expungement process takes time. Expect it to take a couple of weeks to pull together the information that needs to be included in the petition, and then to have the actual petition carefully crafted. Once the petition is filed, the court will not provide a hearing for at least 60 days, in order to give any victims and the government the opportunity to object to the request.

That hearing may involve your testimony, explaining to the judge why you need an expungement. It will certainly involve arguments by the attorneys, passionately explaining why you are the ideal candidate for an expungement, and why you deserve to be one of the many, many Minnesotans who are taking advantage of this new law. However, the expungement process doesn’t end with the hearing - unfortunately, there will be even more downtime after the hearing. In the best case scenario, where the judge rules immediately that you are entitled to have your record sealed, the law requires that order to be put on hold for 60 additional days, to give the government time to decide if they want to appeal the decision. If no appeal is filed, the agencies that control your criminal record will begin the process of sealing your record at the end of that 60 day period – which will be at least four months after the petition was actually filed.

WHAT CAN BE EXPUNGED:

Getting the expungement process moving only makes sense if there is a reasonable chance of success. Minnesota’s new law places certain restrictions on expungements, depending on the type of offense you or your loved one was convicted of, and how much time has passed since that conviction.

How long you have to wait will depend upon the severity of your conviction. In Minnesota, there are four levels of severity – a petty misdemeanor, a regular misdemeanor, a gross misdemeanor, and a felony. The level of conviction is determined entirely by your sentence; if the judge sentenced you to 90 days in jail (or put you on probation and threatened you with up to 90 days in jail if you violated the terms of your probation), you were convicted of a misdemeanor. If the judge sentenced you to anything more than a year in jail (even a year and a day) you were convicted of a felony.

The level of offense determines how long you need to be able to prove that you remained law abiding. For example, in order to expunge a misdemeanor conviction, you should wait two years after you successfully completed probation, and you cannot have been convicted of any new crime during that period. So, someone who got in a bar fight, pled guilty to misdemeanor assault, and was placed on probation for one year, would have to go three years without being convicted of a new crime before they would want to file a petition for an expungement of that conviction (one year of probation + two additional years of waiting due to the fact that the conviction was a misdemeanor = three years before filing an expungement petition).

A year and a day (or more) of incarceration

Time to Wait For an Expungement (After You’ve Been Discharged From Probation)

These are the general timeframes – but not all convictions are treated equally. This new law does not (currently) allow a judge to expunge domestic assault convictions or sexual assault convictions, or crimes related to these types of convictions, like violating Orders for Protection or Harassment Restraining Orders. This prohibition against expunging these types of assault applies whether the offense was a gross misdemeanor, felony, or any other level of offense.

There are additional restrictions on felony convictions, because the new law only applies to a very specific list of felonies. This list of felonies is a mix of what is commonly referred to as “white collar crimes,” types of theft and fraud, convictions for controlled substance (drug) crimes, certain types of arson, and some head scratchers like “Assaulting a Police Horse.”

But, assuming someone’s conviction was not for domestic or sexual assault, and it was not a felony conviction, they only need to wait the allotted period of time and it will be time to file that expungement petition. If the conviction was for a felony, they’ll still only have to wait the allotted period of time, but will just have to make sure that their conviction made “the list” of allowable offenses. Know that this "waiting period" is not set in stone, but that waiting will provide the best possible odds of success in getting this petition granted.

AT THE HEARING:

When seeking to expunge a criminal conviction, we will need to convince the judge with “clear and convincing evidence” that 1) the benefits of sealing the record outweigh 2) the disadvantages to the public (and public safety in general). This is a very fact-specific argument, and typically involves painting a careful and accurate picture of exactly what problems this criminal conviction have caused (such as inability to find employment, or be certified to work in a certain field, or rent an apartment) and why the judge should take the extraordinary step of completely sealing a criminal conviction from public view.

CHECKLIST:

Are you thinking about getting an expungement? Has a prior criminal conviction made it difficult to find a job? Give us a call and we’ll talk you through the process and find out if an expungement petition can help solve your problems and give you a fresh start. But before you call, try and pull together the following information:

1.     1.  A list of all your home addresses since the time of the incident you are looking to expunge;

2.      2. All the information you have from the incident, including copies of police reports, sentencing orders, written complaints – the more the better

3.      3. Copies of any previous expungement petitions you or an attorney may have filed in the past.

And THAT’S IT! (for now, at least)

Now, there is A LOT MORE that went into this new expungement law, and again, this post is not designed to provide you with any legal advice. What we’ve provided here is the broad tools to allow you to quickly decide if an expungement looks like something you’d like to explore . . . but it’s just a starting point, a quick tool to use to determine if you may be eligible. Minnesota’s Second Chance Law is going to provide a lot of people with a fantastic, first-ever opportunity to remove prior convictions, and there is no guarantee that the Legislature won’t dramatically alter this law in the future. If you want to see a conviction removed from your record, have your gun rights restored, or try and get a professional license back, 2015 will be the best time for you to create a new you.

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State of Minnesota's DWI Test Refusal Law In Flux

Posted on May 7, 2014 by Dan Koewler

Things are getting even more interesting when it comes to Minnesota's DWI Test Refusal law. Apparently even the State's own prosecutors are troubled by the recent decision finding Minnesota's DWI Test Refusal Law constitutional, and they're asking the Minnesota Supreme Court to review it.

If you need some quick history: even before the United States Supreme Court issued its decision in Missouri v. McNeely, we explained how the decision could end up eliminating Minnesota's attempt to make refusal a crime. When the decision finally arrived, we immediately wondered if Minnesota's test refusal law was now unconstitutional. It was a good question, and it wasn't long until Minnesota judges began throwing out DWI refusal charges as unconstitutional.

Then, the Minnesota Court of Appeals issued its decision in State v. Bernard, crafting a new "inevitable warrant" doctrine and upholding the constitutionality of the test refusal law. At least one judge refused to follow the Bernard decision, pointing out how it directly contradicted numerous other Supreme Court cases.

Which brings us to today: After the attorney in the Bernard case asked the Minnesota Supreme Court to review (and overturn) the decision in Bernard, the State of Minnesota was given an opportunity to respond. On Tuesday, they did file their response . . . and nobody was more surprised than us when we discovered that the State is joining in the defense's request for review of the Bernard decision.

This makes it far, far more likely that the Bernard decision is going to see careful scrutiny from the Minnesota Supreme Court - all of the parties are in agreement that it needs to be looked at again. One thing is almost certain: we have not yet received that final word on whether or not charging someone with a crime for nothing more than refusing to submit to a warrantless search is actually constitutional.

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Another Shot Fired Over the Constitutionality of Minnesota's DWI Test Refusal Law

Home > Fourth Amendment > Another Shot Fired Over the Constitutionality of Minnesota's DWI Test Refusal LawPosted on May 19, 2014 by Dan Koewler

Minnesota is one of very few states that make it a crime to refuse to submit to a DWI test - the vast majority of states simply impose a longer license revocation against drivers who refuse. Minnesota's rare and troubling practice - making refusal to submit to a warrantless search an independent crime - appears to be unconstitutional. That appearance is causing a major conflict between defense attorneys and prosecutors, between prosecutors and cops . . . and also between Minnesota judges and other Minnesota judges.

Is it constitutional to put someone in jail for refusing to submit to a warrantless search and seizure? This is the question that has plagued Minnesota courts for over a decade, and it is a question that is quickly coming to a head. The Minnesota Supreme Court is in a position to answer that question once and for all later this year.

But in the meantime, Minnesota's DWI law is in a state of pure turmoil. In the past year, many district court judges around the state have concluded that the crime of test refusal is unconstitutional. After judges started declaring the law unconstitutional, the Minnesota Court of Appeals stepped in and in the case of State v. Bernard, crafted a brand-new doctrine that appeared to make the crime of test refusal legal. This Bernard decision was famously ignored by at least one judge who was completely unpersuaded by the newly crafted "inevitable warrant" doctrine.

Today, the Court of Appeals issued another decision finding the test refusal law constitutional, in the unpublished case of State v. Mawolo. And while it was completely expected for the Court of Appeals to follow the logic of the recently issued Bernard case, what was completely unexpected was to see another judge step up and proclaim, in effect, "we are getting this wrong, and we need to fix it before it's too late."

That is a paraphrase from the dissent in the Mawolo case, where one member of the three judge panel made it clear that "the analysis in Bernard" was "flawed" because it "creates an exception that renders the Fourth Amendment meaningless . . ." I highly suggest reading the whole dissent - it is both scholarly and very much to-the-point.

This likely will not be the last judge to openly defy the holding in the Bernard decision, and with every new voice in opposition, the constitutional crises in Minnesota deepens.

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