Frequently Asked Legal Questions
Understanding the Court Process / What to Expect at the Following Hearings
- What is an Arraignment / First Appearance
An Arraignment is sometimes called a First Appearance. If you did not have a Bail Hearing, then this is your first appearance in court. At this hearing, you have the option of appearing with a private attorney, applying for a public defender, or representing yourself. Click Here To Read More.
- What is a Rule 8 Hearing
A Rule 8 Hearing is generally the second court appearance in Felony and Gross Misdemeanor cases. Some counties will not hold a Rule 8 Hearing unless you specifically request one. But if held, the hearing is meant to advise you of your rights for a second time. Click Here To Read More.
- What is a Pre-Trial Hearing
In Misdemeanor cases, the Pre-Trial Hearing generally takes place after the arraignment (sometimes referred to as the first appearance). At this hearing, the prosecution usually makes a plea offer for you to consider resolving your case. Click Here To Read More.
- What is an Omnibus Hearing
In Felony and Gross Misdemeanor cases, the Omnibus Hearing is the first time the court will ask you for a plea of guilty or not guilty. Before you do so, a plea offer is generally made for you to consider. Sometimes, these plea negotiations happen on the day of your Omnibus Hearing. Click Here to Read More.
- What is a Contested Omnibus Hearing
Prior to your Omnibus Hearing, your attorney may file motions asking for a Contested Omnibus Hearing. Some courts may call it a Motion Hearing, Evidentiary Hearing, or Rasmussen Hearing. Regardless of the moniker, the purpose of such a hearing is to challenge issues in your case prior to a trial taking place. Click Here to Read More.
- What is a Rasmussen Hearing
Rasmussen Hearings are hearings involving a request by the defense to suppress evidence prior to a trial. To get there, your defense attorney will file a motion asking the court for such relief based on an illegal seizure, illegal search, unlawful confession, or unlawful identification. Click Here to Read More.
- What is a Settlement Conference
A Settlement Conference is an in-court hearing used to see if the prosecution and defense can reach a settlement prior to a trial taking place. By this point, the court has already conducted your first appearance, pre-trial hearing, and possibly contested hearings challenging the admissibility of evidence in your case. Click Here to Read More.
- What is a Morrissey Hearing
A Morrissey Hearing is another name for a contested probation violation hearing. When a person is placed on probation and allegedly violates the conditions of their probation, they are entitled to have a hearing where the prosecution has to prove by clear and convincing evidence that the conditions of probation were violated. Click Here to Read More.
- What is a Court Trial / Bench Trial
A Court Trial, or what is sometimes referred to as a Bench Trial, is a trial in front of a judge. Instead of having a trial by jury, you may choose to have your case decided by a judicial officer. In petty misdemeanor cases and juvenile court matters, you do not have a right to a jury trial and may only have a Court Trial. Click Here to Read More.
- What is a Jury Trial
A jury trial is the last stage to determine guilt or innocence in a criminal case at the district court level. If all other avenues have been exhausted, such as plea bargaining, pre-trial contested motions, possible pleas to the court, and the defense and prosecution cannot come to an agreement, then you have the right to a trial by jury. Click Here to Read More.
Understanding Bail and Bonds
- How to get someone out of jail
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. Click Here to Read More.
- When will bail get set
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. Click Here to Read More.
- 36 / 48 hour rules
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. Click Here to Read More.
Understanding Driver's License Revocations
- What is an Implied Consent Hearing
Have you had your driver’s license taken away after being arrested for a DWI? If you had a blood alcohol concentration of .08 or more, or refused the evidentiary test, then you likely received a Notice and Order of License Revocation stating that your license to drive is being taken away. Click Here to Read More.
- What is a Notice and Order of License Revocation
Upon a DWI arrest or conviction, you may have received a Notice and Order of License Revocation. This is an order stating that your driver’s license is being taken away for a period of time because of having a blood alcohol concentration of .08 or more, refusing an evidentiary test, or otherwise being convicted of a DWI at the end of your criminal case. Click Here to Read More.
Understanding License Plate Impoundment
- What is a Notice and Order of License Plate Impoundment
If you received a Notice and Order of License Plate Impoundment, then it probably means you got a MN DWI with an alcohol concentration of .16 or more or you have a prior DWI within the past ten years. There are other scenarios that trigger license plate impoundment, such as Driving After Cancellation Inimical to Public Safety, but the aforementioned ones are the most common ways to get your license plates taken. Click Here to Read More.
Understanding Vehicle Forfeitures
- What is a Notice and Intent to Forfeit Vehicle
Was your car taken away because of a DWI, controlled substance case, prostitution charge, fleeing a police officer, or for some other reason? If so, you likely received a Notice of Seizure and Intent to Forfeit Vehicle from the state. Most importantly, you must be aware you have sixty days to challenge your vehicle being taken away. Click Here to Learn More.
Levels of Offenses
- Petty Misdemeanor
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. Click Here To Read More.
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. Click Here To Read More.
- Gross Misdemeanor
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. Click Here To Read More.
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. Click Here To Read More.
Understanding The Expungement Process
- Expungement Waiting Period
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. Click Here To Read More.
Understanding The Criminal Defense Process
- DWI and Jail Time
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. Click Here To Read More.
- When Do I have the Right to Talk to a Lawyer During a DWI Arrest?
“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. Click Here to Read More.
- I Got Released From Jail Without Charges, Now What?
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. Click Here to Read More.
- How Long Will My DWI Case Last?
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. Click Here to Read More.
- What is Ineffective Assistance of Counsel?
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. Click Here to Read More.
- NHTSA 24 Driving Cues of DWI Detection
Law enforcement personnel across the county receive training on National Highway Traffic Safety Administration (NHTSA) published material. The NHTSA develops training manuals focused specifically on how to detect whether a driver may be drunk. In one such guide, it lists twenty-four driving cues of DWI detection. Click Here to Read More.
- NHTSA 10 Post-Stop Cues of DWI Detection
Law enforcement officers across the country are trained on how to spot drivers who may be under the influence of alcohol or a controlled substance. Overwhelmingly, the first observations by those officers are when they see someone driving. Click Here to Read More.
- What Does it Mean to Be in Physical Control of a Motor Vehicle for a Minnesota DWI?
A common question we get is: how can you get a DWI if you were not even driving your vehicle? These scenarios often arise when someone is sleeping in their vehicle, they are walking somewhere near the vicinity of their car, or they are stuck on the side of the road. Click Here to Read More.
- What is a stay of adjudication in MN?
A stay of adjudication in Minnesota is an excellent outcome in many cases. A stay of adjudication means there will be no conviction for the offense and the charge will ultimately be dismissed if the terms of the stay are met. Click Here to Read More.
- What is a Continuance for Dismissal in MN?
A continuance for dismissal, or agreement to suspend prosecution, is the next best thing to an outright dismissal or acquittal of criminal charges in Minnesota. Click Here to Read More.
- What is a DANCO – Domestic Abuse No Contact Order?
A Domestic Abuse No Contact Order, commonly referred to as a DANCO, is a specific order that limits the contact one person can have with another. DANCOs are commonly issued in assault-related cases. Click Here to Read More.
- How are DANCOS Removed?
A frequently asked question by all parties involved in a domestic abuse no contact order (DANCO) is: how do you remove a DANCO? Commonly, one of the parties needs to bring a motion before the court asking that the DANCO be lifted (removed). Click Here to Read More.
- What Happens if I Violate a DANCO (Domestic Abuse No Contact Order)?
A consequence of breaking a DANCO is a new criminal charge. This is a new domestic violence-related offense which can be a misdemeanor, gross misdemeanor, or felony. Domestic violence-related offenses are enhanceable, meaning the more you get within a 10-year period the more severe the consequences. Click Here to Read More.
- What is First Degree Assault?
First Degree Assault occurs when one person assaults another and inflicts great bodily harm. In rarer circumstances it can occur when someone uses or attempts to use deadly force against a peace officer, prosecuting attorney, judge, or correctional employee who is engaged in the performance of their job. Click Here to Read More.
- What is Second Degree Assault with a Dangerous Weapon?
Second Degree Assault is a felony and it occurs when someone assaults another with a dangerous weapon. The person does not need to be injured by the dangerous weapon to meet the statutory requirement of second degree assault. So, the main factor raising an assault to the level of second degree is the use of a dangerous weapon. Click Here to Read More.
- What is Third Degree Assault?
Third Degree Assault in Minnesota most commonly occurs when a person assaults another and inflicts substantial bodily harm. There are two other ways that someone can be charged with third degree assault and they deal with assaults on minors. Click Here to Read More.
- What is Domestic Assault by Strangulation in Minnesota?
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. . Click Here to Read More.
- What is Domestic Assault by Strangulation in Minnesota?
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. Click Here to Read More.
- What is Fourth Degree Assault?
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. Click Here to Read More.
- What is a PSI – Presentence Investigation?
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. Click Here to Read More.
- How Long Will I Lose My Driver’s License for a DWI?
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. Click Here to Read More.
- How can I restore my gun rights in Minnesota?
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. Click Here to Read More.
- When Can the Police Come on Your Property?
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. Click Here to Read More.
- What is a Proffer?
A proffer is technically a written agreement. It is an agreement between a Prosecutor and a Defendant, or witness, in which information about a crime is exchanged for the promise that their information and words will not be used against them in a later Court Hearing. Click Here to Read More.
- Missouri v. McNeely is Not Retroactive for DWI Refusal Convictions
Eight years ago, the Supreme Court of the United States decided a prominent DWI case that had repercussions on DWI laws across the country, including Minnesota. That case was Missouri v. McNeely. That case determined that a non-consensual, warrantless blood test violates a person’s Fourth Amendment right to be free from unreasonable searches. Click Here to Read More.
- Carrying a Firearm While Under the Influence in Minnesota
Being arrested for a DWI in Minnesota may also lead to another offense, even if unbeknownst to the driver at the time of the DWI. For those who carry a firearm, either on their person, or in their vehicle within arm’s reach, they could face charges of Carrying While Under the Influence of Alcohol or Controlled Substance. Click Here to Read More.
- Do I need Ignition Interlock after a DWI in Minnesota?
Not every DWI in Minnesota requires the driver to get on the ignition interlock program to obtain their driver’s license. For instance, if someone has no prior DWIs in their past and their alcohol concentration level measures under .16, then they do not need ignition interlock. Click Here to Read More.
- What is Driving Under the Influence of Drugs in Minnesota?
Driving Under the Influence of Drugs (DUID) in Minnesota operates under the same DWI laws for alcohol related DWIs in Minnesota. DWI charges can arise from being under the influence of a controlled substance, under the influence of an intoxicating substance, a combination of those two or with alcohol, and if any amount of a Schedule I or II controlled substance other than marijuana. Click Here to Read More.
- Can I be charged for something that happened a long time ago?
After an incident, it might be weeks, months, or even years before prosecutors bring formal charges against a defendant. In State v. Banks, the Minnesota Supreme Court ruled that a complaint can be dismissed under Rule 30.02 of the Minnesota Criminal Rules of Procedure if the prosecutors unnecessarily delayed in bringing those charges. Click Here to Read More.
- How Do I Beat My DWI Case in Minnesota?
When evaluating whether you can beat your DWI case in Minnesota, a common first analysis is to look at how you came in contact with the police. Often, DWI cases start with a traffic stop. Others may begin with the vehicle already at a place of rest. In either scenario, you will want to review whether the officer conducted a seizure. Click Here to Read More.
- Is it Worth Getting a Lawyer for a DUI in Minnesota?
Yes. It is worth getting a lawyer for a DUI in Minnesota. Of course, you expect that to be an answer from a private law firm practicing criminal defense. But, a DUI lawyer who knows the nuances of DUI laws can add a level of knowledge that you otherwise may not have. Further, being charged in criminal court with a DUI is only one half of the case. Click Here to Read More.
- What is the Difference Between DWI and DUI in Minnesota?
In Minnesota, DWI and DUI are basically synonymous terms. DWI stands for Driving While Impaired. DUI means Driving Under the Influence. Some states use DUI, others DWI, and some OWI. They all basically mean the same thing – that someone was driving while under the influence or while impaired. Click Here to Read More.
- How Much Does a DWI Cost in Minnesota?
In Minnesota, the cost of a DWI generally varies based on the severity of the charge. The more serious the charge, the more likely it is going to cost you more money. There are four degrees of DWI in Minnesota. The most serious is a first-degree felony DWI. The least severe is a fourth-degree misdemeanor DWI. Second and third degree DWIs are both gross misdemeanor offenses. Click Here to Read More.
- How Likely is Jail Time for First DUI in Minnesota?
Most first time MN DWI offenses are 4th Degree DWIs. This is the least severe DWI for first-time offenders who have an alcohol concentration level below .16. It also is the level of DWI for first-time drug related DWIs. Click Here to Read More.
- What is a Norgaard Plea?
If you are unable to recall the facts of your case, but want to take advantage of a plea offer, then a Norgaard plea may be appropriate. Norgaard covers situations where the defendant was too intoxicated at the time or just flat out does not remember what happened. This differs from an Alford plea in which a person maintains their innocence, but believes there is enough evidence to convict them at trial. Click Here to Read More.
- What is a Alford Plea?
If you want to maintain your innocence, but take advantage of a plea offer from the prosecution, then an Alford plea may be for you. This differs from a Norgaard plea, which is when a defendant is unable to recall what happened, but believes they will lose at trial based on the evidence the prosecution has against them. Click Here to Read More.
- What is a Dispositional Departure?
If you plead guilty to an offense in Minnesota that triggers a presumptive commit to prison, then your attorney may request a dispositional departure. A motion for a mitigated dispositional departure asks the sentencing judge to not send you to prison. Click Here to Read More.
- What is the difference between MN Juvenile Court vs. Adult Court?
A primary difference between juvenile and adult court in Minnesota is juvenile court enjoys a certain level of confidentiality. In adult court, hearings and trials are open to the public. A “public trial” is a right afforded by the Sixth Amendment. In juvenile court in Minnesota, the only people allowed in a court hearing, are the judge, court staff, court reporter, prosecutor, defense attorney, juvenile and his parents or guardians, probation, and only others that the judge may permit. Click Here to Read More.
- Can Juveniles be Tried as Adults?
Yes, juveniles can be tried as adults on serious criminal cases in Minnesota. There are two different ways this can be done: Certification or Extended Juvenile Jurisdiction (“EJJ”). In both situations, the prosecutor must file a motion asking for certification or EJJ. Click Here to Read More.
- What is a Durational Departure?
In Minnesota, there are two types of departures for defendants to request at sentencing. We previously reviewed what a dispositional departure is here, which asks a judge to not send a defendant to prison. The other departure your defense attorney may request is called a durational departure. This is a request to the court asking for a sentence outside of the Minnesota’s sentencing guidelines. Click Here to Read More.
- How do I expunge my Juvenile Record in Minnesota?
Expungement of a juvenile record in Minnesota is slightly different than expunging an adult record. In adult expungements, there are waiting periods before someone can be eligible for a statutory expungement – if they received a stay of adjudication, went through a diversion program, or were convicted of the offense. Click Here to Read More.
- How Long Does a DWI Stay on Your Record in Minnesota?
Short answer: forever. Longer answer: for insurance purposes it may be shorter. If you get an expungement of your Minnesota DWI, then it can be on your record for less time. For enhancement purposes, it is a ten-year time frame in Minnesota. Click Here to Read More.
- How is Restitution Determined?
Fourth Degree DWI in Minnesota is a misdemeanor offense. While misdemeanors have a maximum punishment of up to ninety days in jail and a $1,000 fine, Fourth Degree DWI is the lowest level of DWI in Minnesota. First Degree DWI is the most severe as a felony. Second and Third Degree DWI are gross misdemeanor level offenses. . Click Here to Read More.
- What is a Fourth Degree DWI in Minnesota?
In criminal cases, restitution may be awarded to the victim(s) when deemed appropriate by the court. The criteria for determining whether restitution is appropriate and if so, what amount, varies from state to state. In Minnesota, the statute lists two factors the court uses to decide whether restitution should be awarded, and the amount: (1) the amount of economic loss sustained by the victim as a result of the offense; and (2) the income, resources, and obligations of the defendant. Click Here to Read More.
- What is a Third Degree DWI in Minnesota?
Third Degree DWI in Minnesota is a gross misdemeanor level offense. Gross misdemeanors have a maximum punishment of up to one year in jail and a $3,000 fine. Third Degree DWI is neither the most severe, nor least severe DWI. First Degree DWI is the most serious in Minnesota, which is a felony level offense. While Fourth Degree DWI is the least severe DWI as a misdemeanor offense. Click Here to Read More.
- What is Second Degree DWI in Minnesota?
Second Degree DWI is a gross misdemeanor level offense in Minnesota. This level of offense carries a maximum punishment of up to one year in jail and a $3,000 fine. Second Degree DWI is the second most severe level of DWI in Minnesota. First Degree DWI is the only more serious DWI and is a felony level offense. Click Here to Read More.
- What is First Degree DWI in Minnesota?
First Degree DWI is a felony level offense in Minnesota. It does not get higher than that for a DWI in Minnesota. For a first-time felony DWI in Minnesota, the maximum punishment is up to seven years in prison and a $14,000 fine. A first-time felony DWI in Minnesota does not mean a person will go to prison, however. Click Here to Read More.
- What is Underage Drinking and Driving?
In Minnesota, what constitutes underage age drinking and driving? Seems simple enough. If you are under the age of 21, you drink alcohol, and you drive. Then, that is illegal, correct? The short answer is yes. Do not drink any alcohol and then drive a motor vehicle if you are under the age of 21. Click Here to Read More.
- What are the Penalties for Furnishing Alcohol to a Minor?
In Minnesota, furnishing alcohol to a minor (person under 21 years old) is a gross misdemeanor offense. Gross misdemeanors have a maximum punishment of up to one year in jail and a $3,000 fine. It is very uncommon, however, for anyone to actually serve the maximum punishment on this type of offense. Click Here to Read More.
- What are the Penalties for Furnishing Tobacco to a Minor in Minnesota?
In Minnesota, furnishing tobacco to a minor (person under 21 years old) is a petty misdemeanor for a first offense. A second offense or more within five years is a misdemeanor offense. Misdemeanors have a maximum punishment of up to ninety days in jail and a $1,000 fine. Click Here to Read More.
- What is an Aggravated Departure?
In some cases, the prosecution will file a motion asking the court for an aggravated (upward) sentencing departure. This means the prosecutor is asking the court to sentence you to a more severe prison sentence than what your offense calls for in the Minnesota Sentencing Guidelines. Click Here to Read More.
- Minnesota Ignition Interlock Updates for 2022
DWIs in Minnesota trigger driver’s license revocation periods. Depending on the circumstances of the DWI, prior DWIs or license revocations stemming from DWIs, the amount of time a person loses their driver’s license for can vary. Click Here to Read More.
- What is the Horizontal Gaze Nystagmus Test?
The Horizontal Gaze Nystagmus or HGN test is used by officers during an investigation for suspicion of driving while impaired (DWI) or driving under the influence (DUI). The officer will hold a flashlight behind his or her fingertip, pen tip, or penlight while instructing the suspect to follow the tip of their item while he or she moves it horizontally from left to right. Click Here to Read More.
- What is the Walk and Turn Test?
The Walk and Turn Test is a field sobriety test used by officers during an investigation for suspicion of driving while impaired (DWI) or driving under the influence (DUI). The officer should ask the suspect before conducting the test if he or she has any problems affecting their balance. Click Here to Read More.
- What is the One-Leg Stand Test?
The One-Leg Stand Test is a field sobriety test used by officers during an investigation for suspicion of driving while impaired (DWI) or driving under the influence (DUI). If you are pulled over, and an officer asks you to step out of the vehicle, they may put you through field sobriety testing.Click Here to Read More.
- What is a PBT (Preliminary Breath Test) in DWI Cases?
A PBT stands for Preliminary Breath Test in DWI cases. Some people call it a portable breath test. Minnesota statutes refer to it as a preliminary screening test. However you slice it, it means the same thing. It is a handheld device that cops use as part of their field sobriety testing in DWIs. Click Here to Read More.
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