Minnesota DUI Source Code Litigation Update — Final Order Issued

Judge Abrams has issued his final Order.  It is available at the following site:

http://mncourts.gov/Documents/0/Public/Court_Information_Office/source%20code/Order20.pdf

As you can see from Paragraph One of the Conclusion on page 116 (of 122 pages), the Court has ruled that the Intoxilyzer 5000EN machine is reliable for evidentiary purposes. Thus the Court ruled for the State. This order brings finality but not answers — in other words, we know that unless the order is reversed the claims within the firm’s cases of the unreliability of the Intoxilyzer 5000EN will be dismissed. But we don’t know whether there are appeal options or other grounds for reversal. And if it stands, we don’t know how soon the firm’s DUI cases is going to be rescheduled to address the other issues in the cases. I’m posting this to you now as its relevant to the firm’s cases but I can’t tell you when these cases will become active again.

More news as events warrant.

Minnesota DUI Source Code Litigation Update

Last Thursday, after 11 days of testimony, the attorneys for the State of Minnesota rested and the final hearing on source code concluded. Simultaneous written briefs are to be submitted to the judge by January 31st. The Judge will then have 90 days to issue a decision.

There is yet a motion pending in front of Judge Abrams to release the present restrictions on the unredacted version of the source code report. There is also a motion in Federal Court on January 19th to recover costs incurred by the Coalition of DUI Defense Attorneys, on behalf of their clients, when the Coalition’s experts had to return to Kentucky to review some portions of the code.

There is great pride to be held for the work of the Coalition’s intelligent and diligent trial team. Those who argued for the Coalition did an excellent job after countless hours of hard work.

Please contact me if you have any questions or would like more detail about what happened at the hearing.

Editorial on Spousal Maintenance Claims

A colleague of mine Dana McKenzie recently shared her thoughts about spousal maintenance in Minnesota divorces. I agree with her editorial and couldn’t analyze this issue better. If you have questions or concerns about your case please feel free to call or email me about it or address your queries to Dana at 651-222-6341. She wrote:

About 50% of my practice is advocate work and about 50% is neutral work.  Wearing each hat, I see one issue over and over—parties with what I would describe as “unrealistic” views as to their position regarding spousal maintenance.  I’m not making up any of these cases and they all had lawyers:

Case #1–Husband and Wife married 28 days before divorce filed.  (Yes—that’s DAYS, not years, months or weeks.)  Wife sought permanent spousal maintenance.

Case #2–Husband and Wife married over 25 years.  Wife is in her mid-50s.  Husband earns over $100,000 and Wife earns less than $35,000.  Husband advocates three years of spousal support.

Case #3–Then there are the tough “gap” cases:  One spouse earns over $100,000; other earns less than $30,000—ten to 18 year marriage.  “Needy Spouse” has an education and is in his/her mid-40s.  (I’ve seen many cases like this recently.  Certainly maintenance is a risk, but duration is often the issue and the case law is all over the board…)

The common factor in many of these cases is that a party had a very unrealistic view of  the possibility/risk of spousal support and the lawyer apparently had not fully educated the client on the risk or possibility of maintenance.  The tough thing about being a professional is telling people bad news—things they don’t want to hear.  Physicians have to do this, clergy has to do this, accountants have to do this and lawyers have to do this.  We’re not doing our jobs if we guarantee the wife with the 28 day marriage that she will get spousal maintenance or if we tell the spouse earning over $200K that he doesn’t have to worry about the possibility of permanent maintenance.  I won’t lie to you—it’s no fun to tell a high earner in a long term marriage that there is a possibility, even a strong possibility, of permanent maintenance. It’s not fun to tell someone who planned to be a homemaker that she will have to work to her capabilities and probably work full time.  It’s not fun to tell somewhat that their dream of being a personal trainer and earning $20,000 will probably not be found to be reasonable when the person worked as an accountant and earned $40,000 a few years ago.

The thing is that we owe our clients our best advice, and not just what they want to hear.  We have a duty to know what our clients want and to try to advocate a solution that will satisfy those wants, but not in the face of common sense or a huge body of law to the contrary.  I realize these are hard cases, especially those hard “gap“ cases with the “needy” spouse being under 50 and the marriage being under 15 years, but a huge earnings disparity.  No one can guarantee a result, but we do owe a duty to fairly and honestly discuss the risks the client facing in his or her position.  The last thing we should do is simply blindly agree with our clients without carefully educating the client on all the possibilities.  You can’t guarantee a Wife she will “never” have to work if she is 40 years old and has been absent from the job market for less than 10 years—the law probably won’t back up that position in many cases.

We don’t want to be facing a complaint because we didn’t fairly discuss the income disparity, the statutory presumption of a permanent label if there is uncertainty (with the ability to modify should circumstances change) and all the other relevant factors a court will have to consider.  (And, note—we also have to make it clear that maintenance laws are not gender specific.  Husbands can be awarded spousal support and Wifes can be ordered to pay.  I can’t tell you how often I see cases where, if you simply switched the gender of the parties, there is no doubt as to the outcome of the maintenance issue.  For some reason, there are a few folks who firmly believe that a husband will not be awarded maintenance by a court…)  The bottom line is that we owe our clients good advice, including the advice they really don’t want to hear.  You can say it gently, but you have to say it… End of Editorial.

Don’t go to court intoxicated.

Aside from the fact that I shouldn’t have to tell anyone this (it should be obvious), I shouldn’t have to state more about it. In no manner is this a good idea or to your advantage.

Maybe you don’t get noticed (hope that you don’t get noticed). Or if your intoxication doesn’t break the law (you had a ride to court) or any probation that you are on (were you ordered to remain sober?), if it does get noticed the procedural result will probably to reschedule the hearing; the court won’t allow you to address your legal rights, be it a family, civil, or criminal law matter, while you are impaired.

However, there are only a handful of acts that would give the opposing side greater leverage than you appearing for court intoxicated.  It will become a material issue in any family law case. In any criminal case it greatly weakens your attorney’s ability to present you a dignified defendant whom the prosecutor shouldn’t want to risk taking to trial. And overall it demonstrates such poor decision making that it will rejuvenate & sustain the determination of the opposing side to get what they want (a.k.a. denying you what you want).

Just to be clear, this applies to alcohol, non-prescription meds, all drugs including weed, and anything else that will get you high in a fashion that our culture deems morally culpable.

Lastly, a related note that is not often discussed is that if you are on prescription medication or otherwise emotionally frazzled such that either affects your ability to consider, argue for, and represent your legal rights with your attorney in a court of law you should tell her or him immediately. There are ways to ensure that you are fully present and ready to address such important issues.

Custody versus Parenting Time

Many people are going to read the title of this blog entry and wonder:  what do you mean custody versus parenting time?  I want both “custody” and “parenting time”.  I phrase it like this to point out the contradiction that parent-litigants face in the choice of the right words on the decree/paternity order versus more time with their children.

Legal custody can be assigned solely to either parent or jointly to both parents. It just encompasses with the authority to make decisions for the minor child.  It is often times does not receive much attention by parents as they prioritize physical custody.

Physical custody is defined by the Minnesota Legislature as the ‘routine daily care and control of the minor child’.  Some people subscribe to the belief that the distinction between the two (2) types of custody was just a chauvinistic attempt to give fathers greater rights.  The historical belief is that in the 1970′s and 1980’s the male dominated State Legislature had received enough complaints that mothers were always getting “custody” of the children.

To remedy the complaints the Legislature created two (2) types of custody:  legal and physical custody.  In doing so they gave a great definition to legal custody and they lazily assigned physical custody with this “routine and daily care and control” definition.  Contrary to the experience of every sole physical custody order that has been entered since then, certainly no one expects a mother with sole physical custody to be making sure that the children are brushing their teeth and going to bed on time and otherwise ‘caring’ for them when they are at their father’s house for a weekend.  As such the definition is counter intuitive.

Nevertheless getting physical custody is often times what divorcing parties are primarily concerned with.  Yet they often times do so to the neglect parenting time. Parenting time is the schedule that is set forth as to when the children should be spending time with each parent.  It is often times segmented by weekdays, weekends, holidays, summer breaks, and other key days (such as birthdays).

Two recent cases in the Minnesota Court Appeals demonstrates the counter intuitive nature of the custody designation.  One is a father who is appealing in the award sole physical custody to the mother even though he has 50% of the parenting time.  The second is a mother appealing the Court’s award of joint physical custody to both parents even though the father was only granted 10% of the overnights each month as parenting time. In this circumstance, the parties are disregarding the time they were awarded with their children in appealing the custody label ordered by the District Court.

There are some valid arguments that other attorneys have in regards to the legal effects of joint physical versus sole physical custody including but not limited to the factual grounds necessary to modify either one.  But there are reciprocally other arguments to suggest that their concerns are moot in light of the likelihood that the facts that require a modification of custody are going to require entirely a new parenting time schedule with it too.  Nevertheless the facts of each given case are going to govern whether or not sole physical custody is going to need to be sought.  Further it is for each client to sit down with their attorney to review the entire case and determine what legal rights are most important as it relates to their children’s best interests.

Mental Health and Criminal Defense

Being your criminal defense attorney has always required an astute understanding of psychology of mental health.  One of the reasons is that most clients who have been charged with a crime must have committed the offense intentionally.  For instance there is a distinction between an actual bar fight versus turning quickly to grab the drink off the bar behind you only to find someone standing there and that you just punched them in the face.  In the first instance there is a question culpability for assault (or possibly self-defense) and the second one is an accident.  But what if it is not a beer-grab but rather done in conjunction with a seizure?  Certainly it cannot be said to be intentional.  But what if it is not a seizure but rather a person who suffers from bi-polar disorder who is not medicated in a manic state?  In this hypothetical we have to look at all of the facts, including the client’s mental health, to be able to start deciphering between intentional acts versus a punch that was not intended to be thrown but never the less damn well looks like it was intentionally thrown.

Other mental illnesses also come into play.  Not only does one’s mindset affect intentionality but it can also be considered in the course of negotiating resolution.  An undiagnosed case of depression may result in your client lapsing in his compliance with the terms of his probation or remaining law abiding.  It doesn’t do my client any good if I am able to negotiate a stellar resolution if it is going to crumble the next time he has a schizophrenic episode or other mental health incident.

Lastly it is imperative that each of my clients be competent to be able to participate in their defense through the pre-trial phase and at trial.  If a criminal defense attorney does not recognize the difficulties the client is having in understanding and meaningfully participating in his own case, they are certainly not serving their client s well nor adhering to the ethical guidelines to which attorneys are subject.

As such all attorneys, and especially criminal attorneys, need to make sure that they have a feel for the mental health status of each of their clients.  Such concerns should be screened at any potential legal representation, and warnings given to the client subsequently so that any new developments that arise are brought to the attorney’s attention.   Certainly I know that in my firm these practices have not only allowed me to protect the clients’ interest but have also resulted in better results for our clients that have served them well in the long term.

Consider this family law dilemma:

Husband and wife separate at the same time they have their house foreclosed upon.  They continue to share the children with each spending equal time with the children. Though each parent has now moved into a home in a school district different that the children’s current district, the children are kept in the same school for the rest of that schoolyear.  By mid-summer the parties have established their own households with contacts with their extended family, significant others, with differing neighborhoods and in different school districts.  Even if they agree upon joint physical custody, which parent should be deemed to host the primary residence of the children for the sake of enrolling them in that parent’s school district?  Further remember that though the parties have been sharing the children they did get divorced for a reason, which includes poor communication and the inability to agree upon issues amicably.  It is cases like this one that I have been able to represent one of the parties and assistant them in not only attempting to find an agreeable resolution but also seeking a favorable Court Order from a judge that will serve my client and the client’s children’s interests.

Legal Work for Small Businesses, Part II

Another way I like to help small business is contract work.  Most business owners think about contracts as just the way that they make sure that they get paid for the services they provide.  But a contract can be much more than that.  Think about the last time you went to get your oil changed.  You may have chosen the location because they advertised $16.95 for an oil change.  But when all was said and done you may have ended up paying in over $100.  Why?  Because the contract that they put in front of you was also a menu.  You started thinking about synthetic oils and the oil filter and an air filter.  They got you thinking about tire rotation and balancing your tires.  They also may have offered you a chassis lube as well as other services.  So quite quickly you realize the value of their services and agree to pay them over a $100.  As a small business owner, that opportunity is often times available.  Whether the business provides a service or sells a product, the manner in which the contracts are put together can actually increase sales (as well as ensure payment).  If a business puts time and energy into the contracts it uses, shouldn’t that time and energy also make them money?

Legal Work for Small Businesses, Part I

I do a lot of work with small businesses.  At some point the life of a business, it gets from being a small operation with a tight budget to a growing operation.  Legally speaking this is where the business starts to get dangerous.  So long as an owner has a chance to keep tabs on everything that is happening, they usually have the foresight and spare attention to make sure that they don’t engage in any legal risks. 

 

But once they get busy and start getting help from others that is usually when they need to bring an attorney in.  The rationale for this is that legal errors can cost money and big errors will cost more than just the business’s money – the business owner’s legal risk isn’t limited to just his business accounts and asset but rather he can lose his home and personal assets as well.  It is not enough just to have filed an LLC or S-Corp with the Secretary of State.  But rather proper corporate books need to be put together, banking practices adhered to, and other routines need to become disciplined habits.  By continuing practice in such a manner a business can preserve what is called “a corporate veil” it will limits a company’s liability to just the business assets and protects business owners.  This in one of the primary ways I help small businesses as they prosper.

Difficult felony cases

As a criminal defense attorney one of the most important types of cases that come my way are felony charges with damning facts.  Here’s a story of a real case that I had, with identifying characteristics changed to protect the client’s confidentiality:  Police discovered in excess of two hundred marijuana plants, with the dry weight of twenty (20) pounds, in my client’s second home. Such amounted to felony possession of a controlled substance.

 

There were several issues for my client including the overriding concern that he knew nothing about the marijuana plants that were in this rental property.  There is always the question in any criminal defense case where illegal possessions are found within one’s property of whether the law enforcement had the legal grounds to enter the property.  Such facts bring about the constitutional issues under the Fourth and Fifth Amendment’s for the search and seizure of one’s personal property.  For this type of law enforcement conduct there must be probable cause and usually a search warrant.  Such was not much of an issue in this particular case as it was my client who consented to the initial search.  The background is that he was called to the property as the power company had identified that his property had been illegally wired and was drawing more electricity than was being registered by the power meter.  It was a concern between the public utility and law enforcement that such an illegal wiring may cause a fire hazard and they requested entry into the property to determine the level of risk.  As such my client (not knowing what was in the property), allowed law enforcement into the property where the marijuana growing operation was identified by the plants, grow lights, and fertilizers.  The property was sealed and promptly thereafter a search warrant was solicited from the signing judge and law enforcement re-entered the property.

 

The next issue was a question of possession.  Clearly my client owned the property but he was unaware of it’s contents. The fact that there was another legitimate owner it can arguably be said that he did not possess the marijuana.  In this particular case, proving that the marijuana was possession of another was major difficulty.  The client had rented the property based on an oral lease and it was clear from the search of the property that the renter was not using the property for any other purposes other than growing the marijuana as such the renter was never seen again as he never returned to the property.  The skepticism of the law enforcement immediately assumed that there was no renter and my client was the owner of the growing operation.  In conjunction with a number of other allegations by third parties, the County Attorney’s office decided to charge my client with the possession of the marijuana.

 

After exhaustive work with the file and much dialogue with the client and the County Attorney’s office, my client wasn’t willing to plead guilty to a crime he did not commit.  But I was able to secure for him the opportunity to resolve the matter without trial.  We estimated that my client would have been at risk of being found guilty at a jury trial.  As such my client was able to enter a plea of guilty based on not an admission of guilt but rather acknowledgement of likelihood that he would be found guilty at trial and his desire to take advantage of the State’s offer that would keep the felony off of his record after a period of probation and assured him no jail time.  Thus upon negotiating that resolution, my client avoided the felony charges without the risk of conviction at trial, without any jail time, and without admitting to a crime he did not commit.