Self-Defense and the Duty to Retreat in MN

Was the self-defense claim doomed in the  Clifford case when he failed to retreat  to avoid the conflict with Vander Lee? The  best defense  for Sgt. Clifford  would have been  to simply walk  away and put an end to  the conflict.  

Minnesota law  authorizes the use  of a reasonable amount of force to resist  "an offense against the person." See https://www.revisor.mn.gov/statutes/?id=609.06. The defense  has the burden at trial of coming forward with sufficient evidence to make self-defense an issue in the case. Once met, the burden  shifts to the prosecution to negate one of the following four elements of any self-defense claim: (1) an absence of aggression or provocation; (2) an actual and honest belief that imminent death or great bodily harm would result; (3) a reasonable basis existed for this belief; and (4) an absence of reasonable means to retreat or otherwise avoid the physical conflict.

 

A person can only assert a self-defense in an assault case   when  there is no alternative to the use of force. In other words, if Clifford had an opportunity to retreat from the confrontation  and failed to do so, the punch landed to the head of Vander Lee is not  considered self-defense. Did Clifford have the opportunity to retreat? It would seem so. The confrontation occurred in a public place with plenty of room to retreat. The victim was obviously intoxicated and   posed no real threat.  The defendant was a trained SWAT team leader with lightening quick  reflexes.  Sgt. Clifford could have easily taken one step backward and walked away the moment Vander Lee allegedly cocked his arm and readied his punch. The law always favors a peaceful resolution to conflicts over a  violent reaction. 

The Right To Refuse Probation in a Minnesota Criminal Case

Does a defendant  have the right to refuse probation? The answer is yes.   Often times the conditions of probation are more onerous to the defendant then serving out a jail or prison sentence. For example,  in a felony drug case a judge may sentence a defendant to 6 months in jail but decide to stay the execution of the jail sentence and place him on probation for  5 years. The judge has the authority to place conditions on the stayed jail sentence which could include random urinalysis, weekly meetings with a probation officer,  outpatient treatment, and   aftercare. A defendant may decide that he would rather serve six months in jail and compete his sentence rather than spending   5 years  fulfilling the conditions of his probation.

 

How do you execute a jail or prison  sentence in a Minnesota criminal case? You will need to retain an experienced Minnesota criminal defense attorney to enforce your right to refuse probation. The attorney will want to review your case file and advise you regarding  the advantages and disadvantages to executing the sentence. For example, the execution of the sentence could result in a permanent felony conviction rather than a misdemeanor conviction after the sucdessful completion of probation. You will need a criminal lawyer to schedule a hearing before the sentencing judge, argue the case, and  draft the appropriate motion, affidavit and proposed order.

 

If you are interested in exercising your right to refuse probation, call Minneapolis criminal defense attorney Robert J. Shane for a free phone consultation at (612) 339-1024 or visit his website for more criminal defense tips and techniques at www.criminallawyerminnesota.com. Attorney Shane has a winning record and has been defending the freedom of the accused for the past 30 years.

Marijuana in a Motor Vehicle Minnesota Law

What are the penalties in Minnesota for transporting marijuana in a motor vehicle? The answer depends on the weight of the marijuana and its location. If the police find a "small amount of marijuana" in the trunk of your car, the offense is only a petty misdemeanor subject to a fine of up to $300.00 and no jail time. A small amount of marijuana is defined as 42.5 grams or less. See https://www.revisor.mn.gov/statutes/?id=152.01. A petty misdemeanor offense is not considered a crime in Minnesota.

What if the police find marijuana in the passenger compartment of your car? The penalties will increase depending on the weight. If the police find 1.4 grams or less of marijuana in the passenger compartment, it's only a petty misdemeanor offense. See https://www.revisor.mn.gov/statutes/?id=152.027 If the weight of the marijuana is more than 1.4 grams but less than 42.6 grams, you can be charged with a more serious misdemeanor offense for possessing marijuana in a motor vehicle. The penalties for a misdemeanor conviction in Minnesota are a jail sentence of 0 and 90 days and/or a fine of up to $1,000.00.

What are the penalties if the marijuana found by the police weighs more than 42.5 grams? Again, the penalties increase because of the weight. You can now be charged with the felony level offense of controlled substance crime in the fifth degree. See https://www.revisor.mn.gov/statutes/?id=152.025. If the weight of the marijuana found by police exceeds 42.5 grams, the location of the marijuana in your car no longer matters.

The drug law in Minnesota does not punish you as harshly when marijuana is transported in the trunk of your car and weights less than 42.5 grams. In fact, it's not even a crime.

If the police find marijuana in your car, do you still have a defense? Yes, depending on the circumstances of your case. The stop of your car by the police may have been illegal. The search of your car by the police may have been illegal. You may be eligible for a drug diversion program. If you or someone you know has been charged with marijuana in a motor vehicle, you will need the "Best Defense." Call Minneapolis criminal defense attorney Robert J. Shane for a free phone consultation at (612) 339-1024 or read his blog for more tips and defenses at www.criminallawyerminnesota.com.

MN Law on the Use at Trial of Defendant's Prior Acts of Domestic Abuse

The prosecution is allowed to introduce into evidence at a criminal trial  prior acts of domestic abuse  committed by a defendant against a victim of domestic abuse or against any other family or household members. See https://www.revisor.mn.gov/statutes/?id=634.20. The statute has been interpreted to permit the prosecution to also introduce evidence of prior assaults committed by an accused against  former girlfriends. Evidence of similar conduct is admissible at trial unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The trial judge will weigh this issue.

The prosecution will typically file a pre-trial motion seeking permission from the court to introduce evidence at trial of similar conduct by the accused. The state will detail for the court at a motion hearing the anticipated testimony of the former victims of domestic abuse. If the prosecution wins on the motion to introduce  similar conduct evidence, the defense will need to request that the court instruct the jury prior to the admission of the evidence that the jury is not to convict the accused based on conduct that is not a part of the present charge. It may be advisable for the defense at this point to  stipulate to  the facts  regarding the prior assaults with limited details rather than have  the jury hear live testimony from the former victims with graphic details. 

If you or someone you know has been charged with domestic abuse or domestic strangulation, you will need an experienced criminal defense attorney to defend your freedom and reputation. Call Minneapolis criminal defense attorney Robert J. Shane for a free phone consultation at (612) 339-1024 or visit his website for more information at www.criminallawyerminnesota.com. Mr. Shane has 30 years of criminal defense experience and maintains a winning record.

Minnesota Law on Cell Phone Seizure without a Warrant

When can the police seize your cell phone without a warrant? This is a legitimate concern especially if  your cell phone contains incriminating information that can be used to prosecute you. The warrantless seizure of a cell phone is unreasonable under the Fourth Amendment unless the seizure falls within one of the recognized exceptions to the warrant requirement.

The first exception is called the plain view exception.  The police are permitted to seize a cell phone without a warrant if it is  in plain view and the police are legitimately  in a location to view the cell phone.  If, for example, the police come to your house with an arrest warrant and find your cell phone next to the bed where you are  found sleeping, the police  are legitimately in a location to view the cell phone, assuming the arrest warrant is valid.  Secondly, the police must have probable cause to believe that the cell phone contains incriminating evidence. The police usually rely on their prior investigation to develop probable cause for the seizure. For example, if the police have knowledge that the phone was used to send an incriminating text message to a co-defendant, probable cause for the seizure can be established. The rationale behind the plain view exception is to avoid the possible destruction of evidence that could take place if the police were required to obtain a search warrant before  seizing the phone.

The second exception to the search warrant requirement for the seizure of a cell phone is known as the search incident to  arrest.When a person is lawfully arrested, the police are authorized to search the person for evidence of a crime and to also search the area within the persons reach where he may grab a weapon or destroy evidence of a crime.  If your cell phone is found on your person or within your immediate area, the police are allowed to seize the phone without a warrant if they  believe it may contain evidence of a crime.

 

If you or someone you know has been charged with a crime, call Minneapolis criminal defense attorney Robert J. Shane for the "Best Defense." Mr. Shane has close to 30 years of criminal defense experience and a winning record. Call now at (612) 339-1024 or visit his website at www.criminallawyerminnesota.com.

Should I Snitch for the Police after a Minneapolis Drug Bust?

Snitching for the police has always been dangerous business. Police are very interested in climbing up the drug dealer food chain. They want to know who you bought your  drugs from and who else you may know that sells drugs. They want the big fish, not the small time dealer. Soon after your arrest, an investigator will come  see you at the jail and request an interview. Promises will be made about not charging out your drug case in exchange for your participation in a controlled buy of narcotics from your dealer. You may have to wear a wire and be given marked money. Promises of leniency at the time of sentencing may also be made to you. Think twice before you take the bait. Snitching is dangerous business. Your life could be placed at risk if the target learns that you snitched him out! You may even be called upon as a part of your cooperation agreement to testify against your drug dealer in court.

The decision to snitch should only be made after consulting with an experienced Minnesota criminal defense attorney. You may be eligible for a drug diversion program or for a "stay of adjudication"" resulting in no conviction. Why risk your life when the case could go away?

If you or someone you know has been arrested on a drug charge in Minnesota or Wisconsin, call criminal defense attorney Robert J. Shane to schedule a confidential office consultation at (612) 339-1024. Mr. Shane has a winning record with 29 years of criminal defense experience. Please visit his website for more information on snitching for the police at www.criminallawyerminnesota.com.

Do Police Have to Inform You About an Arrest Warrant?

No, the police are not required to inform a criminal suspect about the existence of an outstanding warrant for his or her arrest. Prosecutors will usually request an arrest warrant when charging out a more serious case like aggravated assault or first degree controlled substance crime where the suspect poses a serious threat to public safety, or in situations where the accused has a prior history of not responding to a summons to appear in court.

If you or someone you know has an outstanding warrant for their arrest, please advise them to retain an experienced Minneapolis criminal defense attorney before they are arrested. Attorney Robert J. Shane has 29 years of successful criminal defense experience. For the “Best Defense” call him now at (612) 339-1024 or visit his website for more information on outstanding arrest warrants at www.criminallawyerminnesota.com.

Can I Get a DWI While Parked in My Driveway?

Yes, this is what is called a physical control case. If you were under the influence of alcohol or tested above the legal limit, and in a position to start the engine and operate the vehicle, you can be charged and convicted of a DWI. It doesn't matter that you never intended to start the car and drive off down th street, it only matters under the law that you had the ability to do so. If you are in the driver's seat and the key is in the ignition,  you still have the ability endanger the public by driving under the influence of alcohol. The DWI laws are designed to favor protecting public safety at the expense of personal liberty.

What to Do When There is a Warrant for Your Arrest

When you first find out that a warrant has been issued for your arrest, you become scared and don't know what to do. The police have been coming over to your house or apartment, knocking on the door and asking questions. What steps should you take? The first step is to meet and retain an experienced Minnesota criminal defense attorney before you are arrested. You do not want to be arrested first and then have no lawyer present in court the next morning when you are marched in front of a judge in handcuffs wearing an orange jumpsuit. By meeting with the lawyer first, valuable information can be obtained from you to use in making a successful argument to the judge for a reduced bail or for your release without bail.

If you or someone you know has an outstanding arrest warrant, call criminal defense attorney Robert J. Shane at (612) 339-1024 for a free phone consultation or visit his website at www.criminallawyerminnesota.com for more information on criminal defense techniques and tactics.

Will I be Required to Submit to Drug Testing at My First Court Appearance?

If you have been charged with a controlled substance offense and are making your first court appearance, the judge may order as a condition of your release that there be no use or possession of drugs and that you submit to random drug testing. You would be required by probation to submit to random urinalysis to determine if there is a detectable amount of controlled substance in your system. If you have been consuming drugs prior to taking the initial urinalysis, do not be concerned. The order only prohibits the consumption of controlled substances subsequent to the date of the order. If your random urinalysis test is positive for marijuana, for example, a baseline number will be established for future reference. You will not be detained as a result of a positive test. If subsequent drug testing shows that the baseline number is increasing, instead of decreasing, the test result will indicate to a probation officer and to the court that you have been using drugs in violation of the conditional release order. The judge would then have the option of issuing a warrant for your arrest for violating a condition of your relase or of addressing the issue at your next court appearance.

If you are concerned about violating the no use condition, you have the option of requesting that the court set bail in an amount without any conditions attached. The bail amount will be set  higher than a conditional release bail, but would not require you to submit to random drug testing and also avoids the risk of violating a condition of your release.

If you or someone you know has been charged with a controlled substance crime, contact drug defense attorney Robert J. Shane for a free initial phone consultation at (612) 339-1024 or visit his website for more information and narcotics defenses at www.criminallawyerminnesota.com.