CAPLAN & TAMBURINO LAW FIRM: DEFENDING YOUR RIGHT TO BEAR ARMS IN MINNESOTA

Written by Peggy Ellis. Posted in Uncategorized

  1. RIGHT TO BEAR ARMS: A FUNDAMENTAL CONSTITUTIONAL RIGHT

“The Second Amendment to the United States Constitution protects the rights of law-abiding, responsible citizens to possess a handgun in the home for the purpose of self-defense, and is fully applicable to the State of Minnesota.”[1]

However, prior to the Supreme Court’s decision in McDonald v. City of Chicago[2] in 2010, it was unclear whether the Second Amendment Right to Bear Arms was a fundamental right that applied to the states.  In 2010 the Supreme Court took steps to protect this fundamental right and decided that “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and . . . individual self-defense is ‘the central component’ of the Second Amendment right”[3] meaning that “the right to keep and bear arms [is counted] among those fundamental rights necessary to our system of ordered liberty.”[4]

Furthermore, fundamental constitutional rights cannot be infringed upon by Minnesota laws without a compelling state interest[5] and the “standards of strict judicial scrutiny” are “reserved for cases involving laws that interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution.”[6]

Because the right to bear arms is a fundamental right protected by the U.S. Constitution which applies to the states through the Fourteenth Amendment[7], any Minnesota law that interferes with that right must “be necessary to achieve some compelling governmental purpose”[8] and “it must also be shown that the statute uses the least burdensome means of accomplishing its purpose.”[9] At any hearing or trial, the state bears the burden of proving this necessity which is “‘almost always insurmountable,’ and a statute will rarely survive the strict scrutiny test.”[10]

  1. LIMITATIONS ON THE RIGHT TO BEAR ARMS

Even with the recognition that the Right to Bear Arms is fundamental under the U.S. Constitution, some limitations do remain on that right.

  1. Prohibition On Those Convicted Of A Felony

The most common reason that we see for an individual to have their gun rights taken from them comes as a result of being convicted of a felony crime of violence.  The U.S. Supreme Court has upheld “‘prohibitions on the possession of firearms by felons”[11] and in Minnesota, an individual who has committed a crime of violence[12] will be deprived of the right to bear arms.[13]  These “felon-dispossession statutes . . . are presumptively lawful because [according to the Supreme Court] felons fall outside the scope of the Second Amendment’s protection.”[14]  Federal law also prohibits convicted felons from “possessing firearms, ammunition, or explosives.”[15]  And this ban will not allow the convicted person to legally “ship, transport, possess, or receive a firearm for the remainder of [his or her] lifetime.”

  1. Prohibition On Those Arrested For A Violent Crime

Furthermore, Minnesota law allows a judge to determine whether an individual arrested for a “violent crime”[16] must surrender all firearms as a condition of their release.[17]

Therefore, a judge may require that an arrested person “surrender to the local law enforcement agency all firearms, destructive devices, or dangerous weapons owned or possessed by the person, and may not live in a residence where others possess firearms”, even if that person has not yet been convicted of a crime.[18]

  1. Other Constitutional Limitations

Additionally, Minnesota may infringe upon the mentally ill’s right to bear arms, may pass “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”, and “‘laws imposing conditions and qualifications on the commercial sale of arms.’”[19]

III.             WHAT CAN BE DONE: RESTORATION OF THE RIGHT TO BEAR ARMS

The penalty for violating these statutes can be extremely severe and may include a $250,000 fine and 10 years imprisonment.[20]  Therefore, the lifetime ban should be respected and those persons subject to the ban should be very careful not to violate it.  However, that does not mean that there is nothing to be done.  Hope still exists for an individual who has been banned from possessing a gun for life.  In fact, in Minnesota, an individual who has been stripped of the right to own a gun may be able to have that right restored to them.[21]

A person who is prohibited from possessing a firearm because of a conviction for a crime of violence can petition the court for restoration of the right to possess a firearm.[22]  “The court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”[23]

The term “good cause” is defined as “a reason for taking an action that, in legal terms, is legally sufficient, and, in ordinary terms, is justified in the context of surrounding circumstances.”[24]  In deciding this issue, therefore, the court will weigh the balance of “public safety concerns … against the private interest of [the petitioner].”[25]  Factors such as the petitioner’s remorse and acceptance of guilt; the number of years since the conviction; the seriousness of the original felony conviction; personal and professional reasons for wanting/needing a gun; the petitioner’s record since the ban was imposed; and, most importantly, public safety concerns will all be considered in determining the restoration of an individual’s gun rights. Although this is not a simple or easy process, it may prove extremely beneficial, both professionally and personally, for someone who would like to seek the restoration of his or her gun rights.

The best way to fight against losing your right to bear arms is to hire a capable attorney such as those who can be found at Caplan & Tamburino to defend you against any charge for a felony or violent crime.  Call us at 612-341-4570 and visit our website at www.caplanlaw.com and let us help you protect your constitutional rights.

Additionally, if your right to possess a gun has been taken from you and you would like to have that right restored, call Caplan & Tamburino at 612-341-4570 today to speak to an attorney who knows the law and can apprise you of your rights.  Finally, if you believe your gun rights have been unconstitutionally infringed upon; contact Caplan & Tamburino so that we can defend your rights against illegal state and federal interference.

[1] State v. Craig, 826 N.W.2d 789, 790 (Minn. 2013).

[2] McDonald v. City of Chicago, 130 S.Ct. 3020, (2010).

[3] McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3036 (2010); citing Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2801-2802 (2008).

[4] McDonald at 3042.

[5] Granville v. Minneapolis Pub. Sch., Special Sch. Dist. No. 1, 668 N.W.2d 227, 233 (Minn. Ct. App. 2003).

[6] San Antonio Indep. Sch. Dist. v. Rodriguez, 93 S. Ct. 1278, 1281 (1973)

[7] McDonald v. City of Chicago, 130 S.Ct. 3020, (2010).

[8] Mitchell v. Steffen, 487 N.W. 2d 896, 903 (Minn. Ct. App. 1992) aff’d, 504 N.W.2d 198 (Minn. 1993); citing Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 904-06.

[9] Steffen at 903; citing Dunn v. Blumstein, 405 U.S. 330, 343 (1972).

[10] Steffen at 903; quoting Eddleman v. Center Township of Marion County, 723 F.Supp. 85, 90 n. 10 (S.D.Ind.1989).

[11] McDonald at 3047; citing Heller at 2816-2817.

[12] A crime of violence, as defined by Minnesota Statute §624.712, subdivision 5 (2010) means “felony convictions of the following offenses: sections 609.185 (murder in the first degree); 609.19 (murder in the second degree); 609.195 (murder in the third degree); 609.20 (manslaughter in the first degree); 609.205 (manslaughter in the second degree); 609.215 (aiding suicide and aiding attempted suicide); 609.221 (assault in the first degree); 609.222 (assault in the second degree); 609.223 (assault in the third degree); 609.2231 (assault in the fourth degree); 609.229 (crimes committed for the benefit of a gang); 609.235 (use of drugs to injure or facilitate crime); 609.24 (simple robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 609.255 (false imprisonment); 609.322 (solicitation, inducement, and promotion of prostitution; sex trafficking); 609.342 (criminal sexual conduct in the first degree); 609.343 (criminal sexual conduct in the second degree); 609.344 (criminal sexual conduct in the third degree); 609.345 (criminal sexual conduct in the fourth degree); 609.377 (malicious punishment of a child); 609.378 (neglect or endangerment of a child); 609.486 (commission of crime while wearing or possessing a bullet-resistant vest); 609.52 (involving theft of a firearm, theft involving the intentional taking or driving of a motor vehicle without the consent of the owner or authorized agent of the owner, theft involving the taking of property from a burning, abandoned, or vacant building, or from an area of destruction caused by civil disaster, riot, bombing, or the proximity of battle, and theft involving the theft of a controlled substance, an explosive, or an incendiary device); 609.561 (arson in the first degree); 609.562 (arson in the second degree); 609.582, subdivision 1, 2, or 3 (burglary in the first through third degrees); 609.66, subdivision 1e (drive-by shooting); 609.67 (unlawfully owning, possessing, operating a machine gun or short-barreled shotgun); 609. 71 (riot); 609.713 (terroristic threats); 609.749 (stalking); 609.855, subdivision 5 (shooting at a public transit vehicle or facility); and chapter 152 (drugs, controlled substances); and an attempt to commit any of these offenses.

[13] Minn. Stat. §609.165 Subd. 1.

[14] State v. Craig, 826 N.W.2d 789, 790 (Minn. 2013)

[15] 18 U.S.C. § 922[g][1-9].

[16] See nt. 12.

[17] Minn. Stat. § 629.715 subd. 2 (2006).

[18] Id.

[19] McDonald at 3047; citing Heller at 2816-2817.

[20] 18 U.S.C. § 922[g][1-9]

[21] Minn. Stat. § 609.02

[22] Id.

[23] State v. Roberts, 2012 WL 2368988 (Minn. Ct. App. 2012).

[24] Averbeck v. State, 791 N.W.2d 559, 560 (MInn. Ct. App. 2010).

[25] Id.

Minnesota DWI Laws and Your Fourth Amendment Rights

Written by Peggy Ellis. Posted in Uncategorized

The laws affecting those charged with a DWI in Minnesota are currently facing significant change.  In fact, the U.S. Supreme Court recently ruled on a decision that more effectively safeguards the rights of Minnesotans and U.S. Citizens to be free from illegal searches without a warrant.

The Supreme Court defines a breath, urine, or blood test as a search under the Fourth Amendment of the United States Constitution.[1] So, because of each individual’s interest in the security of their own person, a police officer must acquire a search warrant from a Judge before an intrusion into the body.

A few exceptions to this rule do exist and one of those arises when there is an emergency situation or an exigent circumstance.[2] For years Minnesota courts have ruled that the natural dissipation of alcohol from the body is enough of an emergency to allow officers to take breath, urine and blood tests without warrants.[3] However, in April 2013, the Supreme Court disagreed with Minnesota’s law in Missouri v. McNeely.[4]  In that case the court ruled that the natural dissipation of alcohol does NOT create a justification for bypassing a warrant when it comes to blood tests.[5]  Furthermore, because the Supreme Court treats blood tests the same as breath and urine tests[6], we now argue that the Supreme Court’s ruling must also apply to breath and urine tests and not blood testing alone.

 

These issues are currently being considered by the Minnesota Supreme Court in State of Minnesota v. Brooks.[7] Now, more than ever, you will need a top notch criminal defense attorney to navigate these complicated legal waters.

 

If ever you are stopped by the police, please call Caplan & Tamburino at 612-341-4570 prior to submitting to any form of testing. We will walk you through the process, inform you of your rights and make certain that you receive the Constitutional protection to which you are entitled.

[1] Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616, (1989); see also Schmerber v. California, 384 U.S. 757, 767-768 (1966).

[2] Missouri v. McNeely, 133 S.Ct. 1552 (2013).

[3]State v. Netland, 762 N.W.2d 202 (2009); see also Ellngson v. Com’r of Public Safety, 800 N.W.2d 805 (2011).

[4] Missouri v. McNeely, 133 S.Ct. 1552 (2013).

[5] Id.

[6] Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616, (1989); see also Schmerber v. California, 384 U.S. 757, 767-768 (1966).

[7] State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

Brooks, McNeely & Minnesota’s DWI Laws

Written by Peggy Ellis. Posted in Uncategorized

STATE OF MINNESOTA V. BROOKS: MINNESOTA’S DWI LAWS

Soon the Minnesota Supreme Court will hear arguments and make a ruling on a case called Minnesota v. Brooks. This case involves a man who was required to give a urine sample under Minnesota’s Implied Consent laws.  The facts are as follows:

At approximately 2:00 a.m. on July 31, 2009 police in Shakopee stopped a man named Wesley Brooks.  Because Brooks appeared intoxicated, the officer requested that he take a urine test to which Brooks consented. The test results showed a .14 alcohol concentration and an ensuing inventory search of Brooks’ car led to the discovery of a glass pipe and 5.1 grams of marijuana. Brooks was charged with first-degree DWI, possessing marijuana in a motor vehicle, possessing drug paraphernalia, driving after cancellation, and operating a vehicle without a valid driver’s license.[1]

Six months later Brooks was discovered by Prior Lake police sitting, unconscious in the driver’s seat of his vehicle while the engine was running, with the gear shift in drive and his foot resting on the brake pedal.  Police officers woke Brooks and he appeared intoxicated.  A urine test was again requested, Brooks consented and the test showed a .15 alcohol concentration. The police also found marijuana and a white powdery substance in his car.  Brooks was charged with first-degree DWI, fourth-degree assault of a peace officer (for flicking his urine at the police), possessing a controlled substance, possessing marijuana in a motor vehicle, possessing an open bottle of alcohol in a motor vehicle, and driving after license cancellation.[2]

Again in January 2010, Brooks was stopped by police and this time given a breathalyzer test.  He blew a .21 and was arrested for driving while impaired.  After being transported to the Hennepin County Medical Center, Brooks consented to and was given a blood test which revealed an alcohol concentration of .16.[3]

The police officers involved in these stops and tests never attempted to obtain search warrants because of Minnesota’s implied-consent law.[4]  Although individuals are protected by the Fourth Amendment from warrantless searches like the breath, urine and blood tests in this case, that protection can be waived by an individual’s consent.  Minnesota’s Implied-consent law provides that “any person who drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol.”[5]  Under this law, “refusal to take a test” is an additional, more serious crime.[6]

Furthermore, Minnesota courts have long held that breath, urine and blood tests without a warrant are justified by the single-factor exigency of the dissipation of alcohol.”[7] This means that Minnesota courts consider the natural dissipation of alcohol from the body to be an emergency circumstance which authorizes police to bypass the warrant requirement of the Fourth Amendment.

Based on this interpretation of the law, Minnesota Courts upheld Brooks’ alcohol content tests and found that he had voluntarily consented to waiver of his Fourth Amendment Rights under the implied-consent law.  Brooks then appealed to the U.S. Supreme Court.

STATE OF MISSOURI V. MCNEELY

CHANGING MINNESOTA’S DWI LAWS

In the meantime, a similar case called State of Missouri v. McNeely was considering by the U.S. Supreme Court.  The decision in that case significantly impacted Minnesota’s DWI laws, potentially impacting them even more in the near future.

In that case, Tyler McNeely was stopped by a Missouri police officer for speeding and crossing the centerline.  He was subsequently arrested and taken to a hospital by the police for a blood alcohol concentration test and he tested above the legal limit.  The officer in McNeely never attempted to obtain a warrant and McNeely moved to suppress the evidence of his blood test during his trial claiming that “taking his blood without a warrant violated his Fourth Amendment rights.”[8] His case made its way up to the U.S. Supreme Court and they agreed with his argument.

The court ruled that, “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”[9]  Although the Supreme Court only specifically cites to blood tests in McNeely, breath and urine tests are often treated similarly.[10]  McNeely directly overrules current Minnesota law and will require change in Minnesota.  How much change has not yet been determined.

BROOKS AND THE MINNESOTA SUPREME COURT

After the U.S. Supreme Court decided McNeely, instead of also deciding Brooks, the court remanded Brooks to be decided by the Minnesota Supreme Court in accordance with the new McNeely rule.  Currently, the Minnesota Supreme Court is considering the issue of whether McNeely applies to warrantless breath and urine tests as well as blood. If the court determines that it does, those tests that were taken without a warrant will likely be thrown out by the court resulting in better outcomes for those charged with DWIs in Minnesota. On behalf of our clients facing DWI charges we argue that McNeely does apply to all tests including breath, urine and blood and that warrantless testing constitutes a violation of our clients’ constitutional rights under the Fourth Amendment. These arguments offer our clients a more favorable bargaining position and an opportunity to defend their rights as U.S. citizens.

If you are facing a DWI charge or are stopped by the police, call us, Caplan & Tamburino at (612) 341-4570.   We will offer sound legal advice and an opportunity for you to guarantee that your constitutional rights are being protected.

[1] State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

[2] State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

[3] State v. Brooks, A11-1043, 2012 WL 1914073 (Minn. Ct. App. May 29, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

[4] Id.

[5] Minn. Stat § 169A.51, subd. 1(a).

[6] Id. at subd. 2(1)-(2).

[7] State v. Netland, 762 N.W.2d 202, 212 (Minn. 2009).

[8] Missouri v. McNeely, 133 S. Ct. 1552, 1554 (2013).

[9] Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013).

[10] Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989); see also Schmerber v. California, 384 U.S. 757, 767-768 (1966).

Legal Analysis of McNeely’s Retroactivity

Written by Peggy Ellis. Posted in Uncategorized

STATE OF MISSOURI V. MCNEELY’S RETROACTIVITY

One of the more pressing questions left to be decided in the wake of the U.S. Supreme Court’s decision in McNeely[1] is whether or not the McNeely decision will affect past and current convictions and cases.

This issue of whether or not McNeely will apply retroactively, must be addressed by applying the principles found in Teague v. Lane.[2] In that case the U.S. Supreme Court concluded that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.”[3]  In general, however, the courts recognize a “rule of nonretroactivity to cases pending on collateral review.”[4]  That is, “once a conviction or sentence becomes final, the defendant is not entitled to the retroactive benefit of a new rule, subject to two exceptions:”[5]

(1) “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and (2) “a new rule should be applied retroactively if it requires the observance of those procedures that are … implicit in the concept of ordered liberty.”[6]

 

A New Rule

For purposes of determining retroactive application, “[t]he first question under the Teague doctrine is whether [McNeely] announced a ‘new rule’.”[7]  The McNeely decision “constitutes a new rule within the meaning of Teague if it breaks new ground, imposes a new obligation on the States or the Federal Government, or was not dictated by precedent existing at the time the defendant’s conviction became final.”[8] This “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.”[9]

In Chambers v. State, the Minnesota Supreme Court considered whether a decision by the Supreme Court in Miller v Alabama[10] constituted a new rule.  The court in Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”[11] Although this decision was based on precedent, the Minnesota Supreme Court determined that the Miller rule should still be considered a “new rule” because “Miller was not ‘dictated by precedent’ when the [Defendant’s] conviction and sentence became final.”[12]  The court ruled that, “[t]he mere fact that a court says that its decision is within the logical compass of an earlier decision, or indeed that it is controlled by a prior decision, is not conclusive for purposes of deciding whether the current decision is a new rule.”[13]

Similarly, the issue determined by McNeely constitutes a “new rule” under the Teague analysis.  Although it can be argued that the McNeely decision is within the “logical compass of an earlier decision,”[14] that is not the most important consideration.  Instead, because McNeely was not “dictated” by an earlier decision, it breaks new ground and imposes a new obligation on the State to acquire warrants prior to performing blood tests and those arrested for a DWI and the McNeely rule constitutes a “new rule” for purposes of retroactivity analysis.

Direct or Collateral Review

The next determination that must be made under a Teague review of retroactivity is whether the case is coming before the court on direct or collateral review.

The U.S. Supreme Court ruled that, “[i]f the rule is considered ‘new,’ it must be applied to all cases pending on direct review-cases where the availability of direct appeal has not been exhausted and the time for a petition for certiorari has not elapsed.”[15]  Therefore, if the case has not received a final judgment, the court must apply the “new” McNeely rule and our retroactivity analysis is complete.

However, if the case is final and being reviewed collaterally, it “does not receive the benefit of a ‘new’ rule of constitutional criminal procedure.”[16]  This is because “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.”[17]  “Without finality, the criminal law is deprived of much of its deterrent effect.” [18] Therefore, a “new rule” will not be applied on collateral review unless the case falls within the scope of one of two possible exceptions:

(1) “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and (2) “a new rule should be applied retroactively if it requires the observance of those procedures that are … implicit in the concept of ordered liberty.”[19]

“When either of these exceptions applies, the new rule of constitutional criminal procedure must be given full retroactive effect, such that it is available to all defendants similarly situated, even though the defendant is seeking collateral review.”[20]

Exception (1) – Primary, Private, Individual Conduct

The first exception “applies whenever the new rule places certain specific conduct ‘beyond the power of the criminal law-making authority to proscribe’.”[21] And this exception is only at issue when the rule, “alter[s] the range of conduct or the class of persons that the law punishes.”[22]  If a “new rule” is substantive it will likely fall within this first exception but if the “new rule” is merely procedural it will not be applied to cases on collateral review.[23]  An example of a substantive rule which would be applied to all cases retroactively is one that “place[s] a certain class of individuals beyond the State’s power to punish by death.”[24]

McNeely established a new procedural rule requiring a warrant prior to a blood test. And because no substantive rule is at issue, this first exception will not apply to McNeely.

Exception (2) – Ordered Liberty

“The second exception, known as the ‘watershed rule’ exception, applies when the new rule ‘requires the observance of those procedures that are implicit in the concept of ordered liberty’ or ‘alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of any particular conviction’.”[25]  This is a difficult standard to meet and “rules qualifying under the second Teague exception as ‘watershed’ rules are extremely rare.”[26]  The U.S. Supreme Court has been careful to emphasize that “the watershed ‘exception is extremely narrow,’ and since its decision in Teague [1989] has ‘rejected every claim that a new rule satisfied the requirements for watershed status.’ ”[27]

“To be a watershed rule, the new rule must be one without which ‘the likelihood of an accurate conviction is seriously diminished’.”[28]  For example, “the right to jury trial” is “fundamental to our system of criminal procedure,” but it “does not impact the accuracy of an underlying determination of guilt or innocence.”[29] So, a new rule affecting the jury trial right is not a “watershed rule” and does not qualify for retroactive application under the second exception.[30]  In fact, the only case that has ever satisfied this standard is Gideon v. Wainwright[31] where the Court held that “counsel must be appointed for any indigent defendant charged with a felony.”[32]

The McNeely rule affects the procedures that officers must follow – obtain a warrant – prior to “allowing a law enforcement officer to ‘invade another’s body in search of evidence of guilt’.”[33] This rule directly affects the admissibility of evidence tending to prove that an individual was intoxicated at the time that he was operating a motor vehicle.  Evidence – blood, breath and urine – obtained without a warrant was previously accepted as admissible in Minnesota to show intoxication.  Under McNeely, however, without a warrant, this evidence should be thrown out which may lead to a dismissal of all charges in a particular case. Also, it would definitely tend to affect the accuracy of a conviction which may have been based upon unconstitutional evidence.

Also, the McNeely rule does not apply only to a subset of defendants such as juveniles.[34]  Instead, the new rule would require a warrant for all intoxication testing for all defendants resulting in a “fundamental and profound impact on criminal proceedings generally.” [35]

Where the McNeely rule may fall short of the second exception is that Supreme Court precedent has always favored the requirement that police officers obtain a warrant prior to conducting searches protected by the Fourth Amendment.[36]  McNeely more clearly defined the application of the exigency exception to the Fourth Amendment[37] but the McNeely rule did not “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”[38]

Therefore, the new rule announced in McNeely is “not a watershed rule,”[39] and does not fit within the second exception to the general rule that new rules are not applied retroactively to cases on collateral review.

CONCLUSION

The question of whether McNeely applies retroactively will have to be answered by Minnesota’s Supreme Court soon after their upcoming decision in State of Minnesota v. Brooks.[40]  The court will apply the Teague analysis and will likely find that the McNeely rule does constitute a “new rule” under the Teague definition.[41] Therefore, the court should determine that the McNeely rule does apply to cases on direct review that are not yet entirely final.

However, the court will also need to consider whether the McNeely rule applies on collateral review.  In general, a “new rule” is not applied on collateral review unless it falls within one of the two exceptions.[42]  Because the McNeely rule is procedural and not substantive, it cannot fulfill the first exception and because the McNeely rule does not alter the “bedrock procedural elements essential to the fairness of a proceeding” it cannot be considered a “watershed rule” and cannot fulfill the second exception. Therefore, the McNeely rule will likely not be applied retroactively on collateral review. Retroactivity of McNeely will likely only apply on direct review.

[1] Missouri v. McNeely, 133 S.Ct. 1552 (2013).

[2] Teague v. Lane, 489 U.S. 288 (1989).

[3] Chambers v. State, 831 N.W.2d 311, 323 (Minn. 2013); citing Teague v. Lane, 489 U.S. 288, 300-10 (1989).

[4] Id.

[5] Id.

[6] Id.

[7] Chambers v. State, 831 N.W.2d 311, 324 (Minn. 2013); citing Campos v. State, 816 N.W.2d 480, 488 (Minn. 2012).

[8] Chambers at 324 (Minn. 2013); citing Campos v. State at 489; see also Teague v. Lane, 489 U.S. 288 (1989).

[9] State v. Houston, 702 N.W.2d 268, 271 (Minn. 2005); citing Sawyer v. Smith, 497 U.S. 227, 234 (1990).

[10] Miller v Alabama, 132 S.Ct. 2455 (2012).

[11] Id. at 2469.

[12] Chambers v. State, at 326 (Minn. 2013).

[13] Id. at 325-26; citing Campos at 489 n. 7.

[14] Id.at 326.

[15] State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005); citing O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).

[16] Id.

[17] Teague v. Lane, 489 U.S. 288, 309 (1989).   

[18] Id.

[19] Chambers v. State, at 326 (Minn. 2013); see Mackey v. United States, 401 U.S. 667, 692.

[20] Teague at 311.

[21] Houston at 270-71; citing Teague at 311.

[22] Chambers at 326; citing Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004).

[23] Chambers at 326.

[24] Chambers at 326; Atkins v. Virginia, 536 U.S. 304 (2002).

[25] Houston at 270-71; citing Teague at 311.

[26] Tyler v. Cain, 533 U.S. 656 (2001).

[27] Chambers v. State at 330; quoting Campos v.State, 816 N.W.2d 480, 497 (2012); quoting Whorton v. Bockting, 549 U.S. 406, 417-18 (2007).

[28] Houston at 273; citing Teague at 313.

[29] Houston at 273.

[30] Id. at 273-74.

[31] Gideon v. Wainright, 372 U.S. 335(1963).

[32]Whorton v. Bocktin, 549 U.S.  at 419.

[33] McNeely at 1558; quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948).

[34] Chambers at 330.

[35] Chambers at 330; quoting Campos at 499.

[36] Schmerber v. State, 384 U.S. 757, 758 (1966).

[37] McNeely at 1552.

[38] Whorton, 549 U.S. at 420.

[39] Chambers at 331.

[40] State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013); and State v. Brooks, A11-1043, 2012 WL 1914073 (Minn. Ct. App. May 29, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

[41] Teague v. Lane, 489 U.S. 288 (1989).

[42] Id.

RECENT SUPREME COURT CASE MAY ERASE PAST DWI OFFENSES

Written by Peggy Ellis. Posted in Uncategorized

A recent Supreme Court case called Missouri v. McNeely is having a significant effect on DWI laws in Minnesota.  As a result, a lawyer at Caplan and Tamburino may be able to keep you from being convicted on your recent DWI or even get a DWI conviction from the past removed from your record.  If you’ve had a recent or past DWI, please call us at 612-341-4570 and meet with a lawyer today to see if we can help you.

The new McNeely rule requires that each police officer must acquire a warrant before administering a breath, blood or urine test to discover someone’s blood alcohol content during a DWI stop.  If the officer who took your DWI test did not get a warrant, then we may be able to help you get your DWI thrown out of court or removed from your record.

In general, the courts do NOT allow new rules to be applied to cases that have had a final judgment.[1]  However, the U.S. Supreme Court decided that a new rule for criminal prosecutions should be applied to all cases that are not yet final.[2]  This means that if you still have the right to appeal your DWI conviction, you will likely be able to benefit from the new McNeely rule.

Also, if your case is final and you have exhausted all of your appeals then you may still be able to receive the benefit of the new rule if the Minnesota Supreme Court determines that the McNeely case fits into one of two exceptions.

The first exception is only at issue when the rule is considered to be “substantive”.[3]  The new McNeely rule, however, is not substantive.  Therefore, this exception likely will not apply.

However, the second exception may apply to the new McNeely rule which would mean that we could obtain reversals on DWI convictions that are very old.  And there are strong arguments for determining that the McNeely rule should be applied to old cases.

CONCLUSION

The question of whether McNeely applies retroactively will have to be answered by Minnesota’s Supreme Court soon after their upcoming decision in State of Minnesota v. Brooks.[4]  The court will apply the Teague analysis and will likely find that the McNeely rule does constitute a “new rule” under the Teague definition.[5] This means that the court should determine that the McNeely rule does apply to cases that are not final.

However, the court will also need to consider whether the McNeely rule applies to finalized cases.  In general, a “new rule” is not applied to finalized cases unless it falls within one of the two exceptions.[6]  Because the McNeely rule is procedural and not substantive, it cannot fulfill the first exception but justifiable arguments do exist to say that the McNeely rule fulfills the second exception. Therefore, the McNeely rule will likely be applied retroactively to cases that are not yet final and may also apply to cases that have already been finalized. Call Us 24/7 at 612-341-4570!

[1] Id.

[2] Chambers v. State, 831 N.W.2d 311, 323 (Minn. 2013); citing Teague v. Lane, 489 U.S. 288, 300-10 (1989).

[3] Chambers at 326.

[4] State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013); and State v. Brooks, A11-1043, 2012 WL 1914073 (Minn. Ct. App. May 29, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

[5] Teague v. Lane, 489 U.S. 288 (1989).

[6] Id.

MINNESOTA DWI LAW UPDATES: MINNESOTA V. BROOKS ORAL ARGUMENT

Written by Peggy Ellis. Posted in Uncategorized

INTRODUCTION

In earlier posts we have mentioned the case of Minnesota v. Brooks which involves a man who was required to give a urine sample under Minnesota’s Implied Consent laws without a warrant.[1]

This case is important because it is the first DWI case being considered by the Minnesota Supreme Court since the announcement of the United States Supreme Court’s decision in State of Missouri v. McNeely. [2] In McNeely, the U.S. Supreme Court ruled that, “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Although the Supreme Court only specifically cites to blood tests in McNeely, breath and urine tests are often treated similarly[3] and McNeely directly overrules current Minnesota law and will require change in Minnesota when it comes to whether the police may force drivers to submit to blood, breath and urine tests without a warrant.

This case is of great significance to those charged with DWIs in Minnesota.  For this reason, we at Caplan & Tamburino are following the updates in Minnesota v. Brooks with great care and concern for the well-being of our clients. If you or someone you know has been charged with a DWI, call us at Caplan & Tamburino at 612-341-4570 so that we can inform you of your constitutional rights and make certain that those rights are vigorously defended.

Here is the most recent update on Minnesota v. Brooks: On September 11, 2013, the Minnesota Supreme listened to the oral arguments of three attorneys on this case.  Caplan & Tamburino sent a representative to the oral arguments in order to stay on top of the changes in the law so that we may best serve our clients who are facing DWI charges.

Jeffrey Sheridan represented Mr. Brooks, Michael Richardson represented Hennepin County, and Todd Zettler represented Scott County.  What follows are some of the highlights from the argument but the entire oral argument can be viewed here: http://www.tpt.org/courts/

  1. SHERIDAN’S ARGUMENT IN FAVOR OF REQUIRING A WARRANT

PRIOR TO BLOOD, URINE & BREATH TESTING

The theme of Mr. Sheridan’s argument was that the general rule is and should be that a warrant must be issued prior to a lawful search. It is only after that first law is recognized that possible exceptions may be considered to that rule, none of which apply in Brooks.

  1. Search Incident to Arrest

It seemed that the Supreme Court Justices agreed that under the search incident to arrest exception, there exist only two possible reasons for its application: (1) for officer safety, or (2) to preserve evidence.  They also seemed to agree that, in this case, officer safety is not applicable.  Mr. Sheridan argued that the second exception should not apply to allow officers to take blood, breath or urine without a warrant in order to preserve evidence.  He argued that this is true because the individual does not have the ability to destroy the evidence himself and because the Supreme Court determined in McNeely that the dissipation of someone’s blood alcohol content does not create such an exigent circumstance. Finally, citing the combination of Gant[4] and McNeely[5], Mr. Sheridan argued that the landscape had been changed as far as the search incident to arrest is concerned – making evidence that is only destroyed by the passage of time such that it cannot be considered an exigent circumstance.

  1. Implied Consent Law

A number of questions were asked to all three attorneys regarding Minnesota’s Implied Consent Law which currently criminalizes a refusal to submit to a breath, blood or urine test.  One of the Justices presented this hypothetical to Mr. Sheridan: If Minnesota law said that the only penalty for refusing a test was a civil one and that refusal was not actually a crime, would that be constitutional?  He responded that, yes, such a change would likely resolve the issue but that as it stands now, the implied consent law takes away choice altogether and is unconstitutional. Mr. Sheridan further argued that even without implied consent, plenty of tools exist for law enforcement to fight DWIs and encourage people to submit to testing without government coercion.

III.             Good Faith Exception

Next the Justices segued into asking questions about the good faith exception and whether the Minnesota Supreme Court is bound to adopt the rules in Davis[6] and Leon[7] which would require that searches conducted in objectively reasonable reliance on binding appellate precedent would not be subject to the exclusionary rule. That is, that evidence taken without a warrant would still be allowed in court because the police were acting in good faith and believed they were acting in accordance with the law at the time.

Mr. Sheridan argued that the court could adopt Davis and a good faith exception but that the history of the Minnesota Supreme Court would suggest that that is not the direction the court should go.  Furthermore, he argued that the court is not bound to adopt the rule in Davis because the US Supreme Court sets the minimum protections but Minnesota may grant even greater protection and Minnesota policy makers have made clear that the remedy for search and seizure violations must be the suppression of the evidence.

Finally, Mr. Sheridan argued that in Minnesota, we believe that there should be greater protections for the privacy of citizens and that that is the basis for the suppression rule.  Herewe are protected not only by the U.S. Constitution but by the even stricter requirements of the Minnesota Constitution as well.

  1. MICHAEL RICHARDSON’S ARGUMENT

Mr. Richardson began his argument stating that, unlike what Mr. Sheridan argued, there is not a categorical disapproval of anything in the McNeely decision other than requiring a warrant during routine traffic stops. One Justice immediately interrupted him and quoted the following from McNeely: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”[8]  The same Justice stated that that seemed like a categorical disapproval to him.

Mr. Richardson disagreed arguing that it is better to have blood or urine tests taken within the first two hours of an arrest. Also, because neither time nor dissipation of blood alcohol content stop to wait for a warrant, the risk of evidence being destroyed is too great and police must be allowed to pursue testing without a warrant.  The same Justice responded saying that it seemed like Mr. Richardson would like to just change the word “mandates” into “encourages” within the quote he had just read from McNeely and the Justice asked how Mr. Richardson could reconcile such an interpretation.

Richardson then cited to another portion of the McNeely opinion which reads, “the fact that a particular drunk-driving stop is ‘routine’ in the sense that it does not involve ‘special facts,’ . . . does not mean a warrant is required.”[9] The Justice still seemed to disagree responding that it seems to him that the only way that an officer could avoid getting a warrant would be if he did not have time to do so.

  1. Implied Consent Law

When another Justice brought up implied consent, Mr. Richardson argued that there was actual consent in the Brooks case.  In McNeely the defendant was coerced and held down in order to have his blood extracted but in Brooks, the defendant allowed it and no coercion was used.

A Justice then asked if a case named Bumper[10] is dispositive on the consent issue. Mr. Richardson argued that it is not because calling the issue consent is misleading.  He argued that what we are actually dealing with is the question of whether the defendant submitted or refused to submit because consent has already been given when the person decides to drive.  Essentially, Mr. Richardson argued that because Minnesota’s statute does not authorize outright coercion, it is outside of the McNeely decision.

  1. Good Faith Exception

Richardson also argued that, yes, the court should adopt a good faith exception and not suppress evidence because the officers were simply following the understood state law to the best of their ability.

  1. TODD ZETTLER’S ARGUMENT
  2. Search Incident to Arrest

During Mr. Zettler’s argument, another Justice brought up the issue of search incident to arrest.  Mr. Zettler argued that blood draws can be distinguished from other types of testing as an intrusion into the body. For that reason, he admitted, blood draws require a warrant while urine and breath tests should not. The Justice disagreed with him stating that the Supreme Court jurisprudence seems to put urine into the category of an intrusion with blood even if breath is not. Mr. Zettler argued that these searches are reasonable because of the decreased privacy interest in one’s own urine or breath. Then the Justice asked whether the court has ever allowed a search incident to arrest which involved an intrusion into the body and Mr. Zettler responded that he did not know of any such case.

Coming back to this issue later, another Justice asked if, with respect to an arrest made for sexual assault, the state should be allowed to take a buccal swab from an arrestee without a warrant.  Mr. Zettler responded that a buccal swab does constitute an intrusion so it is different than a breath or urine test. The same Justice asked Mr. Zettler to please explain how urine and breath tests are any different from buccal swabs but Mr. Zettler simply responded that they are different because one is an intrusion and the others are not.  He never distinguished what defines the one as an intrusion.

Mr. Zettler also argued that time and the dissipation of blood alcohol content are important factors to be considered in allowing an officer to proceed to take a blood, urine and breath test without a warrant.

Finally, a Justice asked whether Mr. Zettler thinks an officer ever needs a warrant to take a test when there is an arrest. He responded that, for a blood test, police do need a warrant but for a breath or urine test, his argument is that police should not ever need one. Mr. Zettler concluded by explaining that there is a lot of caution and uncertainty about what to do among police officers and that some jurisdictions have stopped using the implied consent law altogether as they are awaiting guidance from the Minnesota Supreme Court.

  1. SHERIDAN’S REBUTTAL

Mr. Sheridan opened his rebuttal arguing that this case does fall under Article I Sec. 10 of the Minnesota Constitution which entitles Minnesotans to even greater protections than those found within the Fourth Amendment.

When a Justice asked whether the implied consent law would be constitutional if it simply stated that: If you drive, you agree that the state can take your blood, breath or urine.  Mr. Sheridan responded that, yes, that language would be constitutional but because Minnesota’s statute criminalizes refusal, that is unconstitutional.  He cited a case called Henning[11] and explained that you cannot condition giving someone a driver’s license on that person giving up their constitutional rights.

Finally, Mr. Sheridan concluded stating that DWI cases are not special and do not allow the state to set aside the rules that would apply to any other criminal investigations.  The Fourth Amendment was not adopted as a convenience to law enforcement.  Instead, its purpose is to place a referee within the game of solving crime.  The first rule, he argued, is that the police must get a warrant prior to a search.

CONCLUSION

It is impossible to predict how the Justices will rule based upon their questions or tone during the oral arguments.  However, this case is of great significance to those charged with DWIs in Minnesota.  For this reason, we at Caplan & Tamburino will continue to follow the updates in  Minnesota v. Brooks with great care and concern for the well-being of our clients.

If you or someone you know has been charged with a DWI, make certain that you hire an attorney who is capable of raising all of the arguments necessary to protect your constitutional rights and reach the best outcome for your case.  This specific type of attorney is in limited supply.  Please call us at Caplan & Tamburino at 612-341-4570 so that we can inform you of your constitutional rights and make sure that those rights are appropriately defended.

[1] State v. Brooks, A11-1042, 2012 WL 1570064 (Minn. Ct. App. May 7, 2012), review denied (July 17, 2012), cert. granted, judgment vacated, 133 S. Ct. 1996 (U.S. 2013)

[2] Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013).

[3] Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989); see also Schmerber v. California, 384 U.S. 757, 767-768 (1966).

[4] Arizona v. Gant, 556 U.S. 332 (2009).

[5] Missouri v. McNeely, 133 S. Ct. 1552, 1554 (2013).

[6] Davis v. U.S., 131 S.Ct. 2419 (2011).

[7] U.S. v. Leon, 468 U.S. 897 (1984).

[8] Missouri v. McNeely, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013)

[9] Missouri v. McNeely, 133 S. Ct. 1552, 1568, 185 L. Ed. 2d 696 (2013)

[10] Bumper v. North Carolina, 391 U.S. 543 (1968).

[11] State v. Henning, 666 N.W.2d 379 (Minn. 2003).

EXPUNGEMENT LAW IN MINNESOTA

Written by Peggy Ellis. Posted in Uncategorized

At Caplan & Tamburino we are consistently asked whether an individual has a right to seal their criminal records after a period of good behavior following a conviction.  We handle hundreds of expungement cases each year and advocate fiercely on behalf of our clients.

Expunging your criminal record can be a significant benefit to your life and may aid you in career advancement, admission to college and other academic programs, securing affordable housing and loans, and may also affect various other aspects of your life. To speak with a knowledgeable attorney about expunging your criminal record, call us today at 612-341-4570.

EXPUNGEMENT

Expungement is a complicated and evolving area of the law with updates as recent as May, 2013.  Essentially, “There are two bases for expungement of criminal records in Minnesota: Minn. Stat. § 609A and the judiciary’s inherent authority.” State v. M.D.T., 831 N.W.2d 276, 279 (Minn.2013); citing  State v. S.L.H., 755 N.W.2d 271, 274 (Minn.2008).

  1. Statutory Expungement

Statutory basis expungement of criminal records is governed by Minn.Stat. § 609A.  “In this chapter, the Legislature identified the specific circumstances where a court may expunge criminal records held in the executive branch.”  State v. M.D.T, 831 N.W.2d at 282. These circumstances include:

certain controlled substance crimes, Minn.Stat. § 609A.02, subd. 1, certain juvenile offenders prosecuted as adults, Minn.Stat. § 609A.02, subd. 2, and certain criminal cases that do not result in convictions, Minn.Stat. § 609A.02, subd. 3.

State v. M.D.T., 831 N.W.2d 276, 282 (Minn. 2013).

If the offense you hope to expunge falls within one of these categories, you have a statutory right to an expungement and Caplan & Tamburino will assist you in pursuing and protecting your rights.

  1. Inherent Authority Expungement

The inherent power of the judiciary is the other means by which a court may expunge criminal records, and the judiciary is given much more discretion to expunge criminal records under this authority.

Inherent authority “governs that which is essential to the existence, dignity, and function of a court because it is a court,” In re Clerk of Lyon County Courts’ Comp., 308 Minn. 172, 176 (1976), and the authority derives from the Minnesota State Constitution.  Minn. Const. art. VI, § 1; see also State v. M.D.T. 831 N.W.2d at 280.  “In the area of expungement, [the court has] held that the judiciary may use its inherent authority to expunge criminal records where ‘the petitioner’s constitutional rights may be seriously infringed by retention of his records,’ ” M.D.T. at 280; citing In re R.L.F., 256 N.W.2d 803, 808 (Minn.1977); or when “expungement is necessary to ‘the performance of judicial functions.’ ” M.D.T. at 281; quoting Barlow v. Comm’r of Pub. Safety, 365 N.W.2d 232, 234 (Minn.1985).

  1. Infringement of Constitutional Rights

The first situation where the judiciary may use its inherent authority to expunge criminal records arises when “the petitioner’s constitutional rights may be seriously infringed by retention of his records.” M.D.T. at 280; quoting In re R.L.F., 256 N.W.2d 803, 808 (Minn. 1977).

Inherent authority in this circumstance extends to the expungement of records within the executive branch whenever constitutional rights are at stake, see State v. S.L.H., 755 N.W.2d 271, 274 (Minn.2008).  As of yet, such a circumstance has not occurred in Minnesota.

  1. Necessary to the Performance of Judicial Functions

The Judiciary’s inherent authority also extends to expungement of criminal records in cases where expungement “is necessary to ‘the performance of judicial functions.’” M.D.T. 831 N.W.2d at 281; quoting Barlow v. Comm’r of Pub. Safety, 365 N.W.2d 232, 234 (Minn.1985) (quoting State v. C.A., 304 N.W.2d 353, 358 (Minn.1981)).

One of inherent authority’s limitations when exercised as a judicial function, however, is it only extends to expungement of criminal records held by the judicial branch.  The Minnesota Supreme Court has “never held that the judiciary’s inherent authority to order expungement extends to records held in the executive branch.” M.D.T. at 281; citing State v. S.L.H., 755 N.W.2d at 280; Ambaye, 616 N.W.2d at 261; In re Quinn, 517 N.W.2d 895, 900 (1994); Barlow, 365 N.W.2d at 234–35.  This is because “the authority the judiciary has to control its own records does not give the judiciary inherent authority to reach into the executive branch to control what the executive branch does with records held in that branch, even when those records were created in the judiciary.” State v. M.D.T., 831 N.W.2d 276, 282 (Minn. 2013).  These separation of powers concerns require that the judiciary “‘respect the equally unique authority of’ another branch of government.” M.D.T. at 282; quoting  C.A., 304 N.W.2d at 359.  Moreover, the legislature has specified circumstances where a court may expunge criminal records held in the executive branch. The judiciary may not, therefore, use its inherent power to expand those circumstances without infringing on the co-equal authority of the executive and legislative branches. M.D.T. at 282; see also Minn. Stat. § 609A.02, subd. 1, 2 and 3.

In State v. C.A., 304 N.W2d 353 (Minn.1981), the court concluded that inherent authority applies to the expungement of criminal records held in the judiciary when the expungement is serving a “unique judicial function.” C.A. 304 N.W.2d at 358.  “The unique judicial function at issue in [the court’s] discussion in C.A. was the judiciary’s ability to remedy the unfairness to C.A. from the accessibility of his criminal records even after his conviction had been set aside.” M.D.T. at 281; citing C.A. at 358.  “In the context of a conviction having been set aside, expungement of the petitioner’s records held outside the judiciary could be viewed as ‘closely tied to the core judicial function of granting full relief … to the petitioner.’ ” Id.  Where an unfairness issue such as the setting aside of a conviction does not exist, a court exceeds its inherent authority by expunging criminal records. M.D.T. at 281.

When a “unique judicial function” is at stake, the court will move the analysis to a balancing test which requires “the court [to] decide whether expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order.” M.D.T. at 283-84; quoting C.A. at 358.  Specifically, the court must consider:

(a) the extent that a petitioner has demonstrated difficulties in securing employment or housing as a result of the records sought to be expunged; (b) the seriousness and nature of the offense; (c) the potential risk that the petitioner poses and how this affects the public’s right to access the records; (d) any additional offenses or rehabilitative efforts since the offense[;] and (e) other objective evidence of hardship under the circumstances.

State v. H.A., 716 N.W.2d 360 (Minn. App. 2006).

CONCLUSION

Having successfully sought hundreds of expungements on behalf of our clients, the attorneys at Caplan & Tamburino will work closely with you to make the most appropriate and effective arguments to persuade the court to expunge your criminal records so you can move on from past mistakes.  Please call us today at 612-341-4570 so we can begin working on your much-needed expungement.

MOVING ON FROM PAST MISTAKES: EXPUNGE YOUR CRIMINAL RECORDS

Written by Peggy Ellis. Posted in Uncategorized

At Caplan & Tamburino we are consistently asked whether an individual has a right to seal their criminal records after a period of good behavior following a conviction.  We handle hundreds of these expungement cases each year and advocate fiercely on behalf of our clients. To speak with a knowledgeable attorney about expunging your criminal record, call us today at 612-341-4570.

People who have made a grievous error with the law can pay for 15-20 years or even longer because of the existence of a criminal record that is public information.  Therefore, not only can the public access your criminal record, but so can housing and loan officers, admissions offices, potential employers and friends and family.  The existence of a negative issue on your record can lead to any number of embarrassing or difficult situations which could all possibly be avoided by having that record sealed or expunged by a court. Further, expunging your criminal record can be a significant benefit to your life and could aid in your career advancement, admission to college or other academic program, securing affordable housing and/or loans, and may also affect various other aspects of your life.

Expungement is a complicated and evolving area of the law with updates as recent as May, 2013.[1]  Essentially, two categories of expungement exist.  One is called statutory expungement which includes certain controlled substance crimes, certain juvenile offenders prosecuted as adults, and certain criminal cases that do not result in convictions.[2]

The other type of expungement is called inherent authority expungement and it involves all other crimes.[3] While this expungement can seal up only judicial records, it may be accompanied by a court order that reads: “This order restores the petitioner to the status occupied before the arrest.  The petitioner will not be guilty of perjury for failure to acknowledge the arrest or proceeding in response to any inquiry made for any purpose.”  For this type of expungement an attorney from Caplan & Tamburino will argue that because of hardship and rehabilitation your criminal record should be sealed.  The court then considers the following factors in deciding whether your criminal records will be sealed:

(a) the extent that a petitioner has demonstrated difficulties in securing employment or housing as a result of the records sought to be expunged; (b) the seriousness and nature of the offense; (c) the potential risk that the petitioner poses and how this affects the public’s right to access the records; (d) any additional offenses or rehabilitative efforts since the offense[;] and (e) other objective evidence of hardship under the circumstances.[4]

Having successfully sought hundreds of expungements on behalf of our clients, the attorneys at Caplan & Tamburino will work closely with you to make the most appropriate and  effective arguments to persuade the court to expunge your criminal records so that you can move on from past mistakes.  Please call us today at 612-341-4570 so that we can begin working on your much needed expungement.

[1] See State v. M.D.T., 831 N.W.2d 276 (Minn.2013).

[2] Minn.Stat. § 609A.02, subd. 1-3

[3] M.D.T. at 279.

[4] State v. C.A., 716 N.W.2d 360 (Minn. App. 2006).

PROTECT YOUR GUN RIGHTS

Written by Peggy Ellis. Posted in Uncategorized

“The Second Amendment to the United States Constitution protects the rights of law-abiding, responsible citizens to possess a handgun in the home for the purpose of self-defense, and is fully applicable to the State of Minnesota.”[1]

However, even with the recognition that the Right to Bear Arms is fundamental under the U.S. Constitution, some limitations can be placed on that right by the government.

The most common reason that we see for an individual to have their gun rights taken from them comes as a result of being convicted of a felony crime of violence. Furthermore, Minnesota law allows a judge to determine whether an individual arrested for a “violent crime”[2] must surrender all firearms as a condition of their release.[3] Additionally, Minnesota may infringe upon the mentally ill’s right to bear arms, may pass “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”, and “‘laws imposing conditions and qualifications on the commercial sale of arms.’”[4]

The penalty for violating these statutes can be extremely severe and may include a $250,000 fine and 10 years imprisonment.[5] However, a person who is prohibited from possessing a firearm because of a conviction for a crime of violence can petition the court for restoration of the right to possess a firearm.[6]

The best way to fight against losing your right to bear arms or have your gun rights restored is to hire a capable attorney from Caplan & Tamburino to aggressively defend your constitutional rights. Call us at 612-341-4570 and visit our website at www.caplanlaw.com and let us help you protect your constitutional rights.

Call Caplan & Tamburino at 612-341-4570 today to speak to an attorney who knows the law and can inform you of your rights. If you believe your gun rights have been unconstitutionally infringed upon; contact Caplan & Tamburino so that we can defend you against illegal state and federal interference.

[1] State v. Craig, 826 N.W.2d 789, 790 (Minn. 2013).

[2] See nt. 12.

[3] Minn. Stat. § 629.715 subd. 2 (2006).

[4] McDonald at 3047; citing Heller at 2816-2817.

[5] 18 U.S.C. § 922[g][1-9]

[6] Id.

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