Criminal Defense FAQ
As criminal defense attorneys, there are some questions we hear more frequently. We’ve created this Criminal Defense FAQ page to address some of those common questions, related to DWI, police searches, being charged with a crime, assault charges, and whether you may need to an attorney. Can’t find what you are looking for here? Give us a call.
651-455-1555 today to schedule a comprehensive consultation at no charge to you. We will listen to your story carefully and help you determine an appropriate course of action.
- Criminal Defense Attorneys
- Criminal Defense FAQ
- Criminal Procedure
- Criminal Sexual Conduct
- Dog Bite
- Enhanceable Offense
- Hiring an Attorney
- Implied Consent
- Plea Bargain
- Police Questions
- Police Search
- Predatory Offender Registration
- Pro Se
- Right to Trial
- Self Defense
- State and Federal Courts
- Trial Experience
- Truck Accident
However unfair as it may seem; the prosecutor can file charges against you even if they only have one eyewitness to support the charges. Learn more about eyewitnesses here.
One of the most common ways for you to find out that you are under investigation is when you are approached by a government agent.
Assault in the Fourth Degree protects a special class of persons such as law enforcement, emergency medical personnel, correctional employees, vulnerable adult and others.
There are five “degrees” of assault organized based upon severity level in Minnesota.
609.224 ASSAULT IN THE FOURTH DEGREE
To be found guilty of assault in the fifth degree, the person must: (1) commit an act with intent to cause fear in another of immediate bodily harm or death or; (2) intentionally inflict or attempted to inflict bodily harm upon another.
There are five “degrees” of assault organized based upon severity level in Minnesota, Assault in the Fifth Degree is the lowest.
609.224 ASSAULT IN THE FIFTH DEGREE
These types of cases involve very sophisticated parties and because of this are often aggressively defended. Additionally, these types of cases often require an in-depth and independent investigation in order to establish fault. This involves an in-depth inspection into the driver’s driving logs, inspection logs, and truck load in order to determine if any state or federal regulations or safety standards were violated by the driver, his employer or the truck owner. It is important for you to hire an attorney immediately after you’ve been involved in a truck accident to ensure that no evidence is lost and all of the necessary parties are involved from the very beginning.
- The truck driver;
- the truck owner;
- the trailer owner;
- the company identified on the trailer; and
- in some cases even the company that was responsible for loading the contents of the trailer (if it contributed to the accident).
Semi trucks are involved in interstate commerce and are therefore subject to many state and federal regulations. Truck drivers and their vehicles are also subject to much higher safety standards. This is primarily because the sheer size of a semi truck makes it likely that any type of accident can have catastrophic results. It is for this reason that trucking companies are required to carry much higher insurance coverage. Any violation of the regulations or safety standards can be a basis for establishing fault and securing just compensation for your injuries.
Yes, almost all homeowner’s insurance policies protect owners against attacks and bites by their pets.
Yes, for the most part. The important question is going to be whether you did anything to provoke the dog into biting. Provocation can be established if you were yelling or hitting the dog, or if you were in the dog’s face and acting aggressive towards it. In some cases, grabbing a dog’s tail or ear can be enough to provoke it to bite. However, simply walking up to a dog in a friendly manner and petting it will generally not establish provocation.
First and foremost, you need to get the name, address and contact information of the dog’s owner, as well as the location of where the bite occurred. You should then get the name of the dog owner’s insurance company and try to find out any information regarding whether or not the dog has bitten anyone in the past. Finally, photographs of the injuries are very important and should be taken as close to the time of the dog bite as possible. It is equally as important to take photographs as the bite wound heals to show progress and establish whether or not its going to leave permanent scarring.
At least 4 months. By law, at least 63 days must pass from when your forms are served to the government agencies to when a judge holds the hearing to consider your request. If the judge grants the expungement, another 60 days will pass before the court actually seals your record.
An expungement is a sealing of your criminal records. This action does not completely “erase” your criminal case history, but it does limit who can see it. If you record is expunged, a sealed state court record still exists but it is “invisible” to the general public. Most employers and landlords cannot see sealed records; law enforcement and immigration agencies can see them.
Sealed cases can be reopened in certain types of employment checks, including criminal justice agencies, human services, and Department of Education jobs. Sealed cases can be reopened for criminal investigations and for sentencing or probations services, or for other reasons by a court order.
Yes. You have a public criminal record that says you were charged with a crime and that your charge was later dismissed.
The type of crime charged, the name of the court that convicted or dismissed the charges, the date of conviction or dismissal, a description of the sentence served, if any, and other details of the crime and court process are public. Employers, landlords or any other person can view these records.
Finding lost property can lead to theft charges if you do not first make a reasonable effort to find and turn over the property to the true owner. It is best to turn the property over to authorities, if they do not find an owner then it may become yours.
Theft offenses range from a misdemeanor to a serious felony. Theft of property under $500 is a misdemeanor offense. Theft of property valued at $500 to $1000 is a gross misdemeanor. $1,000-$5,000 is a 5-year felony offense. Theft of property more than $5,000 is a 10-year felony. Finally, theft of property over $35,000 is a 20-year felony.
A small amount of marijuana means 42.5 grams or less. It is even less if you are in a motor vehicle. A person in possession of a small amount of marijuana is only guilty of a petty misdemeanor. Possessing or selling any amount over 42.5 grams is a felony level offense.
The drugs do not have to be on your person for you to be in possession. Constructive possession is where the drugs are found in a place under your exclusive control to which other people did not normally have access, or if found in a place to which others had access, you knowingly exercised dominion and control over it. Constructive possession is more difficult to prove especially if you had passengers or it is not your car.
No! No contact orders are one-sided and inflexible. It doesn’t matter if the person says its okay to see or speak to them. Once the order is issued, it can only be changed by a judge. While the order is in effect, if the two of you have contact, no matter who initiates it, the only person who faces consequences is you
No, only the prosecutor can dismiss the charges. They can provide their input to the prosecutor and the court about whether the charges should go forward, but your spouse/partner does not control whether the charges are dismissed.
A crime of violence includes any conviction for: murder; aiding suicide; 1st-4th-degree assault; crimes for the benefit of a gang; robber; kidnapping; false imprisonment; prostitution; 1st-4th-degree criminal sexual conduct; malicious punishment, endangerment or neglect of a child; 1st-2nd-degree arson; 1st-3rd-degree burglary; drive by shooting; riot; terroristic threats; and stalking. Also, including all felony drug offenses and theft of a firearm or vehicle.
Federally, a crime of violence includes domestic violence or any crime with an element of force or attempted force or threatened use of a dangerous weapon.
The firearm rights restoration process in Minnesota can take from seven to eight months, depending on your particular circumstances, the court’s workload at the time of your petition, and whether there are any objections from the government.
Minnesota courts have not provided an exact definition of “good cause”. However, we have had success with the court restoring firearm rights based on any of the following:
- needing a firearm for employment purposes
- personal security
- “in proximity” (family members own guns, activities related to guns, or live on a military base)
- because there is no reason to believe that you cannot be trusted to own a firearm
- needing a firearm for hunting
Many states have enacted “Romeo and Juliet” exceptions to protect young people from criminal charges as a result of consensual sexual activity with other young people. Minnesota’s laws criminalize any sexual conduct with a child under the age of 13. PERIOD. For children between the ages 13, 14, or 15 the age difference depends on whether there was sexual penetration or sexual contact. If the conduct involves penetration, it is not a crime so long as the actor is no more than 24-months older. If the conduct involves only sexual contact, it is not a crime so long as the actor no more than 48-months older and not in a position of authority.
The age of consent in Minnesota is 16. Statutory rape occurs when a person older than 16-years engages in sexual contact (touching) or sexual penetration with a person under the age of 16. Consent is not a defense in these cases because the laws assume that no one under 16 can give valid consent. If you are close in age you may fall into the “Romeo and Juliet” exception.
A predatory offender may be assigned a Risk Level of I, II, or III. An offender found to be a Risk Level I is considered the LEAST likely to re-offend and only local law enforcement and victims or witnesses are notified of the offenders release or relocation.
An offender found to be a Risk Level II is thought to pose a MODERATE risk of re-offense. In this case, local law enforcement, and victims or witnesses are notified of the offenders’ release or relocation, as well as any agencies that may serve a population at risk of victimization that are located near the offenders’ home.
An offender determined to be the MOST likely to re-offend is assigned a Risk Level III. In this case, local law enforcement, victims or witnesses, and any agencies that serve a population at risk of victimization may be notified, as well as the general public. Community Notification to the general public may take place in the form of a community meeting.
If you have been drinking and driving you have a various rights related to DWI, or any other traffic offense in Minnesota. These Do’s and Don’ts will apply if you have been drinking, and believe that it is likely that if you take a Preliminary Breath Test (PBT) you will fail.
DO… Limit your speech to only the required information that you must provide the officer. Have your license and proof of insurance ready before the officer arrives at your window. Also, be prepared to provide the officer with your name, address, date of birth, etc… Remember to be respectful, being a jerk to the officer is only going to make the experience worse for you.
DON’T… Answer any further questions from the officer about why you were stopped or if you have been drinking. Minnesota Courts have consistently said that blood shot eyes, slurred speech, and any admission that you had even a single drink is enough for an officer to begin Field Sobriety Tests. In any event its best to just stay quiet to keep from incriminating yourself. Remember be respectful at all times.
DO… Obey all reasonable commands from the officer. After refusing to answer the officer’s questions he will probably ask you to exit your vehicle. Listen to the officer, get out of your vehicle, and close the door behind you so that he cannot see inside your vehicle. This will keep the officer from finding “any” further evidence without first obtaining a search warrant.
DON’T… It is your right to refuse to take any Field Sobriety Tests or Preliminary Breath Test. Refusing these tests is not a crime. If you refuse, it is likely that the officer will tell you that he will arrest you for DWI and take you to the station for booking and further testing. At this point it is likely that you will be arrested when you fail the tests anyway. Attempting these tests can really only work against you.
DO… Request to speak to an attorney before answering any questions or submitting to further testing. This is your right to speak to an attorney before being required to take a blood, breath, or urine test. Refusing this test is a crime, and can enhance the severity of the offense, but an experienced attorney can help you make the right decision in your situation.
Generally, police need a search warrant to search your car or home. When it comes to your car police may only need probable cause in order to search. Probable Cause means that the officer must have certain trustworthy facts to believe that a crime has been committed, or evidence will be found inside your vehicle.
Minor traffic violations do not always give the officer probable cause to search your vehicle (e.g. speeding, broken tail light, etc..). Do not be tricked or intimidated by the officer. For the most part if he is asking for consent to search your property then he does not have probable cause.
You always have the right to say “NO” to the officer’s request to search your home or car. Be calm and courteous to the officer, but say something like “officer I understand that you are doing your job, but I do not consent to the search.” Refusal to consent to a search is not a crime, and is not evidence of a crime. It is your right under the 4th Amendment.
If police have probable cause or a search warrant they will not need your consent to search, and most likely will not be asking. Protect your rights and do not consent to unwarranted searches.
You may be charged immediately by citation, or later by Complaint by a city or county attorney’s office. It is important to immediately seek representation if you are, or think you will be, charged with a crime in Minnesota. You must establish a strong defense for your case from the very beginning. A strong defense can help you avoid a conviction or negotiate a lesser penalty.
Attorneys Tom Sieben and Patrick Cotter are experienced attorneys who can thoroughly investigate the unique details of your specific case. They will find any and all possible defenses in your case and help you achieve a favorable result.
Questioning by the police can be intimidating, aggressive, and frightening. It is important that you understand your rights so that you can protect yourself.
If you are arrested or detained you have constitutional rights, known as Miranda Rights. This means you have the right to speak with an attorney. You have the right to have your attorney present with you before any further questioning can take place. You have the right to remain silent. It is important to remember that your silence cannot be used against you, but anything you do say can and will be.
If you are not under arrest, you have another right. You have the right to refuse to answer any questions, walk away, or leave the police station. You will most likely not be told this right, and many people are hesitant to exercise this right because of the uncomfortable situation.
Remember to protect yourself and ALWAYS exercise your rights.
You have a limited right to speak to an attorney before consenting or denying the Implied Consent Test. The officer must tell you that you have this right before you take the test. This does not give you the right to speak with an attorney for hours, though, because of the testing delay. You are, however, afforded a reasonable amount of time to consult with your lawyer. Every case is different and you should ALWAYS exercise this right to determine the best decision for you.
If you have been arrested on a DWI charge in Minnesota get help from an experienced DWI attorney. DWI convictions have serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, contact Sieben & Cotter at 651-455-1555. Tom Sieben and Patrick Cotter are knowledgeable about DWI laws and how the system works in Minnesota.
DWI means “Driving While Intoxicated.” DUI means “Driving Under the Influence.” These can have different meanings in other states, but in Minnesota these terms are essentially the same.
If an officer has a reasonable, articulable suspicion that you have committed a DWI they may order you out of your vehicle, and ask you to conduct FSTs, and/or a PBT. These four roadside tests include, (1) Horizontal Gaze Nystagmus, (2) one-leg stand, (3) walk-and-turn, and (4) portable breath test.
It is important to understand that you have options. It is NOT a crime to refuse these roadside tests. If you believe that there is even a chance that you are over the limit, you have nothing to gain from taking these tests. These test are unnatural movements, and failing the tests make your case much harder to win.
If you refuse the testing, the officer will likely arrest you anyway for suspicion of DWI. Likewise, if you fail the tests you will be arrested also. At this point you will be taken to the police station or hospital and read the Implied Consent Advisory. Refusing this blood, breath, or urine test IS A CRIME and can have significant consequences.
Every case is different. Exercise your right to speak with an attorney before making a decision about the Implied Consent testing.
There are four levels of offenses in Minnesota. A petty misdemeanor is not a crime, and usually involves some sort of fine but does not include jail time. Felonies, Gross Misdemeanors, and Misdemeanors are crimes, with Felonies carry the most severe penalties, and Misdemeanors carrying the least severe penalties.
Category: Petty Misdemeanor
Maximum Sanction: Fine of up to $300; Not a crime because incarceration is not an allowable sanction
Examples: Most traffic violations
Maximum Sanction: 90 days in jail and/or up to $1,000 fine
Examples: Driving without a license; Simple Assault (punching someone); First-time DWI; Theft of property less than $500
Category: Gross Misdemeanor
Maximum Sanction: Over one year imprisonment and/or up to maximum fine specified in law; One year in jail and/or up to $3,000 fine
Examples: Second DWI in ten years; Theft of property worth between $500-$1000
Maximum Sanction: Maximum imprisonment penalties from 366 days to life imprisonment
Examples: Murder; Criminal Sexual Conduct (most); Theft of property more than $1,000
In Minnesota, certain offenses are enhanceable meaning that specific factors can increase the severity level of an offense. Meaning of an aggravating factor is present then the offense severity could increase from a misdemeanor to a gross-misdemeanor, or from a gross-misdemeanor to a felony. Below is a table of examples of enhanceable offenses in Minnesota.
Driving While Intoxicated: Charges based on aggravating factors, and each prior impaired driving incident within ten years is counted.
Order for Protection Violation: Charges are enhanced if there is a violation of an order within ten years of a previous qualified domestic violence related offense.
Fifth-Degree Assault: Charges are enhanced if there is a repeat offense against the same victim within ten years of a previous qualified domestic violence offense; Charges are enhanced if there is a repeat offense within three years of a previous qualified domestic violence offense; Charges are enhanced if there are two or more previous qualified domestic violence offenses against the same victim for ten years.
Domestic Assault: Charges are enhanced if assault is committed against a family or household member for ten years.
Harassment or Restraining Order Violation: Charges are enhanced if there is a violation of an order within ten years of a previous qualified domestic violence related offense.
After you are arrested you will first be booked. During the booking process, law enforcement will ask you basic background information (name, date of birth, address, etc.), and fingerprint and photograph you. If you are held in custody after your arrest you will then go in front of a Judge to determine whether or not bail is appropriate. Bail is a sum of money that you will have to provide to the court as collateral in order to ensure your appearance in court.
Your next appearance will be the Arraignment. This is where you will be formally charged, and the charges against you are read. You will also likely be read your rights, and asked if you would like to plead “Guilty” or “Not Guilty.” Many people have not retained an attorney at this point. If you have not, your best option is to plead “Not Guilty” and speak to an attorney.
The second and third court appearances will be various pre-trial hearings (depending on the charges). At these hearings, your attorney may argue evidentiary issues, or for your charges to be dismissed.
If your charges are not dismissed by the court you will proceed to trial. Trials follow the same general timeline:
- Opening Statements: This is where both sides (prosecution and defense) introduce their case to the judge and/or jury.
- Presentation of Evidence: The most extensive stage of a criminal trial, the presentation of evidence is where the case is argued. Witnesses are called and evidence presented.
This is where the prosecution attempts to prove to the court that you are guilty “beyond a reasonable doubt”.
- Closing Arguments: This stage is the last opportunity for both sides to address the court before a verdict is reached.
- Jury Instructions: The judge will instruct the jurors on their responsibilities before they retire.
- Jury Deliberations: The jury will retire to a private area to determine your guilt or innocence.
- Verdict: Once a verdict is reached, the jury will return to the courtroom. If you are found guilty the judge will schedule a sentencing date.
This process can be long, confusing, frustrating, and maybe a little scary. It is very important that you are represented by an experienced attorney that will work hard for a favorable result in your case. If you have been arrested and charged with a crime please contact Sieben & Cotter at (651) 455-1555. We are experienced and reputable attorneys who understand the criminal process in Minnesota.
All persons charged with a crime in Minnesota are entitled to a trial. If the offense is punishable by incarceration (misdemeanor to Felony) then you have a right to a jury trial. If the offense is not punishable by incarceration (petty misdemeanor) you have a right to a court trial. A jury trial will be held in front of a jury of your peers, approximately 6-12 persons (depending on your charge). A court trial, on the other hand, is held in front of the Judge, without the jury.
At trial, The State must prove you are guilty beyond a reasonable doubt, which is the highest evidentiary standard. If you go to trial, you will have the right to confront your accusers – in other words, you or your attorney will have the right to cross-examine the witnesses that the prosecution calls to testify. Further, you will have the right to subpoena witnesses, and call witnesses to testify on your own behalf. As a defendant, you do not have to testify, and if you do not, the prosecution cannot comment on your failure to do so. Prior to commencement of the trial you will be able to contest the admissibility of evidence obtained against you. Evidence may be suppressed for a variety of reasons such as irrelevancy, if it was obtained in violation of your constitutional rights, or is unduly prejudicial or unreliable.
I keep hearing “burden of proof” and “beyond a reasonable doubt” but what do these terms mean?
Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. In criminal cases, the burden of proof is placed on the prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or her. But in some jurisdictions, the defendant has the burden of establishing the existence of certain facts that give rise to a defense, such as the insanity plea. In civil cases, the plaintiff is normally charged with the burden of proof, but the defendant can be required to establish certain defenses.
Commonly in Minnesota courts “beyond a reasonable doubt” is defined as, “such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is doubt based on reason and common sense. It does not mean fanciful or capricious doubt, nor does it mean beyond possibility of all doubt.”
A plea bargain is an agreement in a criminal case between the defendant and the prosecutor where the defendant agrees to plead guilty to a particular charge in exchange for some concessions by the prosecutor. These agreements are usually negotiated before trial, and in many situations the guilty plea is for a lesser charge than originally brought by the prosecutor.
Minnesota classifies all crimes that are sexual in nature into five categories. The categories range from 1st degree through 5th degree with 1st degree being the most serious and 5th degree least serious. In general, 1st and 3rd degree applies to sexual conduct involving sexual penetration of the victim. 2nd, 4th, and 5th degree sexual conduct involves sexual contact with the victim, without penetration.
1st and 2nd degree sexual conduct typically involve victims who are very young, use of, or threat to use, force, violence or a weapon, or personal injury to the victim. 3rd, 4th, and 5th degree sexual conduct involves less aggravated conduct and applies to situations where the victim did not consent, is relatively young, or was particularly vulnerable due to their relationship with the offender.
Any person convicted of a 1st, 2nd, 3rd, or 4th Degree Criminal-Sexual-Conduct crime must register as a Predatory Offender for a minimum of 10 years and a maximum of lifetime registration. In addition, certain acts under 5th Degree Criminal Sexual Conduct, Criminal Sexual Predatory Conduct, and Indecent Exposure can result in you being required to register as a Predatory Offender.
In Minnesota, an assault can be committed by hitting someone, or even attempting to hit someone, meaning physical contact or injury to the victim are not required. All that is required is a person’s intent to inflict injury, or cause fear of injury on the victim. With that being said, there are a number of factors that determine the severity level of the offense, ranging from 1st degree to 5th degree assault. Those factors are the level of the injury inflicted, who the victim is, whether a weapon was used, and your motivations for the assault.
Domestic assault involves the same or similar conduct as the other forms of assault under Minnesota law, but only differs from those offenses because it only applies to certain family or household members. These members include spouses, former spouses, parents and children, people related by blood, people who live together or have lived together, people who have dated, people who have children together, and pregnant women and the alleged fathers of their children. Usually domestic assault offenses carry higher severity levels, than the same or similar conduct not involving a family or household member.
Yes. It is possible that you can be charged with assault for acting in self-defense. But, self-defense is a valid legal defense to those charges. Minnesota places certain duties on individuals acting in self-defense.
In Minnesota, you have a “duty to retreat.” This means that, where practical, you have a duty to retreat from the threat prior to defending yourself or others. If your attempt to retreat is not practical, or unsuccessful then under those circumstances you may be able to respond with reasonable force. Reasonable force means that you are using the same level of force as the threat against you at that time. Using excessive force, under the circumstances, can result in assault charges being brought against you.
Jurisdiction refers to a courts authority to hear and decide a case. Minnesota state courts have general jurisdiction to hear all cases that are in violation of the Minnesota Constitution, and any state laws as long as the violation happened within the state. Federal courts have limited jurisdiction to hear cases involving violations of the U.S. Constitution, and federal laws. Most criminal cases involve violations of state law and will be heard in state court.
Yes it is possible. The dual sovereignty doctrine provides that “when a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offenses’ for double jeopardy purposes.” This means that if your conduct violated both state and federal laws you can be charged and convicted in both, or you can be acquitted in one court, and later tried and convicted in another. Double jeopardy only prevents the same court for prosecuting you twice for the same conduct.
No. Federal courts sentence according to federal sentencing guidelines. Minnesota is somewhat unique in that we have created our own set of sentencing guidelines for our state courts. These guidelines are not mandatory, but they advise judges on a recommended sentence range based upon the specific circumstances of your offense. They take into account the specific offense, your conduct, and the victim(s), along with many other circumstances that could warrant a more or less severe sentence. Minnesota’s guidelines and the federal guidelines are very different however. The offenses themselves are very different in state versus federal court. In addition, federal courts tend to impose more severe sentences for first time offenders. This is especially true in Minnesota because we are a state that tends to favor probation over incarceration for a first time offense.
Yes. The government has unlimited resources to prosecute you in court. Experienced criminal defense attorneys, like Tom Sieben and Patrick Cotter, know the law and how the legal system works. They have experience handling cases and speaking in a courtroom. They know what questions to ask and how to prepare evidence. Hiring an attorney from the very beginning of your case can mean the difference between a conviction and an acquittal. Learn more about how an attorney can help.
Yes, you have the right to represent yourself, this is called Pro Se. Whichever route you choose you should always sit down with experienced attorneys that can give you legal advice to help you make the right decision for your case, and based on your needs.
As with many other aspect in life, a good reputation matters. Lawyers who are well-liked and respected in the legal community are more likely to achieve a more favorable result for their client. Prosecutors and judges are more likely to trust and work with defense attorneys with a good reputation.
Attorneys Tom Sieben and Patrick Cotter have been working for years in Minnesota courtrooms. They believe that a good reputation in invaluable in this profession, and they hold themselves to the highest professional standards.
Attorneys Tom Sieben and Patrick Cotter have a combined twenty-four years of criminal trial experience. They understand that every case is unique and know how to put together the right team of professionals to address the specific needs of your case. They adopt a listen-first approach, and pride themselves on crafting an honest and aggressive representation in order to achieve successful results for their clients.