Appelman Law Firm 2012 Year in Review

attorneysWe had an exciting and successful year here at Appelman Law Firm. We were able to facilitate positive case results for many clients. Below are a few case studies detailing the successes our attorneys have had this year.

Note: client names have been changed or shortened to protect anonymity.

Avery Appelman

  1. State vs. J.A.– J.A. was arrested after a police officer observed her vehicle drive from a restaurant parking lot into and out of a ditch and onto a county road. The client failed field sobriety tests on the scene and was arrested. Her Blood Alcohol Concentration was over .20 (the legal limit is .08). With masterful negotiation and client preparation, the charges were amended to a misdemeanor level offense and J.A. did not serve any jail time as is customary for similar offenses in Crow Wing County.
  2. State vs. S.C. – S.C. was stopped 15 miles after a police officer initiated pursuit of the vehicle. S.C. failed field sobriety tests, was arrested for DWI, and tested well over .08 BAC. He was charged with a gross-misdemeanor 2nd Degree DWI and was facing 90 days in jail and the forfeiture of his vehicle. Avery held a hearing challenging the stop of S.C.’s vehicle. After thorough cross examination employing the squad video of the stop, the court reinstated S.C.’s driver’s license. Ultimately, S.C. plead guilty to misdemeanor Careless Driving, a non-alcohol related offense, and has since had his car returned.
  3. State vs. T.B. – While entering a local store, T.B. made a comment to a young woman sitting in a car. The woman went home, advised her mother, and returned to the store with the police who detained T.B. Avery sprang into immediate action, sent a lawyer directly to the scene who insulated T.B. from the police investigation and secured his immediate release from police custody.  The case was charged and ultimately dismissed.
  4. State vs. C.P. – C.P. was arrested in a prostitution sting targeting providers from a certain agency. C.P. claimed that prior to her arrest, the undercover officer allowed her to perform a sex act. Using this information, Avery Appelman filed a motion to dismiss for a Due Process Violation. Prior to the hearing the State dismissed the case.
  5. State v. J.R.– J.P. received a phone call from his relative late one evening asking him to meet up. At the meeting, the relative asked J.P. to go and get his truck parked on the side of a road. J.P. approached the vehicle and was immediately confronted by police who took him into custody for fleeing from the police. Avery Appelman conducted an investigation and shared the information with the prosecution who ultimately dismissed and prosecuted the relative.

Geoffrey Saltzstein

  1. State vs. M.R. – 19-year-old M.R. was charged with DWI after a snow plow driver reported that a vehicle was stuck in a snow bank.  When police arrived, M.R. did not have her glasses or shoes, her cell phone was on the ground outside of the vehicle and she was very confused.  After a few hours she recalled a horrific scene wherein she was sexually assaulted by her boss while his wife sat in the next room.  Geoff took on the case and had her blood sample retested by a private lab to check for any date rape drugs. He also discovered that her boss was on parole for Criminal Sexual Conduct in Hennepin County.  Prior to her criminal DWI trial, Geoff presented the prosecutor with pages of evidence proving that she had no other choice but to flee the scene.  The prosecutor chose to proceed to trial, and after an hour and a half summit with the judge in chambers, the DWI was ultimately dismissed. The Attorney General’s Office also decided to go forward with the drivers’ license revocation, but after Geoff presented the evidence at the implied consent hearing, the judge rescinded the revocation.
  2. State vs. D.B. – D.B. was pulled over after leaving a bar in the Mille Lacs area around closing time.  He had parked in a patch of grass outside the bar that was known by everyone to be the overflow parking, and drove up through a ditch and on to the road to head home.  A State Trooper pulled him over for illegally entering a roadway, citing no other illegal conduct.  After a combined evidence suppression and implied consent hearing, the Judge found that the officer lacked the requisite suspicion to make a traffic stop and summarily dismissed the criminal case and rescinded the revocation of his drivers’ license.
  3. State vs. A.H. A.H. was arrested after a minor dispute with his girlfriend.  When officers arrived, both parties were extremely intoxicated.  In fact, United Hospital sent the victim to detox before taking her back to treat her injuries. A number of witnesses stated that A.H. threw a potted plastic plant at the victim and each of them tried unsuccessfully to land punches and kicks on the other.  A.H. also admitted to police that he may have had his hand on her neck, which is a felony. Since there was no defense, and the client felt awful about everything, he agreed to go to chemical dependency and mental health treatment, in exchange for 60-days house arrest and a misdemeanor after he completes probation.  On the night after he pleaded guilty, the police were called to his house, where he was “playing chess” with the victim of the original case.  He was arrested, and Geoff argued successfully to have his conditional release reinstated the next day.  The prosecutor was not happy about this, and requested that another warrant be issued.  Geoff argued successfully that the warrant was illegal because the issue of his conditional release was already litigated.

Stacy Kaye

  1. State vs. J.V.J.V. was charged with DWI. After being retained Stacy moved to suppress all evidence obtained subsequent to the initial stop of his vehicle on the grounds that the officer lacked reasonable, articulable suspicion of criminal activity. The judge agreed, suppressed all evidence, and dismissed the charges.
  2. State vs. C.K. C.K. was charged with sale of a large amount of marijuana in close proximity to a gun, which makes it a far more serious charge. Stacy took on the case and litigated the validity of the search warrant that uncovered evidence. She ultimately convinced the state that the gun was not the defendant’s and was not involved in any drug activity. The charge was amended to simple possession and the defendant was granted a statutory stay of adjudication, meaning that he was not convicted of any crime, and guaranteeing that if he successfully completes probation and some community service, all records of his arrest and charges will be expunged from his record.
  3. State vs. C.M. C.M. was facing felony charges of fleeing police in a motor vehicle. If convicted of a felony, in addition to the sentence for that charge, the defendant would have had to serve a prison sentence because he was on probation with the Department of Corrections. Stacy moved for a probable cause hearing on the basis that the state lacked evidence of the driver’s identity. Rather than litigate the issue, the state agreed to amend the charge to a misdemeanor fleeing on foot, which allowed the defendant to be released without serving any additional time in jail or on probation.
  4. State vs. L.S. L.S. was charged with domestic assault and possession of a handgun without a permit. Stacy challenged the legality of the search of his vehicle where the gun was found and the prosecutor agreed to continue both charges for dismissal, meaning that the defendant did not have to plead guilty to either charge and was not convicted of any offense.

 

Visit our website to read more of our case successes.

Can You Get a DWI on a Snowmobile in Minnesota?

snowmobiling while intoxicatedIn Minnesota, a person can be arrested and charged with DWI without even driving a car. According to state laws, a person can be arrested for DUI if they are operating any motorized vehicle while over the legal BAC limit of .08.

As a result, a person can get a DUI while driving a boat, riding lawnmower, a snowmobile, or any other motorized vehicle.

Snowmobiling is a common winter pastime in Minnesota. The snow falls and people head up to their cabins with family and friends to hit the trails. Unfortunately, sometimes snowmobilers (like other motorists) have too much to drink before riding.

An SWI charge is almost exactly the same as a DWI charge in terms of criminal and civil consequences. A first offense will bring a fine of up to $1,000 and up to 90 days in jail, as well as the loss of your snowmobiling privileges for a year.

Also similar to a DWI offense, an SWI is enhanceable if any aggravating factors (such as a prior DWI charge, or a remarkably high BAC) are present at the time of arrest. If any aggravating factors are present, the offender can face an increased degree of SWI (ranging from gross misdemeanor to felony). These charges bring increased penalties including fines upwards of $14,000, and several years in jail for the highest offenses.

So if you are snowmobiling this winter season, please remember to be mindful of your alcohol intake before hitting the trails.

Armed guards in Minnesota Schools would cost nearly $150 million

Hiring police or armed security guards to protect every Minnesota school would cost roughly $138 million.

Government officials are trying to find a way to better protect children at school in the wake of the shooting in Newtown, CT which claimed the lives of 26 children and adults.  Keeping an armed guard at the door may help prevent unauthorized individuals from entering the building, but it would require a large budget.

“The cost would be just astronomical,” said Scott Croonquist, a member of the Association of Metropolitan School Districts.  Croonquist also said he believes the National Rifle Association’s proposal would face opposition for reasons other than cost.

“They don’t feel the answer would be to bring more guns into schools,” said Croonquist.

Some Minnesota districts already station an armed guard in the building, but the officers often patrol the building and don’t spend much time blocking intruders from entering the building.  The district employs 16 in-school officers, a supervisor, and a school patrol officer which costs Minnesota schools nearly $900,000 each year, and that’s with the police department underwriting the cost of cars, radios, and summer patrols.

While placing an armed guard at every school entrance may be unrealistic, having a police officer in the school can help students develop a better relationship with authorities, said officer Mike Kirchen, who patrols a Cleveland Park Community School.

“Our No. 1 job in schools is to connect with kids on a personal level,” Kirchen said.

Kirchen said he often high fives kids as they get off the bus, and can help answer questions or talk through problems children experience in their daily life.  He noted one situation where he spoke to a child who witnessed his neighbor’s dog being put down by a police officer.  Kirchen was able to explain the situation and answer the questions the child had.

“It lets them see a different side of Minneapolis cops than they see [outside school],” he said.

The Minnesota Police Department records interactions between students and officers like Kirchen.  They report that nine of 10 interactions are positive, while the rest often involve incidents like breaking up a fight or the discovery of theft or vandalism.

Police and school individuals work together to select officers for the school patrol program.

“It was important to find the right 16 officers,” Kirchen said. “I’ve heard from some officers that they don’t have the mentality to deal with kids all day.”

Kirchen said building relationships with the children helps prevent incidents because students trust the officer with the information.  Students will sometimes say things to Kirchen like “just so you know, this is going on.”  Kirchen said tips from students have led to drug and weapon discoveries.

Although Kirchen’s work has been successful, stationing a police officer in all 1,968 public schools would be costly.  Based on figures reported in 2012 for the statewide police and fire pension plan, the cost would be roughly $138 million, but could be lowered if armed security guards were used in lieu of police officers.

School officials in the Twin Cities have yet to discuss the proposal by the NRA, but they plan to evaluate the best course of action to make schools safer.  Alternative solutions include implementing more secure doors and windows.

Even if armed guards were stationed in every school, some fear that bringing more weapons into schools could cause more problems.

“I think the NRA suggestion is a very simplistic view of the world,” said Jean O’Connell, member of the St. Paul school board.

Related Source:  Star-Tribune

Minnesota DWI Host Liability Laws

Host LiabilityMany DUI violations happen when a person leaves a party after having too much to drink. What many people don’t know is that in this situation the party host can be held liable for the actions of a person who drinks at their party and then gets behind the wheel and injures someone.

These rules are established by the Minnesota Social Host Liability Laws. Under these laws, a person injured by an intoxicated minor behind the wheel may claim damages against the adult (over 21 years of age) who gave the minor alcohol and/or knowingly allowed them to drink on the premises.

The “Social Host Liability Act” of 2000 (Minnesota Statute section 340A.90)states that a person injured by an intoxicated minor behind the wheel may claim damages against an adult (over 21 years of age) who:

  1. had control over the premises and, being in a reasonable position to prevent the consumption of alcoholic beverages by the person under the age of 21, knowingly or recklessly permitted the consumption, resulting in the minor’s intoxication; or
  2. sold, bartered, furnished, or gave to, or purchased for the person under the age of 21 alcoholic beverages that caused the intoxication of that person.10

Certain Minnesota counties and cities also have in place criminal penalties for social host liability violations. The goal of these penalties is to discourage hosts from serving minors even more by holding them criminally liable for their actions.

So if you are hosting a party this holiday season, be mindful of how much your guests are drinking and confront them if they try to get behind the wheel after having too much.

 

 

Related Sources:

MNBar.org

What to do if Arrested on Christmas Eve?

jailBeing arrested sucks, there’s no doubt about it. Being arrested on a holiday like Christmas Eve is even worse. You don’t want to explain to your grandmother that you missed Christmas dinner because you were sitting in jail.

The following steps outline how a criminal defense lawyer can save the day by getting you out of jail quickly and on your way to grandma’s house of Christmas dinner on time:

  • Call your lawyer. The first thing you should do whenever you are arrested is ask to call an attorney. If you are arrested for a DUI charge, it is especially important to speak to a defense attorney before taking a BAC test. Implied consent laws can be confusing and police often use that to their advantage. An attorney can tell you exactly what your rights are and the best course of action given the situation.
  • Case Analysis. When you call a lawyer they will meet with you and examine all the facts surrounding your case and make recommendations for moving forward.
  • Retain an attorney. In order for the attorney to get you released, you must first retain them to work on your case.
  • Release. Once you retain an attorney, they will go to work immediately to get you released. First, they will talk to the judge and negotiate conditions of your release. This usually consists of setting cash bail or bond.

If you find yourself in jail on Christmas (or any holiday for that matter), follow these steps and you’ll be out of jail and on your way to family dinner in no time.

Crime-related Forfeitures Increase in 2011

Minnesota law enforcement officials reported that there were 6,338 cases of vehicle, cash, or property forfeiture in 2011.

State Auditor Rebecca Otto said the total increased from 2010, when there were 4,604 forfeitures.  She said the spike in forfeiture was likely related to mandated changes in the forfeiture process.

The change in forfeiture procedures resulted from a 2009 scandal involving the Metro Gang Strike Force, which is no longer in operation.  The new law requires officers to begin categorizing forfeitures, and also allows law enforcement to seize the vehicles of those individuals charged with drunken driving.

In addition, law enforcement officials can seize vehicles and other property in connection with a variety of crimes, including drug use or possession.

Drunken driving-related incidents accounted for the largest amount of forfeited vehicles in 2011.  There were 2,785 such seizures, which accounted for 44 percent.  There were also 3,189 instances of vehicle, cash, or property forfeiture resulting from the discovery of a controlled substance.

Although there was an increase from last year, Otto said next year’s results will provide a clearer insight as similar forfeiture standards will be in place.

“Next year we will be able to compare back to this year,” said Otto.

Related source:  Star-Tribune

Minnesota Gun Laws

2ndsToday, in the wake of the tragic Sandy Hook massacre, President Obama announced that he would be formulating new proposals for gun control nationwide.  Specifically, reinstating the ban on semiautomatic assault weapons which expired in 2004. However, for many Americans—and many Minnesotans—the current firearm laws still remain a mystery.

So what are the current gun regulations in Minnesota? According to the NRA:

A handgun or semiautomatic military-style assault weapon may be sold by a dealer to a person who presents a handgun transferee permit or carry permit, or to a person who has undergone a seven (7) day waiting period where a transfer report has been filed. People must be 21 or older to purchase a semiautomatic assault weapon, however, it is not illegal for people over the age of 18 to own such weapons.

Any person carrying a loaded BB gun, rifle, or shotgun on or about their person, not expressly to or from the place where the firearms are bought, sold, traded, displayed, or where hunting, target shooting, or other lawful activity occurs, is guilty of a gross misdemeanor. It is also a misdemeanor to carry a handgun on or about their person while under the influence of alcohol or any controlled substance.

A person is guilty of a gross misdemeanor who negligently stores or leaves a loaded firearm in a location where the persons knows, or reasonably should know, that a child is likely to gain access, unless reasonable action is taken to secure the firearm against access by the child.

It shall be unlawful to take any wild animal by means of discharging any firearm from a motor vehicle.  A special permit may be acquired, without a fee, to discharge a firearm or bow and arrow from a stationary motor vehicle to a person who has a permanent physical disability.  Game wardens may confiscate firearms used in unlawful hunting.

In Minnesota, “false representation” on a gun permit application is a gross misdemeanor offense.  Additionally, firearm possession by an ineligible party is also a crime in Minnesota. Those who are not allowed to legally possess a firearm are:

-Prior conviction of just about any crime

-Juvenile delinquency adjudication for violation of a criminal statute

-History of mental illness

-History of chemical dependency

Often, unrelated felony and certain misdemeanor convictions can make a person ineligible to lawfully possess a firearm. It’s yet another civil consequence handed down by the justice system. Unlawful weapons possession is also a serious offense in Minnesota. If you are under arrest or being investigated on a weapons offense—or any offense—contact an experienced MN criminal defense attorney right away.

The History of the Miranda Rights

The “Miranda Rights” afford American one of the most important civil liberties of the criminal justice system. Miranda dictates that any person in police custody must, prior to interrogation, be clearly informed of the following rights:

- The right to remain silent; that anything the person says will be used against that person in court;

-The right to consult with an attorney and to have that attorney present during questioning,

- If the person is unable to garner their own attorney, that one will be provided at the cost of the state.

The Miranda rights were determined after the landmark ruling of the 1966 Supreme Court case Miranda vs. Arizona. The case followed the 1963 arrest of Ernesto Miranda after he was arrested and charged with sexual assault, kidnapping, and robbery. Miranda was then into custody and questioned by police, eventually admitting to the crimes. However, prior to the arrest, Miranda was never ware of his 5th Amendment right against self-incrimination and his 6th Amendment right to an attorney and to have that attorney present during questioning. Ernesto Miranda was later told to submit his confession in writing. However, according to Miranda’s court-appointed attorney Alvin Moore, entered an objection during the criminal trial that the statement was not made voluntarily and was therefore inadmissible. However, the objection was overruled and Miranda was subsequently convicted.

Moore and Miranda then filed an appeal with the Arizona Supreme court, arguing that the confession was not made with Miranda’s free will. Ultimately, it was the opinion of Supreme Court Justice Earl Warren that any self-incriminating statements made to police, without first being informed of the 5th and 6th Constitutional Amendments, were inadmissible. Warren ruled that:

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease … If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.”

As a result of the Supreme Court ruling, Miranda’s conviction was overturned. However, he was later retried, convicted, and sentenced to 20-30 years. He was paroled in 1972. He was later stabbed to death in 1976.

The two most important things to remember if under arrest are your 5th and 6th Amendment rights. You have the right to remain silent and you have the right to an attorney. If you are under arrest or investigation, invoke your right against self incrimination and demand an attorney before you say anything,

 

 

Brooklyn Park Man Fatally Shot after Attempted Robbery in St. Paul

St. Paul officers fatally shot a man suspected of an armed holdup of Kowalski’s grocery store on Monday morning.

The suspect reportedly entered the Grand Avenue grocery store at 8:30 a.m. and threatened a clerk with a handgun.  After robbing the store, the suspect took off on foot.

St. Paul police officers spotted the suspect during his attempt to flee and pursued him on to Ayd Mill Road.

One of the pursuing officers shot the suspect while he was fleeing.  The suspect was taken to Regions Hospital, where he died later in the day.

The police are investigating the incident.

“The officers did a great job by responding quickly and seeing the suspect flee,” said police spokesman Paul Paulos.

Mike Oase, vice president of Kowalski’s, said the suspect did not discharge the weapon inside the store and no employees were hurt.  Also, no police officers were injured during the incident.

Law enforcement officials shut down Ayd Mill Road between Hamline and Grand Avenue as part of their investigation into the detainment of the suspect.

Following administrative procedure, both pursuant officers were placed on administrative leave while officials investigate the incident.

Minnesota Criminal Defense Attorney Avery Appelman Comments

Armed robbery is a presumptive commitment to prison offense, meaning that if the person charged with that offense is convicted, whether by jury or through a plea, the judge is normally obligated to sentence the offender to a term in prison.  Obviously this situation is different as the suspect was fatally shot.

Police officers responding to the call must consider that if a person is willing to brandish a firearm to take someone else’s property, they may very well choose to discharge that firearm as they make their escape from the scene.  Officers are trained to approach these suspects with a cautious aggressiveness in order to preserve their safety and limit the movement of the felony offender.

It will be interesting to learn whether the suspect was shot in the back or in the front.  If the suspect was shot in the back as he was running away, would that be a legitimate use of deadly force by the police officers?

The St. Paul Police Department has been under scrutiny for its faulty crime lab, for it perceived regular abuse of arrestees, and their use of deadly force.  An intense investigation will surely follow, especially since the suspect has died.  Time will tell whether this incident was a justifiable use of force by the police.

Related source:  TwinCities.com

Woman Facing Felony Assault Charges when Man Tried to Keep her from Driving Intoxicated

A Minnesota woman is now facing felony charges after allegedly assaulting a man who attempted to prevent her from driving while intoxicated with her 2-year-old son in the car.

One December 10th, police were called to the Inver Grove Heights home of 28-year-old Desiree Smith on reports of domestic assault. According to police reports, the male victim told police that Smith was drinking and the two were arguing, and that she intended to leave in the car with their young son.  The man then took away Smith’s keys; she then began to hit him and he fled to a bedroom. When he opened the door, the victim told police that he saw Smith carrying their son and took him away from her. Smith then punched him in the mouth and later, threatened him with a kitchen knife. The victim also told police that Smith bit him.

When police arrived, they found blood on the floor and the victim with a bloodied and swollen lip. Smith was arrested, and smelled strongly of alcohol.

Desiree Smith was later charged with:

1 count second degree assault with a dangerous weapon: assault in the second degree is a felony offense punishable by up to seven to 10 years and $14,000 – $20,000 in fines. A person will likely be charged with second degree assault if they:

  1. Assault another with a dangerous weapon
  2. Assault another with a dangerous weapon and inflict substantial bodily harm

2 counts domestic assault, both misdemeanor charges. A second domestic assault case within 10 years will result in a gross misdemeanor charge and potential sentence of up to one year in jail and $3,000 in fines. If you have two or more domestic assault convictions in less than 10 years, you may be charged with a felony offense. This charge carries up to five years in state prison and fines reaching $10,000.

Smith has been released from custody and is awaiting trial. Her omnibus hearing is scheduled for January 7th in Dakota County.

Relates Sources:

MN Patchsmith