On Tuesday, federal accident investigators from the National Transportation Safety Board recommended reducing the nationwide legal BAC limit from .08 to .05 in an effort to reduce drunken driving fatalities.

The proposal was one of nearly 20 recommendations the NTSB offered in hopes of cutting down on drunken driving fatalities, which account for roughly 10,000 of the 30,000 yearly deaths on US roads.

In their argument, the NTSB cited over 100 countries that have adopted the .05 legal limit.  Investigators pointed to the significant reduction in drunken driving fatalities in Europe within ten years of the .05 legal limit taking effect.

While everyone can agree that we would benefit from reducing the number of traffic fatalities, more drivers may be at risk for driving under the influence if the proposal went into effect.  A woman who weighs less than 120 pounds can register a BAC above .05 after only one drink, while a 160 pound man could get there after two drinks.  The recommendation has the potential to put many people at risk of driving over the limit if they simply have a beer or two during dinner or with friends.

NTSB Chairman Deborah Hersman said she wants to focus on drunk driving fatalities because they are more preventable than other traffic accidents.

“Our goal is to get to zero deaths because each alcohol-impaired death is preventable,” Hersman said. “Alcohol-impaired deaths are not accidents, they are crimes. They can and should be prevented. The tools exist. What is needed is the will.”

While the recommendation may have some powerful proponents, it will likely be met with significant resistance at the state level.  Jonathan Adkins, an official with the Governors Highway Safety Association, said the proposal would face significant backlash because it has the potential to strongly influence both societal and economic norms.

“It was very difficult to get .08 in most states so lowering it again won’t be popular,” Adkins said. “The focus in the states is on high (blood alcohol content) offenders as well as repeat offenders. We expect industry will also be very vocal about keeping the limit at .08.”

The NTSB also called for states to adopt stricter Ignition Interlock Device laws, which require some DUI offenders to install a device to monitor their BAC before they drive.  The NTSB said the IID laws have failed to significantly reduce drunken driving fatalities because many individuals refuse to have the device installed in their vehicles.

Criminal Defense Attorney Geoffrey Saltzstein comments

Unfortunately, the NTSB is attempting to battle drunk-driving the same way that we’ve fought the “war on drugs,” a policy akin to relieving a headache by punching yourself in the face.

What the numbers don’t tell you is that the vast majority of alcohol related traffic deaths are committed by young drivers, repeat offenders, high blood alcohol concentrations or some combination of those three.

The actual reason behind the reduction in alcohol-related traffic deaths over the last two decades was the raising the legal age of alcohol consumption to 21, eliminating a large percentage of traffic deaths due to alcohol consumers under the age of 21.

Lowering the legal limit to .05 does not do anything for the other two categories. All it does is force states to spend more of their already limited resources fighting first-time, low-level DWI offenders.

Comparing the US to Europe in terms of DWI is like comparing apples to Volkswagens. We need to battle the addiction behind high BAC and multiple offenders, or we’ll keep spinning our tires, much like the old “war on drugs”.

Related source: Fox News

Over 150 drivers across the state of Minnesota were arrested for drunk driving on Friday night in connection with the state’s largest-ever DWI patrol.

Authorities decided to conduct the patrols on the eve of opening fishing weekend, an unofficial holiday for many across the state.  According to the Minnesota Department of Public Safety’s Office of Traffic Safety, over 150 squads from 70 different agencies across the state were involved in the crackdown.

Officers said about half of the roughly 150 arrests came in the Twin Cities metro area.

Friday’s DWI enforcement drew added attention because of the role social media played advertising the increased patrols.  The Minnesota State Patrol used social media to inform the public about the increased police presence in hopes of deterring would-be drunk drivers.

Here are the squads rolling out for extra DWI patrols. Plan ahead for a sober ride & keep roads safe. #May10DWI twitter.com/MnDPS_OTS/stat…

— MnDPS_OTS (@MnDPS_OTS) May 11, 2013

In addition to tweeting out pictures of the squad cars as they left the station, the Department of Public Safety tweeted out information about DWI arrests using the hashtag #May10DWI.

Previous reports had stated that authorities would tweeted out the names of those individuals arrested for driving under the influence, but they appeared to back off that statement, as they only tweeted out the age, sex, and location of a handful of perpetrators who were arrested.

However, the Twitter account @Mpls_DWI_Arrests tweeted out the names of some of the individuals arrested, also using the hashtag #May10DWI.  State Patrol Lt. Eric Roeske said that account was in no way affiliated with the Minnesota State Patrol or the Department of Public Safety’s Office of Traffic Safety.  The account which tweeted out the names has since been deleted from the Twittersphere.

The Office of Traffic Safety did not say if they planned to have another large DWI patrol in the future, but they do plan on concentrating their efforts to prevent drunk driving in the 13 counties that report the most DWIs.  That includes many of the Twin Cities metro counties, including Hennepin and Ramsey.

Related source:  TwinCities.com

Normally, getting mentioned on Twitter or in a friend’s Facebook status is a good thing, but you definitely don’t want to see your name in a tweet by the Minnesota State Patrol this weekend.

This Friday, 150 squads will hit some of the most-traveled Minnesota roads in the largest one-night DUI crackdowns in Twin Cities history.  If the authorities find that a person is driving over the legal limit, they’ll relay the information to the Department of Public Safety, who will publish the person’s name on Twitter along with the hashtag #May10DWI.

Increased DWI enforcement this weekend. Lt. Roeske reminds drivers to plan for a sober ride.

— MN State Patrol (@MnDPS_MSP) May 8, 2013

This is the first time state authorities have decided to use social media as a way of “shaming” those who are charged with DUI.

The Minnesota State Patrol decided to target this weekend because Saturday is the season opening day for fishing across the state.  With plenty of sunshine in the forecast, authorities expect increased traffic on the roads, and they hope their presence will help some fishermen make smart decisions regarding their alcohol consumption.

Nearly 30,000 people are arrested for DUI in Minnesota each year, and drunk driving accounts for one-third of the traffic fatalities in the state.

Related source:  My Fox 9

The following post was written by Criminal Defense Attorneys Stacy Kaye and Geoff Saltzstein. After countless hours of research and decades of legal opinions, Stacy Kaye, the firm’s constitutional law expert, has begun writing the myriad of legal briefs and motions that will be the basis of the Appelman Law Firm’s challenge to Minnesota’s DWI laws; and Geoff Saltzstein has filtered the arguments into digestible material for our readers to gain a better understanding of the issues presented, and the looming questions our courts have yet to answer.

Below, Stacy and Geoff discuss the implications of Missouri v. McNeely, and foreshadow upcoming blog posts that will build off this historic ruling.

On April 17^th, 2013, the United States Supreme Court delivered an opinion, Missouri v. McNeely, which called into question nearly every aspect of Minnesota’s DWI law.  Not only does the ruling in McNeely raise doubts about the constitutionality of our DWI law in its entirety, Supreme Court Justice Sonia Sotomayor explicitly overturned what has become the constitutional basis for Minnesota’s DWI law.

Up until now, the legality of our DWI law has been based on the natural metabolism of blood-alcohol in a suspect’s body causing the forensic evidence of DWI, your blood-alcohol concentration (BAC), to be diminished as time passes. This allowed law enforcement to take samples of your blood, breath or urine without a warrant, as required in the Bill of Rights of the United States Constitution.

McNeely’s Argument

Missouri v. McNeely involved a DWI suspect, Tyler McNeely, who was stopped by a Missouri police officer for speeding and crossing the centerline.  After declining to take a breath test to measure his BAC, he was arrested and taken to a nearby hospital for blood testing.  The officer never attempted to obtain a search warrant, and McNeely refused to consent to the blood test.  The officer then directed a lab technician to take a blood sample, which revealed a BAC well above Missouri’s legal limit.  McNeely was ultimately charged with DWI, and asked the court to suppress the evidence of the blood test, arguing that there was no consent, and certainly no warrant, as required by the 4^th Amendment of the Constitution.

Issues of warrantless blood tests have been argued, and rejected, regularly throughout the country; but in a decision by the U.S. Supreme Court in 1966, Schmerber v. California – which has been routinely misinterpreted – most notably by the State of Minnesota – the court ruled that the metabolism and natural dissipation of alcohol levels in the bloodstream created a situation where law enforcement did not need to get a warrant because the evidence was being lost with every minute that passed.  The ruling was deliberately limited to the circumstances specific to that case; and with advances in technology such as email, fax, and even video conferencing, the ability for law enforcement to obtain warrants has become infinitely more convenient, a fact that has been overlooked by nearly every state court in the country.

After almost 50 years, the Missouri courts finally decided that enough was enough.  The Supreme Court of Missouri ruled that, other than the natural dissipation of blood alcohol, there was no reason that the officer could not get a warrant, and he therefore violated McNeely’s constitutional right against warrantless searches, meaning the evidence of McNeely’s BAC could not be used against him, and that the body’s natural metabolism of alcohol can no longer be used as the sole-factor for a warrantless search.

Sotomayor Defends McNeely’s Rights

The State of Missouri appealed to the United States Supreme Court, and Justice Sonia Sotomayor delivered the high court’s ruling, agreeing with the Missouri courts throughout her 15-page opinion, saying specifically that, “In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute [a situation] in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, 133 S.Ct. 1552 (2013).

In discussing the history of the law, Sotomayor pointed to a handful of egregious examples of state law with particularity, Minnesota being near the top of that list, and admonished the reasoning courts have used to justify warrantless blood tests.  These warrantless searches for evidence have not only become routine in DWI stops across the country, they’ve become part of the Minnesota DWI law by making refusal to submit to the blood-alcohol tests a crime in and of itself.

What’s Next?

The best place to start the discussion is the fundamental Constitutional rights that are implicated, violated routinely, and why they exist in the first place.  We’ll then move into the 4^th Amendment right to privacy, and more specifically, the requirement that law enforcement obtain a warrant for any search.  Next, we will discuss what is known as the Frost Doctrine, or the “unconstitutional conditions doctrine,” meaning that the government cannot condition a privilege – driving, in this case – on the waiver of constitutional right – the warrant requirement for searches and seizures.  Then we’ll take you under the hood of the DWI process a little, and discuss the implications of the Due Process Clause in the 5^th and 14^th Amendments of the Constitution.  You’ll also get a glimpse into the crime of Refusal to Submit to Chemical Testing, a gross misdemeanor that you will be charged with, and convicted of, if you don’t “consent” to the chemical testing process.  Finally, we’ll wrap up the discussion, for the time being, with some of the more ancillary issues that will be raised, and any new developments in the Court of Appeals, or in the DWI law itself.

Even a cursory reading of Missouri v. McNeely raises questions about the constitutionality of Minnesota’s DWI laws.  But a closer study of the decisions and rulings that form the constitutional foundations of our DWI laws, and the effect that McNeely has on those foundations, reveals the potential effects of the ruling to be widespread and dramatic.  In the coming weeks Stacy Kaye and Geoff Saltzstein will discuss the various issues in greater detail, what the impact of McNeely will be in the near future and what the legacy of McNeely may hold for the future of Minnesota’s DWI laws. Stay tuned. Film at 11.

Prom season is already in full swing, and as the school year winds down many high school students look for ways to celebrate.  One celebration ritual that some people can relate to involves consuming alcohol before or after their high school prom.  While this wasn’t a huge deal 30 years ago when the legal drinking age was 18, nowadays school officials are looking for new ways to make the end of the year dance safer for those in attendance.

One way some high schools have combated underage drinking if by enforcing mandatory alcohol screenings before teens can enter the dance or walk in graduation.  Lac qui Parle Valley High School and Montevideo High School instituted mandatory breathalyzers last year during prom, and they believe it helped deter underage drinking.  While it may stop teens from consuming alcohol before the dance, does the mandatory testing violate a person’s 4^th amendment rights to unreasonable searches and seizures?  We’ll take a closer look at the issue.

Can Schools Legally Test?

A couple of high schools that have instituted breathalyzer testing before prom claim to be doing it for the safety of the attendees and of those people who have to share the roads with the teens.  By breathalyzing before the event, officials hope all students will arrive completely sober.  While the school may not be able to control the students once they leave the event, they can attempt to keep them sober on their way to and from the event, which is important considering the leading cause of death among 15-19 year olds is traffic accidents.

St. Charles High School Superintendent Mark Roubinek echoed those sentiments when he explained why his school breathalyzed students before last year’s graduation ceremony.

“It would’ve been a terrible situation if some kids would’ve gotten hurt or killed,” said Roubinek.

Nobody will ever know if Roubinek’s actions prevented any tragedies, but some parents felt that their children’s rights were violated by the mandatory breathalyzer.  They argue that only the students who appeared intoxicated should have been tested, while others say if the teens have nothing to hide, why not consent to the test?

Defense Attorney Avery Appelman, who routinely handles cases surrounding unreasonable searches and seizures, said it’s a bit of a gray area, but some regulations allow the schools to conduct the tests.

“It’s similar to a ‘student-athlete code’, which states that a student must abstain from certain activities if they want to participate in sports,” said Appelman.  “If you want to participate in school functions, you may have abide by their policies.”

Appelman added that schools can hide behind the clause that they are looking to protect the “greater good” of all their students when conducting the tests.

Consequences of Testing

Besides the debate over 4^th Amendment rights, forcing mandatory breath tests on prom-goers isn’t a perfect system.  Some opponents of the process say teens will simply turn to drugs like marijuana in order to bypass alcohol detection, while others say students may skip the dance altogether because they want to drink without detection.

Another reason why across-the-board testing of all students isn’t a perfect science is because sometimes breathalyzers report a “false positive”.  As we’ve written about before, diabetics, dieters and asthmatics all have an increased likelihood of registering a false reading on a breathalyzer, and it could be devastating to a teenager to be refused entry to their prom because of an inaccurate test.

Related source:  CBS Local Minnesota

Comedian Kevin Hart was arrested on suspicion of DUI earlier this month after an officer spotted him driving erratically at excessive speeds.

It was no laughing matter for Hart though, as reports have surfaced saying he nearly collided with a gas tanker trunk.  Officers pursued Hart’s vehicle, and they were able to safely get him to pull over.  Deputies said Hart showed “objective signs of intoxication”, and the comedian later failed a field-sobriety test.

Hart was later charged with misdemeanor DUI.  Hart could be assessed any of the following penalties according to state law.

• Fines up $1,000
• Up to six months in jail
• A four-month license suspension
• Probation time
• 18-30 month alcohol awareness program
• Maintain SR-22 insurance (aka high-risk insurance) for three years once license is re-instated.

Hart was later released from police custody, and he fired off a series of tweets that showed a lack of remorse for his actions.  Hart tweeted “I’m officially a thug, I spent 6hrs in jail last night…I got pulled over 3blocks from my house by a d**k head cop.”  He added “This cop was the worst, he knew who I was & wanted to make a example out of me….”

The tweets have since been deleted, but Hart later issued another tweet that seemed to trivialize his time in police custody.

“I did 6,000 push ups & 13,000 sit ups while I was in the pin….shout out to my celly “Mark” we exchanged war stories LMFAO…”

It’s uncertain if Hart came to his senses because of advice his publicist or through backlash on twitter, but he later offered the next two tweets that showed a more mature response to his situation.

On some real shit….drinking & driving is not a game or a laughing matter. People have lost lives because of stupid shit this!

— Kevin Hart (@KevinHart4real) April 14, 2013

This is a wake up call for me, I have to be smarter & last night I wasn’t….everything happens for a reason….

— Kevin Hart (@KevinHart4real) April 14, 2013

Minnesota DWI attorney Avery Appelman said Hart should consider taking a different approach in hopes of securing a favorable outcome.

“DWI cases are challenging to win, and absent an issue that can be litigated, DWI cases rest on what a defendant does prior to the case’s resolution,” said Appelman. “Acceptance of responsibility is only part of the overall process toward favorable resolutions.

Appelman went on to say that proving you can avoid the substance that got you in trouble in the first place is another way to seek leniency from the court.

“We mandate our clients obtain a chemical dependency evaluation and follow those recommendation, such things as an alcohol education class, in/outpatient treatment, aftercare, Victim Impact Panels, or attendance at AA/NA meetings,” said Appelman.  “It is through the initial evaluation that our clients can take some steps to help steer their case toward a great result.”

Related source:  TMZ

The United States Supreme Court ruled Wednesday that suspicion of driving under the influence is not grounds in and of itself for authorities to draw a blood sample from a suspect without first obtaining a warrant from a judge.

The U.S. Supreme Court ruling upheld a previous decision by the Missouri State Supreme Court which ruled a blood test without a warrant was only allowable:

• In the event of an emergency, or
• Under “contingent circumstances”

The ruling was in regards to the case Missouri v. McNeely, in which Tyler McNeely was pulled over for speeding.  Police suspected that McNeely had been drinking, but he refused to consent to a breathalyzer or blood test.  Authorities decided to obtain a blood sample from the defendant without waiting for a judge to approve the warrant.  The police said they were acting within their rights because they argued that the natural metabolization of alcohol into the bloodstream was enough of a contingent circumstance to warrant collecting the sample.

The U.S. Supreme court saw otherwise in the majority opinion.  They ruled that the metabolization of alcohol in the body is not enough of a reason to make an exception to the 4^th Amendment, which protects a person against unreasonable search and seizure.

The court also noted in their ruling that law enforcement officials have plenty of ways to enforce DUI laws without the ability to obtain a warrantless blood sample.  They pointed to the Implied Consent rule, which states that a driver automatically forfeits their license if the refuse to take a BAC test.

Will Implied Consent laws be challenged?

Although the Implied Consent rule places restrictions on drivers who refuses a BAC test, Criminal Defense Attorney Geoff Saltzstein said this verdict could call that law into question.

“This decision has the potential to change the entire implied consent testing procedure in Minnesota by rendering warrantless searches of your person unconstitutional,” said Saltzstein.  “Prior decisions have based the reasoning behind warrantless searches to obtain blood samples on the evanescent nature of alcohol, but this decision clearly states that this reasoning can no longer stand alone.”

Saltzstein went on to say that proponents of the Implied Consent law will continue to hold onto the notion that driving is a “privilege”, but such laws would be egregious if you compared it to other liberties, like homeownership.

“If this reasoning is likened to homeownership, there is no court in this fine country of ours that would validate a search of a person’s home if it were based solely on a person’s implicit consent at the time of closing.”

In other words, Saltzstein questions why a person is subjected to penalties (loss of driver’s license) because they decide to exercise their 4^th Amendment right.  If the police wanted to search your house for drugs, you can refuse entrance until they provide a warrant without fear of repercussions, yet those same standards do not appear to apply to a person if they are driving.

Saltzstein added that the ruling is a victory for personal liberties, and he is interested in looking into the potential of challenging the Implied Consent laws in the future.

Related source:  Lawyers.com

In an ironic tale, Yovani Gallardo, who pitches for the Brewers in a stadium named after the Miller brewing company, was arrested and charged with DUI early Tuesday morning after getting behind the wheel following a night on the town.

A concerned citizen alerted authorities to a possible drunk driver after witnessing a car driving at erratic speeds and swerving between lanes.  Deputies were able to track down the driver, and noticed the car was only traveling at 40 mph in a 55mph zone.

After stopping the vehicle, authorities noticed that Gallardo had glassy eyes, slurred speech and smelled of alcohol.  He consented to a breathalyzer test, which revealed a BAC of 0.22, nearly three times the legal limit of 0.08.  Gallardo took a second breathalyzer following his arrest, which also came back with a reading of 0.22.

Milwaukee County sheriff’s spokeswoman Fran McLaughlin said Gallardo complied with the officers’ requests throughout the process.

“He was very cooperative,” said McLaughlin.  “He said he had a couple of beers”.

McLaughlin went on to say that Gallardo faces nearly $800 in fines.  She said the first-offense drunken driving citation is not a misdemeanor or felony, but Gallardo faces a $300 fine for the DUI, and additional $300 for his level of intoxication, and a $178.80 fine for a deviating lanes violation.  In addition, Gallardo will have his driver’s license suspended for a minimum of six months.

Gallardo may also be forced to install an ignition interlock device in his vehicle, as recent provisions to Wisconsin Act 100 state that IID’s are mandatory for anybody convicted of a first offense OWI with a BAC at 0.15 or above.  Minnesota has a similar system, requiring IID’s to be installed if a person blows a 0.16 of higher.

Criminal Defense attorneys Melvin Welch and Stacy Kaye said Gallardo was fortunate to have run a-foul while in Wisconsin, which is one of the most reasonable states in regards to its DUI laws.  Had he been cited in Minnesota, Gallardo could have faced a variety of penalties, including:

• Fines in excess of $1,000
• Loss of license for up to one year
• Jail time
• Mandatory chemical dependency programming
• Several years of probation

Although the Brewers are off to a rocky start this season, Welch added that “Yovani’s good fortune is coupled by not playing for the Twins this season.”

The Brewers issued a statement Tuesday morning acknowledging the incident.

“We have been made aware of the situation with Yovani and we take this matter very seriously,” the organization said in a statement. “We have expressed our disappointment to him and know he understands that behavior of this nature is of great concern to everyone in the organization. Yovani has acknowledged the seriousness of this incident and is taking full accountability for his actions.”

Gallardo is expected to make his next scheduled start on Thursday against the reigning World Series Champion San Francisco Giants.

Related source:  ESPN

The weather in Minnesota can only be described as strange (Thundersnow in April?!), and in keeping with the theme we decided to find a few DUI stories that make you say “are you kidding me?”  They also highlight the dangers of mixing marijuana with other substances.

Elephant in the road

Late last year, Samuel Phillips, 31, was arrested and charged with his seventh DUI after his Land Rover struck a guard rail.  When officers arrived on the scene, they noticed that Phillips was acting erratically.  An officer proceeded to ask Phillips about the accident, including why it occurred.  Phillips said he was merely attempting to avoid hitting an animal.

Let’s just say officers weren’t buying his story.

According to the police statement, “Phillips told the trooper that the accident was the result of…. swerving to avoid an elephant he observed running in the path of the vehicle.”

Officers suspect that Phillips’ observation was a result of the combination of PCP dipped marijuana he admitted to smoking before getting in his car.  Phillips was charged with his seventh DUI, as well as driving without insurance.  He was held on a $21,000 bond.

No other citizens reported seeing an elephant, and no zoos reported any missing Dumbos.

Tonight, I gotta cut loose, footloose

Earlier this month, authorities were called to the scene of a single vehicle crash to find the driver, 34-year-old Felix Lockett, dancing in the street.

Without his clothes on.

A Florida Highway Patrol officer who responded to the call opened Lockett’s car door to investigate the scene, only to experience symptoms of exposure to hazardous materials.  A Haz-Mat team was called to assist in the situation, and they found a bottle containing formaldehyde inside Lockett’s vehicle.

Formaldehyde is most commonly used during autopsies, to determine the cause of death and to help preserve the body. Lockett told authorities that he had mixed formaldehyde with marijuana before driving.

The trooper and two other law enforcement officers were taken to the Orlando Regional Medical Center for treatment after experiencing symptoms associated with chemical exposure.  None of the illnesses were considered life threatening, although they reported watery eyes and trouble breathing.

Although he was able enough to dance, Lockett was later hospitalized in “serious” condition.  Authorities did not announce what charges would be brought against the man.

If convicted on a felony level, Lockett’s next dance may be from behind bars.  No word on if dancing is banned in the area penitentiary.

Related source:  Orlando Sentinel, The Philadelphia Inquirer

In the first part of his interview, Melvin talked about his background as a prosecutor and as a Russian translator in the Navy.  In part 2, we hear about the strangest case he’s ever worked, and we throw some rapid fire questions his way.

1)  Tell us about the strangest/most impressive/weirdest case you’ve ever worked

As a criminal defense attorney, I once represented a man who was convicted of a felony Driving While Intoxicated crime and sentenced to several years in the Minnesota Department of Corrections.  Later, it came to light that he had been wrongly convicted of the felony DWI and had served an extra year in prison than he should have. In other words, he was wrongly convicted and unjustly imprisoned.  After he got out of prison, he fell off the wagon and returned to drink.  He then drove drunk again, and was convicted of felony DWI and imprisoned in the DOC for several years – this time without any errors.  At his sentencing, the probation officer dismissed the previous error as irrelevant and the district court judge sentenced him to the full sentence without any thought to the fairness of having imprisoned him unjustly for an entire year.  He asked for help in righting this wrong, and I took up his case just before I left for my last job.

Minnesota courts recognize two types of law:

(1)  Statutory law (written by the legislature and signed into law by the governor), and

(2)  Precedent (previously decided court cases which have binding effects on questions of law which arise through individual cases).

Under his situation, he had no recourse for his appeal – he was not entitled to have the previous year credited to him to set off his new sentence, and there was no precedent on the question.

I appealed his case to the Minnesota Courts of Appeal, arguing that this error was one of such magnitude and gross injustice that it could not be ignored as – in the words of the probation officer – “what’s done is done,” and that it was wrong for the judge to disregard the man’s objection to serving the entirety of his new sentence without regard to the extra year he wrongfully spent in prison.  Typically, when the appellate courts hear a case they are confined by the Constitution, the laws of the State of Minnesota, and precedent when making their decisions.  There was no basis to alleviate this injustice.  However, I was able to make the argument to the Court that a person’s liberty cannot be so callously disregarded by the black letter of the law, and that for a just system to operate as such – it must right wrongs where it has the opportunity.  We were successful in that case, enabling the man to be set free in response to his wrongful imprisonment. State v. Kraulik, 2009 WL 1047001 (Minn. Ct. App. 2009).

2) You’re a current or former member of three Native American organizations.  Talk about your family history and your experience with those groups.

My father’s genealogy traces back to the Oneida Indians of New York, and the surname (Welch) to Ireland.  The Oneida Indians were part of the Five (and later Six) Nations League comprising the Iroquois (including the Mohawk, Onandaga, Cayuga, and Seneca – later the Tuscarora).  The League primarily held its neutrality during the French and Indian Wars, but during the Revolutionary War it fractioned with only the Oneida Nation (and some of its subsidiaries) fighting for the new nation against the British.

Following the War, the Oneida Indians of New York secured their traditional lands through a treaty with the U.S. Federal Government, however subsequent treaties with the State of New York whittled away at that agreement during the government’s “encouragement” of Indian relocation.  My descendants were among those relocated to Wisconsin in the late 18^th, early 19^th centuries, and eventually organizing as the Brothertown Indians of Wisconsin.

I grew up in a southern Minnesota farm town (West Concord) in a family where the only Natives with whom I was familiar were my immediate relatives.  My interest in my heritage began to rise later in my life, after I had finished my travels and education and settled down to life in Minnesota.

At the University of Minnesota Law School, I became familiar with, and eventually joined, the Minnesota American Indian Bar Association, begun in the early 1990s by Natives from various locales practicing law in Minnesota to offer support and connections to others in similar circumstances.  It was the first opportunity I had to learn about my history and personal stories of colleagues and their tribal connections and experiences.  I continue to enjoy the friendship and camaraderie of those individuals, and foster a welcoming environment for Native Americans in the legal profession in Minnesota.

Rapid Fire Questions

1)  Favorite Food:  The West Bank Grocery store’s shawarma (gyro) – spectacular!

2)  Favorite Book: Reflections On The French Revolution, by Edmund Burke.

3)  Favorite Band:  Johnny Cash and Gorillaz.

4)  Favorite College/Pro Team: The Rough-hawsers.

5)  Favorite Hobby: Reading.

6)  Favorite Quote: Quid verum atque decens euro et rogo, et omnis in hoc sum.  Horace.

7)  Favorite TV Show: Supernatural – best metaphysical musings in the modern fantasy genre.

8)  Role Model: The Man of Mighty Malyuh. . .  the Mighty Malyuh Man.

9)  One Person From History You’d Like to Meet: Marcus Tullius Cicero (Roman Senator, philosopher, and co-Consul with Octavius Augustus).

10)  Favorite Criminal Defense charge to defend: Narcotics and Gun cases.

If you have any questions for Melvin, or you want his opinion on a case, give him a call at (952) 224-2277.