Drugs and felony charges:  sadly not a recipe for a happy, upbeat blog post.  If you’ve been charged with a methamphetamine-related crime, though, you need to understand some basic information about Minnesota laws.

Crimes involving methamphetamine in Minnesota usually involve possession, manufacture, possession of drug ingredients, called precursors, with intent to manufacture, and sale.  If it’s possession, manufacture, or sale that you’re charged with, the prosecutor will have to prove that the substance found was actually methamphetamine and not some other drug.

Sale and possession crimes

Minnesota’s penalties for methamphetamine crimes are harsh, much harsher than the penalties for possession, sale, etc. of similar amounts of drugs like marijuana.  Methamphetamine sale and possession crimes are divided into degrees depending on the weight of the substance involved.  For example, sale of 10 grams or more or possession of 25 grams or more is a first-degree crime that can get you 30 years in a jail, a $1 million fine, or both.  The dividing lines for the degrees are:

Likely sentences for sale and possession crimes include:

• First-degree crimes:  for a first-time offender, the recommended sentence is 86 months in prison.
• Second-degree crimes:  for a first-time offender, the recommended sentence is 48 months prison.
• Third-degree crimes:  for a first-time offender, the recommended sentence is a stayed 21-month sentence (that will usually mean probation).
• Fourth-degree crimes:  for a first-time offender, the recommended sentence is a stayed 12-month sentence, but often up to a year in county jai.

However, all of these sentences will be increased if you have prior controlled substance convictions.  For example, with a prior drug crime conviction, the maximum sentence on a first-degree methamphetamine crime is 40 years.

Manufacturing crimes

 You can be convicted of a manufacturing crime regardless of whether or not you intended to sell the drugs.  In contrast to sale and possession crimes, the penalties for manufacturing are not linked the weight of the drugs found.  The maximum penalty for a manufacturing crime is 30 years in jail, a $1 million fine, or both.  Further, if you are convicted of manufacturing the sentence can include restitution to pay for the cleanup of contaminated property.

Possession of precursors crimes

 The penalties for a possession of precursors crime are less severe than for the other methamphetamine crimes.  It’s still a felony, though, and carries a sentence of up to 10 years along with a maximum of a $20,000 fine.

Any comments or question feel free to call or post a comment

Rosengren Kohlmeyer
Law Office Chtd.
Mankato, Minnesota 56001

Remember, this isn’t legal advice just commentary.  For legal advice you need to hire a lawyer.

The Verdict Is In…Guilty.

criminal vehicular homicide.  If you haven’t been up on your Minnesota news lately, Ms. Senser’s trial followed an accident where the vehicle she was driving hit and killed Anousone Phanthavong, who had been standing next to his car on a freeway exit ramp after his car ran out of gas.  Ms. Senser didn’t stop at the accident scene and in fact didn’t even admit she was driving the car until several days later.

To convict someone for criminal vehicular homicide based on leaving the scene of the accident, the prosecutor has to show that the person knew he or she had been involved in an accident with a person or another vehicle.  This is where big orange barrels came into play during the trial.  Amy Senser’s defense was that she thought she’d hit a construction barrel, and showed the jury the size and shape of one of those barrels.  Would it be possible to confuse hitting a person with hitting a construction barrel?  Some experiments might be able to show one way or the other, but that’s probably not a test many people are going to be willing to be guinea pigs for, at least on the “being hit” end!

The jury apparently tried to soften the blow of their conviction:  they sent a note asking if the court could let Ms. Senser know that they (the jury) believed she had only thought she hit another vehicle, not a person.  But in the legal world, this is actually meaningless, since a 2007 Minnesota Supreme Court case established that believing you hit another vehicle, and then leaving the scene of the accident, is enough to get you convicted of criminal vehicular homicide if you actually hit a person and the person dies. (The closing argument by the prosecutor, Ms. Deb Russell, was interesting as it seemed she was very angry and seemed to thrive on the anguish.  Most prosecutors act much more professional in court and are a quite a bit more detached in my experience).

The drama isn’t over with the verdict, though.  There is sentencing in a few weeks where Ms. Senser faces up to 4 years in prison.  With the added media hype it’s likely that the Judge might very well want to “send a message”. Amy Senser’s lawyer recently subpoenaed a local television station to try to get the raw footage of interviews the station did with jurors after the jurors had returned their verdict.  This is definitely an unusual move and will no doubt bring a fresh round of courtroom drama, so stay tuned!

As always, any comment or questions post them here.

Rosengren Kohlmeyer, Law Office
Mankato, Minnesota

In a “you couldn’t make it up” case from northern Minnesota, a man was arrested for DWI (that’s driving while impaired) for having too high of a blood alcohol content while driving…a mobility scooter.  The man was physically

Yes Virginia, You Can Get Charged with A DWI On A Scooter

disabled and used the three-wheeled scooter, which had a maximum speed of 5.75 miles per hour, to get around.  He was initially convicted of the DWI charge, but fortunately for him, the Minnesota Court of Appeals reversed his conviction, finding that the man was essentially a pedestrian, rather than the driver of a motor vehicle, while he was operating the scooter.

What can you get a DWI for driving? 

As far as more serious DWI offenses go, it’s worth noting that you can be charged with DWI for driving things other than cars (mobility scooters aside!).  Minnesota’s DWI law prohibits driving a “motor vehicle” while intoxicated.  So what’s considered a motor vehicle under Minnesota law?  They are vehicles that are self-propelled—that is, they don’t move by human power.  They include the obvious cars and motorcycles, but also motor boats, off-road vehicles, snowmobiles, all-terrain vehicles, and off-highway motorcycles.  A few other unusual items in this category include bulldozers, trolleys run by overhead wires, and cars that have temporarily broken down and are inoperable.  Things that are not motor vehicles include, as we now know, mobility scooters, as well as trailers and bicycles.

Why can you get a DWI for driving something that isn’t a car?

Although it might seem strange that you can get a DWI for driving a snowmobile or a bulldozer, it makes sense when you think about what the purpose of the DWI laws are—to keep Minnesota residents safe.  The Minnesota Legislature, in their infinite wisdom, have determined that you could just as easily hurt someone driving a snowmobile while intoxicated as you could driving a car while intoxicated.  If you’re planning to take beer along for a fishing trip or boat ride, make sure you have a designated driver, just as if you were headed out for a night on the town.

What else does this mean for me?

The fact that things like motor boats and snowmobiles are considered vehicles means that Minnesota’s implied consent law applies to you if you are driving one of these vehicles.  Remember our post on the implied consent law?  This law makes it a crime to refuse to submit to a chemical test of your blood, breath, or urine.  So if you get stopped by law enforcement while using a motor vehicle other than a car, you are still required to provide a sample for chemical testing.  This means if you’re cruising on your snowmobile and get stopped it’s every bit as serious as if you were stopped while driving.

Another reason why you should keep in mind that driving vehicles other than cars, if you’ve drunk too much, can get you a DWI:  the penalties are not more lenient for driving, say, a boat, while intoxicated.  Minnesota’s sentencing provisions for DWI don’t differentiate between whether your offense was the result of driving a boat or driving a car, so take the DWI laws seriously no matter what kind of motor vehicle you’re driving.

There is one exception for first time DWI defendants who are charged with boating while impaired, you generally don’t lose your license for the same duration as if you were driving a motor vehicle, but that is a one time only benefit and doesn’t apply for multiple DWI folks.

Any comments or questions please feel free to either send me an email, visit us at our Main DWI Defense Site.

Jason Kohlmeyer
Rosengren Kohlmeyer, Law Office Chtd.
507-625-5000

As always, none of this is legal advice, just comments on current laws and legal events.  For legal advice you need to retain me as your attorney.

FIrst, the study, the question Rand wanted to address does a full-time public defender, with the full resources of the public defenders’ office result in a better outcome than private lawyers who are appointed by the court and paid a very low, flat fee?

Is This The Rand Supercomputer They Used?

No suprise, the answer was yes a full-time public defender is better than having an appointed, part-time criminal defense lawyer.  Why? the first isseu was the pay.  The reason is that appointed counsel received about $3,333 for a full-blown murder trial.  The effective hourly rate was less than $2/hour.  This coupled with the issue that most court appointed counsel are sole-practitioners with limited resources and limited criminal defense experience mean that not only are you getting the absolute cheapest defense attorney, you’re getting an defense attorney that has very limited experience!

Minnesota doesn’t really use court-appointed criminal defense attorneys, with the exception being for child support contempt cases and some conflicted federal criminal cases.  The pay for the Minnesota court appointed attorneys is better, but not much.

Thus, if you are debating to keep a court appointed attorney or a private attorney, you will need to do some hard decisions, do you want a professional attorney who has your best interest in mind? or do you want a court-appointed attorney making $2/hour as they do in Philadelphia?

Spring turkey huntingis coming up, and the nice early warm weather is making outdoor shooting ranges more enticing than they would be in your average March.  If you’re thinking about buying a gun, or if you already own one and you want to make sure you’re keeping up with all the right rules and regulations, here’s a rundown of the Minnesota laws on gun permits and ownership.

Turkey Hunting? Already?

Handguns / Pistols

Let’s look at these first because the rules are more complex.  To buy a handgun, you need a “permit to purchase” unless you already have a permit to carry (more on that later).  Assuming you don’t have a permit to carry, you can get a permit to purchase by filling out an application form (called the Minnesota Uniform Firearm application), which is available on the Minnesota Bureau of Criminal Apprehension’s website.

Another way to get a permit to purchase is to just go to the gun shop where you want to buy the weapon.  The shop will conduct a background check to determine if you are eligible to buy a gun, although it will probably charge you for the service.

In Minnesota, you can’t carry a pistol in a public place without a permit to carry.  Being in a public place includes driving through a public place, so that means you can’t have a gun in your car while driving on a public road without a permit.

To get this permit, you need to fill out an application to your county sheriff or police chief and show that you have had training in the safe use of a pistol, that you’re over 21, and that you’re not prohibited from possessing a firearm (for example because you’ve previously been convicted of a felony).  If you can meet all those requirements, you are guaranteed to receive the permit, unless the sheriff finds that granting you the permit would be likely to be dangerous to either yourself or other people.

Once you get your permit, make sure to carry it on you, along with government-issued photo ID, at all times when you’re carrying your gun in public.  If you forget and are stopped, you can be charged with a petty misdemeanor and fined, so make sure not to forget!

Even with a valid permit to carry, there are places that carrying the gun will still be prohibited.  These include school property, private premises which have a sign banning guns, and, in general, courthouses and jails.

Shotguns and rifles

For hunting guns, there’s no need for a permit to purchase, you don’t have to register the gun, and you don’t have to worry about a permit to carry.  You can take a rifle or a shotgun to and from hunting, to and from target shooting, or to a trade show or ceremony where guns are traditionally used.  However, you’re not allowed to carry a rifle or shotgun in a public place.  “Public place” does not include areas where hunting or shooting is lawfully allowed though.

With this basic summary in mind, you won’t have to worry about running “afowl” of Minnesota gun laws when you’re out turkey hunting!

Any questions or comments feel free to email me below or visit the Mankato Criminal Defense website.

Jason Kohlmeyer
Mankato, Minnesota
507-625-5000

Remember, this isn’t legal advice just a discussion of a legal topic, for legal advice you’ll need to hire a lawyer.

Brian Freeman

Unfortunately, there is another murder in Southern Minnesota, this time in the small town of Blue Earth. It looks like Brian Freeman (his last name is ironic isn’t it, as he won’t be a free man any longer) murdered Chris Fulmer with a hammer a few days ago. The story is reported by the Mankato Free Press and it claims that Mr. Freeman entered the house of his wife and assaulted the man who was in bed with her at about 12:30 a.m.

The Free Press goes on to say that they have some pretty convincing evidence against Mr. Freeman, including:

• Confession of the murder.
• Bloody Clothes, with human blood.
• Admission of being at the scene.
• Ski mask in his car.

But the question remains…why is he only charged with second degree murder? Is the prosecutor soft on crime? is there something we don’t know about? Well I don’t know the answer to the last two questions; however I know why he is not charged with 1st degree murder (remember the main difference between 1st and 2nd degree murder is premeditation and with 1st degree you can get life without the possibility of parole). The reason is simple a grand jury is required to indict for 1st degree murder.

Grand Juries are a holdover from a different era. They are controlled by both statute and Minn. Rule of Criminal Procedure 18. They are held in a sealed room, where the 16-23 Jury members sit, the prosecutor, witnesses and a court reporter. As you can imagine with no defense lawyer or the ability to put on a defense the joke is the prosecutor can get a grand jury to indict a banana peel if he wants to. All that is required is a majority feel that there is probable cause to prosecute and the case moves forward.

Check back here as the case progresses for analysis of the indictment and the defenses (there are always defenses to a crime!)

Rosengren Kohlmeyer,
Law Office Chtd
Mankato, Minnesota

Readers love their characters, and few are as diverse a group as the written lawyer. As some of the most diverse characters in the fictional tradition, the barrister can be a source of good or evil. And who doesn’t love a newcomer with a fresh edge? Major and minor, funny and classic, lawyers occupy a unique space in the charactered universe that requires loose definition to be called an archetype. From legal intrigue to a stalwart moral compass, it’s no wonder that we found 10 literary lawyers that we wish were real.

1. Atticus Finch

   It’s almost too easy. The perfect character in a perfect book, reading protagonist Atticus Finch makes turning the pages of Harper Lee’s classic,To Kill A Mockingbird, a simple joy. Inspiring readers of all kinds to the legal profession, Atticus’ soft-spoken code of honor and his commitment to justice and client advocacy highlight the noblest attributes of one of civilization’s oldest professions.

   Why He Should Be Real: There’s truth in this: if Atticus Finch were a real working lawyer, the world would be a better place. And most likely he’d be Gregory Peck.

2. Rudy Baylor

   The protagonist in John Grisham’s best-selling novel The Rainmaker, Rudy Baylor is a young, hungry lawyer that stumbles into his big break. He uncovers an insurance scheme to deny client claims, nails the company, and his plantiffs win more than $50 million dollars. Due to other complications in a romantic/legal subplot, Baylor becomes disillusioned with the law and vows to become a teacher in the end.

   Why He Should Be Real: Baylor proves that courage, smarts, and gumption can win you big court cases against the bad guys. Also, he’d be Matt Damon, and he’d probably be one hell of a teacher.

3. Perry Mason

   Written by former California lawyer Erle Stanley Gardner, Perry Mason’s character was developed and featured in more than 80 books and short stories. Mason is a great (if not a bit personally mysterious) lawyer who acts mostly ethically, and basically uses his lawyering business to play private detective. Then the second half of every book is a drawn-out, well penned, often revealing courtroom scene. Gardner remains one of the best-selling authors of all time.

   Why He Should Be Real: For sheer volume alone, Perry Mason should be a real person. He’d probably be a pundit on lots of legal TV shows, and would have bazillions of real-world examples for why he’s right about everything. For starters, he could have Nancy Grace’s spot in the public eye. And, he’d be Raymond Burr.

4. Portia as Balthazar

   In the poetic Shakespearean play The Merchant of Venice, Portia enters the trial disguised as the young lawyer Balthazar, and begs that Shylock show mercy on the merchant. She appeals to a higher law, and is praised by Shylock and compared to the Biblical judge, Daniel. She systematically takes Shylock and the Merchant through their case, each time begging for Shylock’s mercy — even though the law is on his side.

   Why She Should Be Real: Because it would be hilarious to watch any Shakespearean character come to life in 2012. Would she tweet at Shylock under a masculine handle? Would the British court rule that Shylock could indeed demand a pound of flesh — no more, no less — under penalty of death? Couldn’t the merchant just pay him back in iTunes? Also, she’d be Lynn Collins.

5. Joel Litvinoff

   In Zoe Heller’s novel The Believers, Joel Litvinoff is a bit mythologized; he lies unconscious for almost the whole of the book. Yet, he is a firecracker lawyer, often taking provocative and political cases.

   Why He Should Be Real: Maybe he already is. The New York Times described Litvinoff as a “William Kunstler” type, the controversial lawyer who represented the Chicago Seven and served on the board of the ACLU.

6. Horace Rumpole

   When a barrister writes a barrister, everything goes right. Originally a character in his Play for Today, British lawyer and writer John Mortimer created Horace Rumpole in his Rumpole of the Bailey TV series, but the spin-off novels also written by Mortimer have remained popular among readers around the world.

   Why He Should Be Real: He takes a lot of pro bono cases, and gives his friends historical and literary nicknames. A peculiar character and surely a lover of the lost cause, Rumpole would be a funny, if not Quixotic figure in the modern legal system. He would look exactly like Leo McKern.

7. The Man of Law

   In Chaucer’s well-loved classic, The Canterbury Tales, The Man of Law (also known as The Sergeant of Law) passionately and snobbishly defends the princess Custance in a rhetoric oration full of hot air.

   Why He Should Be Real: Again, for the humor. Who doesn’t want to run up in court against someone who only speaks in overtly flowery Middle English?

8. Wallace Stevens

   One of the only examples of artistic brilliance that has onset late in life, Wallace Stevens was a lawyer in New York before he was a poet. He focused on universal and philosophical meditations, as well as how to comprehend the world in its state of infinite flux.

   Why He Should Be Real: He is, but he’s also a lawyer turned poet — almost unreal in today’s get-up-and-go business world. This is romantic and sweet, and suggests that Stevens was of an ethereal spirit.

9. Henry Drummond

   The agnostic lawyer of the infamous play Inherit the Wind, both the lawyer characters of Matthew Harrison Brady and Drummond truly belong on this list. But Drummond gets extra points for answering to a higher calling, and valuing truth over what is considered decent or right.

   Why He Should Be Real: Based on real-life skeptic, wit, and ACLU lawyer Clarence Darrow, Henry Drummond brings a necessary flare to the courtroom. Additionally, his reliance on logic and rational thought would be a welcome contrast from the shock trials of today. Also, he would be Spencer Tracy.

10. Jake Brigance

    Of course John Grisham makes the list twice. In a neo-Atticus Finch-like character, Jake Brigance is also a white lawyer representing an African-American client in a tiny Southern town. He is the subject of racially targeted violence, is shot at, and is largely unpopular during his controversial trial.

    Why He Should Be Real: His charged cross-examination of the state doctor testifying against his client’s claim of temporary insanity just plain rules. Who else can get someone to scream, “You just can’t trust juries!” His closing argument is the stuff of legal legend. Also, he’d bear a striking resemblance to Matthew McConaughey.

Most people probably have a general idea that there are separate Minnesota courts for children who are charged with committing a crime.  But what exactly do juvenile courts do, and when could one be involved if your child is charged with a crime?

First, let’s get some terminology straight.  “Jurisdiction” means the power, or authority, or a court to hear a case.  The court that usually has jurisdiction over criminal prosecution of adults is called the district court.  A juvenile court, in this context, is the alternative to the district court.

Juvenile courts generally have jurisdiction over cases where a child is alleged to be delinquent.  While “delinquent” may sound like the child failed to turn in some homework, the word covers a wide range of wrongdoing.  It is essentially any violation of federal, state, or local law.  A few things are not considered delinquency—minor traffic offenses and some misdemeanors if the child has not previously been found to have committed a misdemeanor.

Finding that a child is delinquent means that the court has found that the child violated a law.  The effect of that finding is not the same as finding an adult guilty of a crime, though.  Possibly the most important difference is the individualized focus of the juvenile court’s determination of the consequences for the child if he is found to be delinquent.  The court will work to determine the individual needs of the child and can use its discretion to come up with what the appropriate sentence.  This can range from a warning, a restriction on contact with the victim of the crime, probation, chemical dependency treatment, or, in extreme cases, a determination that the child should be placed out of his home.

Who qualifies as a child?  In general, it’s anyone under 18.  If the person was under 18 at the time the crime was committed and is currently under 19, that is also considered a juvenile court issue.  Juvenile court jurisdiction can even extend up to age 21 if the child has already been found to be delinquent but later fails to appear, runs away, or similar.  Minnesota law doesn’t specify a minimum age that a child needs to reach before he or she can be found to be delinquent in juvenile court, but the child’s attorney can always argue that the child is incompetent or too young to have been capable of forming any intent to commit the crime.

More serious offenses can take jurisdiction away from the juvenile court.  If the child is 16 years of age or older and is charged with first-degree murder, the district court, not the juvenile court, has jurisdiction over the case.  The district court also will have jurisdiction over sentencing for any other crimes that the child is charged with that arose out of the same incident.

Any questions feel free to either post them here or send me an email at Thagen@rokolaw.com

Rosengren Kohlmeyer
Law Office, Chtd.
Mankato, Minnesota
507-625-5000
www.MankatoDWI.com

Guilty.

What happens if I plead guilty to a crime in Minnesota?

If you have been charged with a crime, you might already know that you have a few options for how to plead, or respond, to the charge.  It’s important that you talk with a lawyer about the different plea options and which one is best for your situation.  But, here’s an overview of what each of the pleas mean and what the consequences of them are.  Keep in mind that this is not an exhaustive list of the consequences, only a starting point for you to get a general idea of them.

First, of course, you can plead not guilty.  If you plead not guilty, your case will proceed to trial, either before a jury or a judge.  If you are convicted, you will be able to appeal either the conviction or the sentence you received.

Second, in some cases, you can enter what is commonly called an Alford plea.  You might also know of this plea as a “no contest” plea.  Essentially, you are saying that you have reviewed the evidence against you and you acknowledge that a jury could convict you based on that evidence, but you still maintain your innocence.  However, this is nevertheless a guilty plea and comes with the same consequences described below for guilty pleas.

A guilty plea admits all the elements of the crime, as charged by the State.  Possibly the most important consequence of a guilty plea is that it waives several of your rights.  These include the right to a trial and the right to appeal any rulings the court might have made prior to entry of your plea, such as whether evidence is admissible.  When you enter a guilty plea, it may be part of a plea bargain in which you and the State have a firm agreement on the sentence you will receive.  If the court rejects that sentence, you will be entitled to withdraw your guilty plea.  However, if the State merely makes a recommendation as to your sentence as part of a plea agreement, the court is not required to accept that recommendation, and it is not required to allow you to withdraw your plea if the recommendation is not accepted.

You can still appeal certain issues following entry of a guilty plea.  For instance, you can argue that your guilty plea was not made knowingly, in the sense that you were not appropriately advised of the meaning and consequences of the plea, or that your plea was the result of coercion by the prosecutor.  Additionally, even though you can’t directly appeal issues regarding the determination of your guilt, you can bring what is called a petition for post-conviction relief and argue that your attorney was deficient in advising you about the entry of a guilty plea.

What happens if you have made a guilty plea but changed your mind?  After you plead guilty but before a sentence is imposed, the court has discretion to determine whether it will let you withdraw your plea or not, although it can only let you withdraw the plea if it is fair and just to do so.  That means that you can’t withdraw a guilty plea just for the purpose of, for example, delaying a conviction.  On the other hand, the court MUST allow you to withdraw your guilty plea, even after a sentence has been imposed, if you can show that withdrawal of the plea is necessary to correct a manifest injustice.  This “manifest injustice” is usually based on an argument that the plea was based on an incorrect factual basis or that it was entered without an understanding of the consequences.  It is a difficult standard to meet, so don’t plan on being able to withdraw your plea in this way.

The most important lesson here is that which plea you enter can have important consequences.  Discuss the options thoroughly with your attorney before making a plea.

Any comments or questions please feel free to post a comment or send an email to Thagen@RoKoLaw.com
Rosengren Kohlmeyer, Law Office
Mankato, Minnesota
507-625-5000

www.Rokolaw.com