Criminal Vehicle Operation Charges in a DWI case

In Minnesota, the crime of Criminal Vehicle Operation is issued where there is a motor vehicle collision involving alcohol. They may accompany DWI charges, or be the only charges in such a case. An important element that the state must prove in the criminal vehicle operation case is that the operation of the motor vehicle was negligent, and that the negligence caused the harm.

 

Criminal Vehicle Homicide or Operation charges under Minnesota Statute Section 609.21 can be successfully defended by an aggressive attorney that is willing to make the State prove the element of negligence. For example, if the intoxicated driver gets into a car accident and the accident was not his fault, he is not guilty of this offense.

 

In one such case, a 12 year old darted into traffic directly in front of the accused client from between parked cars on the side of the street.  The accused person was not speeding and was maintaining his lane of travel. At trial, an accident reconstructionist testified that a sober person would not have been able to avoid hitting the child. The accused person’s intoxication was not a contributing factor to the collision. Therefore, the accused person was not negligent as a cause of the collision, and not guilty of criminal vehicle operation.

 

There is a big difference between a Criminal Vehicle Homicide or Operation (CVO for short) charge and a DWI charge, as the CVO charge is a felony level offense that carries a prison sentence penalty of 3 years or more, as well as all the other consequences of being a felon.

 

In a recent case in Scott County, Richard G. Hynes, pled guilty to CVO as the result of his striking his brother-in-law with a snowmobile. See the Star Tribune article here: http://www.startribune.com/local/18381364.html. Hopefully, the defense team in that case evaluated all the facts necessary to determine any negligent driving conduct of Richard G. Hynes before entering the plea. It appears that the alleged victim fell off another snowmobile, and if a sober Mr. Hynes would have been unable to avoid the collision, then although he may have been guilty of DWI, Mr. Hynes was not guilty of CVO.

 

If you have questions concerning a snowmobile accident or a Criminal Vehicle Homicide or Operation charge, please call to discuss your case.

 

-John Scott, Minnesota criminal defense

Implied Consent in the Minnesota DUI defense

In every Minnesota DWI charge where the BAC is over .08, there is also an Implied Consent proceeding as well. So what is Implied Consent? Simplistically, Implied Consent means that every person in a Minnesota DUI arrest will consent to the State measuring BAC. As a result, part of the Minnesota DWI arrest is the police officer reading to the accused, and completing, an Implied Consent form. The most important parts of the Implied Consent form are the officer advising you that you are under arrest, that refusal to take the test is a crime, and that you have the right to speak with an attorney. The officer will also ask you if you wish to speak with a DUI attorney.

 

The result of the Implied Consent is that once the officers obtain a BAC test that shows your BAC is over 0.08, your driving privileges will be suspended for a minimum of 90 days. Prior DWI charges and aggravating factors (like high BAC levels) will make those suspensions longer. Refusing to take the test will not help out either, as it is a separate more serious charge. To read my prior article about refusing to take the test, click here: http://criminaldefensemn.wordpress.com/2008/04/02/no-breath-test-no-duidwi-is-not-true/  

 

If the officer has a test that shows your BAC over 0.08, he will give you a Notice of Suspension. If you do a blood or urine test, the Notice of Suspension will be mailed from the Minnesota DPS to the address on your license. In order to challenge the suspension of your drivers license, you need to file a Petition with the Court, within 30 days of the notice of suspension of your license. If you do not do so within that time limit, you forever lose the right to challenge the suspension. It is important that you talk with a criminal defense attorney as soon as possible after the DUI arrest.

 

If you have questions concerning your suspended license or a Minnesota Implied Consent, of Minnesota DUI, please call for a Free Consultation.

 

-John Scott, 612-840-8961.

Attacking the BAC test in Minnesota DUI defense

One important part of defending a Minnesota DUI is weighing the scientific validity of the BAC test. In Minnesota, if your BAC at the time of the driving conduct is over .08, you are considered intoxicated. So if your BAC test that the police take shows your BAC is over .08, you are facing an uphill battle to defend your innocence.

 

Under our criminal justice system, it is the obligation of the State to prove you are guilty. As a criminal defense attorney, if you attack the reliability of the BAC test, you may prevail. The issue of a reliable BAC test is determined by a judge in an evidentiary hearing prior to the jury trial.

 

There are current issues in Minnesota DWI defense that pertain to the reliability of all the BAC tests, primary urine and breath tests. Most police departments administer urine tests in a way that makes them unreliable. All breath tests in Minnesota are done with the Intoxilizer 5000, and Minnesota has sued the manufacturer of the Intoxilizer because the source codes may be unreliable. These flaws make the tests scientifically unreliable, and the State should not be permitted to attack your innocence with evidence that is unreliable.

 

If you have questions concerning a Minnesota DUI, please call our office for a free consultation.

 

-John Scott, 612-840-8961

Evidence of traffic ticket in civil trial

There is a Minnesota traffic statute that limits the use of a criminal traffic conviction in Minnesota. Minnesota Statute Section 169.94 states that a conviction under the Minnesota traffic statutes cannot be used in a civil trial. It would usually come up in a personal injury case involving a car accident. A Minnesota traffic ticket attorney needs to be aware of this statute.

  

A common misperception is that paying a traffic ticket, such as failure to yield right of way, would be admissible to show fault in a personal injury trial. After all, if somebody claims that the other car did not stop at a stop sign and paid a ticket for Failing to Stop at a Stop Sign, isn’t that evidence of negligence in a personal injury trial? There is a Minnesota Court decision, Souden v. Johnson, 125 N.W.2d 742 (Minn. 1963), that held it was error to allow evidence that the negligent driver was given a ticket for DUI and leaving the scene of an accident in a personal injury trial. Other courts have held that it is impermissible to use the paid ticket to cloud the credibility of the negligent driver.

  

The tactic of excluding evidence of the Minnesota traffic ticket at the personal injury trial is not used as often as it could be by personal injury trial attorneys. If you have a question concerning your personal injury case or the effect of paying a traffic ticket, call your Minnesota traffic ticket attorney.

 

John D. Scott, Minnesota criminal defense lawyer, 612-840-8961

 

Anoka County Criminal Sexual Assault charges follow bad police work

As an attorney, criminal defense and personal injury are my practice areas. Yesterday I read an article in Minneapolis Star Tribune that presents an intriguing fact situation for both of these areas of practice. A 20 year old baby sitter, Heather Peterson, was charged in Anoka County with soliciting a child to engage in sexual conduct. The charges followed after Heather Peterson’s ex-boyfriend sent explicit text messages to her while she was babysitting a 2 year old girl, and then showed up at the home where Heather Peterson was baby sitting. It appears that after Heather Peterson received the text messages, she called the police and complained about the contact. After the ex-boyfriend come to the home, he committed First Degree Criminal Sexual Conduct against the 2 year old toddler.

In my opinion, without knowing more facts concerning the case, would be that the charges are to cover poor police work. If as quoted in the Star Tribune that Heather Peterson called the police because she was afraid of the ex-boyfriend acting on his vile explicit messages, that is enough for the police to at least contact the ex-boyfriend and question him about criminal activity. The quote in the Star Tribune said that she was “trying to put him away” when she called the police. This will be a very tough case for the State to prove against Heather Peterson.

For an attorney in the personal injury practice, this case presents a civil lawsuit as well. The parents of the toddler should investigate a potential civil lawsuit against the police. Although the police have discretionary immunity protecting the City of Anoka for poor decisions, part of the message of being a personal injury attorney is to hold the police responsible and accountable for their negligent, sloppy police work. I see the charges being placed against Heather Peterson as a “cover your butt” move by Anoka County . Read the Star Tribune Article here: http://www.msnbc.msn.com/id/24248855/.

If you have been charged with a crime and need a Minnesota criminal defense attorney, call Attorney John Scott (612) 840-8961 for a free consultation.

-John Scott, Minnesota Attorney

 

No Insurance ticket for a non-owner driver

One type of traffic ticket that you should always talk to a criminal defense attorney about is a No Insurance ticket. Under Minnesota law, it is a crime to not have insurance on the vehicle you are driving. Police can give you a ticket for driving another person’s car that does not have insurance.

But don’t just pay the fine. Remember that you are presumed innocent of the crime of No Insurance until you admit that you are guilty, and paying the fine is considered an admission of guilt. You also have the right to remain silent. A Minnesota criminal defense attorney will tell you that the State has to prove that the non-owner driver given a ticket for no insurance, knew or should have known that the vehicle did not have insurance. Think about it. Can you prove beyond a reasonable doubt what I know if I say nothing?

The most obvious case is a potential client of mine who was an 18 year old, still living at home, who was driving his father’s car and got into an accident. The investigating police officer called the family’s insurance company from the scene of the accident to verify insurance coverage. The insurance coverage had been cancelled for non-payment of premiums. The client was given a ticket for no insurance, even though he had no idea the insurance was lapsed, and even though it was not his responsibility to pay the premiums. If this client had simply paid the ticket like he wanted to do, the State of Minnesota would have suspended his driver’s license, even though the accident was not his fault, and it was his dad’s fault that the insurance had been cancelled. There is no way the State could have proven this client was guilty.

If you have a question concerning your Minnesota ticket for No Insurance, call today for a free consultation.

John Scott, 612-840-8961

Fighting a Minnesota DUI charge

Every DUI charge in Minnesota is factually different, but no matter how many clients I meet and talk to about their DUI charge, the ways to fight the DWI is similar. You should always have a criminal defense attorney representing you. A DUI attorney will attack the evidence the State has for your DUI ticket by:

• Challenging the reason for the traffic stop
• Challenging the probable cause for the DUI arrest
• Challenging the scientific validity of the BAC test
• Challenging the police’s observance of your constitutional rights

If the criminal defense lawyer is unable to get the criminal charges dismissed, at least raising every possible defense will allow you to get a better plea bargain.

In addition to the criminal penalties that you may face, in Minnesota a DUI/DWI ticket also has civil penalities. Your license will be suspended, you vehcile may be taken away, or you may be required to put ”whiskey plates” on all of the vehicles you own.

Be sure to talk to a Minnesota DWI lawyer before you plead guilty to the DWI. Call John Scott if you have questons about a DWI arrest.

John Scott, 612-840-8961

Car accident crashworthiness in the personal injury case

In a case involving a personal injury car accident, a potential claim that should not be overlooked is pursuing a products liability claim against the manufacturer of the vehicle. These are known as crashworthiness cases. This claim usually arises when the occupant’s injuries in a car accident are increased because the car or the components of the car are negligently designed or otherwise defective. For example, one case I worked on previously involved a woman who died in a low speed impact. This was back when car manufacturers were making the seat belts with a should harness that automatically slipped into place when the occupant sat in the seat and shut the door. The woman did not fasten the lap belt, and at the moment of impact, her body mass momentum moved her hips and lower torso forward, and her head snapped forward, but her upper torso was restrained, breaking her neck and killing her instantly. We brought claims against the manufacturer for defectively designing and inadequately warning passengers of the hazard in failing to fasten the lap belt portion.

Another case our office is currently working on involves a small passenger car that was rear ended by a semi truck. The car was driven by a father, whose four year old son was strapped in a car seat right behind him in the rear seat. The impact broke the driver’s seat, and the back of the seat struck the boy’s face, fracturing the boy’s facial bones. The argument against the manufacturer of the car and the car seat is if the seat would have been designed better, and would have not broken during impact, the seat would not have broken, and the boy would have not sustained the facial injuries. 

These are two examples of a crashworthiness claim. The important part of the claim is that “if the car had withstood the crash, the specific additional injury would not have occurred.”

If you have a question concerning your personal injury products liability case, please contact our office today.

Attorney John Scott, 612-840-8961

Felony Charges for Carl Eller and Dominick Jones

This week was quite eventful for Minnesota celebrity athletes in a bad way – former University of Minnesota football player Dominick Jones was in trail on charges of criminal sexual assault, and former Viking player and member of the NFL Hall of Fame Carl Eller was charged with two felony counts.

Even though the charges against Carl Eller are of a felony level, from what I understand, the felony charges do not hold much weight. I previously represented a client in Winona County on similar facts. My client was intoxicated, stopped by an officer, and during the course of the police officer’s investigation my client drunkenly assaulted the officer, and verbally threatened to hurt her. My client’s felony charges were Terroristic Threats, Third Degree Assault as well as the other charges unrelated to his confrontation with the officers.

In order to prove a charge of Terroristic Threats, the prosecutors have to prove that the person charges specifically intended to terrorize another. As a defense, an intoxicated person can claim, and with scientific testimony, prove that he or she was too intoxicated to form the intent required to be found guilty of Terroristic Threats. In Carl Eller’s case, my argument would be that a sober person would not have fled the police for a minor traffic infraction, a sober person would not be combative with police officers, a sober person would not say, “I’m going to kick your ass” or “I’m going to fucking kill you now” to uniformed police officers. I believe that is evidence of intoxication enough to show that Carl Eller was unable to form the specific intent required “terrorize another”.

As for the assault on the police officers, the complaint demonstrates that at least one of the officers sustained a black eye and swelling to his eye and forehead. An assault in the fourth degree on a police officer can also be a misdemeanor, but in Carl Eller’s case it was aggravated to a felony level because of the apparent injury caused during the confrontation between Cart Eller and the officers.

In the case of my client in Winona County, the officer did not sustain injury. In fact, after threatening to kill the officer, my client laid down in the roadway and passed out. I was able to work out a plea bargain with the felony charges dismissed, and my client simply pled guilty to the DUI charges. I anticipate a similar resolution occurring in the case of Carl Eller.

Click here to see the Carl Eller complaint: http://kstp.com/kstpImages/eller_complaint.pdf.

John D. Scott, Esq.
www.boedigheimerlaw.com
Boedigheimer, Horejsi & Scott, P.A.
1208 Grand Avenue, 2nd Floor
St. Paul, MN 55105
Tel: 651-209-8840
Fax: 651-209-8844
Email: jscott@boedigheimerlaw.com

Chain of Custody Criminal Defense

In establishing a conviction for controlled substaces, such as marijuanna, the prosecutors need to establish a “chain of custody” from the site where the drugs were found to the BCA for testing. Usually after drugs are siezed at the scene of an arrest, the arresting officer marks them for evidence, and then delivers the the the BCA for weight and content certification. If the known “chain of custody” is broken, then the prosecutor has an authentication problem, as in – are these really the same drugs that were at the scene of the arrest?

I represented a client in Isanti county who was charged with possession of controlled substaces. He was growing for his own use, and had a closet set up with a grown system, including lights and potted plants. Upon seizing the marijuana, the detectives took it, dried it out, and put it in a box, and shipped 120 ounces of dried weed to the BCA via UPS. At the UPS warehouse in northeast Minneapolis, an UPS employee identified the box as containing the weed by its smell, opened it up, and took the weed. Only 62 ounces arrived at the BCA for testing. An examination of the UPS internal investigation revealed that the box was empty when the UPS learned of the employee’s theft.

In the course of defending my client, because the state could not establish the chain of custody, or where the 62 ounces of drugs came from, the charges against my client were dismissed.

John D. Scott, Esq.
Boedigheimer, Horejsi & Scott, P.A.
612-840-8961
jscott@boedigheimerlaw.com