Tuesday, July 1, 2008

Jury nullification; the power to forgive

In a published decision, State v. Hooks, which came out today, the Court of Appeals addressed the issue of jury nullification. It defined it as "the extraordinary power of the jury to issue a not guilty verdict even if the law as applied to the proven facts establishes that the defendant is guilty." It continued by saying that: "It is the jury’s prerogative to disregard the law without actually committing an unlawful offense in doing so; its exercise is literally illegitimate (contrary to law) but practically legitimate (allowed by law). It is the physical power to disregard the law that has been laid down to the jury by the court."

However, although the courts must instruct jurors on the legal framework to guide their decision whether to convict or acquit, they are not required to instruct jurors that they also have the power of lenity allowing them to disregard that legal framework.At the same time courts are prohibited from directing verdicts for the state even if all the facts point only to guilt.

Thus, a defendant is entitled to have all the elements of the offense with which he is charged submitted to the jury even if the evidence relating to these elements is uncontradicted, because the Court must recogize the fact that the defendant can still be found not guilty based on the jury's power to disregard the law and be lenient to the defendant.

Sunday, March 9, 2008

MN Family Law: Can I divorce my spouse due to abandonment?

Unlike other states Minnesota has a "no-fault" divorce law. This means it is not necessary to prove your spouse is at fault by abandoning you and that was the cause of the breakup of the marriage. The only reason that the Courts in Minnesota will recognize in granting a divorce is that there has been "an irretrievable breakdown of the marriage relationship." This means that there is no hope that the spouses will want to live together again as husband and wife. Thus, a spouse who wants a divorce is almost certain to be granted one by the court even if the other spouse does not want a divorce.
Usually fault of either spouse in the breakup of the marriage will not be considered by the court in granting the dissolution, however it may considered in determining custody of the children.
For more Q&A check out my website.

Saturday, March 8, 2008

FAQs - MN Family Law: Guardian v. Guardian ad Litem

Q. Is there a difference between a "guardian" and a "guardian ad litem"?
A. Yes! The "guardian" is the person who by a court order, has been given custody of the child and acts as the parent for the child. They can be a biological parent or a third party (i.e. grandparent). They make the decisions about a child and the child’s needs. The guardian decides where the child lives and how the child is brought up.
The "guardian ad litem" ("ad litem" means "for the lawsuit") is a person the Court asks to work with a child or a person who has a disability that makes it hard for them to understand a case that involves them. In other cases, like in custody cases or neglect or abuse cases, a guardian ad litem may be appointed to investigate and stand for the child’s best interests. Guardians ad litem tell the court what is best custody and parenting time arrangement for the child. They do an independent investigation, by talking to the child, the parents and other care-givers. In the end they provide a report to the court outlining the best interests of the child. Their recommendations are not dispositive; however they do carry great weight.

Thursday, February 28, 2008

Maintenance: Karon Waiver Invalid Without Independent Findings Required in Minn. Stat. 518.552(5)

In an unpublished decision in McDaniel v. McDaniel, MN COURT OF APPEALS 06-2446, the Court of Appeals held that the district court's failure to make the required findings made the parties' Karon Waiver ineffective.
In McDaniel, the parties’ marriage was dissolved on August 21, 2000. The dissolution decree, which was based on a stipulated agreement, awarded the wife spousal maintenance of $600 per week for 20 years and provided that payments would not terminate upon her remarriage. The Karon waiver was included, stating:
It is further stipulated and agreed that except for the aforesaid maintenance, each party waives and is forever barred from receiving any spousal maintenance whatsoever from one another, and this court is divested from having any jurisdiction whatsoever to award temporary or permanent maintenance to either of the parties.
It is further understood and agreed that both parties specifically waive any right to return to court to seek a modification of either the amount or the term of the aforesaid maintenance, based upon a change of circumstances . . . or to seek cost-of-living increases . . .
It is further agreed that the court shall retain jurisdiction solely to enforce husband's obligation to pay maintenance to wife . . . . Wife's waiver of the right to further or additional maintenance is null and void if wife's economic rights and/or responsibilities are adversely affected by husband's discharge of any obligation in a bankruptcy proceeding or non-payment .
Husband then moved for modification of his spousal maintenance obligation in August 2006, claiming that "the terms of the Judgment and Decree were unfair and inequitable" and that he and the wife both had a substantial change in income. Husband also claimed that, when he signed the marital termination agreement, he was suffering from major depression and was not represented by counsel.
The district court denied husband’s motion for modification, concluding that the dissolution court had met the requirements of 518.552 (5) by specifically finding that the marital termination agreement’s waiver provision was fair and equitable and supported by consideration and that full disclosure of financial circumstances occurred between the parties.
The aforementioned statute requires the following specific findings of the district court in order to preclude or limit modification of maintenance:
1. The stipulation is fair and equitable;
2. The stipulation is supported by consideration described in the findings;
3. Full disclosure of each party’s financial circumstances has occurred.
The Court of Appeals relied on the plain language of the statute, which requires the district court itself to specifically make the findings, not to merely recite the parties’ agreed-upon stipulations.
The Court of Appeals found that the District Court merely recited the parties' agreement into the findings, and that this mere repetition of the parties’ language did not fulfill the statutory requirement that the dissolution court specifically find that the agreement was 1.fair and equitable, 2. supported by consideration, and 3. that full disclosure has occurred.
Based on the foregoing the Court of Appeals ruled that the dissolution court’s judgment failed to divest the district court of subject matter jurisdiction over modification of appellant’s spousal maintenance obligations because the dissolution court did not make its own independent findings as required by Minn. Stat. § 518.552(5).

Thursday, February 14, 2008

MN DUI Law: One foot in the car and tossing the keys to a third party is not "Physical Control"

Snyder v. Comm'r of Pub. Safety, 2008 Minn. App. LEXIS 11
On September 2, 2006, Jason Snyder attended a wedding reception, where he was involved in an altercation with some of the other guests. The police arrived as Snyder, his wife, and two of their friends were walking toward a vehicle parked in a lot adjoining the reception site. As they approached, they observed Snyder unlock the driver's side door. Snyder opened the door, placed his right foot inside the passenger compartment, and had his left hand, which was holding keys, on the door. Snyder noticed Deputy Wirkkula approaching, and turned around and began walking toward the squad car. As he walked, he tossed the keys to his wife. Snyder was then arrested for DWI and his license was revoked under the implied consent law.

In reversing the decision of the District Court, the Court of Appeals stated that, "a person's license is revoked if he or she was in physical control of a vehicle and had an alcohol concentration higher than .08. "The term 'physical control' is more comprehensive than 'drive' or 'operate.'" The Minnesota Supreme Court has determined that an acceptable jury instruction describing "physical control" may read as follows: Being in a position to exercise dominion or control over the vehicle. Thus, a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle, and this is true whether the vehicle can be driven on the highway at that point or not.Furthermore, "physical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." Intent to operate does not have to be shown in order to find that an individual is in physical control. But mere presence in or about the vehicle is not enough to show physical control; a court examines the overall situation in making its determination. In certain circumstances, the overall situation has indicated that a defendant was in "physical control" of a vehicle even when not located inside the passenger compartment. For example, a motorist standing at the rear of the vehicle was found to be in "physical control" when the vehicle had a flat tire, the engine was running, the key was in the ignition, no one else was present, and she owned the vehicle. But often, whether the motorist involved is seated in the motor vehicle is an important factor involved in the overall consideration of whether he or she is exercising physical dominion over a vehicle. Moreover, Snyder handed his keys to a third party before getting into the car, ending the prospects for his driving or taking control of the vehicle. Before appellant relinquished his keys, he was someone who could start the car without much trouble. But a showing that he had physical control, creating danger, required evidence of special circumstances surrounding recent use, or evidence that he became seated or otherwise dealt with the operation of the car.
Based on the record the Court of Appeals found that Snyder could not be found to have been in "physical control" sufficient for license revocation under the implied consent law therefore the decision sustaining revocation of his license was reversed.

Saturday, January 5, 2008

Vindicating the Right to an Attorney in Minnesota DUI Arrests

This past week the Minnesota Court of Appeals addressed the issue of vindicating the right to an attorney for people arrested under the suspicion of driving under the influence in two separate unpublished opinions; A06-1805 State of Minnesota vs. Christopher Charles Tupper and A07-316 State of Minnesota vs. Robert William Stevens.

The Tupper Case

In Tupper, the police arrested the Defendant on suspicion of driving while impaired (DWI) and administered a preliminary breath test that showed his alcohol concentration to be .145. The officer transported Tupper to a police station, where he read the implied-consent advisory to Tupper. At 2:45 a.m., before asking Tupper to submit to chemical testing, the officer gave Tupper a telephone and telephone books to assist him in contacting an attorney. During the next 30 minutes, Tupper made several unsuccessful attempts to contact and consult with an attorney. At 3:16 a.m., the officer told Tupper that he could make no more calls and that he would need to decide whether he would submit to chemical testing without the advice of counsel.
Unsure of how to proceed and confused about the effect that the decision would have on his commercial driver’s license, Tupper asked for “another 15 minutes to try to contact another lawyer out of the phone book.” (This is important because as we will see in the other case not continuing to attempt to reach an attorney, could mean that you no longer need one and could vindicate your right) The officer denied the request. Tupper then refused the test and was subsequently charged with third-degree refusal to submit to chemical testing.

The Court opined that the Minnesota Constitution guarantees an accused driver the right to a reasonable opportunity to get legal advice before deciding whether to submit to chemical testing. This limited right to counsel will be considered vindicated if “the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” But “if counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” What period of time is reasonable depends on the totality of the circumstances and whether the driver made “a good-faith and sincere effort to reach an attorney.” Other issued to be addressed include the time of day and the length of the detention, to determine whether the amount of time afforded was reasonable.

In this case the Defendant made his telephone calls between 2:45 a.m. and 3:16 a.m. Because of the difficulty in reaching an attorney in the early-morning hours, the Court stated that the defendant should have been allowed more time than if he had been arrested during daytime hours. Additionally, the only rationale articulated by the officer for ending Tupper’s attempts to contact an attorney at 3:16 a.m. was a 30-minute limit imposed by Minneapolis Police Department policy, which applies regardless of the time of day that a driver is attempting to contact an attorney. This court found the Minneapolis PD time limitation improper and ruled that the Defendant's right to counsel was not vindicated and reversed the District Court.

The Stevens Case

In Stevens, a Rochester police officer stopped the Defendant after observing him make a wide turn and change lanes without signaling. The defendant was subsequently arrested for driving while impaired (DWI). At approximately 3:00 a.m., the officer began processing appellant for the arrest. At 3:07 a.m., the officer read appellant the Minnesota Implied Consent Advisory statement. At approximately 3:33 a.m., appellant took an Intoxilyzer test. The test recorded appellant’s alcohol concentration at .13.

This case differs from the previous one in a couple of respects; first the Defendant, after trying to contact an attorney eventually gave up and consented to the test, second he requested to speak to his father and was not allowed, third the police was very involved in advising the Defendant. Specifically, the police officer opined:

  • Refusal is a crime, so the attorneys aren’t going to tell you to not take the test—you understand?
  • If you don’t test that is a crime . . . so I find it hard to believe that any attorney in that book is going to tell you not to test, and lastly
  • There’s not going to be hardly any attorney out there that is going to tell you not to take the test.

Defendant argued that his right to counsel was not vindicated because the officer's comments discouraged him from calling an attorney. However, the Court said that his right was vindicated, and while "an attorney, not a police officer, is the appropriate source of legal advice” the record showed that Defendant twice called his attorney of choice, and he had ample opportunity to call others. The officer need only facilitate the right to counsel, not ensure that defendant receives the best counsel. The officer did so when she gave the defendant the phone and phonebook and allowed him to make calls.

With regard to the call to his father that was denied by the police, the Court stated that there is a limited right for a defendant to contact his parents for the purpose of obtaining the name of an attorney. But in this case the Defendant never stated that he wanted to call his dad so that he could get the name of an attorney, therefore the conviction was affirmed.

Morals of the cases.

As it can be seen in the first case the conviction was thrown out because the Court found the rule of 30 minutes to be arbitrary considering the time of night and the fact that the defendant requested more time. Yet, in the second case the Court ruled that 26 minutes were enough to vindicate the right to an attorney because the Defendant did not ask to for more time and consented to the test, nor did he tell the police that he needed to call his parents to get the name of their (an) attorney. Lastly, it's easy being a lawyer, just ask the police. They will advise you strait to a conviction.

Friday, January 4, 2008


Thank you for taking time to visit my blog. I wanted to use this opportunity to inform you that my move at my new location is now complete. I am now located at 423 Third Avenue SE, Rochester, Minnesota. Feel free to browse the website for more information and details. I look forward to your comments and questions.