Carrying a Pistol Under the Influence in Minnesota

 

Carrying a Pistol Under the Influence in Minnesota

When someone is under the influence of alcohol or drugs, one of the last things they may be worried about is whether they are committing a crime if they are carrying a pistol. However, carrying a pistol under the influence in Minnesota is a common occurrence whether charged as a criminal offense or not. Often, it may happen when someone is driving a vehicle under the influence. For example, a DWI occurs and the driver has a pistol in their center console. Even though the person does not have the firearm on their person, it is enough for constructive possession.

The other wrinkle in the carrying under the influence statutory scheme is that the person must be carrying the gun in a public place. The statute does not define “public place”, but there is a flavoring of caselaw on the topic. In one Minnesota Court of Appeals opinion, the court defined it as “generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation.” Yes, even privately owned spaces can count as a “public place”. Even privately owned businesses open to the public. Even your vehicle being driven on a public road. The pitfalls are voluminous.

Like DWIs, carrying a pistol under the influence has several statutory clauses outlining what it takes to be under the influence. The first no-no is if the person is under the influence of a controlled substance. Second, if the person is under the influence of a combination of any of these two: controlled substance, alcohol, or cannabis. Third, if the person is under the influence of an intoxicating substance, such as huffing nitrous oxide. Fourth, if the person is under the influence of the sauce – alcohol. Fifth, if the person’s alcohol concentration level is .10 or more as evidenced by an evidentiary breath test, such as the DataMaster (DMT). Sixth, if the person’s alcohol concentration level is less than .10, but more than .04 as measured by the DMT. Seventh, if the person is under the influence of cannabis.

Also like DWIs, a peace officer must be read the breath test advisory before asking a person to submit to a DMT. Otherwise, they risk the possibility of the breath tests results being suppressed and the charge dismissed. The criminal penalty is a misdemeanor for a first-time offense; and a gross misdemeanor for subsequent violations. Further, a person may have to forfeit their firearm and lose their conceal-and-carry permit as consequences for this offense. They may also have to wait a year before they can reapply to get their permit back.

A seemingly unknown offense with unfortunate consequences for those who are simply under the influence and not wielding their firearm when they are drunk or high. For a consultation at no charge, please call or text us at 612-547-3199 or email: ambroselegal@icloud.com.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in the Twin Cities and the state of Wisconsin. Super Lawyers named him a Super Lawyer for the past three years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. DWI Attorney Minneapolis MN; Criminal Defense Attorney Wisconsin; and Criminal Lawyer Minnesota.

Vehicles are Likely Dangerous Weapons Says MN Supreme Court

Vehicles are Likely Dangerous Weapons Says MN Supreme Court

In recent summers, car takeover events received significant press in the twin cities. A takeover is when a group of people get together with several vehicles and occupy a street, intersection, or parking lot, thus taking over the area. People do not like the ruckus. It can disrupt traffic. And, the vehicles can cause property damage when they start burning tires and doing donuts on the pavement. We blogged here about prosecutors responding to this summer-time activity with second degree riot charges.

Defense attorneys began to challenge such charges by arguing that there is not probable cause to believe vehicles fit the definition of dangerous weapons in these scenarios because the cars were operated in a controlled manner. After winning at the district court on such a challenge, the Minnesota Court of Appeals said no dice. It addressed the probable cause challenge in State v. Abdus-Salam and reversed the district court. The court reasoned that there was enough to meet the standard of probable cause because prosecutors provided enough evidence that “defendant knew that the cars would be driven with passengers hanging from them and in a reckless manner dangerously close to onlookers during an illegal intersection ‘take-over.’”

The Minnesota Supreme Court looked at two questions: (1) what does “likely” mean in the context of the statutory definition of dangerous weapon; and (2) did the district court err when dismissing the complaint for lack of probable cause.

For the statutory definition analysis of dangerous weapon, the court highlighted the pertinent part of “other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm”. The court then focused on “likely” within that definition as the key term. After spending several pages on the historical analysis and definitions, the court pitted the defense’s interpretation of “likely” as “highly probable” and the prosecution’s interpretation as “something less than or equal to probable”. As a shot to the parties, the court noted neither side offered convincing support for its position as to what the legislative intent was; and ultimately held the plain meaning of likely means probable or reasonably expected in the manner used for dangerous weapons.

After siding with the prosecution on the meaning of “likely”, the Minnesota Supreme Court determined the district court erred when dismissing the complaint for lack of probable cause. The buck does not stop there, however. The defense can still take the case to trial and see if a judge or jury agrees that the heightened standard of proof beyond a reasonable doubt is met for whether vehicles were likely to produce death or great bodily harm in the way the cars were used.

It will be interesting to see how these cases shake out at trial, whether prosecutors will continue to use second degree riot charges, and whether the legislature will change the statutory scheme to address vehicle takeovers. Even though the prosecution won this case at the Minnesota Supreme Court, they know it is not a perfect statute to charge these cases out. It is what they have for now, but they for sure want something better.

Robert H. Ambrose is a criminal defense lawyer and DUI lawyer in the Twin Cities and the state of Wisconsin. Super Lawyers named him a Super Lawyer for the past three years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. DWI Lawyer Minneapolis MN; Criminal Defense Lawyer Wisconsin; and Criminal Appeals Attorney Minnesota.

Now Licensed in Wisconsin

 

 

 

 

 

This week, Attorney Robert Ambrose obtained licensure in the great state of Wisconsin. Contact us for a consultation at no charge for your Wisconsin criminal defense needs.

Sales Tax Fraud in Minnesota

Sales Tax Fraud in Minnesota

Sales tax fraud in Minnesota is not merely an issue for large corporations, it also affects small businesses and individuals alike. In fact, it is often a bigger issue for small businesses that do not have the safeguards and compliance in place to ensure proper reporting. The two most common pitfalls for sales tax are underreporting / underpaying the amount of sales tax owed to the Minnesota Department of Revenue; and failing to report or pay sales tax at all.

Reporting Requirements

When do you have to file sales tax returns and pay sales tax to the Minnesota Department of Revenue? As a general rule of thumb, if you are running a business, you likely have to file sales tax returns and pay sales tax to Minnesota, unless your business is exempt from sales tax, such as a law firm or other service. Further, there are certain items sold that are exempt by law and shipping and delivering products to customers outside of Minnesota are generally not subject to Minnesota sales tax.

Additionally, depending on how much sales tax you collect will determine when you must file with the Minnesota Department of Revenue. The filing is only yearly for those receiving less than $100 per month. Quarterly filing for those receiving between $100 and $500 per month; and monthly for those collecting more than $500 per month.

Sales Tax Fraud Examples

Most small businesses that run afoul of sales tax laws do so by fudging their numbers. Instead of reporting and paying the required percentage, they may report and pay a lesser percentage. Or, they could decide not to file or pay at all. In either scenario, the risk is gross misdemeanor or felony charges. For every missed filing and payment, it can be another charge, which can rack up quickly in a short amount of time.

The main difference between gross misdemeanor and felony charges for sales tax fraud is willfulness. If you knowingly fail to file or pay sales tax, then it is a gross misdemeanor. If you willfully do so, it is a felony. What is the difference between knowing and willful? It probably depends on the prosecutor charging the case out. My guess is they go with willful and a felony. A more technical answer is probably for those who idly stand by in the knowing context and for the active participants it is likely willful activity. For those submitting fraudulent returns altogether, it is a felony.

If you have been contacted by the Minnesota Department Revenue about failing to pay sales tax or fraudulently doing so, contact us by phone or text at 612-547-3199 or by email: ambroselegal@icloud.com.

Robert H. Ambrose is a criminal defense lawyer and fraud defense attorney in Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School. Fraud Defense Attorney Minneapolis MN, Criminal Defense Lawyer Minneapolis MN, Criminal Lawyer Minnesota.

Transforming Traffic Stops: California’s New Approach Eliminates “Do You Know Why I Stopped You?”

Transforming Traffic Stops: California’s New Approach Eliminates “Do You Know Why I Stopped You?”

Recently, California instituted a groundbreaking policy altering the dynamics of police-citizen interactions during traffic stops. As of January 2024, California officers must not ask individuals why they were pulled over. In fact, the cop must state why they pulled you over. We will delve into the nuances of this regulatory change, exploring its impact on law enforcement interactions and the rights of individuals during traffic stops.

Traffic stops have long been focal points of discourse surrounding police-citizen interactions. Historically, officers routinely inquired about the reason for the stop, often yielding varied responses that could influence the trajectory of the encounter. Recognizing the need for clearer guidelines to protect individual rights, California’s new policy seeks to eliminate this question during traffic stops. By removing the question about why someone was pulled over, the policy aims to minimize potential misunderstandings, reduce subjective judgments, and foster a more transparent and equitable interaction between law enforcement and the public. This adjustment empowers drivers to understand and exercise their rights without feeling compelled to offer potentially self-incriminating information.

In Minnesota, officers must have reasonable suspicion of criminal activity to make a traffic stop. Expanding the scope of that stop for a further intrusion also requires reasonable suspicion and in some situations probable cause. A common tactic of police officers in Minnesota and across the country is to immediately ask the driver why they got pulled over, hoping to elicit an incriminating response. When the officer gets someone to admit “I’m drunk…I know I shouldn’t be driving” or simply “I was speeding”, then that is gold for them in court, especially if the statement is recorded up close and personal on a body worn camera video. Eliminating that incriminating-eliciting (too many -ing words) tactic from the cop’s playbook in California, will make the encounter fairer.

Instead of cat-and-mouse games, the California officer must state the reason why the person was pulled over. Every state should implement this. Why shouldn’t a police officer have to state why they pulled you over? If your freedom is being restricted, isn’t it only fair? Surely, there are opposing viewpoints that believe a policy like that takes away from an officers’ ability to efficiently gather information. But let’s prioritize transparency. The goal should be a more equitable and respectful interaction between law enforcement and the public. Our nation’s history is anything but that. Sure, both sides can be better in that regard. But it is the government actors, the law enforcement arms, those taking away life and liberty that should first show ways to make the process more peaceful.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him Super Lawyer the past three years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School. DWI Lawyer Woodbury MN, Criminal Defense Attorney Minneapolis MN, Criminal Attorney Minnesota.

Clearing the Smoke: President Biden Pardon Plans for Marijuana Offenses

Clearing the Smoke: President Biden Pardon Plans for Marijuana Offenses

In a significant move toward criminal justice reform, President Joe Biden took steps to address the longstanding issue of marijuana-related offenses. Recognizing the need for equity and fairness in the legal system, the Biden administration initiated a pardon process aimed at individuals convicted of non-violent marijuana offenses. The implications of this pardon initiative and its potential impact on the lives of those affected may be profound.

The inconsistency in marijuana legislation led to a disproportionate impact on individuals, particularly in communities where enforcement has been historically stringent. Marijuana laws in the United States are undergoing a transformation in recent years. While some states legalized recreational or medicinal use, others maintain strict prohibitions. We discussed Minnesota’s legalization of recreational marijuana use and possession here. With the inconsistency at the state level, a steady move in the right direction on cannabis reform at the federal level is important.

The Biden administration aims to rectify the disparities in the legal consequences faced by individuals with non-violent marijuana convictions, emphasizing a more compassionate and equitable approach. President Biden’s committed to criminal justice reform, and the pardon initiative for marijuana offenses is a notable example. The pardon initiative holds the promise of a fresh start for those burdened by past marijuana convictions. Individuals with non-violent offenses may find relief from the collateral consequences of their convictions, such as barriers to employment, housing, and education. This effort aligns with broader goals of reducing recidivism and promoting rehabilitation over punitive measures.

While the pardon initiative marks a positive step, it is not without its legal and political nuances. States vary in their marijuana laws, and the federal pardon addresses only specific offenses. The initiative also furthers the conversations about broader drug policy reform and potential legislative changes at both the federal and state levels.

There are mixed reactions to Biden’s pardon initiative. Advocates for criminal justice reform applaud the effort to rectify past injustices, while critics express concerns about the scope of the initiative and its implications for drug policy. The initiative amplifies the discussion about the need for comprehensive reform in marijuana legislation. Biden’s pardon initiative for marijuana offenses is a pivotal step toward rectifying historical injustices and promoting a fairer legal system. In the evolving landscape of marijuana laws, the initiative stands as a beacon of hope for those seeking redemption and a path toward a more just society.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School. DWI Attorney Woodbury MN, Criminal Defense Lawyer Minneapolis MN, Drug Crimes Attorney Minnesota.

Minnesota Roadside DWI Tests Starting for Marijuana (THC) & Other Drugs

Minnesota Roadside DWI Tests Starting for Marijuana (THC) & Other Drugs

Minnesota law enforcement officers are beginning to ramp up DWI detection for marijuana (THC). Starting this month, police will use roadside tests not previously deployed in the field. One, is the SoToxa Oral Fluid Mobile Analyzer and the other is the Drager DrugTest 5000. Fancy names for devices that test for, what is being marketed as recent and accurate, drug use. Not only are these device companies claiming they can test for recent THC ingestion, but other drugs such as amphetamines, cocaine, opiates, benzos, and methadone.

The SoToxa fancy device is an Abbott product. To work, a jumbo-eye-dropper-type piece of plastic needs to go in the person’s mouth to collect an oral fluid sample. The collector piece of plastic then goes into the handheld device and is supposed to detect up to six drug lasses within five minutes. To get to this point in the DWI encounter, it is likely that the officer will need reasonable articulable suspicion of criminal activity (i.e. driving while under the influence of drugs) – like an alcohol-related DWI when the officer asks a driver to submit to a PBT (preliminary breath test). The officer will use the results of such tests to determine whether probable cause exists to arrest someone on suspicion of DWI. That will lead to another test, called an evidentiary test. In drug cases, currently, the evidentiary tests are blood or urine tests, which require a warrant for collection.

The Drager DrugTest 500 is similar to the SoToxa device in that an oral fluid sample is collected from the person. The officer then takes the collected sample and places it into a larger device that is the shape of a small coffee maker. The company claims quick and simple operability with accurate results. It also claims to be non-invasive, which will likely be evaluated by Minnesota courts in the not-too-distant future. In alcohol-related DWIs, Minnesota Appellate Courts, and the United States Supreme Court, determined breath testing was not physically invasive to require a warrant, but that blood and urine testing was. The drug-related oral fluid collection samples will likely be deemed more invasive than a breath test, but will it be as invasive as a blood or urine test will be something the courts will assuredly determine in the near future.

For a case review at no charge, contact us by phone or text at: 612-547-3199. You can also reach us by email at: ambroselegal@icloud.com.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School. DWI Lawyer Woodbury MN, Criminal Defense Attorney Minneapolis MN, Criminal Attorney Minnesota.

Move Over Law in Minnesota Gets an Upgrade

Move Over Law in Minnesota Gets an Upgrade

Recently, this past summer, Minnesota’s Move Over Law got an upgrade. Previously, the law only required drivers to move over for emergency vehicles with flashing lights activated, such as law enforcement, ambulances, fire, construction, and tow trucks. Now, the new law expanded to stalled and disabled vehicles with flashing lights or at least one person visibly present outside the vehicle. This applies to traveling on a road with at least two lanes requiring drivers to move over one full lane away from the stopped vehicle.

Thus, if you see a car on the shoulder with its four-way flashing (hazard) lights on, then you should move over. If not, you can be stopped by law enforcement and cited for failing to move over. Additionally, that traffic stop often leads to other things such as a DWI or drug possession. Police officers, especially those on increased DWI patrols, are consistently looking for reasons to stop motor vehicles. The reasons can be as simple as minor speed, but they can also include the stop du jour – failing to move over. Not only does moving your vehicle over when someone is stopped on the shoulder make the roadways safer, it can prevent an unnecessary police contact, which can be stressful in itself.

If you happen to be pulled over by law enforcement, stay calm the best you can. Do not volunteer possibly incriminating information, ask the officers if you must answer certain questions, and call an attorney at the earliest possibly allowed point. If you end up getting cited with a minor traffic violation, or something more serious such as a DWI, then feel free to contact us for case review at no charge, contact us by phone or text at: 612-547-3199. You can also reach us by email at: ambroselegal@icloud.com.

Misdemeanors are punishable by up to ninety days in jail and a $1,000 fine. Most first-time traffic offenses, such as failing to move over for an emergency or stopped vehicle do not end up with the violator serving jail time. But, there can still be impact on a person’s criminal record and driving record. Keeping offenses from hitting your criminal and traffic record is worth exploring through the court process, especially if a stay of adjudication or continuance from dismissal is reasonably available. Or explore the court process, if you have a legitimate issue to challenge in your case and want to have a pre-trial hearing challenging the admissibility of evidence, motions to dismiss, or eventually a trial. Or, if you simply want to exercise your constitutional rights to a trial and put the prosecution to its burden of proof.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School. DWI Attorney Woodbury MN, Criminal Defense Lawyer Minneapolis MN, Criminal Lawyer Minnesota.

Disassembled Gun with Missing Parts Considered a Firearm by MN Supreme Court

Disassembled Gun with Missing Parts Considered a Firearm by MN Supreme Court

In a bizarre decision, the Minnesota Supreme Court determined that a disassembled shotgun with missing parts is a firearm. State v. Stone is the case. Mr. Stone was ineligible to possess a firearm being previously convicted of a crime of violence (importantly, some drug possession offenses are considered a crime of violence in Minnesota).

One of the notches on the bizarre side of this opinion is Chief Justice Gildea joined in the dissent. It was a 4-3 decision in favor of determining a disassembled shotgun with missing parts a firearm, which typically means that the most conservative justices would be part of the majority. The retiring chief justice fits that bill. When she dissents and sides with the defense on a criminal defense issue, then all you really can do is throw your hands up and wonder – what is going on here?

We can sit here and hem-and-haw about the finer legal points of the opinion. That “firearm” is not defined in the statute, which the legislature may change in coming years in response to this opinion. We can discuss that the prosecution focused on the design of a device as a weapon matters, not whether it is operable or complete. We can discuss that the Minnesota Supreme Court previously considered an air-powered BB gun not a firearm in State v. Haywood. We could go down the analysis of the court looking at the possession of the firearm instead of its use. But, it is all just mental gymnastics to get to the end of the majority’s nineteen-page opinion that determined a gun in pieces, with missing pieces, a firearm.

The Minnesota crime lab (BCA – Bureau of Criminal Apprehension) needed a bolt and washer from a similar firearm to fully assemble and successfully fire the shotgun in this case. In the two-paragraph dissent, Justice Thissen highlights that the legislature prohibits people who have been convicted of a crime of violence from possessing a firearm because of the concern that the firearm can be used as a weapon and hurt someone. A person that has some of the parts of a firearm, with missing parts needed to sufficiently use the weapon as designed, does not possess a firearm.

It will be interesting to see if the legislature creates a definition of “firearm” for the offense – ineligible to possess a firearm. Or, if they will let this nonsensical opinion stand. With favorable law changes this year for the defense, you can hope that things will continue to change for the better. Until then, do not possess disassembled guns that do not work, if you are not supposed to be possessing firearms.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School for the past six years. DWI Lawyer Woodbury MN, Criminal Defense Attorney Minneapolis MN, Felony Defense Lawyer Minnesota.

Odor of Marijuana Alone is Not Enough to Search Says MN Supreme Court

Odor of Marijuana Alone is Not Enough to Search Says MN Supreme Court

Recently, the Minnesota Supreme Court determined that only the odor of marijuana is not sufficient for probable cause to search a vehicle in State v. Torgerson. Significantly, this decision is based on Minnesota law in 2021, which is beforemarijuana was legalized this year across the state. Thus, the court’s decision did not hinge on the fact that marijuana is legal in Minnesota now.

A favorite reason for law enforcement to search a vehicle is based on the odor of marijuana. First, how are you going to challenge a person’s sense of smell? All the body-camera and squad video footage is not going to catch that. Cop can just say “I smell marijuana” and ask to search your car. No more, says the Minnesota Supreme Court. Cops are going to need more than just the smell of marijuana.

In Torgerson, the court went to great lengths to explain that the true test for probable cause to search is based on the totality of the circumstances. See plural form of circumstance. Find something more, police. Your K-9 senses are not enough. Often, the totality of the circumstances will include a person’s driving conduct, admissions to smoking marijuana, seeing marijuana in the vehicle, movements indicating impairment or possession, etc.

To further its point, the court relied on State v. Burbach. In that case, the court determined that the odor of alcohol coming from an adult passenger did not provide reasonable suspicion of an open-container violation to allow expanding a traffic stop. Even though Torgerson involves a challenge to probable cause to search a vehicle, Burbach is still applicable because the officer could not point to any other factors of impairment or contraband besides the smell of an alcoholic beverage coming from the passenger and the driver’s nervousness.

It is important to note that Torgerson did not challenge the basis for the expansion of the traffic stop at the district court level. Nor, did the prosecution argue that the good faith exception applies at the district court level. Two things the supreme court paid credence to in footnotes but failed to address the arguments because they were not properly raised at the district court.

The dissent in Torgerson highlights that probable cause is not a high standard. A favorite reasoning for many judges and high court justices across Minnesota. When they just want to say the officer’s conduct is okay, just mention it does not take much for probable cause. The dissent follows that up with let’s use that “common-sense standard here”. Fortunately, the majority of Minnesota Supreme Court Justices did not agree. Score one for the underdogs; and pay attention to expansions of seizures and searches involving only the odor of marijuana.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star the previous six years. He is an adjunct professor at the University of Minnesota Law School for the past six years. DWI Attorney Woodbury MN, Criminal Defense Lawyer Minneapolis MN, Drug Crimes Lawyer Minnesota.