Minneapolis Criminal Defense Attorneys - Carolyn Schmidt

A. A felony is any charge that is punishable by 12 months or longer in prison. For example: a theft of over $1,000, possession of certain controlled substances, assault with a weapon or that caused injuries, burglary, or murder.

DWI

Q. Should I call an attorney before taking a test?

A. Yes. It is important that you know your rights before submitting to a test.

Q. Should I take the Intoxilyzer test?

A. It is a crime not to take the Intoxilyzer test. If you refuse, you may be charged with a higher-level charge, and have greater ramifications as a result of a conviction. However, it is still important to call an attorney to get all the possible information about what to do before, during, and after taking the test.

Q. Should I take a blood or urine test?

A. If you are asked to take a breath test, you do not get to choose another kind of test to be given by the police officer. If you are asked to take a blood test, you can elect to take a urine test and visa versa. Once you have taken the State's test you are entitled to a second test of your choosing and at your own costs. You should be clear to the jail personnel that you want such a test, and they cannot do anything to prevent the test from being performed. This is one of the things your lawyer will advise you about on the phone.

Q. What else should I do or not do when arrested for DWI?

A. Be cooperative and polite. Do not answer any questions other than your name and address. Do not give the police a statement. Call your lawyer that evening, and as soon as you are home.

Q. What is the Implied Consent Advisory? Is this different from my Miranda rights?

A. This advisory informs you of your rights regarding the taking of a test. Yes, it is different than your Miranda rights.

Q. What is an Implied Consent hearing?

A. An Implied Consent hearing is a hearing in which your attorney will challenge the revocation of your driver's license.

Q. What is a chemical assessment?

A. This is an evaluation where you meet with a trained professional who will talk with you and collateral sources about your chemical use, and determine what (if any) classes or treatment you might need.

Q. How long will I be without my driver's license?

A. This depends upon the charges and if you have priors. If you are charged with a simple first-time DWI with no priors and you were under .20, your license can be revoked for up to 90 days, and you may apply for a work permit after 15 days. However, if you are under the age of 21, the general revocation rules are different. Also, if you refuse to take a test, you may lose your license for up to a year. If your blood alcohol content is over .20, the revocation period and time to apply for a work permit is doubled. If you have priors and/or other aggravating factors (i.e. a child under 16 in the vehicle, refusal to take a test, or are over.20), the revocation period becomes longer. Talk to your attorney for the exact revocation period, and make sure to call her immediately upon being given notice of revocation, either the night of your arrest or in the mail, because you only have 30 days to challenge the revocation of your license.

Dealing with the Police

Q. If I am called by a police officer to give a statement, what should I do?

A. Politely tell the officer that you will get back to him or her, and then immediately call your lawyer to discuss the situation. Never give a statement without discussing it with legal counsel and having him or her present.

Q. If the police want permission to search my car or house, what should I do?

A. If the police do not have a search warrant, you have no obligation to let them search. Do not let them do so, even if you think you have nothing to hide; you never know what someone else may have left in your car or home that could be incriminating.

Q. Don't the police have to read me my Mirada rights?

A. The police do not have to read you your Miranda rights unless you are in custody and they are questioning you. It is best to assert your right to remain silent and ask for an attorney. The police can continue to question you even if you have asserted your right to remain silent. Keep asserting the right, even if you are repeatedly questioned.

Court Appearances

Q. What is a bail hearing?

A. At a bail hearing, the court will discuss whether you will be released pending trial, whether bail will be required, and what the conditions of your release will be. Bail and conditions of release vary depending on the safety of the public, the severity of the crime, your criminal history, the potential risk of flight, your ties to the community, and other factors that may relate to whether you will appear for court in the future.

Q. What is an arraignment?

A. The arraignment is designed to either take initial information or enter a plea. Sometimes bail and conditions of release are set. A pre-trial or omnibus hearing is scheduled if the case cannot be resolved.

Q. What is a pre-trial hearing?

A. The pre-trial hearing is an opportunity for your lawyer and the prosecutor to discuss a settlement. If a settlement cannot be obtained, the lawyers and the judge will discuss trial issues and set a trial date.

Q. What is an omnibus hearing?

A. Your attorney may schedule an omnibus hearing to challenge any constitutional issue in your case (such as an illegal stop, search, or statement), or to challenge whether there is enough evidence to go forward to trial. When this hearing takes place depends on the county. Some counties have the omnibus before the pre-trial and trial, while other counties do it the day of trial.

Q. What is a trial?

A. A Trial is the final determination of your guilt or innocence. Often the case may still be settled before the Trial starts.

Q. How many jurors do I get at trial?

A. If you are charged with a petty-misdemeanor, your case will be decided by a judge. This is called a court trial. If you are charged with a misdemeanor or gross-misdemeanor, you may have either a jury of 6 peers or a court trial. If you are charged with a felony, you may have either a jury of 12 peers or a court trial. You and your lawyer will decide together what is best for your case.

Q. What are my rights at trial?

A. At trial, you have the right to either remain silent or testify on your own behalf. The choice is up to you. If you decide not to testify, this is not an admission of guilt; no one can comment on the fact that you chose to stay silent. You also are allowed to cross-examine the state's witnesses, and you have the right to subpoena your own witnesses. Finally, you are presumed innocent until proven guilty beyond a reasonable doubt. The jury is required to render a unanimous verdict of "guilty" or "not guilty." If a unanimous verdict cannot be reached, the judge may declare a hung jury, and a new trial would then take place.

Court Questions

Q. Will Carolyn be with me in court?

A. Carolyn will be in court for all court appearances, with the infrequent exception that for routine court appearances where the only thing occurring is the scheduling of another court date she may send one of her associates. In the unlikely event of an emergency situation, she may have to send an associate to court, but this is usually only to obtain another court date. Unless a discussion with you determines otherwise, Carolyn will be the only lawyer to handle the important aspects of your case.

Q. How early do I need to be to court?

A. Unless told otherwise, show up at the time on your notice. Typically, nothing happens right at the designated time, so there is generally plenty of time to talk before your case is called.

Q. Will I have to speak in court?

A. It depends on what kind of a hearing is scheduled. If you will need to prepare what to say prior to the court appearance, Carolyn will advise you with sufficient time to do so.

Q. How long will court take?

A. Again, this depends on the type of appearance. Unless you are set for trial, plan to take half a day off for the appearance.

Q. What should I wear to court?

A. Dress neat and clean. Wear a suit if you are used to wearing one, or slacks and a nice dress shirt (for men) or a dress or skirt (for women). Do not dress too flashy or provocatively. Never wear clothes with slogans on them.

Q. What should I do when I get to court?

A. Unless instructed otherwise, wait outside the courtroom until your lawyer arrives.

What are possible resolutions to my case?

Trial - see above;
Dismissal - all charges dismissed;
Plea negotiation - the charges against you are either reduced, changed to something else, or the sentence is agreed upon based on one of the following:
- CWOP or CFD - Continued without prosecution or continued for dismissal. Your case is set aside and prosecution does not go forward for an agreed upon period of time. If certain conditions are met by the end of the time period, the case is dismissed;
- Stay of Imposition - The court does not impose the full sentence but puts you on probation with certain terms. At the end of the probation, if all conditions are met, the conviction may be determined to be a lower level than charged, or (if negotiated) the case is vacated and dismissed;
- Stay of Adjudication - A plea of guilty is imposed, but the court does not accept it. If all conditions are met at the end of the probation period, the case is dismissed;
- Stay of Execution - This is when a sentence is imposed, but some or all terms are stayed (not given), and the defendant is placed on probation. The execution of the sentence will be stayed conditioned upon terms that are up to the court;
- Diversion program - Certain crimes or defendants are eligible for a program that takes the defendant out of the court system and into a program designed to rehabilitate the first time offender. If all conditions are met the case is dismissed when the defendant successfully completes the program.

Sentencing

Q. Will I have to pay my fine right away?

A. Generally, you will be given a reasonable time to pay a fine.

Q. What is work house/work release/huber?

A. When the defendant goes to local jail, but is able to get out during the day to go to work.

Q. What is EHM?

A. EHM stands for electric home monitoring. This allows the defendant to serve his or her time at home on an electronic anklet. Often work release is also allowed on EHM. You will need a basic landline for this.

Q. What is STS? How is it different from community service?

A. STS stands for sentence to serve. This is a county run community service program where the defendant shows up and goes on a work crew. 8 hours is considered 1 day of STS.

Q. If I get sentenced to jail will I have to report that day?

A. It depends on the severity of your case. For more serious felonies, you may be taken into custody after a finding of guilt. For less serious cases, the defendant is allowed to report at a later date, usually within a couple weeks. You should always discuss this with your lawyer so you know what to expect.

Q. Do I have to serve my jail time in the county where the crime was committed?

A. Usually your time must be served in the county where the crime was committed. Sometimes your lawyer can ask for you to serve your time in another county, but that is conditioned upon approval of the court and room in that county, and you have to pay the costs of the jail.

Q. What is a PSI or PSR?

A. PSI is a pre-sentence investigation. PSR is a pre-sentence report. This is done prior to sentencing in many cases, so that the judge has ample information with which to decide a reasonable sentence. You should always discuss with your lawyer how to handle your meeting with the person investigating and writing this report.

Q. What is good time?

A. Both in state and federal court there is a certain percentage of your jail time that is forgiven if you do not violate any of the jail facility rules. State court is 1/3 off your time, and federal court is 15 percent off your time.

Collateral Consequences

Q. May I leave Minnesota while the case is pending?

A. In most felony cases, you are not allowed to leave the state while the case is pending without court permission. In most non-felonies cases, you are allowed to leave. To be safe, always check with your lawyer or your probation officer.

Q. May I leave Minnesota when my case is over?

A. In most felony charges, you are not allowed to leave the state while on probation without court or probation approval. In most non-felony cases, you are allowed to leave the state. To be safe, always check with your lawyer or your probation officer.

Q. May I possess a gun while my case is pending?

A. Under federal law if you are under indictment (this includes a state charge by complaint) for a felony, you may not possess a gun until you are no longer under indictment.

Q. May I possess a gun after my case is over?

A. All felony convictions and non-felony convictions of domestic assault prohibit the possession of a gun. The length of time varies so you should consult your lawyer.

Q. Am I required to register as a sex offender?

A. Many charges of a sexual nature require the defendant to register as a sex offender. Consult your lawyer for which crimes have such requirements and for the length of time you are required to report.

Q. Will I lose my driver's license?

A. Many offenses that are traffic related require a revocation, suspension, and/or cancellation of your driver's license. Contact your lawyer immediately after you have had contact with the authorities involving a traffic offense, even if you have not yet received criminal charges. There are time limits to challenging the revocation of your driver's license.

Q. Will I lose my job?

A. It depends on your job. Many professional positions that require licensor may be affected by certain convictions. You should discuss with your lawyer what you do for a living, so that it can be determined if your employment will be affected.

Q. What is forfeiture?

A. Forfeiture is when the state takes away property used in the commission of a crime or that was purchased with the proceeds of a crime. If you have property taken and are given a forfeiture notice, contact your lawyer immediately as there are strict time constraints for challenging the forfeiture.

Q. Will I be deported or can I become a citizen?

A. Deportation is one of the most serious collateral consequences of a criminal conviction. Conviction of a felony may trigger deportation and certain other non-felonies will as well. Discuss your immigration status with your lawyer who will likely consult with an expert in the field of immigration to determine the best possible resolution of your case that will be less likely to lead to immigration consequences.

Visit Minnesota Immigration Lawyer (working exclusively in the area of immigration law, green card, work visas, family sponsorship, K-1 fiance visas, and deportation defense) for more information.

Q. May I go to Canada and other foreign countries?

A. Every country has different rules about allowing those with criminal convictions into their country. It is best to contact the American Consulate in the country you are planning to visit well in advance of your visit. Canada, for example, will not allow you into the country with a criminal conviction as little as a misdemeanor. There are ways to get an exemption from the Canadian government, but it is complicated and you should look into this long before attempting to cross the border into Canada.

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