Supreme Court Quickly Reins in Court of Appeals on Expungements

Well, that didn’t last long. Just over a year ago, the Minnesota Court of Appeals departed from case precedent to grant an expungement that encompassed not only the sealing of judicial records, but also the sealing of executive records. The Minnesota Supreme Court quickly and decisively held otherwise.

Many have thought that expungements do not grant a meaningful remedy because records held by the executive branch – such as the Bureau of Criminal Apprehension (“BCA”) – are not sealed and, thus, still available for review by prospective employers or landlords. Understanding the unfairness caused by the BCA still making records available to the public – and likely abiding by the adage “the ends justifies the means” – the Court of Appeals opined that, because the executive branch records originate from court records, the judiciary’s inherent authority in granting an expungement extended to records created by the judicial branch, but maintained by the executive branch. In turn, an expungement under the Court of Appeals logic had a meaningful impact in sealing both the court records and also records held in the BCA. Arguably logical, this conclusion is unsupported by law and policy – at least according to the Supreme Court.

The Supreme Court’s analysis begins with its pronouncement that the judicial branch’s inherent authority is limited to what is necessary to the performance of a judicial function. And to the Supreme Court, the unfairness argument the Court of Appeals relied upon exceeds the court’s inherent authority: “[b]ut the authority the judiciary has to control its own records does not give the judiciary inherent authority to reach into the executive branch to control what the executive branch does with records held in that branch, even when those records were created in the judiciary.”

Further explaining this is the Supreme Court’s continued reliance on the “separation of powers” doctrine. To the Court, the extent of the relief sought via an expungement is limited by what it claims are clear “legislative expressions of policy.” First, under the expungement chapter (Minn. Ch. 609A), the legislature provides for the expungement of all records, including those maintained by the executive branch, for certain limited criminal records. Second, the Minnesota Government Data Practices Act (“MDPA”) establishes a presumption that records are public. Specifically, “data created, collected, or maintained by the BCA” relating to the crime, conviction, and sentence are public data for 15 years. Through these actions, the legislature, according to the Supreme Court, decided against extending the expungement remedy to include records held by the executive branch, such as the BCA.

So, is an expungement truly an “illusory remedy” as the dissent claims? Yes and no. It certainly does not have the teeth it would have if a district court could seal both the court records and BCA records. But, an expungement is still a viable option for those looking to clear their criminal history if doing so is important for job and/or housing considerations. Additionally, as the Supreme Court pointed out, there are certain criminal records wherein an expungement order can include sealing records maintained by the executive branch.

If you are considering an expungement, you should retain counsel to ensure that you are maximizing the remedy available and not simply getting an “illusory remedy.”

This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, construction litigation, criminal defense, and is a prosecutor for the Metropolitan Airports Commission.

Expungements – A New Meaning

The Minnesota Court of Appeals recently made a major departure in the impact and effectiveness expungements will have going forward. Expungements are designed to seal all records relating to the arrest, charge, and subsequent conviction. But, because of separation of powers concerns, the courts had refused to extend an expungement order beyond the judiciary branch of the government. Meaning, even after a person successfully had his or her criminal records expunged, the Bureau of Criminal Apprehension, for instance, still maintained and publicly disseminated its records because it was part of the executive branch of the government and not subject to the expungement order. So, truly, the effect of an expungement order was limited.

The Minnesota Court of Appeals broke away from recent precedent in State of Minn. v. M.D.T., 2012 WL 1149347 (Minn. Ct. App. 2012). Deciding that the purpose behind an expungement is not being served in its current fashion, the Court of Appeals held that both the judiciary and executive branch records can be sealed by an expungement order. The court acknowledged that it had narrowly construed previous case law when it essentially determined that executive branch records could never be expunged. It further explained that under this narrow interpretation, “the current state of the law eviscerates the authority of courts to issue meaningful orders and permits a serious infringement of an individual’s fundamental right ….” It analyzed how the BCA maintains and disseminates records online for 15 years, and that said records are routinely utilized in backgrounds checks for employment, housing, lending, and state licensing. By restricting expungement orders to just the judiciary branch, the judiciary branch essentially ceded its role of offering a true remedy to those entitled to it or determining fair punishment of offenders. As the court noted, if the effects of the crime linger for a lifetime, prohibiting meaningful employment, the crime’s punishment is excessive.

Yet, the separation of powers tension between the judiciary and executive branches remains. To preserve this separation of powers, while also affording persons true relief in their expungements, the Court reasoned that the executive branch record-keeping function derives from the judiciary branches function in its determination of guilt. Under this derivation theory, the Court held that it may order both the judiciary and executive branches’ records be sealed under an expungement order.

This M.D.T. case is significant. Now, if the district court extends its order to the executive branch, an expungement order will have some real teeth to it. Despite this breakthrough, I still anticipate courts will be hesitant in exercising this new authority. It’s imperative for defendants to understand this case and prepare for the argument before the court as to whether expungement can only be effective if it seals both the judiciary and executive branch records. This is why it’s important that you have the right representation to guide you in getting your criminal records sealed.

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This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, real estate litigation, construction litigation, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

Urine Testing Challenge Denied by Minnesota Supreme Court

In a decision issued by the Minnesota Supreme Court today entitled State of Minnesota v. Herman Tanksley, Jr., the Minnesota Supreme Court denied a defendant’s challenge to evidence in a driving while intoxicated (DWI) case.  The evidentiary challenge of the defense was that urine samples which were not taken after a void was first given are inherently inaccurate and are unreliable because they don’t have a reliable correlation to blood alcohol concentration; this argument is sometimes called the “first void” or “pooling” argument.  The Minnesota Supreme Court held that whether a urine sample reliably correlates to blood alcohol concentration is irrelevant to the State proving a DWI case under Minn. Stat. § 169A.20 subd. 1(5).  When the State is prosecuting a DWI based on urine results, the only two points that have to be proven are: 1) that the defendant drove, operated, or physically controlled a motor vehicle within the State of Minnesota; and 2) that the defendant’s alcohol concentration was .08 or more at the time or within 2 hours of the time that they drove or physically controlled the motor vehicle.  Alcohol concentration, by statutory definition, can be any one of three different measurements, one of which is the number of grams of alcohol per 67 milliliters of urine.  The court held that with this independent basis for proving a crime under the statute, the correlation of that urine result to the blood alcohol concentration is not relevant and therefore a court need not hold a Frye-Mack hearing (a hearing challenging the scientific validity of evidence) when there is a challenge of “first void” urine testing.  A copy of the decision can be found here.

This blog entry is written by Chris Renz, a shareholder at Thomsen Nybeck.Chris practices in the litigation area of the firm with primary focus on real estate litigation, employment litigation, townhome and condominium law, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

U.S. Supreme Court Makes Landmark Decision on the Fourth Amendment

In a unanimous decision by the United States Supreme Court, a change was effectuated in the landscape of Fourth Amendment law (also known as search and seizure law) that will affect criminal cases across the country, including here in Minnesota.  In United States vs. Jones, the Court ruled that police had violated the Unites States Constitution’s Fourth Amendment when they placed a global positioning system (“GPS”) tracking device on a suspect’s car monitoring its movement for 28 days without a warrant.  The majority of justices founded their decision on the fact that the GPS device was placed on private property.  The Court’s decision raises interesting questions regarding numerous modern technologies used by law enforcement for the apprehension of criminals, which will inevitability will be played out in up-coming years.  The Court’s decision can be found here.

This blog entry is written by Chris Renz, a shareholder at Thomsen Nybeck. Chris practices in the litigation area of the firm with primary focus on real estate litigation, employment litigation, townhome and condominium law, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

DWI – Wheelchair is not a motor vehicle

A recent Minnesota Court of Appeals case held that an electric scooter used by a physically disabled man is not a motor vehicle for DWI purposes. As a result, the Court overturned his conviction for 3^rd Degree DWI.

The definition of motor vehicles includes “every vehicle that is self-propelled”. But, pedestrians are defined as “any person afoot or in a wheelchair.” The definition of wheelchair includes “any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking.” In large part, these definitions provided the basis for the Court’s ruling.   

What constitutes a ‘motor vehicle’, though, is not as cut-and-dry as these definitions may make it seem, and will even cover the absurd. For instance, a Minnesotaman pleaded guilty to DWI for driving home a customized, motorized La-Z-Boy with a 0.29 blood alcohol concentration level. Similarly, a riding lawnmower has proven to be a motor vehicle for DWI purposes.

The bottom line is that if you are charged with operating a motor vehicle, whatever kind of motor vehicle it may be, while intoxicated, it is important to hire counsel to guide you through the process and present the best defenses available. 

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This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, real estate litigation, construction litigation and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

OPERATION DRY WATER – Increased crackdown on BWI this weekend

As part of a national “Operation Dry Water” campaign, state conservation officers, county sheriff’s deputies, and coast guard officers will be out in full force this weekend (June 24-26) to crack down on boating while intoxicated (“BWI”). All 50 states participated in Operation Dry Water last year, resulting in thousands of boaters being cited and hundreds being arrested for operating a boat while intoxicated. For more information on Operation Dry Water, read more here.

It is illegal for any person to operate a boat while intoxicated, defined as having a blood alcohol concentration above 0.08. Penalties for a BWI can include heavy fines, loss of boating privileges, and even jail time. Additionally, a BWI conviction will appear on your driver’s license record, and will be used to enhance any future driving, boating, or snowmobiling under the influence charges.

Remember, if you are arrested for BWI whether as a result of this weekends’ increased enforcement or otherwise, do not hesitate to contact the attorneys at Thomsen Nybeck for your defense in the matter. It is important that you have proper representation to guide you through the process and make sure you get the best resolution possible.

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This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, real estate litigation, construction litigation and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

Increased DWI Enforcement on Minnesota Roads

According to a news release from the Office of Communications for the Minnesota Department of Public Safety, there will be increased DWI enforcement in the state’s 13 counties with the highest combined total of alcohol related deaths and serious injuries.  Those counties are: Anoka, Carver, Dakota, Hennepin, Itasca, Olmsted, Ramsey, Rice, St. Louis, Scott, Sterns, Washington, and Wright.  For more information see the news release read here.

Remember that if you are arrested for DWI whether as a result of this weekends’ increased enforcement or otherwise, do not hesitate the attorneys at Thomsen Nybeck for defense in the matter.

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This blog entry is written by Chris Renz, a shareholder at Thomsen Nybeck. Chris practices in the litigation area of the firm with primary focus on  real estate litigation, employment litigation, townhome and condominium law, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

Minnesota Defense Attorneys’ “Source Code” Challenge Ends

For the last few years, the most popular issue for attorneys defending clients against charges of DWI was a challenge to the “source code” of the Intoxilyzer 5000 machine, which machine was used to measure a suspect’s breath to determine the amount of alcohol in their system.  The challenge by DWI defense attorneys, both in Minnesota and in other states where such challenges have been mounted, was that the Intoxilyzer machine has an error within its internal computer code that causes inaccurate test results as to the amount of alcohol in a person’s body.  In addition, DWI defense attorneys, who asked for the source code for the purported purpose of having it analyzed by an expert, came to understand that the manufacturer of the Intoxilyzer 5000 would not release the source code on proprietary grounds.  This inability for prosecutors to provide the defense attorneys with the source code then became another arrow in the quiver of defense attorneys.  The challenges became widespread with groups of defense attorneys forming coalitions in order to pool resources to attack and retain experts to study the source code.  Those years of challenges culminated in a consolidated action presided over by Dakota County District Court Judge Abrams, in which there was a trial with a host of experts.  Yesterday, March 9, 2011, Judge Abrams issued the final order in the matter ultimately finding that the Intoxilyzer 5000 was accurate and that the source code did not change that.  The 116 page order can be found here and provides more than enough detail on the source code challenges and ultimate demise.

This blog entry is written by Chris Renz, a shareholder at Thomsen Nybeck. Chris practices in the litigation area of the firm with primary focus on  real estate litigation, employment litigation, townhome and condominium law, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

GPS Tracking of Criminal Suspects at Issue for Supreme Court

With every advent of new technology comes a host of constitutional issues, particularly in relation to law enforcement’s use of that technology to apprehend criminal suspects.  The latest technology to be on the United States Supreme Court’s radar is global positioning systems, known by most people as GPS.  The question in the context of criminal cases is whether tracking a person’s movement with a GPS device is a search or when does it become a search that requires a warrant.

A petition has been filed in the United States Supreme Court by attorneys for Juan Pineda-Moreno, an Oregon man whose car federal narcotics agents placed a GPS device on his car and lead agents to a large marijuana growing operation.  A copy of the petition is here.  Mr. Pineda-Moreno pled guilty to one count of growing more than 1,000 marijuana plants on the condition that he could challenge, by appeal, the GPS tracking.  Mr. Pineda-Moreno was sentenced to over 4 years in prison.  The trial court and the Ninth Circuit Court of Appeals determined that the GPS tracking was not a search.  The Supreme Court will decide in the near future whether to take the case.

This blog entry is written by Chris Renz, a shareholder at Thomsen Nybeck. Chris practices in the litigation area of the firm with primary focus on wind energy-related lease litigation, real estate litigation, employment litigation, townhome and condominium law, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.

Ignition Interlock and Physical Control in the News

The Minnesota Supreme Court and Governor Pawlenty have weighed-in recently on the state of DWI in Minnesota.  The Minnesota Supreme Court recently affirmed the conviction of a driver who was not actually driving his vehicle while impaired, but was in “close enough” proximity to his vehicle such that he could have, without too much trouble, awoken to operate the motor vehicle in his inebriated state.  http://www.startribune.com/local/82268187.html?elr=KArksLckD8EQDUUUnciaec8O7EyUsl; https://www.revisor.mn.gov/statutes/?id=169A.20.  Daryl Fleck was asleep in his car at his apartment complex, and passers-by contacted the police.  He was found to be intoxicated and thereafter arrested for (and convicted of) DWI.

The result is one that often confuses or enrages those not familiar with the DWI laws, but DWI practitioners know the story and consistent result all too well.  The basic idea is that the legislature and the courts do not wish to reward those persons who actually pull off on the side of the road and hide the keys after having drank too much by absolving them of the DWI laws.  There simply is a presumption made that the driver has the ability to operate the vehicle if he or she had the opportunity and/or conviction to do so.  About the only way out of the physical control argument is that the vehicle itself was inoperable, either due to extensive damage or, as happened in an actual Minnesota case, your friends remove the ignition coil from the car after throwing you in the back seat.

In related news, Minnesota’s governor took the opportunity to tout “Ignition Interlock” systems that require DWI offenders to prove their sobriety each time they drive – by breathing into a tube extending from their dashboard.  http://www.startribune.com/politics/state/82088442.html?elr=KArks:DCiUUUUr

He further advocated a reduction in the “aggravated” blood alcohol level from .20 to .15.  This would mean that a first-time DWI offender who had a blood alcohol content of .15 or above would be subjected to the Gross Misdemeanor penalties normally applicable to a second-time offender.

Those familiar with the ignition interlock systems insist that the devices reduce repeat offenses and are nearly impossible to bypass.  Privacy rights groups are concerned that the device stores too much personal information, such as a photograph of the person blowing into the instrument, and other information that would be shared with probation officers.  However, many repeat offenders would prefer to have the ignition interlock option available to them, rather than suffer through extremely long license revocation periods.

Entry by Ryan Wood. Ryan is an associate in the litigation section at Thomsen & Nybeck and practices in the areas of criminal law and general civil litigation.  Ryan has a wealth of varying experience in the field of criminal law as a prosecutor in multiple jurisdictions, and as a defense attorney handling adult, felony, white collar and juvenile matters.  He also has experience in complex civil litigation.  Ryan has directed cases through mediations, arbitrations, jury trials and the state and federal appellate courts, including oral argument, and has handled literally hundreds of court trials.  Ryan’s public service experience includes authoring materials for and lecturing at Continuing Legal Education and training seminars, serving as a law clerk to a Minnesota District Court judge and also serving as a staffer in the United States Senate.