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Not Guilty In Minnesota

Answers To Minnesota Criminal Law Questions

Mankato Criminal Lawyer

When a person is arrested or charged with a crime a court date will be set.  At the first court date a judge will set conditions of release and bail in two amounts.  The higher amount will allow an individual to be released without conditions that need to be followed to be released.  The second lower number will allow release but only if the defendant agrees to follow conditions of the court.

For example John Smith is arrested for 3rd degree DWI.  At the first hearing the judge agrees to release Mr. Smith without conditions if he can post $12,000.00 or $1,000.00 if Mr. Smith agrees to be on an alcohol monitor.


Mr. Smith has the decision of either posting bail by bringing cash or a certified check for $12,000.00 or, if he is willing to agree to the release conditions, $1,000.00 to Court Administration.

If you post bail, the

 money will be returned to you at the end of your case minus court costs and fines, as long as you follow the rules of court.  If you miss court or break the conditions of release the court can forfeit your bail.

The second option is contacting a bail bondsman.  A bail bondsman will provide a bond to the court in return for a payment from the defendant or someone on his behalf.  Bail bondsman typically charge between 10-20% of the cost of the bail posted.  For example, Mr. Smith would need to pay the bail bondsman between $1,200.00 and $2,400.00 to be released without conditions.  If Mr. Smith was agreeable to conditions of release it would cost between $100 and $200.   If your bail is posted, the bondsman will keep the money paid in exchange for providing the bail at the end of the case.  You do not receive a refund or court costs paid like bail.

Each of these methods will allow a defendant to be released from jail.  Which one is utilized is up the defendant and his attorney.


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Hoffner Part…3?

The Todd Hoffner child porn case is the case that just keeps on giving, to the news media and pundits that is.  As everyone around Southern Minnesota knows, the case involved the head football coach for Minnesota State University-Mankato, who was

Mankato Child Porn Case

He’s Not In Orange Anymore!

accused of possessing child pornography involving his children.  The case was subsequently dismissed after a long and contested hearing, for lack of probable cause.  Well it’s back in the limelight now for an entirely different reason.

It appears that Mr. Hoffner filed a request to seal the police and court records.  This alone is not that uncommon for when a defendant wins the case they have the right to then file a request to have the records sealed or expunged under Minnesota Law.  Typically, if the defendant wins, the records are sealed without much fanfare.  But not in this case.  In this case the media wants access to the police records.  I suppose the goal is to let the public see what the prosecutor saw and that way we can make up our mind to see if the prosecutor actually overreacted.

This is an interesting case of perhaps being careful of what you ask for, you just might get it.  As Mr. Hoffner has declared (at least from what I read in the media) he was absolutely innocent of these charges and it seems the Mankato Judge agreed with him.  The problem here is, if you are innocent, if you have nothing to hide, then why bring the motion to seal the records?  Theoretically, the reason is that way no one will now you ever were charged with a crime and you can get your life back in order.

The problem here is a pesky little thing called the internet.  Just for fun I googled “Todd Hoffner” and it returned 34,000 hits.  That’s 34,000 hits.  As I looked at the first few pages not a one of them was a court document or filing or anything that would be affected by this order.  As Lindsey Lohan (and now Mr. Hoffner knows)  you can’t seal the internet and the media reports that are out there.  I think it’s a safe bet that any school Mr. Hoffner may apply to coach at will be keenly aware of his past criminal charges, no matter the outcome of the attempt to seal the records.

There’s a good article at the Mankato Free Press it which highlights the media’s request to see the file and some interesting quotes from Mr. Hoffner’s new attorneys, two lawyers from a large Minneapolis law firm.

I think the editor of the Free Press, Joe Spear, summed it up best when he made the quote  “I’m puzzled why Mr. Hoffner’s attorneys are asking us to stand down. I would think they would be interested in further stories that shine light on how the prosecution was handled.”

Because it’s always easy to play Monday morning quarterback, my legal advice would have been to open the file, shed light on it.  If Mr. Hoffner is as innocent as he says he is, then why seal anything?  Why not let it all out?

Unfortunately, when you are charged with a crime it really never goes away, no matter the outcome.

Jason Kohlmeyer is a Minnesota Criminal Defense Attorney who enjoys playing Monday Morning Legal quarterback in Mankato, MN.

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Mankato lawyerWith firearm laws potentially changing, individuals with any criminal history are concerned if they can own or poses a firearm. This seemingly simple question requires a complex answer that is not only on Federal Law but also in Minnesota Law.

Federal Law

Congress passed the first blanket prohibition on felons carrying guns in the Gun Control Act of 1968, which made it illegal for felons to possess a gun any under circumstances. Federal statute now prohibits possession of firearms for anyone who has been “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1) (2012).

Minnesota Law

Minnesota law further complicates the issue. A ban of firearm possession does not have to be a felony conviction as under Federal law. Minnesota law has outlined what they consider crimes of violence that would prohibit ownership or possession of a firearm. These crimes include the obvious such as a murder conviction to the less known such as riot.

This loss of firearm rights can take place even with a non-conviction such as a stay of adjudication (a non conviction under Minnesota law). The Eleventh Circuit, interpreting Florida law, determined that a guilty plea followed by a withholding of adjudication amounted to a “conviction” in applying federal statutes. U.S. v. Orellanes, 809 F.2d 1526, 1528 (11th Cir. 1987). This is similar to how stay of adjudications operate in Minnesota and accordingly could trigger § 922(g)(1).

What if I received an expungement?

“An order expunging the record of a conviction for a crime of violence…must provide that the person is not entitled to ship, transport, possess, or receive a firearm for the remainder of the person’s lifetime.” Minn. Stat. § 609A.03, subd. 5a (2012). An expungement may only muddle the water in attempting to own or poses a firearm. If you attempt to expunge a stay of adjudication, the Minnesota Judicial Branch implies that a stay of adjudication is a conviction for expungement purposes.

Just when you think all hope is lost Minnesota case law does allow ownership of firearms in certain circumstances. These circumstances need to be evaluated after a complete review of an individual’s criminal history and the applicable law.

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After years of litigation surrounding the Intoxilyzer 5000, the State of Minnesota has implemented the use of a new breath testing machine, the DataMaster DMT-G. The new breath testing device was purchased in hopes of effectively ending the use of the Intoxilyzer 5000 and the trouble surrounding the machine.

DataMaster Breath Test Result

DataMaster Breath Test Result

In 2010, the Bureau of Criminal Apprehension (BCA) spent approximately $1.7 million for 280 of the new DataMaster DMT-G devices.  The DataMaster has large differences between the Intoxilyzer 5000. The DataMaster is designed to take two readings of a driver’s blood-alcohol content at once, using two different methods. Although this sounds good, the BCA has informed law enforcement agencies it had shut off one of the testing methods. This request was based upon inconsistencies in the fuel cells.

The officer will turn on the machine and observe the individual for 15 minutes before taking the test.  The officer is looking for a burp, belch or vomit that would raise the results of the test based upon mouth alcohol.  The DataMaster will clear the machine with air and the first sample is given.  The machine will clear itself again and run a test sample.  The test sample must be within one-one hundredth of .08.  Another sample is then given.  The results will be the lower of the two samples and rounded down to the nearest hundredth.

The DataMaster is already in place and in use for most of the southern portion of Minnesota. It is off to a troublesome start based upon the errors that are being found and officers using the machine have received only limited training.

The Blood Test

If a blood sample is offered, the officer will transport you to the nearest hospital for a blood draw. The individual taking the blood

Mankato DWI

BCA Blood Test Result

should use a non-alcohol wipe.  Two vials of blood are drawn.   The blood must be drawn into vacuum sealed containers to end fermentation of blood.  The test is sent to the BCA to be analyzed.  Test results will normally be returned in 6-8 weeks.   Below is a blood sample report from the BCA that you would receive by mail.

The Urine Test

A urine test will be given at the jail.  The officer will open a package and hand a cup with white powder at the bottom to you. A male or female officer will be there to observe. The powder is to preserve the sample and end fermentation.  The sample is sent to the BCA to be analyzed.  The test results, just like the blood test, will be returned in approximately 6-8 weeks.

If offered a blood test, an individual can opt for a urine test and vice a versa.

Mankato Attorney

BCA Urine Test Result


If a test is not taken, an individual will be charged with test refusal.  A person can also be charged with a refusal, if the officer does not believe they are actively trying to submit a breath sample into the DataMaster, essentially faking it, or if the two samples are not within one-one hundredth of .08.

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Mankato DWIOfficers commonly use the same three tests.  These tests are not mandatory and can be refused, although officers will never inform you of this.

Horizontal gaze nystagmus test or HGN is a test where the officer requests the individual follow a pen or their finger.  The officer is looking for nystagmus or an involuntary jerking or bouncing of the eyeball that occurs. Horizontal gaze nystagmus (HGN) refers to a lateral or horizontal jerking when the eye gazes to the side.  An officer is looking to see if the eyeball tracks left to right smoothly, if nystagmus occurs at a 45 degree angle and if nystagmus is present at maximum deviation, or your peripheral vision.  In the impaired driving context, alcohol consumption or consumption of certain other central nervous system depressants like inhalants or phencyclidine, hinder the brain’s ability to control eye muscles, therefore causing the jerk or bounce associated with HGN. As the degree of impairment becomes greater, the jerking or bouncing becomes more pronounced.

 The 9 step walk and turn test is the second common test.  For this test, an officer will have an individual stand with their hands at their side and one foot in front of the other standing heel-to-toe.  While standing in this fashion, the officer will demonstrate walking 9 steps heel-to-toe on an imaginary line.  After step 9 a turn will be made by making a series of small steps before making 9 steps back to where you originally started.  The officer is not only concerned about how an individual performs on the test, but also how they listened to the directions.

The one leg stand consists of an individual standing on one leg with their arms at their side (up to 6 inches from body) counting to 30.  The officer will provide directions prior to the individual starting the test.  Again, the test is not only of the physical performance, but also how well directions are followed.

If the tests are preformed as trained in, a controlled setting they are up to 90% accurate in detecting an individual is intoxicated.  Officers cannot perform the tests correctly 100% of the time as done in various studies.  Furthermore, the tests performed by the officer are in the field not a classroom.  Weather, area where the tests are completed, and individual’s own medical and physical conditions all lead to the test being subject to harsh criticism.

Upon completion of the standardized field sobriety tests, the officer will request a PBT.  The officer does not have to show you the results of the PBT.

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Private attorney

The pros to this option are mostly straightforward.  You can choose who the attorney is, and that choice can be made after getting recommendations from friends, lawyer review websites (for example, AVVO is a good place to start).  Your attorney may be more experienced than a public defender and may have a (somewhat!) lighter caseload, thus allowing him or her to pay more attention to

Mankato Lawyer

the issues that come up in your case.

The cons to this option are equally straightforward.  In fact, that should likely be “con” in the singular, since the primary downside is cost:  obviously, unlike with the public defender, you’ll have to pay for your own attorney.  This may include both a retainer as well as further hourly fees.  However, a criminal attorney may not be as expensive as you may think, so it’s well worth calling around to check rates before you assume you can’t afford one.

Public defender

If you truly can’t afford to hire a private attorney, the public defender is another option.  Whether you can or can’t afford your own attorney is a determination that will generally be made by a judge when you appear in court.  The determination will involve a calculation of how much income and assets you have verses expenses such as housing costs and support of dependents.

Note that it’s also possible to have a public defender appointed to represent you before you ever appear in court.  If, for example, you are being interrogated by the police and wish to have an attorney present, you can be represented by a public defender at this point if you are financially eligible.

One positive aspect of public defender representation is, of course, the lack of cost.  Another is that you may be able to be represented by what’s called a Public Defense Corporation, a group designed to protect the interests of certain segments of the population, such as Native Americans or others of minority ethnic heritage.  The primary downside to this option is that there are many public defenders and you are not given the choice of which one represents you.


Although you have a constitutional right to an attorney, you can waive this right and represent yourself in a criminal prosecution.  If you do so, it’s called acting pro se, i.e., on your own behalf.  In order to effectively waive your right to an attorney, a court will first have to determine whether you knew all of the relevant facts regarding the waiver of that right and whether the waiver was made voluntarily.  A defendant may choose this option if they are at odds with their attorney on issues such as how to present a defense, what evidence to present, or which witnesses to call.  If you do decide to represent yourself, be aware that the court will not “take it easy on you” simply because you do not have an attorney.  Pro se defendants are generally held to the same standard as licensed attorneys, and the court will not help you make your argument, suggest objections, or otherwise help you make your case.

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