Day: July 13, 2022

It happens every night, someone leaves a bar or a party and gets pulled over.  The police ask you to take some tests “to make sure you’re ok to drive.”  You take their tests, pass them, and they arrest you anyways.  So, if you passed their tests, why are you being arrested?

The first thing to know is that to be arrested, they do not have to have proof beyond a reasonable doubt that you guilty of a DUI.  All they need is probable cause, which is a very low standard.  Basically, they must reasonably believe that a crime was, or has been, committed, and that you were probably the one who committed it.  It is a low standard, and it doesn’t take much to meet it.

Now, after you are stopped, you’re asked you to step out of your vehicle.  They want to you to do some tests for them, and they tell you they “just want to make sure you’re ok to drive.”  This may raise some red flags, but if it sounds like they are trying to let you go (this may shock you, but they aren’t).  They then start putting you through the field sobriety tests, and the one they will almost definitely ask you to take is called the horizontal gaze nystagmus test, or HGN.  This is the eye test where they tell you to hold your head still and follow the tip of their finger, the tip of a pen, or some other object with just your eyes.  What they don’t tell you, though, is that this test is looking for more than if you can hold your head still and follow an object with your eyes.  They are looking for “nystagmus,” which is an involuntary jerking or twitching of your eyes that is present when a certain amount of alcohol is present in a person’s body.  It is fast and something that you won’t know is happening.  It also makes it impossible to determine, on your own, how well you did on the test.  With this test, there are three clues they are looking for in each eye, smooth pursuit, whether your eyes follow the object in a smooth way or jerk, nystagmus at “maximum deviation,” whether your eyes are jerking or twitching at the furthest point they have you follow their object, and nystagmus prior to maximum deviation, whether the jerking or twitching is present before it gets to the furthest point.  If they observe four out of six total clues it is considered to show signs of impairment.

The next test they like to administer is the walk and turn test, which is walking with one foot in front of the other, turning around, and coming back.  With this test, too, they are not looking to see if you trip, fall, or some other obvious sign.  There are actually eight different clues they are looking for on this test – not keeping your balance during the instructions, starting the test too early, not touching heel to toe on your steps, stepping off the line, stopping while walking, using your arms for balance, making an improper turn, and taking an improper number of steps.  As you can see, these clues aren’t obvious, and some show up before you realize you have started the test.  There are also a lot of chances to show these clues, missing heel to toe, for example, can happen on any of the steps and count as a clue.  Stepping off the line can be difficult because they don’t have to give you a visible, actual line to walk on for the test and can ask you to “imagine” one on the ground, and using your arms for balance is subjective.  On this test, if they observe at least two of the eight clues it can be deemed that you showed signs of impairment.

Finally, there is the one-leg stand test.  With this test, they will have you raise one foot off the ground six inches and count, silently, until they tell you to stop.  Again, they are looking for subtle clues, not clear and obvious ones.  They are looking for swaying, hopping, putting your foot down, and using your arms for balance.  If they observe two or more clues, it is deemed as showing signs of impairment.  Like the other tests, the clues aren’t always obvious to you as the one taking the test.  Swaying can be minor, and so can using your arms for balance.

Based on the officer’s observations on these tests they will usually ask you, after that, to take a breath test on the side of the road.  This test is used to further establish probable cause to place you under arrest and charge you.  They do not need it, though, to place you under arrest so if you refuse to take it, they can still place you under arrest for a DUI.  Again, probable cause is a low standard, and it is not hard to meet, especially in these cases where it is based on the subjective observations of the officer.  If you refuse the test, they have likely already decided they have grounds to arrest you, so the next step will be to put you in handcuffs.  If you take it, it may depend on what the results are.  However, if they observe signs of impairment on the field sobriety tests, they may still arrest you if you are under the legal limit on that test.

If you are arrested, you will be asked to submit to further testing at the jail.  They can ask you to submit to another breath test and refusing that test is a criminal offense under North Dakota law.  They can also ask you to submit to a blood or urine test, and if you refuse, they can get a warrant to compel you to take the test.  If you refuse to submit to a test after they obtain a warrant, that too is a crime under North Dakota law.  One thing to remember, if you are arrested, is that whether they read your rights or not (they are not required to in connection with a DUI arrest, but most of the time they will) you have a right to a reasonable opportunity to consult an attorney before submitting to a test.  This does not mean you have a right to speak with a lawyer before deciding, and you may not be able to reach one (most DUI arrests happen late at night and even though I stay up late it is pretty hit-or-miss on getting me on the phone at 3:30 a.m.), but you have a right to be given the opportunity to try to reach one.  You should try to assert that right if you have questions on what to do and law enforcement must afford you that opportunity.

As is true with any criminal case, if you find yourself facing a DUI charge you should consult with an experienced attorney to make sure your rights are protected.  In North Dakota, you only have ten days after your arrest to request a hearing to try to protect your driving privileges and if it is not requested in that timeframe, you may have your license suspended without it thirty days after your arrest for at least ninety days.  If you have been arrested for a DUI, call Curran Law Firm today and make sure you know what you are facing, and that your rights are protected.

Most people, fortunately, don’t have a lot of experience dealing with the criminal justice system.  Unfortunately, if you find yourself in a situation where this blog post is relevant to you, you either have gotten caught up in that system, or someone close to you has.  If so, you likely have a lot of questions, and one of the first ones is a straightforward one – what happens now?

Where you go after an arrest varies depending on what you are charged with.  A nonviolent misdemeanor is different from a felony level offense.  This post will give a general overview of both, however, if you have been arrested, or someone close to you has, the first thing you should do is close this blog and call an experienced criminal defense attorney.  Then, of course, come back to this page.

If you are arrested for a nonviolent misdemeanor, the first step is getting out of jail.  You will likely have a charge that you can bond out for right away without having to go before a judge, and the jail likely has a set amount for your charge to get out.  However, if you have a misdemeanor that has a victim, like a domestic violence, assault, or menacing, you will have to see a judge.  The reason for this is that the Court will likely be considering putting a no-contact condition with the victim, or victims, as a part of your bond.  That is a standard condition for any violent offense and will likely be imposed unless that alleged victim informs the Court and the State that they do not want that condition in place.  Even then, though, it may still be ordered.

If you are arrested for a felony, you will not be able to bond out immediately.  For felony offenses, you will have to have your bond set by a judge.  They may release you on a “personal recognizance” bond, meaning you don’t have to pay anything to get out, or the Judge may require that you pay some amount of money to be released.  They may also impose condition you have to follow if you are released.  For example, if there allegations of alcohol being involved in the incident that led to your arrest the Judge may order you to not go to bars or liquor stores, or may order you not to drink at all and can order that you be monitored for alcohol consumption.  If it is a drug charge, they may order you to be monitored to ensure you aren’t using while on bond.  You will always be ordered to appear for court as required, and to ensure you do so the Judge may even go so far as to order you not to leave the State without permission from the Court to do so.

After that, your first court appearance on any misdemeanor will be an initial appearance.  At this hearing, you will either plead guilty or not guilty.  If you are facing felony charges, your first court appearance after the bond hearing will be a preliminary hearing.  This is a probable cause hearing where the State must show the Court that there is probable cause to continue to proceed with the charges against you.  A bit of warning for these hearings, probable cause is a very low standard for the State to meet and the rules of evidence don’t apply (meaning they can use hearsay testimony or other evidence that is ordinarily inadmissible to meet that burden).  Because of this, Defendant’s rarely win preliminary hearings.  If the Court finds probable cause, you move into the arraignment portion of your case, where you enter a plea of guilty or not guilty.

During this process, your attorney will also begin receiving discovery in your case.  “Discovery” is the evidence that the State has related to your case an includes things like police reports, witness statements, dashcam videos, bodycam videos, medical records, test results, and any other evidence that the State has.  As that evidence comes in, your attorney will review it for possible motions to write in your case.  Motions are used to keep certain pieces of evidence out of your case (called Motions to Suppress), to dismiss charges against you, and other procedural motions, such as motions to compel if the State isn’t fully providing the discovery as required.  Motions are an important part of your case, and in some situations can be the difference between a conviction and a dismissal.

Your attorney will also be communicating with the prosecutor in your case to see what, if any, deals they are willing to offer to resolve your case.  That may be asking for a lesser charge, no jail time, doing treatment instead of serving time in custody, and any number of other possible outcomes.  Your lawyer will also communicate with you to find out what your thoughts are on a possible deal, what you are willing to accept, and what the best course of action is in your case.

Your next court date is a Pretrial Conference.  At this hearing, you will be checking in with the Judge to let them know if you have a deal in place or not.  As that court date approaches, negotiations often start to speed up and some important decisions must be made.  Are you willing to accept the offers that are coming in?  What counteroffers should you make?  How strong is the case against you?  What are your chances at trial if you chose to do that?  What are the risks of going to trial, and are those risks worth it?  These are important decisions, and you will want to speak with your lawyer frequently and in great detail to decide your best option.

After the pretrial conference, you are on one of two paths – either the case is resolved and you are preparing to wrap it up and setting up what is needed to follow the agreement or you are preparing to go to trial.  If you are going to trial, the time leading up to that will be filled with discussion about strategy at trial – are you going to testify on your own behalf or remain silent?  What are the issues you need to address at trial and how is that going to be done?  What exhibits should be used?  What evidence is the State going to offer?  How are you going to push back against their evidence?

Finally, the last court date in your case, if you reach this point, is the trial.  That starts with jury selection, then on to opening statements.  After that, the State presents their case, you will present any evidence and testimony in your defense, and then the State has the opportunity to present evidence to rebut your case.  Finally, there are closing arguments and then the jury will retire to deliberate their verdict.

However your case plays out, as you can see there are a lot of steps along the way to get to the end of it.  It can be confusing, overwhelming, and anxiety inducing to try to go through on your own.  The best way to navigate this system is to find an experienced attorney to walk you through it.  If you or someone you care about has found yourself having to face this system, call Curran Law Firm today and get an experienced attorney to help fight for you.

One of the most common questions I get asked when someone has been arrested is if they really need to hire a lawyer. The reasons people ask this vary. Maybe they were arrested for a DUI and they were drinking and driving, so what’s the point in fighting it? Maybe they already talked to the prosecutor, and they aren’t seeking jail time, so what’s the harm in pleading guilty? Maybe it is as simple as what a lot of us were taught when we were kids – if you make a mistake, you should always admit it and you won’t be in as much trouble.

Whatever the reason, my advice is always the same. Yes, you should get a lawyer. I cannot think of a single time someone has called and asked this question and my answer was any different. If you have been arrested, if you think you are about to be, or even if the police “just want to talk” about something, your first call should be to an experienced criminal defense attorney.

Let’s start with the most common situation I hear – I did what they say, so why fight it? There are a couple of reasons you should still get an attorney. First, law enforcement may have made a mistake in charging you – the facts of your case may not actually align with what you were charged with. Maybe law enforcement made a mistake in how they conducted their investigation and the evidence they collected can’t be used because it was obtained in violation of your rights or the law. For example, did they have a valid, legal reason to pull you over before they gave you that DUI, or did they have a sufficient legal basis to search you home? You will likely never know the answer to that unless you get a lawyer who reviews the evidence (believe it or not, law enforcement isn’t going to willingly admit that they made mistakes in your case). These issues aren’t always glaring and obvious, and sometimes something happens that is so small you may not have realized it was wrong can change your entire case. Those small mistakes can mean the difference between a conviction and a case being dismissed altogether.

The second reason ties in with the next reason people don’t think they need a lawyer – if I’m not going to get sent to jail over this why fight it? The reason is that you may not be aware of all of the consequences of pleading guilty before you do it. Did you get arrested for a DUI? If you plead guilty, they are likely taking your drivers license away for at least ninety days, and if you have a commercial drivers license you will be losing that for at least one year; and if you get another DUI within the next seven years that first conviction that was “not a big deal” is going to be used to increase the penalties for any that you get later (I know you don’t plan on getting a second DUI, but did you really expect to get this one?). What if you’re charged with a misdemeanor domestic violence? If you hunt, have guns for any reason, or may want to buy one in the future, you may be giving up your firearms rights by pleading guilty to it. If you find yourself, later, in a custody dispute that domestic violence conviction can pop up again – North Dakota law states that credible evidence of a history of committing domestic violence (and there isn’t much clearer evidence than a criminal conviction for it) creates a presumption that it is in the children’s best interest that the other parent be awarded custody of them. What if it is a minor theft case? If you find yourself looking for a job in the future that involves handling money you are likely going to have a hurdle to overcome when they find that conviction. There are a lot of hidden consequences that can result in you facing the consequences for those “minor convictions” for years into the future.

Now, what about the idea that we should take responsibility for our actions. In a lot of situations,
that is true. However, I do criminal defense work for several reasons. One of the biggest reasons
is that I don’t think one small mistake should derail a person’s future. With those hidden
consequences, those seemingly minor incidents can do exactly that. There is a difference in taking
responsibility for your actions and needlessly derailing your future. Another reason is that law
enforcement should be responsible for their mistakes, too. If law enforcement makes mistakes in
their investigation, if they violated your rights or didn’t follow the law, is it fair for you to suffer
the consequences for that? I think the answer is no. Law enforcement should be held accountable
for their actions just like anyone else, and if they violated your rights, you shouldn’t be facing the
full weight of the law after their mistake.

So, getting back to our original question – do you really need a lawyer? The answer is yes.
Whether you hire Curran Law Firm, another private attorney, or get appointed a public defender,
you should always, without question, make sure an experienced attorney reviews your case. You
may be able to get the charges reduced to a lower-level offense, changed to a less serious crime,
or even dismissed altogether. You have a right to an attorney, and if you’ve been arrested, or even
if you fear you will be soon, you should exercise that right.