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What is the difference between Murder and Manslaughter in North Dakota

When people hear the words “murder” and “manslaughter,” they often assume those terms are basically interchangeable. They are not. Not even close. North Dakota law treats these two categories of homicide very differently, and the distinction can mean the difference between a sentence measured in years and one measured in lifetimes. If you or someone close to you is facing charges in Grand Forks, Cass County, or anywhere in the state, understanding how these charges work is not optional. It matters enormously.

Homicide cases are among the most complex matters in the criminal justice system, and the stakes could not be higher. Anyone navigating these waters deserves strong criminal defense representation from attorneys who understand how North Dakota prosecutors build these cases and where the real vulnerabilities lie. The law provides clear categories on paper, but real-world applications require genuine judgment calls that go far beyond what any statute can capture in a few sentences.

What Does Murder Mean Under North Dakota Law?

Murder is the most serious homicide charge a person can face in this state. North Dakota law generally recognizes that murder involves intentionally or knowingly causing death, or conduct that reflects such a profound disregard for human life that the law treats it as equally culpable. There is also what is sometimes called a “felony murder” framework, where a death that occurs during the commission of certain serious crimes, such as robbery or kidnapping, can result in a murder charge even if killing was never the stated goal.

North Dakota law further distinguishes between two tiers of murder. Most types of murders are classified as Class AA felonies. A Class AA felony carries a maximum penalty of life imprisonment without parole. That is the ceiling, and it is a severe one. Only murder committed under the influence of extreme emotional disturbance for which there is reasonable excuse is classified as a less serious Class A felony offense. Even then, a Class A felony carries a maximum penalty of twenty years’ imprisonment and a fine of twenty thousand dollars.

To clarify that last point: “heat of passion” does not mean any emotional upset qualifies. North Dakota law requires that the disturbance be extreme, that there be reasonable excuse for it, and that the person was not culpably responsible for the substantial provocation, serious event, or situation that occasioned it. Courts determine reasonableness from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believes them to be. It is a narrow window, and prosecutors will push hard to keep a case in the Class AA category whenever they can.

Murder is differentiated from manslaughter by its statutory elements, and it can receive a life imprisonment sentence. That distinction, intent, is where most of the legal fighting actually happens.

How Is Manslaughter Different, and Why Does It Still Carry Serious Consequences?

Manslaughter sits in a different category entirely, though “different” should not be confused with “minor.” Under North Dakota law, a person is guilty of manslaughter, a Class B felony, if they recklessly cause the death of another human being. A Class B felony carries a maximum penalty of ten years’ imprisonment and a fine of twenty thousand dollars. That is still a decade of someone’s life, plus a felony record that follows them everywhere.

Recklessness is the key word here, and it means something specific under the law. When a person is reckless, they are aware that there is a significant possibility that someone could be hurt as a result of their actions, but they continue to behave in that manner regardless of the risks to others. This is different from simply making a mistake or failing to notice a danger. Recklessness generally requires awareness of the risk. The person saw the potential for harm and chose to proceed anyway.

And another thing worth knowing: North Dakota also recognizes negligent homicide as a separate, lower-tier offense. A person is guilty of a Class C felony if they negligently cause the death of another human being. The distinction between recklessness and negligence is subtle but legally significant. Negligence means unreasonable disregard of a substantial likelihood of the relevant facts or risks, involving a gross deviation from acceptable standards of conduct. Recklessness generally means they consciously disregarded it. That gap in mental state is what separates a manslaughter charge from a negligent homicide charge.

So Where Does the Line Between Murder and Manslaughter Actually Fall?

Honestly, this is where experienced practitioners sometimes disagree, and where cases are genuinely won or lost. The difference between manslaughter and murder is a matter of degree, and the dividing line is not always clear. In general, murder requires proof of a more culpable mental state than recklessness, which is the mental state required for manslaughter.

Think about what that means practically. Two incidents could look almost identical on the surface, and the charge that gets filed can hinge entirely on what prosecutors believe they can prove about what was going on in a person’s mind. Because a killing under circumstances manifesting extreme indifference to the value of human life can constitute murder, many manslaughter trials center on a defense against prosecutors trying to pursue a more severely punished murder charge against a defendant. The mental state of the defendant is key, and there is an entire body of law dedicated to fully understanding how these cases should be tried.

Consider a scenario like this: two individuals are involved in a confrontation near a local gathering spot. One person acts impulsively and someone is killed. Was that person aware of the risk their actions created? Did they intend the outcome, or were they swept up in a moment? Did something provoke an extreme emotional response? Each of those questions maps onto a different charge and a dramatically different potential sentence. The facts matter, but so does how those facts are framed and argued.

What Happens After a Homicide Charge Is Filed in North Dakota?

We encourage anyone facing these charges, or supporting a family member who is, to reach out as early as possible. Not because the situation is hopeless, but because early involvement gives an attorney the best chance to evaluate the evidence, challenge the framing of the charge, and position the case for the most favorable outcome the facts allow. Waiting is rarely a good strategy when a Class AA felony is on the table.

North Dakota law recognizes that not every death carries the same moral weight, and the tiered structure of homicide charges reflects that. North Dakota’s criminal laws recognize that not every homicide case deserves the same punishment. A parent whose forgetfulness caused a child to die in a hot car may not deserve the same sentence as a felon who killed a person they were robbing. The state therefore distinguishes homicide as murder, manslaughter, or negligent homicide. That framework exists for a reason, and a skilled defense attorney can work within it to make sure the charge actually fits the facts rather than simply accepting the most serious version prosecutors choose to pursue.

If you have questions about a homicide charge in North Dakota, contact Curran Law Firm in Grand Forks. We are here when you need us.

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HELLO – IT’S THE POLICE WHAT TO DO IF LAW ENFORCEMENT WANTS TO MEET

One thing that happens on a pretty regular basis, that I get a lot of calls about, is when a detective calls and wants to talk.  Unfortunately, a lot of times a person does not call until it is too late – after they took that first call; after they set up a meeting with law enforcement; and after a person gives a statement to them.  If law enforcement calls, what are they looking for, and what should you do?  What are you legally required to do?  Should you try to manage it on your own?

The first thing to know when law enforcement calls is that, most of the time, they are likely investigating a more serious crime.  You will probably get a call from a detective, someone who is trained to conduct criminal investigations and someone who gets brought in to investigate more serious crimes.  They don’t typically do long, drawn out investigations into minor offenses.  Law enforcement isn’t usually going to spend days, or weeks, investigating a disorderly conduct or a minor drug offense, like simple possession of a controlled substance.  In my experience, these calls are made when they are investigating something much more serious, such as a sex crime, a child sex crime, child abuse, serious domestic violence, or some other higher level crime.  With that, the first thing you should know is that if a detective is calling you it is a serious situation, and it is something you should take seriously, especially if you get the sense they are investigating you for an alleged crime.  Some of these crimes carry a maximum possible sentence of decades, or life, in prison, and if they are at the point of calling you that means they have already likely gathered some information, or taken some statements, that pointed them in your direction.  It is a very serious situation and you need to take it seriously.

While it is a serious situation, you may also get the sense that they aren’t taking it very seriously, or it is not a bid deal.  When they want someone to come in and talk to them, they will often downplay the situation or frame it as they are just wanting to get some information or clear some things up.  In reality, they want a person to come to see if they will confess to a crime or if they will make any admissions they should not make.  They are trained in getting people to talk and cooperate with them, and often times they are good at it.  While a confession is the ultimate goal, they are looking for other things as well.  If they question you about some incident they will likely ask you multiple times.  This is to see if the story you tell them changes.  If you claim you weren’t there, then that you were there but didn’t do anything, then you did something but it was justified or there was a reason for it, or it didn’t happen exactly how they are laying it out, they will view that as you changing your story.  They will frame it as, if your story is changing, you must be lying and it is indicative of your being guilty of what they believe happened.  Fair or not (when a victim’s story changes it is because of “trauma,” when the accused’s story changes, no matter how slightly, it is because of “guilt”) they will use any little change in a story to argue it proves you are guilty of a crime.  They are also looking at your body language – are you nervous?  Are you fidgeting?  Amped up and talking fast?  Sweating?  Not making eye contact?  All of these are examples of things I have seen written in their reports as being indicators of guilt of lying by my clients in the past.  To get you to talk, they will also likely minimize the situation or, if you deny what the claim happened, give you some innocent explanation, or more innocent explanation, to give a person an “out,” or a reason they did something, but not exactly what they are accused of.  This, too, they will use to say it is evidence of your guilt because you are attempting to find some justification for what they claim happened.

When I get these types of calls before a person has spoken with law enforcement my advice is almost always the same.   First, if you are suspected of committing a crime you have no obligation to speak to them.  Under both the United States and North Dakota constitutions you have the right to remain silent.  This means you have the right to not make statements that would potentially incriminate you.  You do not have to give a statement to law enforcement, and you can invoke your right to remain silent – or refuse to go to an “interview,” which is their way of explaining an interrogation.  My advice is almost always that a person invoke that right to remain silent and not speak with law enforcement if they suspect you committed a crime.  If you talk to them, they will pull things from it to claim it shows you are guilty.  Any change in the story, your body language, minimizing or justifying what happened, or anything else that seems suspicious they will use against you.

If you are uncomfortable telling a law enforcement officer no, which a lot of people are, my next recommendation is to contact a lawyer.  Along with the right to remain silent and say nothing about what they believe you did you also have a right to consult an attorney before answering their questions, and to have an attorney with you if you do answer any of their questions.  Contacting an experienced attorney can do a lot of good, especially at this stage of an investigation.  They can help you decide if sitting for an interview is a good idea or not, they can put a buffer between you and law enforcement, and they can communicate with law enforcement on your behalf.  If you don’t want to sit for an interview with law enforcement but are nervous to tell them no, or think telling them no makes you look guilty?  Your attorney can call them for you and tell them the interview is not going to happen.  They can explain the situation to you, talk to you about what is going on and see if they can give you some clarity on what they may be investigating and what the crime could be, and they can work with you to prepare for the possible outcomes, whether that be getting arrested and charged with a crime, sitting for an interview, or anything else.  Finding an experienced attorney to have on your side is the best step you can take.

One concern a lot of people have is that, if they say no to an interview, it will make them look guilty.  However, it is important to remember that if law enforcement is at a point in their investigation where they want you to come in for an interview they are also at the point where they believe that you have committed a crime.  They have already likely decided that you committed this crime, and they want to talk to you to gather evidence against you.  They are not going into that interview with the idea that you are going to clear things up for them and to change their mind about what they believe happened.  Knowing that, why would anyone sit for an interview?  My position is almost always that if they believe you committed a crime, don’t do their job for them.  Don’t give them misstatements to use to claim you are lying, reason to question your body language, or anything else.  If they want to investigate you for a crime you can’t change that, but you do not have to make their job easier or do the work for them.  If they want to investigate, my position is nearly always that they can do that investigation without the help of the person they are accusing of the crime.

What do you do, though, if you have already talked to them?  Most people don’t have a lot experience dealing with law enforcement, especially law enforcement believing they committed a serious crime that they want to question them about.  A lot of the time, people panic and think they need to explain what happened, explain themselves, and try to clear the situation up.  If you did that, you are not alone.  Detectives are very good at getting people to talk to them, and many people agree to do it.  If you have done this, what should you do next?

First, you still want to hire an attorney as soon as possible.  Call a lawyer, set up a time to talk, and go over everything you remember about the interview while it is still fresh in your mind.  An experienced lawyer can figure out a lot of what law enforcement is doing, and what they believe you did, based on the questions that they ask you.  Many times we can even guess the exact charges that they pursue before a person is ever arrested.  They can walk you through the next steps of what is likely to happen next, contact law enforcement and try to get a sense of where they are in their investigation, and try to get a timeline on when they may issue a warrant for your arrest, if that is where it is going.  Occasionally, they can work with law enforcement and the State to arrange a time for a person to turn themselves in rather than having law enforcement show up at your home or work and arresting you there if they do charge you.  It also helps to have a lawyer working with you as soon as possible in a case so they aren’t having to work from behind once they do charge you.  Getting involved in a case before charges are even filed is beneficial to your defense because an experienced lawyer can begin working on the case and formulating a plan before you are even charged, whereas if you get a lawyer after you are charged and arrested they are behind.  Law enforcement has done their investigation, the prosecutor has reviewed the case and the evidence, and they have a head start.  The earlier you get a lawyer on your side the better.

If you get a call from law enforcement and you believe they are calling because they think you committed a crime the best thing you can do is calling an experienced lawyer right away to come up with a plan.  They can work with you and law enforcement to figure out the best way to move forward and give you a lot of information so you fully understand the situation and what happens next.  If you are in the unfortunate situation of getting these calls, call Curran Law Firm today and find out what we can do to help fight for you.

Disclaimer

Any blog published by Curran Law Firm, PLLC is available for information purposes only and is not considered legal advice on any subject discussed.  By viewing this, or any other blog post, the reader understands that there has been no attorney-client relationship formed between the reader and Curran Law Firm, PLLC.  Blog posts should not be used as a substitute for legal advice from a licensed attorney, and readers are urged to consult with an attorney on any specific legal questions they may have.

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When Can the Police Search my House? And What If They Do It Illegally?

One scenario that plays out every day is this – the police show up at a person’s home.  They want to come in and look around.  They may have a search warrant or, alternatively, they may just ask if they can come in because they received a “report” and they “just want to clear some things up.”  One question you may have if this happens to you is simple – can they come in to search, or can I say no?

Before we can answer that question, it is helpful to know that there are a few ways for a search of your home to be done.  First, they can search if they have a valid search warrant to come into your home to look for evidence.  Second, they don’t have a warrant but there is an exception that allows them to enter your home without a warrant and without your consent.  Third, they can enter a home to search if they have permission to do so.

The most cut-and-dry issue, at least at the time of the search, is if law enforcement has a search warrant signed by a judge.  This is an order from the court that there is probable cause to believe that within your home there is evidence of a crime and an authorization for law enforcement to enter your home to locate it.  At the time of the search there is not a lot a person can do to stop the search from happening – most search warrants authorize law enforcement to not only search your home but to take reasonable steps to gain entry into your home to execute the search.  This includes forcing their way into your residence to conduct their search even if you refuse to open the door and let them in.  Most people, to avoid damage to their home, just allow law enforcement to come in and conduct their search rather than having them break down their door.

So, if this is a simple issue, what can you do about it?  Even if there is a search warrant that allows them to search your home there are ways to contest it.  That starts by getting a lawyer and challenging whether there was actually probable cause for them to have the search warrant granted in the first place.  In order to get a judge to authorize a search warrant, law enforcement submits a statement of probable cause, meaning they tell the court, usually in writing, why they believe evidence of a crime will be located in your home.  In retaining a lawyer, they will review the affidavit of probable cause and can challenge whether or not law enforcement actually provided facts sufficient to have a search warrant issued in your case.  If not, your lawyer can file a motion to have the search warrant deemed illegal and, in that case, anything they located during the search would be suppressed, or not able to be used.

There are also procedures that have to be followed in order to validly execute a search warrant.  For example, if the search is to be done at night the search warrant has to explicitly authorize that the search can be done during the nighttime hours.  The law and the Constitution recognize that a person has a high expectation of privacy in their home, and that expectation of privacy is higher at night than during the daytime.  So, in order to conduct a nighttime search, they have to show good cause that it has to be done at night, some reason that the search cannot wait until the next day.  This is typically due to the risk of destruction of evidence (and there has to be a reasonable belief evidence will be destroyed rather than just a hunch or assumption by law enforcement that it might be) or an emergency situation where someone would be in danger if it isn’t executed immediately.

Another issue arises where law enforcement doesn’t have a warrant, but they are excused from getting one because of some exception to the warrant requirement.  These exceptions include things like “exigent circumstances” (an emergency that requires law enforcement to go in right away) and what is known as the “plain view doctrine.”  The courts have determined that there are certain situations where, while law enforcement does not have a search warrant, they are going to be allowed to conduct a search anyways.

Exigent, or emergency, circumstances occur in a few ways.  If law enforcement is responding to an assault or domestic violence report, for example, and hear someone inside screaming for help the law does not require them to go through the process of getting a search warrant before responding to the cries for help.  If they form a reasonable belief, and the key here is reasonable, based upon the circumstances that evidence will be destroyed if they do not make immediate entry into a home they are allowed to do so.  Or, if they reasonably believe that a person who has committed a crime will flee or escape if they do not immediately go into the home to pursue them, they are allowed to do so.  This all boils down to whether or not a reasonable officer in their position would believe that if they did not enter there is a likelihood of someone being harmed, evidence being lost or destroyed, or someone who is suspected of committing a crime will escape.

Alternatively, if law enforcement knocks on your door to talk and observe something illegal in your home then we run into what is known as the “plain view doctrine.”  This essentially means that law enforcement has observed something illegal in your home that they can observe without entering your home, which the courts have deemed to establish probable cause based upon their observations.  To put it more simply, if law enforcement observes something that is a crime, they are allowed to investigate that crime without having to seek out the courts permission to do so.

These exceptions create more issues for an attorney to sort through, and that is because they are based upon the question of whether the conduct or actions of law enforcement were reasonable under the circumstances.  So, for example, law enforcement is investigating a drug case, and they try to argue that it was an emergency because drugs can easily be disposed of or hidden the search can be deemed illegal because they have to have some specific indication as it relates to that specific circumstance that the evidence will be destroyed, not simply that it could be.  Or, if they claim there was an emergency because they heard someone screaming for help, but your lawyer reviews their body camera footage and can’t hear anything, all the lights are off in the home, and your lawyer talks to the neighbors who say they didn’t hear anything despite being awake at the time you can challenge whether an actual emergency existed at the time.  Again, the question is whether or not, based upon the facts and circumstances known to law enforcement at the time, their belief that there was an emergency was reasonable or not.

The final situation is where a person in a home consents to the search.  This arises when law enforcement comes to their home, asks permission to come in and do a search of the home, and the person gives them that permission.  This is generally permitted because, while we have a right and expectation to privacy in our home, if we invite law enforcement in to search our homes, we give up our expectation of privacy and they are allowed to conduct their search.

A few things to keep in mind with a consent search, though.  First, you will still want an attorney to look it over because the consent has to be freely and voluntarily given.  So, if law enforcement asks permission and indicates that if you don’t give them permission they are going to break down the door and do it anyways that is unlikely to be consent that is freely and voluntarily given.  Second, you can terminate your consent to search at any time after it has begun.  So, if you consent to a search and then change your mind you can tell law enforcement you are no longer consenting to the search and request that they leave.  However, you cannot terminate your consent to search if they have found anything illegal during the consent search that was done.  So, if you consent to a search and law enforcement locates drugs in your home, you cannot at that point tell them to leave because they would have probable cause to search at that time.

The piece of advice I give people when asked to consent to a search is to just say no.  A lot of people consent to the search because they think it makes them look guilty if they don’t.  That is an understandable concern.  However, look at it differently.  If law enforcement did not believe you were guilty of something or had something illegal in your home, they would not be asking to search your home in the first place.  If the police are at your door and asking to search your home, they likely already believe you are guilty, so the advice I give people is to not do their job for them.  If they want to search your home, they can seek out a search warrant for your home and go through that process.  Another reason people consent to a search of their home is if they don’t believe there is anything illegal in their home at all.  However, think of how many people come and go from your home.  You may have friends, siblings, parents, children, or friends of your children who are in and out of your home.  Do you know for sure that they didn’t leave something illegal in your home, or drop something illegal accidentally in your home?  If they did, and law enforcement finds it, you may be taking the blame for that.  The best way to handle it, generally, is to not consent or, at a minimum, ask if you can call a lawyer before you make that decision.

When your home is searched, and especially if something illegal is located in it, it can be a scary and nerve-wracking time for a person.  However, there are ways to fight back against that search.  You can challenge the warrant, you can challenge an exception to a warrant, and you may be able to challenge a consent search of your home as well.  The most important thing to do is to contact an experienced lawyer who deals with these issues regularly to look over your case and help you challenge that search.  If you have found yourself in this situation, don’t try to work through the issue on your own.  Contact Curran Law Firm today and see what we can do to help you.

Disclaimer

Any blog published by Curran Law Firm, PLLC is available for information purposes only and is not considered legal advice on any subject discussed.  By viewing this, or any other blog post, the reader understands that there has been no attorney-client relationship formed between the reader and Curran Law Firm, PLLC.  Blog posts should not be used as a substitute for legal advice from a licensed attorney, and readers are urged to consult with an attorney on any specific legal questions they may have.

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What Happens if the Police Didn’t Read Me My Rights?

If you’ve ever watched any sort of crime drama on TV you may have this memorized.  Law enforcement arrests a person, puts them in handcuffs, and reads them their rights – you have the right to remain silent, anything you say can and will be used against you in a court of law; you have the right to an attorney before answering any questions; if  you cannot afford an attorney one will be appointed for you.  But what happens if you have an encounter with law enforcement, or you are arrested, and they don’t read you your rights?  Does that mean the case is dismissed?  Did the police make a mistake?  Can I use this to my advantage?  Like most things in the law, the answer is not so cut-and-dry, and we rarely have a simple, yes or no answer.

The truth is that law enforcement does not always have to read someone their Miranda Rights.  In fact, it seems like the situations where a person has to have their rights read to them are being watered down more and more.  At this point, law enforcement needs to read you your rights (1) if you are detained and (2) you are being interrogated by law enforcement.

What does this mean?  Under the law, a person is detained by law enforcement if a reasonable person in their situation would not feel they are free to leave.  Often this means you are in handcuffs, but not always.  I have had cases where I’ve argued that a person is detained by law enforcement turning on their emergency lights, blocking a person into a parking space, and even cases where a person is questioned without being handcuffed in vehicle by law enforcement based upon the questions they are being asked, the tone of the interaction, and the nature of the reason they were talking to the person.  Being interrogated simply means that they are questioning you about a crime, or an alleged crime, that they believe you have information about or were somehow involved in.  Think of it like this – if law enforcement is asking you questions that, depending on your answer, could get you or someone else in legal trouble you are being interrogated.

Lets walk through some of the more common questions I get when someone isn’t read their Miranda Rights.  A person is stopped and investigated for a DUI, and that investigation ends in an arrest.  Law enforcement tells you that you are being placed under arrest for a DUI (or, at least in North Dakota, they are required to), handcuff you, and drive you to the local jail without reading you your rights.  What can be done about this?  Honestly, not much.  While you are detained, you are not being interrogated about a crime that they believe you committed.  They are not asking you questions that can implicate you in a criminal act, they’ve already done their investigation at this point, so they are really just trying to get you to submit to tests as part of that investigation.  I may not agree with this but that is what the courts have decided and we play by the rules we are given.  However, an important note, before you submit to a chemical test at the jail or police department related to a DUI arrest you do have the right to call and consult with a lawyer.

In a second example, law enforcement arrives at a location to investigate something they were called about.  You approach them and make a statement to them, and that statement ends up implicating you in a crime.  Can it be suppressed?  In all likelihood no, it cannot.  If you voluntarily provide a statement to law enforcement without their asking you questions or seeking you out for questions you waive the right to later take that statement back.  Just like you can voluntarily allow for a search of your home or vehicle, you can voluntarily give information to law enforcement.

Another common example I get questions about is what if law enforcement contacts a person they are investigating for a crime and requests that they come in for an interview.  They are voluntarily going to give the interview, and they are not detained, so do they have to have their rights read to them?  In this case the answer is yes.  This is an interrogation, they are asking you questions that could result in your arrest or prosecution for a crime, and while not in handcuffs the argument is that  you are detained because you went to the police department, you were aware they are investigating you for a crime, and they are likely starting to accuse you of something during the course of the interview.  In this case, a reasonable person would not feel they are free to leave and they must read you your rights before conducting the interview.

Finally, lets take that same situation but instead of you going to law enforcement they come to you and want to talk to you at your home.  They are asking questions in a very accusatory way, you are aware you are being investigated for a crime, but they have told you that you are not under arrest and are free to leave or stop the interview at any time.  Do they have to read you your rights?  In my experience, yes.  I have argued this issue before in cases and have been able to do so successfully.  It boils down to the fact that it was clearly an interrogation and a person who is being interrogated, even if told they are free to leave and not under arrest, having a reasonable belief that a person in their situation would not feel they are actually free to leave.

So, if law enforcement did make a mistake by not reading you your rights, what is the remedy for it?  Generally speaking, the remedy is that anything you say to law enforcement during your interrogation can be suppressed, or kept out of evidence if your case were to go to trial.  This means if you admitted to doing something wrong it can be determined that your admission cannot be used against you going forward.  Now, the question with any motion to suppress is not always as easy as can it be suppressed, but a more nuanced question of do I want it to be suppressed?  Maybe you denied everything in your statement, maybe you came off as credible in your interrogation, or maybe there is a lot of helpful information that you would want a jury to see at a trial.  Whatever the reason, sometimes we have motions we can write but shouldn’t write.  This is where an experience attorney comes into play.  Having an experienced lawyer review your evidence and help you make this decision is invaluable and can make a huge difference in determining if you can write a motion to suppress and, more importantly, if you should write that motion.  Getting a lawyer on your side as soon as possible is invaluable, and the sooner we can get to work on your case the better in most cases.  So if you have been arrested and aren’t sure what to do with the evidence, call Curran Law Firm today and see what we can do to help you.

Disclaimer

Any blog published by Curran Law Firm, PLLC is available for information purposes only and is not considered legal advice on any subject discussed.  By viewing this, or any other blog post, the reader understands that there has been no attorney-client relationship formed between the reader and Curran Law Firm, PLLC.  Blog posts should not be used as a substitute for legal advice from a licensed attorney, and readers are urged to consult with an attorney on any specific legal questions they may have.

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He Attacked Me First! Self-Defense Claims in North Dakota

One of the most common defenses to an assault, domestic violence, murder, or other violent crime case is arguing that a person acted in self-defense.  But what is a self-defense claim?  When is it made?  How do you make it?  Like most legal issues, it isn’t quite as simple as you may think.

To understand self-defense arguments, we have to first understand what a self-defense argument is.  Acting in self-defense essentially means that you did what you are accused of, or you largely did what you are accused of doing, but that you were justified in your actions.  Self-defense is a justification defense – this means that it is an argument that you acted in a way that would ordinarily be illegal but, in this case with the circumstances, what you did was justifiable and reasonable to do.  This is the first issue I see a lot in self-defense cases – a person does not want to admit that they did something that would ordinarily be illegal, but that is what you have to do.  Again, a claim of self-defense means that you acted in a way that is legally justifiable.

There are a few things to keep in mind in a case of self-defense.  First, a person who is the initial aggressor cannot generally claim self-defense.  So, for example, if Tom punches Jerry in the face, and Jerry then swings back and hits Tom, Tom cannot then use a baseball bat and attack Jerry and claim he acted in self-defense.  If you start a fight, you cannot later claim that you were acting in self-defense.  The exception to this is a situation where a person may initiate an altercation, but the other person unreasonably escalates the situation.  So, in our example, if Jerry responds by pulling out a gun and shooting at Tom, Tom may be able to make a self-defense argument because it is not reasonable to respond to being hit once by attempting to kill the other person.  That leads us to the next part of a self-defense claim to keep in mind, that if you claim self-defense your response must be reasonable under the circumstances and proportionate to the potential harm you are facing.  So, if you get slapped once outside a bar you cannot respond to that by pulling out a knife and stabbing the person because that is not a reasonable reaction, and it is disproportionate to the potential harm you encountered.  Finally, you cannot claim self-defense in a case of “mutual combat,” meaning if you and another person agree to engage in a fight you cannot claim self-defense if you are charged related to that fight.

One misconception I hear a lot when people have questions about self-defense cases is when it should be brought up.  The question usually is along the lines of “can’t we just go to the judge, explain what happened, and the case can just be dismissed?”  The general answer to this is no.  The reason for that is that deciding whether someone acted in self-defense is a question about the facts of the case, not the law.  Judges don’t make determinations of the facts of a case; they answer legal questions.  If a question is strictly a fact question it is a question that must be answered by what the law calls the “fact finder” in a case.  This is a fancy, legal way of saying it is a question for a jury at a trial.  Now, you can present your argument to the prosecutor as part of negotiating a resolution to your case, and a prosecutor may believe that you acted in self-defense and either dismiss the case altogether or reduce the charge you are facing.  However, a judge will not make a determination prior to trial that a person acted in self-defense and dismiss charges.

You must also keep in mind that, in North Dakota, self-defense is not classified as an affirmative defense.  This means that, unlike other states like Minnesota, you do not have to prove to a jury that you acted in self-defense, the State has the burden of proving that you did not act in self-defense in an assault, murder, or other crime of violence case.  In fact, the jury instructions in North Dakota include language that a jury must find that a person charged with a violent crime did not act in self-defense, placing the burden on the State to prove that as part of their case.  This is different than other states which make self-defense an affirmative defense, which places the burden on you at trial to present evidence to prove you acted in self-defense to a jury.

The last question we have is how do you make a successful self-defense argument at a trial.  The first step is hiring an experienced attorney who can help collect the evidence you need and form the arguments and questions to establish that claim at trial.  If you received injuries during the incident, you will want to make sure you have photographs of those injuries.  If you went to the doctor even better, you will want medical records of your injuries to document the harm that was done to you.  If there were other witnesses to what happened they would need to be spoken to, ideally by conducting a deposition of them and getting their statements under oath but, at a minimum, an informal conversation with your lawyer or defense team to find out what information they have to provide.  You also may need to issue subpoenas to these witnesses to compel them to appear and testify at trial.  Your lawyer will help you collect this information, work up your trial strategy, and come up with the best way to present your evidence and testimony.  You also need to be prepared to question the person they are claiming is the victim in your case and this can be a tricky thing to try to do on your own.  How aggressively do you want to go after them?  How do you word the questions to get the answers you are looking for?  What do you do if they lie while testifying or change their story or the facts of what happened?  All of these things can be overwhelming to do on your own but, with the help of an experienced lawyer, can be much less daunting and take the pressure off of you to try to do it on your own.

If you have been charged with a violent crime, whether it is an assault, a domestic violence, a murder, or any other crime of violence in North Dakota, you may have a defense to what you are charged with.  You need to be able to defend yourself against these charges because, aside from the criminal charges themselves, they may have far reaching impacts on your life.  For example, even a misdemeanor domestic violence conviction can prohibit you from purchasing, owning, or using a firearm in the future.  You may not be able to find housing with certain companies with a violent crime conviction on your record, and it may make it more difficult to find work in the future.  If you have been charged with a violent crime, the first step you should take is contacting an experienced attorney who will aggressively fight to defend you against those charges.  If you are facing criminal charges, contact Curran Law Firm today and see what we can do to help fight for you.

Disclaimer

Any blog published by Curran Law Firm, PLLC is available for information purposes only and is not considered legal advice on any subject discussed.  By viewing this, or any other blog post, the reader understands that there has been no attorney-client relationship formed between the reader and Curran Law Firm, PLLC.  Blog posts should not be used as a substitute for legal advice from a licensed attorney, and readers are urged to consult with an attorney on any specific legal questions they may have.

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They Found the Drugs Defending Yourself Against Drug Charges

One of the most common criminal cases I see are drug possession charges.  Whether it is a simple possession of a small amount of drugs or paraphernalia or a larger amount and a charge of selling drugs, or possession with intent to sell drugs, it is one of the most common charges that I get calls about in my office.  So, if law enforcement found drugs how does one go about defending themselves against these charges?

A lot times people assume, especially for a smaller amount of drugs that may not be a felony, that there really isn’t much they can do.  After all, the police found drugs in your home or vehicle so it seems like a pretty straightforward case that may not be worth fighting, especially if the State is willing to resolve it through an agreement that doesn’t involve you spending time in jail.  However, drug charges, like anything else, have collateral consequences a person may not be aware of, both legal and otherwise.  First, in North Dakota drug charges are what are known as enhanceable offenses.  This means that if you get additional convictions in the future, the severity level of the crime increases.  So, while your first conviction may not seem like a big deal and just a misdemeanor on your record, if you get another charge later it is no longer a misdemeanor offense – at that point you are facing a felony charge due to your previous conviction for a misdemeanor drug charge.  Drug convictions can also impact things like eligibility for certain types of employment in the future, you may have to disclose your drug conviction on rental applications for apartments or homes, and it may impact a person’s eligibility for financial aid for college.  With that, even if it is “just a misdemeanor,” there are a lot of unforeseen consequences for people if they just simply plead guilty.

So if these cases seem pretty straightforward and simple, how does one go about defending this type of case?  Or, if you’re reading this because you have gotten a drug charge, what benefit is there in hiring a lawyer to help me out with my case?  With any drug case, whether it is a simple possession or a more serious possession with intent to deliver, the real work in defending against the charge starts outside of the courtroom.

In many cases, drug charges arise out of some kind of search.  Whether it is a search of your home, a search of your person (clothes, purses, bags, or something else on you), or a search of a vehicle, drug cases start by law enforcement finding drugs and forming some belief that they are yours.  So, if these cases start with a search, that is the first thing we look at to defend against it.

If it is a search of vehicle there are a lot of things an experienced attorney will look at to help defend you.  Was there a valid reason for a traffic stop?  If the stop was valid, did they have a reason to expand that stop to search the vehicle?  If they did, was it done in a timely manner?  Was there consent to search?  There are a lot of possible issues we look at, and what we are looking for is something in the course of your stop that law enforcement did wrong or violated your rights.  You have a right to privacy and that right extends to your vehicle, so there are certain checks in place to make sure your rights aren’t violated.  These are things an experienced lawyer can find.

If they searched your home we are looking for similar things.  If they had a warrant did they provide a sufficient reason for the judge to authorize the search?  Was the search at night, and if it was, did they provide a justification for why it couldn’t wait until morning?  Was there consent, and if so, was that consent coerced in some way?  Did they go beyond what they were allowed to do in the search warrant in their search?  Again, there are a lot of things we are looking for in a search of a home and an experienced attorney can find these issues.

If there is an issue, then the fight really begins.  When there is an issue with a search, if law enforcement failed to follow the rules and the law, then we write a motion to suppress the results of the illegal search.  The Fourth Amendment protects a person against unreasonable searches and seizures, and if the police fail to follow what is required to protect that right, you can ask a judge to suppress any evidence that was located as a result of that illegal search and, in many cases, any evidence that is collected after that.

So, for example, law enforcement pulls over a vehicle but don’t actually have a legal basis to do so.  That stop without cause leads to a search of the vehicle, where they find drugs in the glove box.  In this case, we write a motion to suppress any evidence collected after the illegal seizure, or the illegal traffic stop, because it was done in violation of your Fourth Amendment rights.

Another example, law enforcement stops you for speeding and it is a valid stop.  After the stop, they ask you if they can search your vehicle and you refuse (as you should) but they take you out of the car and search it over your objection, and without seeing anything that would make them believe there is anything illegal in the car.  From there, they find drugs and charge you with possession.  In this case, while the stop is valid, we write a motion to suppress the evidence found during the search because it was done illegally.

Motions are the most effective way to fight a case, and that starts by hiring a lawyer who knows what to look for in your case as soon as possible so they can request copies of the evidence against you and begin to review it for possible issues.  An experienced, effective attorney can help you fight your case before you ever step foot in a courtroom, and begin to form a strategy for how to defend you against the charges you are facing.

If you are charged with a more serious drug offense, like possession with intent to deliver, there are other things we are looking at that become issues later in your case.  With this charge, you are not just dealing with the fact that you possessed a controlled substance, but that you possessed it with the intent to sell it.  These charges often are brought because of a few things – law enforcement has been told by some person that  you are selling drugs, they find a large quantity of drugs, they find items that would tend to indicate a person is selling drugs, such as baggies, scales, or other items used in distributing drugs, or they find drugs along with a large amount of cash.  In any of these situations, they may charge you with possession with intent to deliver.

With this more serious charge, though, comes an added aspect that the State has to prove.  They have to prove your intent – that you had sold drugs, or that you were intending to sell drugs.  Intent is not always easy to prove and it opens up another lane of defense in your case.  However, this lane is one that comes up later in the case.

With this more serious charge, we are still looking at the normal motion issues related to a search, but we are also planning ahead for how to defend it if it goes to trial.  The question, more often than not, comes down to whether they can prove the intent element of the crime against you, so as a lawyer, we start to find ways to argue against that at a trial.  In this case, there are several questions that can help us along the way.  If they found a scale, did it have any drug residue on it that would show you used it to weight a controlled substance?  Was there another reason you had the amount of cash that they located?  Is there some other explanation for the baggies they found?  If they found what they deem a large amount of drugs, is it really more than a typical drug user has in their possession?  These are fact questions and they are ones we present to a jury in your defense.

Along with that, if there are witnesses who are cooperating against you, how credible are they?  Oftentimes in drug delivery cases their witnesses aren’t innocent bystanders who just happened to observe something – they are much more commonly a person who is working with law enforcement or the State to get a break in their own drug case.  They often also have prior criminal convictions that may be able to be used to show that they are not a credible witness to rely upon when these charges were filed.  If there are witnesses against you in any case, but particularly one like this, their credibility is very important so we look for reasons they may not be as credible as the State wishes them to be.

In any drug case, whether simple possession or more serious charges, the most important step you can take is finding an experienced attorney to help you through it.  The work that goes in to defending against these types of charges starts early and is often done through motions long before it goes to trial to try to cut away the evidence against you.  The sooner you have a lawyer review the case, the better off you are at the end of the case.  If you find yourself facing any type of drug charge, contact Curran Law Firm today and see what we can do to help fight for you.

Disclaimer

Any blog published by Curran Law Firm, PLLC is available for information purposes only and is not considered legal advice on any subject discussed.  By viewing this, or any other blog post, the reader understands that there has been no attorney-client relationship formed between the reader and Curran Law Firm, PLLC.  Blog posts should not be used as a substitute for legal advice from a licensed attorney, and readers are urged to consult with an attorney on any specific legal questions they may have.

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