Minneapolis Criminal Defense Lawyer, Serving Greater MN

Minnesota Criminal Defense Attorneys

Arrested and thrown in jail? Charged with a crime? Have a court date coming up?

Call Martinez and Kaschins at (612) 916-6370 or (507) 383-3663.

We can start working on your case today.

Serving southern Minnesota and the St. Paul/Minneapolis metro area, with offices in Minneapolis. A criminal defense lawyer can help with:

DUI/DWI                                                                                            Theft/Burglary/Robbery                                                 We handle ALL types of criminal cases.

Assault/Domestic Violence                                                     Criminal Sexual Conduct                                                   Metro/Central MN: (612) 916-6370

Drug Crimes                                                                                        Murder/Manslaughter                                                      Southern MN: (507) 383-3663

We handle every type of criminal case, from misdemeanors such as DUI/DWI to serious felonies like rape and murder (and everything in between). We provide free consultations at clinics and at our office in Minneapolis – a criminal defense lawyer can evaluate your case, explain what we can do for you, and give you an estimate of the cost. We are have more than 25 years of experience, and we’ve handled thousands of criminal cases. We understand what you’re going through, and we will not judge you or your situation. Give us a call and let us help you. The life you save will be your own.

Although we accept criminal defense cases from all over Minnesota, we focus on:

Minneapolis – Hennepin County                                             St. Paul – Ramsey County                                         Stillwater – Washington County

Buffalo – Wright County                                                           Chaska – Carver County                                            Shakopee – Scott County

Hastings – Dakota County                                                       Elk River – Sherburne County                                  Elk River – Sherburne County

Cambridge – Isanti County                                                     Center City – Chisago County                                    Glencoe – McLeod County

Olivia – Renville County                                                          Gaylord – Sibley County                                             Willmar – Kandiyohi County

St. Peter – Nicollet County                                                      Le Center – Le Sueur County                                    Le Center – Le Sueur County

Red Wing – Goodhue County                                                  New Ulm – Brown County                                          St. James – Watonwan County

Mankato – Blue Earth County                                                Fairmont – Martin County                                         Blue Earth – Faribault County

Waseca – Waseca County                                                        Owatonna – Steele County                                         Albert Lea – Freeborn County

Mantorville – Dodge County                                                   Austin – Mower County                                              Rochester – Olmsted County

Preston – Fillmore County                                                      Winona – Winona County                                            And many more…


The key advantage to having Minneapolis criminal defense lawyer Kelly Martinez or John Kaschins handle your case.

After looking online or in the yellow pages, you may think that every Minnesota or Minneapolis criminal defense lawyer is the same. At Martinez and Kaschins, we have a huge advantage over every other firm: we have extensive in-house expertise with scientific and medical evidence. Why is this expertise important? Modern criminal cases often involve some type of complicated scientific or medical evidence. For example: If you were arrested for DUI/DWI, you probably gave a blood, breath, or urine sample that the police used to calculate your level of intoxication. If you are charged with drug possession, your case will probably involve laboratory testing of some substance. If you are charged with certain assault crimes, there must be medical evidence of a specific type of physical injury to the victim. If you are charged with burglary or rape, there may be fingerprints or DNA evidence that must be evaluated.

What does our in-house expertise with scientific and medical evidence mean for your criminal defense case?

Whether they will admit it or not, a Minneapolis criminal defense lawyer often doesn’t really know how to deal with scientific or medical evidence. If they don’t know how to deal with this evidence, they cannot present a good defense for you. Unless they hire an outside expert – which may cost you a small fortune – their ignorance may prevent you from winning your case. What’s worse is that the uninformed lawyer will not even know what he/she doesn’t know. They may evaluate your case, and then advise you to plead guilty because the lawyer doesn’t understand that you could be proved innocent. Think about it this way: Suppose you are charged with a crime and there is scientific or medical evidence in your case. Suppose this scientific or medical evidence could be used to help you win your case. Do you want the lawyer who doesn’t really understand how to deal with this sort of evidence and who then tells you to plead guilty? Or do you want the firm who has the expertise to evaluate scientific and medical evidence and use it to help you? At Martinez and Kaschins, we can’t promise you an outcome, but we do promise you that we know how to evaluate and use scientific and medical evidence, usually without the need to hire an expensive outside expert. Because your innocence could depend on the scientific or medical evidence, shouldn’t you choose a criminal defense trial attorney who truly understands your case? We also help lawyers help their clients with expert legal nurse consulting services.

Call us today for a free consultation on your criminal case. In Minneapolis/metro area (612) 916-6370 – or – (507) 383-3663


Frequently Asked Questions About Minnesota Criminal Defense Cases

Disclaimer: The following frequently asked questions (FAQs) are not legal advice. You must not rely solely on Internet-based information when deciding how to handle your affairs. If you have a legal problem, you should retain a licensed Minnesota criminal lawyer as soon as possible and you should follow the advice of your attorney. Every case is different and the law is constantly changing, so the following information may not apply to your situation

Why do I need a criminal defense lawyer anyway?

There is an almost endless list of reasons why you should seek the assistance of a licensed attorney if you are charged with a crime. Three of the most common reasons are:

1) Criminal law is extraordinarily complicated. The laws and rules that affect your case fill literally hundreds of lengthy books. Moreover, it takes years of experience to develop the wisdom needed to forge an effective case strategy. The non-lawyer doesn’t stand a chance against the highly educated and well trained prosecutor trying to convict them. If you don’t get an experienced criminal defense attorney, you won’t know whether your case is being handled properly, what your options are, or what to do. You could be cheated out of a fair outcome or make a big mistake…and never know it.

2) The stakes are very high, and the outcome of your criminal case will usually affect the rest of your life. In addition to the very real possibility that you could be locked-up and/or forced to pay a massive fine, there are also devastating “collateral” consequences that come from being charged with or convicted of even a single crime. You could: lose your driver’s license; lose or be denied a professional license; forfeit government benefits, including educational financial aid; lose your current job and be denied a wide variety of other jobs; or even be deported from or denied entry to the U.S. After handling thousands of cases, we feel the wide variety of possible collateral consequences pose a much more serious threat to your future than the imposition of jail or prison time.

3) Being ensnared in a criminal case is an exceedingly stressful and emotional experience. When people are stressed and emotional, they don’t always make very good decisions. It’s easy to get so upset about specific aspects of your case (how you were arrested, what your charges are, what the witnesses are claiming, etc.) that you lose the ability to think clearly about your overall situation and make good, carefully thought-out decisions. Having an attorney means having someone in your corner who will provide you with objective advice about your case, what your options are, and which option is truly best for you.

I know some people who had a lawyer draft their will. They said he did a great job, so why shouldn’t I just hire him?

Unless this lawyer has experience handling criminal cases, you may want to consider a different attorney. In theory, any attorney licensed in Minnesota should be able to help you with your case. Realistically, however, the law is now so complex that it’s better to choose an attorney who focuses on only a few specific practice areas (criminal law, patent law, commercial transactions, etc.).

So how do I find the right lawyer for my Minnesota criminal case?

Probably the best way to find representation for your Minnesota criminal case is to search the Internet. Just go online to your favorite search engine (www.google.com, etc.) and enter a search phrases such as: criminal attorney; criminal lawyer; criminal defense attorney; criminal defense lawyer; criminal trial attorney; criminal trial lawyer; criminal justice attorney; criminal justice lawyer; or criminal defense law firm.  (The terms “attorney” and “lawyer” mean the same thing, so you can use these terms interchangeably when searching online.) These search phrases will help you find attorneys and firms that handle criminal cases, and thereby avoid attorneys and firms that don’t handle criminal cases.

You can also add a term related to where your case is being heard (not necessarily where you live). For example, if you need a lawyer for a case in Hennepin County, your search phrase could be “criminal defense attorney in Hennepin County.” Alternatively, you could also use a search phrase like “Minnesota criminal defense attorney” or the city where you live such as “Minneapolis criminal defense lawyer.”

Note: Because criminal defense lawyers usually handle all types of criminal cases, you don’t need to specify the type of charge you’re facing when you search online. For example, if you are facing a domestic assault charge, you don’t need to search for “criminal defense attorney for domestic assault charge.” Instead, just use the search terms detailed above. (However, if you specify your particular criminal charge in your search term, you should still get helpful search results.)

Doesn’t it cost tons of money to hire a criminal lawyer?

While hiring a criminal defense attorney does cost money, you should NOT assume that hiring an attorney is too expensive for you. In criminal cases, there are basically two different types of pricing methods, the “hourly rate” method and the “fixed fee” method.

In the hourly rate pricing method, the cost of representation is based on the amount of time the lawyer puts into the case.  Usually, the client must initially pay a certain amount of money up front called a “retainer”. The retainer is applied to the client’s bill (usually the first bill), and any unearned portion of the retainer is returned to the client.

In the typical fixed fee pricing method, the client and lawyer agree at the outset on what the entire representation will cost and what the lawyer will do. Usually, the client pays all or most of this agreed-upon price up front before the lawyer starts working on the client’s case.

For the client, the advantage of fixed-fee pricing is that there is no wondering about or guessing at what the representation will cost; the price is determined and agreed upon before any work is done. Moreover, if the lawyer’s responsibilities under the fixed-fee agreement require more work than anticipated, the client does NOT have to pay more than the agreed-upon price. [In the traditional “hourly rate” pricing method, there is no pre-set price, and the client may have to pay more money if the attorney has to do more work to fulfill the needs of the representation.]

If I pay more for an attorney, won’t I for sure get a better outcome in my case?

Unlike buying electronics or jewelry, paying more for legal representation doesn’t always mean you get something of higher quality. You can find a Minneapolis criminal defense lawyer who does first-rate work and who charges much less than lawyers who do mediocre work.  Also, keep in mind that your lawyer is not solely in charge of the outcome in your case. You could hire the most expensive criminal defense lawyer in the world, and he/she could do an unparalleled job presenting your defense. However, the judge in your case could still make a mistake or a series of errors that wreck your case and undo all of your lawyer’s excellent work. As a judge in Minnesota’s 3rd Judicial District is fond of saying: “Clients need to understand that lawyers are not magicians.”

How can the police arrest someone if the police didn’t see what happened?

Despite aggressive policing, law enforcement is usually reactive. That is, the police are not usually witnesses to crime. Instead, they most often respond to a 911 call, an alarm, or other signal for assistance. By the time they arrive on the scene, there is often not very much criminal activity for them to observe. (Obvious exceptions to this are when, for example, an officer encounters a drunk driver or witnesses a fight or participates in an undercover drug transaction.) In order to make a valid arrest, law enforcement must conduct an investigation and gather evidence (including witness statements) in an effort to identify a suspect(s). In short, if police can gather enough evidence, a valid arrest is possible even though no officer personally witnessed the alleged crime. Notably, in Minnesota, certain low-level offenses cannot lead to arrest unless they are committed in an officer’s presence. In these situations, the suspect may (and often will be) given a citation, but they will not be formally arrested and taken to jail.

How can I be arrested or charged with a crime if there isn’t a video recording of me doing the crime?

In order to make a valid arrest or file a lawful charge, the authorities don’t have to have very much evidence of guilt. The government merely needs to establish that a crime was probably committed and the person arrested or charged probably committed that crime. Lawyers and judges refer to this legal standard as “probable cause.” The evidence necessary to establish probable cause for a given charge does not need to be objective evidence like a surveillance video. Evidence sufficient to supply probable cause for an arrest/charge can come solely from one person’s claim (“Mr. D punched me in the face for no reason and ran off down the alley.”) Also, if a person confesses to law enforcement that he/she committed the crime, this evidence is usually as good as (and often more compelling than) a video of them committing the offense.

Keep in mind that the amount of evidence necessary for an arrest/charge is NOT the same amount of evidence needed to support a criminal conviction. The law requires more evidence for a conviction than is required for an arrest/charge.  The legal standard needed for criminal conviction is referred to by lawyers and judges as “proof beyond a reasonable doubt,” and it requires significantly more evidence – or a higher level of detail – than probable cause.

If I’m innocent, surely the judge or prosecutor will see this and dismiss the charges, right?

The prosecutor is the government attorney who pursues criminal charges against the defendant. You can infer from this that, in a given case, the prosecutor believes strongly that a crime was committed and that the defendant committed that crime. Therefore, absent some exceptional circumstances, it is unlikely that the prosecutor will dismiss the charges he/she is pursuing simply because there is some evidence of the defendant’s innocence. The prosecutor is motivated by several factors, one of which is the desire to earn a conviction in every case. The prosecutor will not dismiss a charge merely because the defendant claims he/she is innocent or might possibly be innocent.

While Minnesota judges do have the authority to dismiss cases “in the interest of justice,” this almost never happens. The judge’s role is mainly to keep the case moving and to act as a referee. The judge is not supposed to advocate for either side, and this means the judge is not supposed to make any major decisions – such as dismiss the charges – unless the defendant can present a valid legal and factual reason for doing so.  In other words, the judge will never dismiss a criminal charge merely because he/she “feels” or “believes” the defendant is innocent. The judge’s decisions must be based on the facts and/or the law that applies to the facts in a given case.

Moreover, most purely factual disputes must decided by the trial process and not during the pre-trial process. For example: Suppose Ms. D is accused of burglarizing an auto parts store late at night. There are two eyewitnesses that say they clearly saw Ms. D break into the auto parts store at 11 pm and run off down the back alley 8 minutes later. Ms. D, however, has a time card showing she was working her night job – cleaning at the bank – when the auto parts store was burgled. Because the State/prosecutor is generally entitled to have a chance at proving the charge at trial, the judge will likely not dismiss the burglary charge against Ms. D on a pre-trial basis. This is because the nature of Ms. D’s defense is a really dispute about quality of the evidence in the case, and the judge at a pre-trial hearing will not substitute his judgment for that of the jury (or trial judge, if Ms. D has a court trial).  For example, it’s possible that the two eyewitnesses that claim Ms. D was the burglar for some reason aren’t very credible. On the other hand, it might be that Ms. D forged her time card and perhaps some of her co-workers remember that she took a 30 minute break from cleaning the bank at the same time the auto parts store was burgled. This is the sort of factual dispute that the judge will leave to the trial process.

On the other end of the spectrum, this example may also be helpful: Mr. D is arrested on a bench warrant (he has a pending DUI case and skipped court last week). While being booked into jail, a baggie of white powder is found in his pocket; it looks like cocaine. Mr. D very wisely chooses not to answer any questions the officers want to ask him about the little baggie of powder.  Mr. D is charged with possession of cocaine, which is a felony in Minnesota. For some reason, the powder is not initially sent out for scientific testing, and thus its exact chemical composition is unknown. Mr. D’s lawyer realizes this and asks the judge to dismiss the cocaine possession charge because there’s no evidence the powder is actually cocaine. In response, the prosecutor tells the judge the State does not plan to have the powder tested unless or until the case goes to trial. The judge should grant Mr. D’s pre-trial request for a dismissal of the charge, because there is critical evidence missing from the case, namely, proof that the powder is cocaine or another controlled substance. Note: If the powder had been tested by two different laboratories – and one says it is cocaine whereas the other says it is baby powder – the judge will likely not grant Mr. D’s pretrial request for dismissal of the charge. The judge will almost certainly require Mr. D to stand trial and let the trial process determine which laboratory is right and whether the powder is cocaine.

The other person(s) involved in my case wants the charges against me dismissed, and I think they even wrote the county attorney or the judge about this. So why hasn’t the prosecutor or the judge dismissed the charges?

In Minnesota, the county attorney/prosecutor has the sole discretion to dismiss a charge (unless the court orders a charge dismissed for a specific legal reason). No one else, such as the alleged victim or complainant, has the power to make the prosecutor or court dismiss a charge. In Minnesota, the notion that the alleged victim can “drop the charges”  against the defendant is a myth perpetrated by mediocre TV shows. Moreover, the judge in a case can only accept requests (motions) from the attorney for either party. Simply put, neither the judge nor the prosecutor will dismiss a charge on the request of a witness in the case.

What’s the difference between a prosecutor, district attorney, and county attorney?

In Minnesota, most criminal cases are pursued by the county attorney’s office where the crime was allegedly committed. The county attorney is a publicly elected official, and the county attorney often has assistant county attorneys working for him/her. When a county attorney or assistant county attorney is pursuing – or “prosecuting” – a criminal case, they can also be called a “prosecutor”. (More generally, the term prosecutor means the attorney representing the plaintiff in a criminal case.) So, in the context of a Minnesota criminal case, the term prosecutor and county (or city) attorney mean the same thing and are interchangeable. Because Minnesota’s court system is basically county based (e.g., Ramsey County District Court, Olmsted County District Court, etc.), lawyers in Minnesota do not use the term district attorney or “DA” – as noted, the proper term would be county attorney (if referring to the elected official), assistant county attorney, or (in a criminal case) prosecutor.

I was arrested for a single incidence of DUI, but my court papers say I’m charged with two or more different DUI crimes. Is this legal? Can I be convicted twice for the same incident?

Yes, it’s legal, but, no, you can’t be convicted of both charges. Minnesota law allows the prosecutor to charge various alternative crimes for a given incident (assuming the evidence supports each charge). For example, the prosecutor in a drunk driving case will often charge the defendant under two different-but-related statutes. One charge will claim the defendant was driving with a blood alcohol concentration (BAC) of .08 or more – say, a BAC of .145. The other charge will claim the defendant was simply driving while intoxicated, but will not allege a specific BAC. See the difference? One charge requires the prosecutor to prove a specific BAC , whereas the other allows the prosecutor to obtain a conviction for the same incident based on the driver being merely “intoxicated.” The prosecutor is NOT saying the defendant committed two different drunk driving crimes on two separate occasions. The prosecutor is saying there are facts to support either or both charges from the one incident. So long as we’re talking about one incident, the driver cannot be convicted of both crimes even if he goes to trial and is convicted.

Based on a single incident, I was charged with both felony-level domestic assault as well as non-felony domestic assault and disorderly conduct. Is this legal?

Yes. Much like the drunk driving example, Minnesota law also allows the prosecutor to charge similar but less serious offenses in the same case. For example, in Minnesota a person can (and usually will) be charged with felony-level domestic assault if in the last ten years they have already been twice convicted of 5th degree domestic assault. Fifth degree domestic assault is normally a misdemeanor level crime. In other words, although the currently alleged conduct is only a misdemeanor, the defendant’s prior convictions make the current charge a felony. In this scenario, the prosecutor will often charge the defendant with felony level domestic assault, misdemeanor and/or gross misdemeanor level domestic assault, and disorderly conduct. This type of charging is legal and very common. One reason prosecutors do this is so that, if the case goes to trial, the prosecutor can try to get a conviction on a lesser charge if they can’t convince the judge or jury that the defendant is guilty of the most serious, felony-level charge.

I was involved in an incident, but I was never arrested by the police nor was I ever handed a citation (ticket). But now I’ve received papers in the mail telling me I’ve been charged with a crime and that I have to go to court in the near future. Is this legal?

Yes. In Minnesota,  not everyone who is charged with a crime is arrested and held in jail before the charges are filed. Sometimes, an incident can occur, but law enforcement doesn’t have enough evidence to arrest a suspect right away. Maybe it takes weeks or months to develop sufficient evidence for a criminal charge. Only once they have the appropriate evidence can the prosecutor file the appropriate charges. When the prosecutor properly files charges, the court can either  issue a warrant for the defendant’s arrest or mail the defendant a summons. A summons is a court order telling the defendant where and when to appear in court regarding that case. If the court mails the defendant a summons, it will include a copy of the complaint so the defendant knows why he/she is being summoned to court (the complaint lists the charges against the defendant and provides a narrative explanation of the basis for each charge). If the defendant fails to appear as ordered in the summons, the court will almost certainly issue a warrant, especially if there’s evidence the mail successfully reached the defendant (i.e., was not returned by the post office).

What is a court hearing? What is a court appearance? What is the difference?

A court hearing means a formal, recorded event that occurs under the direction of a judge, usually (but not always) in a courtroom. It’s called a hearing, because, in theory, the judge “hears” from both sides in the case. A court appearance refers to a party or his/her lawyer physically appearing before the court, usually at a court hearing. In criminal cases, because the defendant usually has to appear at all hearings, these terms mean the same thing. (In rare circumstances, a lawyer or party will come before a judge even though there is no scheduled hearing. We would say in this instance that the person had a court appearance – they physically appeared before the court -, but there was no court hearing.)

What is the difference between a court trial and a jury trial?

In criminal cases, the defendant has a right to have a jury decide the facts of the case, including whether he/she is guilty. The jury is comprised of adults who live in the county where the crime allegedly occurred (or where the trial will take place), but who do not have predetermined ideas about the guilt or innocence of the defendant. In Minnesota, a felony case requires a jury of at least 12 people; a non-felony case requires a jury of at least 6 people. In a jury trial, the judge decides legal issues – such as when a lawyer objects to evidence – whereas the jury decides the facts of the case, including whether the defendant is guilty.

In a court trial, there is no jury (or, if you want to think of it this way, there is a jury of one – the judge). The judge decides both the legal issues AND the factual issues, including the defendant’s guilt. In Minnesota criminal cases, the law presumes the defendant wants a jury trial unless the defendant explicitly gives-up their right to a jury trial and requests a court trial.

What is bail? What is a bail bond? What is the difference between the two?

When a person is booked into jail on a criminal charge, they will be held in jail until their case is over unless they or someone on their behalf pays their bail. In other words, bail is the amount of money, decided by the judge hearing the case, that must be deposited with the court before the defendant can be released from custody while the case goes forward. Virtually anyone can post (pay) the defendant’s bail, including the complaining witness in the case. Bail is much like the security deposit that you pay when you rent an apartment or other expensive item. If you trash the apartment, you lose the deposit. If you don’t trash the apartment, you are entitled to get that money back at the end of the lease. In the context of a criminal case, bail is used to ensure the defendant appears in court as scheduled, and follows any court-ordered pre-trial release conditions. If the defendant posts bail and then either fails to appear at a hearing or violates one of his pre-trial release conditions, the defendant will most likely forfeit (lose) the bail money. Forfeited bail goes to the court.

Notably, bail is ordered on a per case basis, meaning that, if you have two different cases – such as if you are arrested for DUI after going to court for an assault charge – the court will set bail in each case. In part this is because under the Minnesota Constitution a criminal defendant has a right to (and therefore the court must set) unconditional bail in each file. There is no right to bail, however, if you are charged with violating the terms of your probation or supervised release, or if you have been convicted of a crime but are awaiting your sentencing hearing. Bail is only available as a matter of right if you have not been convicted of any charge in the case.

A bail bond is a commercialized method of paying bail. A bail bond is a certificate – basically a check – that the bonding company writes to and files with the court handling the defendant’s case. The amount of the bail bond will almost always be the amount of bail the court ordered, otherwise, additional cash must be supplied to satisfy the bail. Bonding companies do not work for free, however, and the defendant or someone on his/her behalf must pay the bonding company for posting the bail bond with the court. The cost of a bond is usually a percentage of the bond amount. For example, if Mr. D’s bail is $10,000, he will need the bonding company to post a $10,000 bond with the court before Mr. D can be released from jail. If the bonding company charges 10% for posting this $10,000 bond with the court, the cost to Mr. D (or his friend or relative) will be $1000. Notably, this $1000 fee is never returned, even if Mr. D never misses court and wins his case. The $1000 fee is the price charged by the bonding company for its service (filing the $10,000 bond), and the fee has nothing to do with satisfying the bail. If Mr. D fails to appear at a court hearing in the case, the court may order the bond forfeited. If this happens, the court administrator cashes the bond – remember, it’s basically a check written by the bonding company – and the court then keeps the money ($10,000).  Losing $10,000 makes the bonding company very unhappy.

The first time I was in court the judge set two different bail amounts – one high and one low. What’s going on – do I have to pay both amounts?

There are two common forms of bail used by Minnesota judges in criminal cases: unconditional bail, and conditional bail. As the name implies, unconditional bail places no requirements or restrictions on the defendant once he’s posted bail and been released while the case is pending. Once the defendant posts (pays) unconditional bail, he/she is released and need only appear in court as scheduled in order to receive a refund of their bail money at the end of the case. Of course, the defendant may be subject to other court orders, such as a restraining order, but compliance with such an order is not a requirement attached to the bail itself – it’s a separate court order that must be obeyed. Moreover, if the defendant engages in unlawful behavior and is charged with a new crime, his/her original unconditional bail amount could be increased because of the new alleged offense.

Conditional bail is a bail amount that comes with certain requirements that the defendant must meet in order to stay out of jail and receive his bail money back at the end of the case. For example, conditional bail in a drug case may require that the defendant not use or possess mood altering chemicals not prescribed by his/her physician, and that the defendant submit to random drug testing. So, in a conditional bail situation, the defendant must pay the bail AND comply with the attached conditions.

Almost always, the conditional bail amount is set lower than the unconditional bail. Why? Because the court wants to entice the defendant to follow the conditions, because the conditions are usually designed to help the defendant avoid any further criminal conduct. Notably, a criminal defendant in Minnesota does NOT have a right to conditional bail. Conditional bail is often ordered, but the judge is not required to do so. Minnesota law only requires the judge to set unconditional bail.

To get out of jail, the defendant (or his friends/family) must pay either the conditional bail or the unconditional bail, but not both.

I just went to court where the judge set bail in my case and a bunch of other cases just like mine. My bail was set much higher than the others. If we are all charged with the same crime, isn’t the judge required to give us the same bail?

The court sets bail in each case based on a variety of factors, including: the severity of the offense, the criminal history of the defendant, the defendant’s employment and other ties to the community, etc.. There is no requirement that the court set the same bail for different people charged with the same offense. As noted elsewhere, there is also no requirement that the court set bail low enough that the defendant can pay it and get out of jail. However, there are statutory (legal) limits on the amount of bail the court can order in non-felony cases.

What if I can’t post bail?

Bail is the amount of money that must be paid before you can be released from jail while your case goes forward. If you cannot pay the bail amount (or get a bond for the bail amount), you will not be released from jail. Whether the court could be convinced to lower your bail amount is a different issue. In non-felony cases, the maximum amount of bail the court can set is regulated by statute. You have a right to unconditional bail under the Minnesota state constitution, however, that merely means that the court must set a specific amount of unconditional bail. Your right to unconditional bail does not mean you have a right to an amount of bail that you can afford.

Do I have to go to all my court hearings?

A criminal defendant MUST attend every hearing in his/her case. The only exception to this rule is if the judge handling a given hearing has “waived” the personal appearance of the defendant and has ordered that the attorney can appear for the defendant. NOTE: For a number of reasons, judges almost NEVER excuse the defendant from appearing in person. Criminal cases are very court-centric, meaning that the judge wants to see the defendant on a regular basis as the case moves forward. Also, there are many important decisions that the defendant must make on his/her own (and that the attorney cannot make for the defendant), Therefore, the law often requires the judge to have the defendant appear in person.

What happens if I skip a hearing?

If you fail to appear at a hearing, you should assume the judge will issue a bench warrant for arrest. A bench warrant – like most arrest warrants – is a court order that requires any law enforcement officer in Minnesota (and often other states) to take you into custody (put you in handcuffs and lock you up) until arrangements can be made to transport you back to the county where you were supposed to attend court.  You will remain in custody and eventually appear before the judge to 1) address your failure to appear, 2) decide what penalty to impose for your failure to appear, and 3) hold or schedule the hearing that you missed.

NOTE: If you fail to appear at a hearing after posting cash bail, the judge will often order that your bail be forfeited to the court. (Forfeit means to give up.) Remember, bail is like the security deposit you pay when you rent an apartment: if you wreck the place, the landlord keeps the deposit; if you take care of the place, you get the security deposit back. Bail is just a security deposit you pay to stay out of jail. If you appear in court as ordered and follow the rules of your release, you get your bail money back at the end (even if you are convicted). If you fail to appear at a hearing or violate your court ordered pre-trial conditions, you should assume you will not get your bail money back.

Similarly, if you hired a bonding company to post a bond on your behalf, the bonding company will likely lose the bond money (which is usually in the form of a check the court administrator simply holds and doesn’t cash) if you fail to appear at a hearing or violate your pre-trial conditions. Using a bonding company is just like having a friend or relative pay the security deposit on that apartment you rented in the above example. If you trash the apartment, your friend or relative loses the money. Losing a bond tends to make the bonding company VERY unhappy, and you may also be liable for the amount of money they lost (in addition to the fee you had to pay – often 10-20% of the face value of the bond – for the benefit of having the bond posted in the first place.

Finally, please note that failing to appear at a hearing can have many other disastrous effects on the substance of your case. There are too many to mention here, but failing to appear at a hearing may cause the judge to rule against you on a legal issue, have a trial in your absence, or order you to pay a hefty fee to compensate the prosecution if it had to go to a lot of work or had to spend a lot of money to prepare for a hearing that you skipped. Bottom line: NEVER SKIP COURT.

If I hire an attorney, doesn’t he/she just go to all the hearings for me?

No. In criminal cases, the defendant must personally appear at all court hearings. In exceptional situations, the court may allow the attorney to appear for the defendant (and not require the defendant to appear in person). Such a waiver of the defendant’s presence is rare, and will almost always be put in writing. If you are the defendant in a criminal case, do not skip a hearing unless you have it clearly in writing from the court that you need not attend.

I’ve heard the terms petty misdemeanor, misdemeanor, gross misdemeanor, and felony. What do these terms mean?

A petty misdemeanor is a violation of Minnesota law for which the maximum penalty is a $300 fine. A petty misdemeanor is NOT a crime. Driving 5 miles per hour faster than the posted speed limit – i.e., a garden variety speeding ticket – is a common example of a petty misdemeanor.

A misdemeanor is a criminal violation of Minnesota law for which the maximum penalty is 90 days in jail or a $1000 fine or both. To be clear, not everyone who is convicted of a misdemeanor is sentenced to 90 days in jail. However, if a person were convicted of a misdemeanor, it would be lawful for the judge to send them to jail for 90 days, fine them $1000, or both. A first-0ffense DUI (with a low BAC), disorderly conduct, and simple (5th) degree assault are examples of misdemeanor crimes under Minnesota law.

A gross misdemeanor is a criminal violation of Minnesota law for which the maximum penalty is 365 days in jail or a $3000 fine or both. As with a misdemeanor, not everyone who is convicted of a gross misdemeanor is sentenced to 365 days in jail. However, if a person were convicted of a gross misdemeanor, it would be lawful for the judge to send them to jail for a year, fine them $3000, or both. A second offense DUI (or first offense DUI with a high BAC) and second offense (within 10 years) 5th degree domestic assault are examples of gross misdemeanor crimes under Minnesota law.

A felony under Minnesota law is a crime for which a sentence of imprisonment for more than one year may be imposed. 5th degree drug possession, robbery, 3rd degree assault, most levels of criminal sexual conduct (including statutory and forcible rape), and most homicide crimes are felonies in Minnesota. Moreover, there are felony versions of many misdemeanor and gross misdemeanor crimes.

Why shouldn’t I just go to my first or second court hearing and explain to the judge what happened?

Please don’t attempt this unless you are prepared to plead guilty and be sent to jail that same day for the maximum possible time allowed by law. Also, please don’t attempt this until you’ve read the forthcoming FAQ about collateral consequences. We offer this warning, because the only way you can offer an explanation to the court about what happened in your case is by either pleading guilty and being sentenced, or by pleading not guilty and testifying at your trial. Let’s look at these two pleas in more detail: 

If you try to explain why you didn’t do anything wrong, the judge will probably interrupt you, enter a not guilty plea for you, give you a trial date, and move to the next case. The judge will not listen to your claim of innocence in any meaningful way. The judge will merely note that you are not pleading guilty, and thus will (or should) make arrangements for you to have a trial. In other words, if your intention is to get the case dismissed by “explaining the situation” to the judge, you should know that there is nothing you can say on your own at one of these early hearings that will convince the judge to dismiss the charges against you. If you want to “explain the situation to the judge” in order to get the case resolved in your favor, you will have to wait until your trial where you will have a chance to testify under oath.

On the other hand, if you try to explain to the judge why you did the crime, that you are very sorry for doing it, and that you deserve a lenient sentence because you are a fundamentally good person, the judge will probably invite you to enter a guilty plea. Because the judge is an authority figure, many people unintentionally plead guilty merely because they think that’s what the judge wants them to do (or the judge leads them to believe that’s what they should do). After you’ve entered a guilty plea, you generally cannot change your mind. Once your guilty plea is accepted by the judge, the judge will sentence you immediately or schedule your sentencing at a later date. Whenever you are sentenced, you will have the right to make a statement about your conduct, and this is where you will have a chance to “explain the situation” to the judge.

Keep in mind: Regardless of the plea you enter, anything you say can be used against you. So, if you go to court and try to explain what happened, and in the process admit to a crime or part of a crime, the prosecutor can use what you said against you later on. Any statement you make that could be considered as an admission to wrongdoing will be powerful evidence against you if you go to trial.

I was arrested for drunk driving (or a similar alcohol-related driving crime), and my driver’s license was suspended even before I went to court. That seems unfair – why should my driver’s license be taken away before I’m convicted of any crime?

In Minnesota, you don’t have to be convicted of an alcohol-related driving crime before the Department of Public Safety (DPS) will suspend or revoke your driver’s license. This is because there are a series of statutes and rules (laws) that allow the DPS to suspend or revoke your license if there is proof that you were probably driving drunk, under the influence of drugs, or with a BAC of .08 or more. (The evidence in this situation comes from the law enforcement officer who arrested you; he/she reports your intoxicated driving on a special, detailed form that they send to the DPS.) Remember that this license suspension or revocation process is a CIVIL matter, and therefore less evidence is required for a license suspension/revocation than is required for a criminal conviction. You may be surprised to learn that the civil suspension/revocation process is so completely separated from your criminal case that you could still have your license suspended or revoked even if you aren’t convicted of the alcohol-related driving crime. This is another reason why you should hire an attorney as soon as possible after being arrested: In DUI cases, we can fight your civil license suspension (as well as your criminal charge), but you need to contact us immediately so you don’t miss the deadline to challenge your civil license suspension/revocation.

Before I was arrested or charged, a police officer asked me a bunch of questions. Aren’t the police required to read me my rights before questioning me?

Law enforcement officers do NOT have to advise you of your Miranda rights (right to remain silent and right to consult with an attorney) unless you are in custody. Whether you are “in custody” is complicated and depends on several factors, but here are a couple of extreme examples: If you have been locked in the back of a police car or placed in a holding cell, you are probably in custody and the officer should have read you the Miranda warning before asking you about your involvement in any criminal activity. If a law enforcement officer calls you on the telephone and asks about your involvement in a particular incident, you are probably NOT in custody and the officer probably did not have to read you the Miranda warning.

It seems like the prosecutor is out to get me at a personal level. Am I imagining this?

Just like your lawyer is your advocate, the prosecutor is an advocate for his/her case. What you perceive as personal animosity directed at you is probably – but not always – just the prosecutor doing his/her best to present their side of the case (which is what society pays them to do). Keep in mind, too, that you (the defendant) may be over-sensitive to anything the prosecutor says, especially in a public hearing. Unfortunately, it is also true that some prosecutors feel they have to portray you (the defendant) as a monster in order to do their job. Some prosecutors are professionally opposed to dismissing cases, because they want to take every possible chance at getting a conviction. As one prosecutor likes to put it: “I’d rather try this fucker and lose than dismiss it.”  And, some prosecutors are just rude, condescending, dishonest, stupid assholes in general. This is just another reason why having an attorney is critical: Your attorney will deal with the prosecutor so you don’t have to.

What is a stayed sentence? What is an executed sentence? What’s the difference?

A stayed sentence – sometimes also called a suspended sentence – is a sentence where the defendant can avoid serving a much longer jail or prison sentence if he/she complies with the requirements of a probation agency and other terms dictated by the sentencing judge. If the defendant does not follow the rules of probation or meet the other terms dictated by the judge, the defendant will likely have to serve some or all of the incarceration that was initially stayed or suspended. For example, Mr. D was convicted of first-offense drunk driving. The judge sentenced him to 90 days of jail with 89 days stayed so long as Mr. D complies with probation for 1 year, including no drinking or using unprescribed drugs, attendance at AA, participation with a victim impact panel, and completion of other DUI-specific programming. So long as Mr. D doesn’t violate probation and  does what the judge ordered, he will not have to serve the 89 days of jail that was “stayed” by the judge at the original sentencing. However, if Mr. D shows up high on cocaine to a meeting with his probation officer, or never attends the impact panel or AA meetings, he should expect that the judge may find that he violated the terms of the stayed sentence  and make Mr. D serve those 89 days.

An executed sentence is more straightforward than a stayed sentence. When a judge pronounces an executed sentence, the judge is sending the defendant to jail or prison for the time specified in the sentence. Suppose, for example, that Mr. D knew from the beginning that he didn’t want to be on probation for his DUI. So, his lawyer and the prosecutor agreed that if Mr. D served a 75 day executed sentence, he would not have probation after he completed the 75 day sentence. The judge agreed and thus sentenced Mr. D to “an  executed sentence of 75 days in the local jail.” In this example, Mr. D would go to jail and serve the 75 day sentence and have no probation or other requirements afterward.

What is restitution? What is a fine? What is the difference?

Restitution is money paid by the defendant to cover damage caused by the defendant’s criminal acts. Unlike a fine, a restitution requirement is not a form of punishment. Restitution is a way of putting the victim back in the position they’d have been in had the defendant not victimized them. For example, suppose Mr. D unlawfully assaults his neighbor with a baseball bat, sending him to the hospital. If convicted of the assault or a related crime, Mr. D will almost certainly have to pay restitution to cover his neighbor’s medical bills (because the neighbor would not have incurred those bills had Mr. D not unlawfully assaulted him). Although fine amounts are limited by statute, restitution is not subject to the same sorts of hard, specific statutory limits.

A fine is a monetary penalty. That is, a fine is used to punish a person for violating the law by forcing them to pay money. Fines can be used a) where the law does not allow for incarceration (jail or prison time), such as civil infractions, b) as an alternative to incarceration, or c) in addition to incarceration. If you have ever received a speeding ticket and paid the amount listed on the ticket to avoid going to court, you have paid a fine.