Rules of the Water – Boating While Impaired (BWI)

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As is the case with motor vehicles, it is illegal to operate a motorboat with an alcohol concentration of .08 or more, or while under the influence of alcohol, a controlled substance (or its metabolite), or other illegal chemical. The law does not prohibit drinking alcoholic beverages aboard boats nor having an open bottle. The law applies only to motorboats “in operation” at the time of the offense, which does not include a motorboat that is anchored, beached, or securely fastened to a dock or other permanent mooring, or a motorboat that is being rowed or propelled by other than mechanical means.

Operators may be required to take impairment tests by an enforcement officer. BWI convictions and refusals are recorded on the violator’s driver’s license record, although first time offenders with no prior DWI are not subject to driver’s license revocation or license plate impoundment. Most of the BWI law is now found in the motor vehicle statutes, and first time violators (no prior DWIs of any kind) who are convicted are subject to:

  1. Up to a $1,000 fine plus surcharges,
  2. Possible jail time,
  3. Loss of motorboat operating privileges for 90 days during the boating season, after conviction and written notification by the DNR.

In addition to the above penalties, persons who refuse testing will also be subject to a separate and more severe criminal charge for refusal and loss of their motorboat operating privileges for one year, immediately upon refusal.

If certain “aggravating factors” are present, the BWI charge becomes a gross misdemeanor or a felony and results in heavier sanctions. If any of the following aggravating factors are involved, the offense automatically becomes at least a gross misdemeanor:

  1. An alcohol concentration of .20 or more,
  2. Prior DWI conviction(s) or refusal(s) of any kind in the past 10 years,
  3. There is a child less than 16 years of age on board.

Below are the penalties for gross misdemeanor BWI offenses:

  1. A fine of up to $3,000,
  2. A longer period of mandatory jail time,
  3. Participation in long-term monitoring programs,
  4. Chemical dependency assessments,
  5. Loss of driver’s license privileges,
  6. Plate impoundment of all motor vehicles owned by the offender, and
  7. Forfeiture of the boat involved in the incident.

In addition to the above sanctions, felony BWI offenders can be sentenced to:

  1. Up to seven years in jail,
  2. Up to $14,000 in fines, and
  3. Extended periods of license revocation.

Further, if the operator had an alcohol concentration of 0.20 or more as measured at the time, or within two hours of the time, of the violation, the court may impose a penalty assessment of up to $1,000, in addition to any other penalties or charges authorized under law.

This information is provided for general informational purposes only.  It is not legal advice and should not be used as a substitute for an attorney. An attorney-client relationship can only be formed with CLG through personal contact and after execution of a retainer agreement. If you wish to retain CLG, please contact us. We are happy to help. This information was accurate at the time it was posted. The laws of the State of Minnesota change regularly and often. Accordingly, CLG makes no guarantee about the accuracy of the information after the date of posting.

Attorney Cadem Makes New Law Protecting Minnesota Motorists

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Attorney Cadem made new law in a published opinion by the Minnesota Court of Appeals (State v. Stall, A13-1041; April 14, 2014).  In the opinion, the court held that random stops of vehicles by State Patrol personnel who are not troopers is unlawful. In laymen terms, state patrol motor vehicle inspectors standing at roadside waiving vehicles to the side of the road or with signs commanding “all commercial vehicles must stop” are no longer permitted. This is a big win for the commercial trucking and farming industries who were regularly victimized by regular (and sometimes repeated) suspicionless stops during their work day.

This was also  important because twice Mr. Cadem presented this argument to separate District Courts and both times the District Court ruled against his clients. In one of those cases, Mr. Cadem successfully defended his client at trial and obtained an acquittal of all charges. The second case was the Stall case, which Mr. Cadem appealed pro bono due to his client’s inability to pay and Mr. Cadem’s strong commitment to seeking justice for his clients.

The Intoxication Defense

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Is Intoxication a Defense?

With the holiday season in full swing, I thought a quick primer on using intoxication as a defense to drunken shenanigans is in order. Unfortunately, unlike many a college weekend mishap, the “I was drunk” defense rarely succeeds in a court of law.

Involuntary intoxication

Technically, only involuntary intoxication is ever a complete defense to a crime in Minnesota.  A defendant is not guilty of any crime if his actions were unintentional due to involuntary intoxication.  This defense has the following requirements.

First, the defendant was made so mentally deficient by reason of involuntary intoxication, that he did not understand the nature of the act or that it was wrong. This means that he must have failed to know what he was doing or what the consequences of the act would be, or he must have failed to realize that the act was wrong.

Second, one of the following must have been the case:

  1. The defendant was compelled to take the intoxicating substance against his will.
  2. The defendant was unaware that because of a particular susceptibility to it, the substance would have a grossly excessive intoxicating effect upon him.
  3. The defendant was innocently mistaken as to the nature of the substance taken.
  4. The defendant became unexpectedly intoxicated as a result of taking a medically prescribed drug.

The defendant has the burden of proving each of these requirements by the greater weight of the evidence. This means that he must prove that it is more likely true than not true that each requirement has been proven. If the defendant proves each requirement, he is not guilty of the crime alleged.

Voluntary intoxication

However, when a defendant is offering intoxication as an explanation for his actions and a particular intent or other state of mind is a necessary element to constitute a particular crime (e.g., murder, theft, deer shining), voluntary intoxication may be taken into consideration in determining such intent or state of mind.  See Minn. Stat. 609.075.  The defendant has the burden of establishing intoxication by a fair preponderance of the evidence (more than 50%), but the ultimate burden of proving the element of intent always remains with the State.

Where the crime only requires a general intent, voluntary intoxication cannot be considered. So, think twice before you have that third brandy eggnog before talking to the hotheaded uncle of yours.

Have a safe and Merry Christmas.

Entrapment Defense

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The Infamous Entrapment Defense

It is not uncommon for my clients charged with drug sales to have been “set up” by an undercover agent or someone working for law enforcement as part of a plea deal. Inevitably, I am asked, “Isn’t that entrapment?” The answer is generally no.

Entrapment is not about law enforcement waiting in the weeds for people to violate laws, hoping for a proverbial “gotcha” moment, or about law enforcement using people or tools to catch people doing something wrong.  Instead, it occurs when law enforcement officers entice a person to commit an act he or she would not have otherwise committed.

In Minnesota, entrapment is a complete defense to a crime.  The entrapment defense requires that the criminal design originate with a government agent, not the defendant, and that the defendant was by coercion, persuasion, deceitful representation, or inducement lured into committing an act he otherwise would not have committed and had no intention of committing.  The entrapment defense is not proven where a person is ready and willing to commit the crime, and the government agent simply provided a favorable opportunity.

The defendant must raise the defense for consideration by a fair preponderance of the evidence.  Then, the State must prove beyond a reasonable doubt that he was predisposed to commit the crime charged.  If the State fails, the defendant is not guilty.

So what about when an officer is running radar from a private driveway, mostly hidden from view, or when an officer is running radar on the side of the road with his headlights off?  Despite the urban legend, entrapment is not a defense (unless of course you can convince a judge or jury that you were somehow enticed by the officer to speed by the fact that you did not even know the officer was there in the first place.)

One famous entrapment case involved John DeLorean, maker of the vehicle featured in the Back to the Future films.  In 1982, DeLorean was arrested on charges of drug trafficking, allegedly committed in attempt to raise funds for his struggling company. After DeLorean argued that the FBI had enticed a convicted narcotics smuggler to get him to supply the money to buy the cocaine, a federal judge acquitted him of all charges based on entrapment.

 

Citizen’s Arrest

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Citizen’s Arrest: Not Just a Dramatic or Comic Tool

Like most people, your main exposure to the term “citizen’s arrest” may be through references in TV and movies, such as filmmaker Michael Moore’s amusing “attempt” to arrest AIG executives in the wake of the global financial meltdown a few years back.  However, a citizen’s arrest is actually perfectly legal and effective, under certain circumstances.

In Minnesota, an “arrest” means taking a person into custody so that the person may be held to answer for a public offense, which may be done through either restraint or simple submission by the arrestee.

Minn. Stat. § 629.37 allows a private person to make an arrest in three circumstances:

(1) for a public offense committed or attempted in the arresting person’s presence;

(2) when the person arrested has committed a felony, although not necessarily in the arresting person’s presence; or

(3) when a felony has in fact been committed, and the arresting person has reasonable cause for believing the person arrested to have committed it.

A “public offense” includes all violations punishable by fine or imprisonment, including petty misdemeanors.

By Minnesota statute, a person who has made a citizen’s arrest must take the arrested person before a judge or to a peace officer “without unnecessary delay.”  If the person arrested escapes, the arrestor may immediately pursue and retake the escapee, at any time and in any place in the state.  For that purpose, the pursuer may even break into a dwelling if the pursuer informs the escapee of his intent to arrest and the pursuer is refused admittance.  However, in State v. Horner, 617 N.W.2d 789 (Minn. 2000), the Minnesota Supreme Court held that citizens are not authorized to conduct investigations—such as field sobriety tests—after observing a public offense committed in the citizen’s presence. 

On a related note, a private person is required to participate in making an arrest under certain circumstances.  For example, when a peace officer requests, a private person must aid the officer in executing a warrant.  Also, if a judge lawfully directs that a person arrest another, it is a misdemeanor to willfully neglect or refuse to do so.  Similarly, a person is guilty of a misdemeanor if he willfully neglects or refuses to aid a peace officer after being “lawfully directed” to aid the officer in making an arrest, retaking a person who has escaped from custody, or executing a legal process.

Even equipped with the above knowledge, one should think twice before launching into a voluntary citizen’s arrest.  Of course, personal and public safety should be significant concerns.  Further, arrests later found to be unlawful can subject the unwitting citizen to criminal or civil liability for false imprisonment.

Personal Injury

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Cadem Law Group, PLLC, handles a wide range of personal injury lawsuits, including those involving vehicle accidents, wrongful death, product liability, malpractice, and premises liability. If you or a loved one was injured due to the actions or negligence of someone else, we are here to help. Cadem Law Group, PLLC, uncompromisingly fights for compensation for victims just like you across Minnesota.

As your law firm, our number one goal is to take the stress off you so you can focus on recovery. We will handle all communications with the insurance companies, work with medical providers to get you the care you need, and aggressively pursue financial compensation for all of your expenses, medical bills, lost wages, and pain and suffering.

If you have been injured:

Don’t sign anything from an insurance adjuster, or make any statements until after you’ve spoken to someone at Cadem Law Group. You may be signing away any future rights to compensation, or unknowingly jeopardizing your right to recovery. Insurance adjusters will sometimes show up at the scene of an accident or even in a hospital and ask leading or incriminating questions just when victims are at their most vulnerable.

Take pictures at the scene and after. Don’t forget that most cell phones are capable of taking pictures. Gather as much information as you can, if you’re able, at the scene of the accident. Photographic evidence is very hard to refute in a Minnesota accident lawsuit. Also, make sure to take numerous clear pictures of your injuries. Although medical records will discuss the types of injuries, nothing demonstrates the severity of your injuries and the associated pain and suffering like pictures.

Talk to witnesses immediately. Be sure to take note of witness comments like, “that car was flying,” or, “that guy wasn’t paying attention.” Take down names and contact information just in case your claim goes to court. Don’t ever let the other driver write his or her information down for you! I have seen countless victims of automobile accidents who fell victim to the other driver writing down false information. Physically examine his or her photo ID and personally record the information. Also, record the license plate number. Again, a cell phone picture of the photo ID, other vehicle and vehicle license plate number is a quick and easy way to protect yourself.

See your doctor immediately and follow all of his recommendations. Any delay may hurt your claim. Also, be sure to keep records and prescriptions on file. Remember that you have the right to a physician of your choice; don’t let the insurance adjuster choose one for you.

Call the police and your insurance company right away. Any delay in reporting an auto accident could hurt your case.

Keep a journal, records and receipts. Start a notebook relating to your accident and keep it with you. Write down how you feel on a daily basis. Keep records of each doctor visit, what issues you discussed, what treatments you received and where. This information will be invaluable to your claims. Six or seven months later, it may be hard to remember how painful it was to bend down and tie your shoes in the morning, or what it was like trying to fall asleep at night. Insurance companies and their lawyers are experts at making victims look like they are lying about or are exaggerating their injuries. It is difficult to refute a daily journal. Also be sure to maintain records of household services received, such as house cleaning and lawn mowing services.

Hire a lawyer. When you’ve been injured by someone’s negligence, you need the help of someone who is experienced at dealing with insurance companies and willing to fight to recover the compensation you deserve for every penny of your medical bills, lost wages, expenses, and pain and suffering.

Cadem Law Group is sharp, driven, and experienced. We are devoted to aggressively fighting to recover every penny you deserve. With seven years working within the insurance industry, if you have been injured, we can help. Contact our office online or call 218-739-HELP (4357) to schedule a free consultation to discuss the value of your case today.

Key Practice Topics: Accidents; Crash; Burns; Wrongful Death; Paraplegic; Brain Injuries; Back Injuries; Soft Tissue; Cervical Spine; Spasms; Hematoma; Hemorrhage; Discogenic Disease; Disability; Product Liability; Catastrophic Failure; Negligence; Negligent Design; Failure to Warn; Slip and Fall; Contributory Negligence; Comparative Fault; Treatment; Independent Medical Exam; IME; Malpractice; Premises Liability; Attractive Nuisance; Choice of Procedures.

Insurance Claims & Defense

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Insurance disputes often arise after a loss or injury occurs and an insurance company denies coverage. These situations are particularly stressful because people are oftentimes faced with significant financial hardship if they are left paying for the loss themselves. Attorney Christopher Cadem is an experienced insurance insider. Having been a licensed property/casualty insurance agent for 7 years, and the former vice president of a St. Paul based insurance agency, he is familiar with insurance company protocol and methods, as well as a growing number of adjusters working at some of the biggest insurance companies represented in Minnesota. He has also successfully sued insurance companies to obtain coverage for his clients when negotiations have failed. If you are faced with an insurance dispute, experience and dedication matter. Contact our office online or call 218-739-HELP (4357) to schedule a free consultation to discuss your options.

Key Practice Topics: Insurance; Dispute; Deny Coverage; Tender of Defense; Reservation of Rights; Notice of Declination; Declaration Page; Insurance Agent; Insurance Company; Adjuster; Premiums; Deductible; Exclusions; HO; Perils; Exclusions; Definitions; Restrictions; Deductible; Policy Term; Fraud; Omitted Information; Per Occurrence; Post Date; Back Date; Gap Coverage; Commercial; Defendant; Plaintiff.