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Criminal Law Section


Criminal Law Section Newsletter | October 2013

by User Not Found | Apr 17, 2014

McNeely/Brooks Update

The Minnesota Supreme Court issued its long-awaited opinion in State v. Brooks on Wednesday, October 23.  Brooks is our state version of the U.S. Supreme Court’s watershed case McNeely v. Missouri, 133 S.Ct. 1552 (2013), decided April 17, 2013, which held that the natural dissipation of alcohol over time does not create a per se exigency and thus, depending on the facts of each case, police may be required to obtain search warrants from drivers who do not consent to a blood draw to measure their alcohol concentration.  

Brooks concerned a driver convicted of three separate felony DWI cases, two in Scott County, and one in Hennepin County. He took two urine tests and one blood test, in the three cases respectively. The convictions were vacated by the U.S. Supreme Court just days after McNeely was decided, and remanded to the Minnesota Court of Appeals for reconsideration in light of the decision in McNeely.  The Minnesota Supreme Court then granted the State’s petition for Accelerated Review to expedite the resolution of this important issue with clear statewide impact, which affects every single pending DWI case in the state (including test refusal cases).  

In the Brooks decision issued on October 23rd, the Supreme Court found that under the totality of the circumstances present in each incident, the defendant had consented to the chemical tests requested, thus making the results admissible.  Notably, the Court did not address the constitutionality of Minnesota’s Implied Consent law, but instead stated that Brooks’ argument – that the criminal penalties attendant to refusal made any consent “coerced” – was an insufficient showing that the law was unconstitutional.  In short, it was a narrow holding from the Court, and one that may resolve some currently pending cases while leaving open the possibility for renewed appeals in other current and future cases.

The Criminal Law Section is currently planning an Update CLE on the Brooks holding and how it impacts criminal law practice in Minnesota for the very near future.  Please watch for notices on this informative and critical program.

Strategic Planning

The Criminal Law Section Council met in August to discuss its purpose and potential projects and initiatives for the upcoming year.  Members determined that they would like the Criminal Law Section to be viewed as an authority in the area of criminal law and procedure.  Members determined to undertake the following projects:
  • Create an online resource for practitioners that documents the local rules and procedures for accomplishing common actions (e.g., how to set bail, whether there is a weekend judge on call, whether certain actions can be done by phone/paper or must be done in person). 
  • Develop a proposal to amend the telephonic warrant procedure.
  • Establish a monthly section email or newsletter.
  • Plan and present CLEs.
To join us in working on any of the projects above, please contact section staff member Nicole Battles, any section officer, or simply attend the next meeting.

Council Recap

The Criminal Law Section Council met on Wednesday, October 2, 2013.  Following are some of the highlights.

1.  CLE Planning. The Council discussed several possibilities for upcoming CLE’s, and assigned council members to take the lead on planning and development.  The CLE topics agreed to were Immigration and Criminal Law, Everything But the Trial School (January), followed by the annual Trial School (April or May), and Civil Landmines (e.g., forfeitures, expungements, and driver’s license suspension).

2.  MNCIS Access by Private Defense Attorneys. Last summer, the section sent a letter to Chief Justice Gildea asking the Supreme Court to consider amending the rules relating to access to judicial records so that private defense attorneys could have the same access to MNCIS case information that public defense attorneys currently have.  Justice Gildea sent a response indicating that the request could not be granted at the moment, but that she would convey our concerns to an internal advisory work group on access issues. Council members discussed the response and decided that it would be appropriate to send a follow up response to ask if we could attend a meeting of the advisory work group or otherwise open a channel to that group to convey our concerns.  Members noted that the access issue impacts not only the attorney but also court staff because often the attorney is forced to call the court for details about an upcoming appearance rather than being able to look it up.

Mark your calendar with these upcoming dates:

Criminal Law Section Council Meeting
Wednesday, November 6, 2013
5:00 p.m. (dinner provided)
MSBA Office

CLE - Crimmigration: What Every Criminal Law Attorney Needs To Know About Immigration Law and Vice Versa
Thursday, November 14, 2013
3:30pm-5:00pm at Pizza Luce
Social hour following the CLE, drinks and appetizers provided.

Criminal Law Section Council Meeting
Wednesday, December 4, 2013
5:00 p.m. (dinner provided)
MSBA Office

CLE - Effective and Ineffective Use of Humor in the Courtroom
Thursday, December 5, 2013
12:00pm-1:00pm at MSBA.

Section Council Officers

Joe Van Thomme, Chair

Dan Adkins, Vice Chair

Kelly Mitchell, Treasurer

Rich Ohlenberg, Secretary

Nicole Battles, MSBA Staff

Annual Report


MSBA Criminal Law Section
Annual Report

Section Membership
As of May 23, 2017, the Section has 675 members. 

Financial Status
The Section had an account balance of $11,467.05 as of May 23, 2017.

CLEs & Events
The Section hosted 5 CLE programs in fiscal year 2016-17.  

Program Title


Event Code

CLE Credits

Number of Attendees

Mistaken Eye-Witness Identification, A Tough Problem with Easy Solutions



1.0 Standard


Intersection of Chemical Dependency and Criminal Law



2.0 Standard


Crimmigration: Recent Trends (co-sponsored with Immigration)



2.0 Standard


Criminal Law 2017 Legislative Preview – What’s Coming Up



1.5 Standard


Everything BUT the Trial School



3.25 Standard


Criminal Law Trial School



4.75 Standard


Annual Meeting and Election Results
The Section’s Annual Meeting was held on May 3, 2017 and 10 people attended. 

The following council members were elected to serve on the Section’s Governing Council from July 1, 2017 to June 30, 2018: 

Dan Adkins
Landon Ascheman
Paul Baertschi
Camille Bryant
Alex De Marco
Barry Edwards
Rebecca Rhoda Fisher
James Gempeler
Dan Koewler
Brad Johnson
Kelly Martinez
Chad Miller
Kelly Mitchell
Rich Ohlenberg
Alina Schwartz
Gary W. Strootman
Aaron Welch
Thomas Wilson
Robin Wolpert

The following officers were elected to serve on the Section’s Governing Council from July 1, 2017 to June 30, 2018. 

             Chair:  Max Keller
             Vice Chair:  Joe Van Thomme
             Treasurer:  Anthony Bushnell
             Secretary:  Andrea Palumbo 

Diversity and Inclusion
What diversity and inclusion goals did the Section include in the 2016-2017 work plan, how did you approach these goals, and what was the result?

This is a complex issue as: there are many types of diversity such as: male/female, rural/urban, prosecutor/defense attorney, younger v. older attorneys, as well as participation by members of minority communities and people of color. Of course, participation in the MSBA’s Criminal Law Section is an entirely voluntary activity in Minnesota and is quite time consuming when added to all the other personal and professional responsibilities we have as attorneys.  So, not every attorney wants to or can find the time to participate even if that want to do so. 

At the start of the year, we decided to pursue an informal strategy of trying to recruit and involve more attorneys of color, and more prosecutors in our group.  At the Trial School held at the end of the year (May 4, 2017) which was our capstone event for the 2016-17 year, we had a wide of participants in the seminar including younger attorneys, female attorneys, attorneys from more rural counties and attorneys of color. So, I was very encouraged by the success of the trial school this year and by the diversity of the participants.    

Other Section Accomplishments

Along with the DWI Task Force, the Criminal Law Section spearheaded the changes that were proposed and passed into law by the Minnesota Legislature requiring that warrants obtained in blood and urine test cases. This resulting new DWI statute which is set to go into effect on July 1, 2017 reflects recent Supreme Court caselaw and brings the Minnesota DWI statute into compliance with that new caselaw.  Due to time constraints, we took a “Section Only” position in favor of passing the bill.  Members of the Section working in conjunction with the MSBA lobbyist, Bryan Lake, and with numerous other stakeholders, played a key role in getting the bill enacted into law. 

The new law also extends the time-period for filing a challenge to an alcohol related license revocation from 30 to 60 days and allows for a prescription drug defense at the implied consent driver’s license hearing. These changes to the law are new additions to Minnesota’s DWI law which have discussed for many years, but were never before enacted into law.  

In addition to the points made above about the diversity of the presenters at the two final 2016-17 seminars, in the Everything BUT Trial School and the final Trial School, I was very pleased that this year we used one set of facts for both seminars.  I believe this provided attendees with the most realistic Trial School exercise that we have ever hosted.  The case that we used was a DWI physical control case and is the type of case that attorneys practicing in the criminal law area are routinely required to take to jury trial within their first 2-3 years of practice and on throughout their careers.   

We had some excellent presenters and the Trial School had a very realistic feel to it.  I was also very pleased that some of the younger members, specifically Joseph Van Thomme, stepped up and did much of the organization, scheduling and cajoling to get the various presenters to show up and participate in the Trial School.  This shows that the Section has a broad base of active members which bodes well for the future of the Criminal Law Section. 

Respectfully Submitted By:

Richard Ohlenberg, Section Chair 2016-17