Wednesday, January 27, 2010

Ascheman & Smith has Moved

Hello all, and thank you for following our blog.

Unfortunatly, we have moved... you can follow our new blog at the following location:

Thursday, January 21, 2010

Expungements in Minnesota

No one wants to be judged by their worst mistake. Most mistakes are solvable and do not burden individuals for a prolonged period of time. However, having a criminal conviction on your record can be a mistake that lasts a lifetime. Potential employers and landlords can search your criminal record and find most prior criminal charges and convictions. The result of this can cost you a job or a place to live.
For some convictions, however, there is a solution: expungement. If you receive an expungement, your conviction is sealed and is not viewable by the public. For employers and landlords, it’s as if the conviction never existed. That’s why a judge Landon appeared in front of recently called expungements “legal magic”. However, if you get an expugement, your record is not completely gone. Law enforcement and immigration agencies can still see your record.
Some convictions (like DWI’s) cannot be expunged. For most other convictions, you must provide the court with the following things if you want an expungement:
1. Case number of the charge you want to have expunged.
2. All residence addresses from date of conviction.
3. A statement about why you want an expungement.
4. A statement about how you’ve changed since your conviction.
5. All criminal charges.
6. The name of victim (if any).
After you fill out the necessary paperwork, you need to pay a filing fee for the expungement. The fee varies by county, but usually costs around $320. The next step is an expungement hearing, which is set at least 63 days from the filing date. If the judge grants your expungement, you have to wait another 60 days from the hearing for your criminal record to be sealed.
As you can see, getting an expungement is a complicated and lengthy process. On top of the paperwork mentioned above, you must notify 10 to 16 city, county, and state agencies of your expungement request. The notification gives the agencies notice of your request and gives them a chance to object to it.
Don’t let a mistake define who you are to potential employers and landlords. At Ascheman & Smith LLC, we can help you navigate this maze and assist you in getting a charge or conviction expunged.

Thank you,

Grant S Smith, Esq.

(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700

Monday, January 18, 2010

Today we honor Martin Luther King Jr.

In 1950's America, the equality of man envisioned by the Declaration of Independence was far from a reality. People of color — Blacks, Hispanics, Asians — were discriminated against in many ways, both overt and covert. The 1950-1960's were turbulent times in America, when racial barriers began to come down due to Supreme Court decisions, like Brown v. Board of Education; and due to an increase in the activism of blacks, fighting for equal rights. One man among many is remembered today, Martin Luther King Jr., as he stood up and fought the non-violent fight for peace and equality.

Today we honor Martin Luther King Jr., the chief spokesman for non-violent activism in the civil rights movement. He successfully protested racial discrimination in federal and state law. He was a great man of great vision. His life was unfortunately cut short when he was assassinated in 1968.

He is probably best remembered for his speech titled "I have a dream" (posted below)

As this is primarily a criminal defense law blog, I thought we could take a look at Dr. King Jr.'s criminal record.  Even Heroes have a run-in with the law.  According to our research we found 5 arrests in Dr. King Jr.'s history.

On May 4, 1960, Dr. Martin Luther King Jr. was arrested for driving without a Georgia license.  This seems to be the most honest and legitimate arrest in his record.  That should say something about the other arrests since records indicate that he had a license from Alabama at the time.

A few months later (October 19, 1960) Dr. King Jr. was arrested during a sit-in at a Rich's lunch counter in Atlanta.  This sit-in was instigated by the Committee on Appeal for Human Rights (COAHR). They organized workshops and training sessions on the strategy and tactics of non-violent resistance and began recruiting students willing to take an oath of non-violence and sit-in at local lunch counters.  The students asked Dr. King to join them in sit-ins at Rich's restaurants, including the upscale Magnolia Tea Room on Rich's 6th floor. Though he was reluctant to be arrested due to legal troubles stemming from his Movement activities in Alabama, Dr. King participated and was hauled off to jail with the students. In solidarity with those who were following the "Jail-No-Bail" strategy, he refused to post bond and remained imprisoned.

On October 25, 1960 Dr. King Jr. was sent to Reidsville State Prison (GA) for parole violation stemming from his the May 4, 1960 arrest for "driving without a license."  The next day Robert Kennedy calls Georgia Governor Ernest Vandiver seeking Dr. King's release from prison.  He was released two days later.

Over a year later (December 16, 1961) Martin Luther King Jr. was arrested in Albany, Georgia while attempting to desegregate public facilities in the city.  The arrest stemmed from SNCC's voter registration project earlier that year.  After escalation of non-violent protests the result was over 600 people in jail.  At that point the Albany Movement asked Dr. King Jr. and SCLC for support. More than 1500 people pack both the Shiloh and Mt. Zion churches (across the street from each other) to hear Dr. King's address. The next day Dr. King and Abernathy lead 265 marchers to City Hall. They were all arrested, bringing the total number of arrests to over 750. Along with others, Dr. King was transferred to Sumter County jail in Americus. Enough bail money was scraped up to free a few leaders to continue the struggle and raise funds, but King announced that he would remain incarcerated over Christmas to protest segregation and denial of basic human rights.

On February 27, 1962 Martin Luther King was convicted of minor offenses in Albany, Georgia as a result of his attempt to desegregate that city, however other charges remained pending

On July 10, 1962 Rev. Martin Luther King and Rev. Ralph David Abernathy were convicted of charges stemming from his 1961 attempt to desegregate government buildings in Albany, Georgia. He is sentenced to a 45-day jail term.

Finally on April 12, 1963 Dr. Martin Luther King, representing the Southern Christian Leadership Conference, was arrested in Birmingham, AL, for contempt of court and parading without a permit.  He went to Birmingham in an attempt to integrate public facilities in accordance with Supreme Court rulings.  While in jail he composed his response to a public letter from 8 clergymen (who were white) criticizing him for breaking the law.  King responded that "We have waited 340 years for our constitutional and God-given rights. is easy for those who have never felt the stinging darts of segregation to say "wait.""

I would like to say "Thank You" to my audience and a special "Thank You" to Dr. Martin Luther King Jr.

Landon J. Ascheman, Esq.
(B) 612.217.0077 (C) 651.280.9533 (F) 651.344.0700

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Martin Luther King Speech: 
I Have a Dream - Address at March on WashingtonAugust 28, 1963. Washington, D.C.

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.

But one hundred years later, we must face the tragic fact that the Negro is still not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition.

In a sense we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked "insufficient funds." But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check -- a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God's children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

It would be fatal for the nation to overlook the urgency of the moment and to underestimate the determination of the Negro. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom. We cannot walk alone.

And as we walk, we must make the pledge that we shall march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, "When will you be satisfied?" We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal."

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at a table of brotherhood.

I have a dream that one day even the state of Mississippi, a desert state, sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day the state of Alabama, whose governor's lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith with which I return to the South. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!

Let freedom ring from the curvaceous peaks of California!

But not only that; let freedom ring from Stone Mountain of Georgia!

Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and every molehill of Mississippi. From every mountainside, let freedom ring.

When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

Monday, January 4, 2010

Travelling to Canada and Unforeseen Consequences of a Conviction

Each year, Americans make over 20 million trips to Canada.  However, there are many Americans who cannot legally enter Canada because they are deemed inadmissible.  A lot of the time, the inadmissibility stems from a criminal conviction in the United States.  For example, an individual who is convicted of a DUI in the United States may not be allowed into Canada.

However, there are a couple of different ways an individual who was convicted of a crime can gain entry into Canada.  First, an individual can show that he or she has been rehabilitated.  This is a long and potentially costly process, that will not allow entrance to Canada for at least five years after a sentence has been served.  The five year time period begins after parole and probation conditions have been met.

Second, while not listed on the Canadian Citizenship and Immigration website, some Canadian Immigration attorneys say an expungement will generally overcome inadmissibility.  At Ascheman & Smith, we can help you get an expungement if you qualify for one.

I'm willing to bet that the vast majority of people unable to enter Canada had no idea that their travel would be restricted by a conviction, especially if it was a misdemeanor that only required the payment of a fine.  However, it is important to remember that there are unforeseen consequences to criminal convictions.  Contact Ascheman & Smith to find out the ramifications of the crime you are charged with. 

Thank you,

Grant S Smith, Esq.
(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700

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Tuesday, December 29, 2009

Stop and Frisk

When can a police officer stop and frisk you before you're arrested?

A police officer's right to stop and frisk was allowed by the United States Supreme Court in Terry v. Ohio. If an officer reasonably believes that a suspect is armed and dangerous, the officer can perform a weapons pat down for the purposes of officer safety.

Of course, the Terry frisk has been subject to abuse by some members of law enforcement. Often times, a police officer will use the Terry frisk as a pretext to search for contraband, such as drugs. However, the United States Supreme Court has found that the purpose of a Terry frisk is for officer safety and NOT to gather evidence. Thus, a Terry frisk may only consist of a pat down of the outer clothing.  Asking a suspect to unzip his jacket, for example, goes beyond the scope of a Terry frisk.

However, the United States Supreme Court has held that there is a "plain-feel" exception to a Terry frisk. If an officer is performing a pat down of the suspect's outer clothing and it is immediately apparent that the officer feels contraband, the officer may seize the contraband.

The standards and rules for a Terry frisk go far beyond what is mentioned here.  If you are stopped and an officer seizes contraband, call Ascheman & Smith immediately. We will attempt to get the evidence  suppressed and have your case dismissed.

Always remember: regardless of guilt, you have constitutional rights that must be protected.

Thank you,

Grant S Smith, Esq.
(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700

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Monday, December 21, 2009

Bar Time Trivia

We are happy to anounce that we have a new Bar Time Trivia card coming out. These will be dropped off at a few select bars in the Twin Cities. If your Bar is not selected, I hope that you still take the chance to check out the trivia questions listed below.

1.What author lived in the Jamaican estate Goldeneye?
2.Where did the term “Mind your P’s and Q’s” come from?
3.The longest bar in the world is 684 feet long, where is it located?
4.Who was elected President of the U.S. on a pledge to end National Prohibition?
5.What is the official spirit of the United States, by act of Congress?
6.The Indian cobra is the 15th deadliest snake in the world; the top 14 may be found in what country?
7.Atomosophobia is the fear of atomic explosions, What is the name for the fear of alcohol?
8.Can you name 5 T.V./Movie stars who were all former bartenders?
9.Where did the term “Honeymoon” come from?
10.Where and when did the melody for the Star Spangled Banner originate? (Hint: B.C.)
11.What are the top two Constitutional Rights, most people forget to use when arrested by the police?

Driving which of the following can result in a DUI arrest in MN:

1.The rich want it, the poor have it, and if you eat it, you’ll die. What is it?
2.Though in theory I am always behind you, I am also around to remind you, if it’s your way to give me too much say, I can hamper or, even worse, blind you. What am I?
3.You must keep this thing, its loss will affect your brothers. For once yours is lost it will soon be lost by others

The Answers:
1) Ian Fleming
2) In English pubs drinks are served in pints and quarts. In old England, bartenders would advise unruly customers to mind their own pints and quarts. It's the origin of "mind your P's and Q's."
3) The longest bar in the world is 684 feet (or about 208.5 meters) long and is located at the New Bulldog in Rock Island, Illinois.
4) Franklin Roosevelt was elected President of the in 1932 on a pledge to end National Prohibition.
5) Bourbon is the official spirit of the United States, by act of Congress.
6) Australia
7) Methyphobia is fear of alcohol
8) Tom Arnold, Sandra Bullock, Chevy Chase, Bill Cosby, Kris Kristofferson, and Bruce Willis are all former bartenders.
9) In ancient Babylon, the bride's father would supply his son-in-law with all the mead (fermented honey beverage) he could drink for a month after the wedding. Because their calendar was lunar or moon-based, this period of free mead was called the "honey month," or what we now call the "honeymoon."
10) The national anthem of the US, the "Star-Spangled Banner," was written to the tune of a “drinking song” at a London gentleman’s club. This song was actually a Greek song from the 6th century B.C.
11) The right to remain silent, and the right to an attorney. Although most people know these rights, they fail to use them. If your arrested don't talk to the nice friendly officer. Tell her you want your attorney. Put us in your cell phone now, don't waste time trying to find one if it happens. Better to have us and never need us.

Driving which of the following can result in a DUI arrest in MN:
a) Car, Yes,
b) Yes, boating while under the influence can get you arrested. The Water Patrol and DNR are looking for the signs of intoxicated boaters. There are several things you should do if stopped for boating while intoxicated. One of the first is to call us.
c) Yes, similar to boating, you can be charged with a DWI for operating a snowmobile while intoxicated.
d) Motorcycle, Yes
e) Although there are no prominent cases in Minnesota, people have been arrested for biking while intoxicated in other states.
f) Horse? No reports in Minnesota, but as we have mentioned in previous blog posts, it does happen.
g) Wheelchair? Likely, although no reports of receiving a DUI from a wheelchair have been reported in Minnesota. Arrests have been made in Georgia and Wisconsin.
h) Yes, although the La-Z-Boy was modified to include a lawn mower engine.

Brain Teaser Answers:
1) Nothing (that’s the answer)
2) The Past
3) Your Temper

We hope you enjoyed the Bar Time Trivia.  Keep us in mind if you need a legal help.

Thank you,
Landon J. Ascheman, Esq.
(B) 612.217.0077 (C) 651.280.9533 (F) 651.344.0700
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Monday, December 14, 2009

Resisting Unlawful Arrest

While working for clients charged with assaulting a police officer, I've heard the common refrain: "I only fought back because the police officer arrested me for no reason".  Fighting back resulted in clients being charged with 4th Degree Assault - Assaulting a Peace Officer, which is a gross misdemeanor and can carry a penalty of up to a year in jail.  If the officer is injured in the assault, the client faces felony charges and the potential for 3 years in prison. Often times, the Assault charge inflicted a greater penalty than the charge filed as a result of the arrest.  Minnesota does not recognize the right to resist an unlawful arrest or search, unless the officer commits an unjustified bodily attack. State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983).

The moral of this story is if you're being arrested DON'T FIGHT BACK, even if the police arrest you for no reason.  That's why you hire an attorney -- we use the law to fight back for you. 

Thank you,

Grant S Smith, Esq.
(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700

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