State v. BW (Sibley, 2023) - Expansion of Stop to include a search based on faint odor of possibly burnt marijuana (only) found to be improper.

Traffic stop for passenger brake side light out expanded to a full search due to a “faint odor of possibly burnt marijuana.”  This was found to be the reason for the expansion of the expansion to a full search.

At a Pretrial hearing before trial, Court found that other indicators such as nervousness and shaking hands were not credible. Based on recent caselaw in the Torgerson case, odor of marijuana cannot  – BY ITSELF – justify an expansion of the stop.  It can, however, be considered as one of the circumstances in the “totality of circumstances.”  Based on the facts of this case, expansion of the stop was found to be improper.  As a result, the DWI case was dismissed with prejudice. 

State of Minnesota v. BH (Scott County, 2023) – Restitution

Defendant was convicted of a DWI where his truck hit another work truck working for a delivery company and driver charged with a DWI which he pled guilty to.   Delivery company owner requested approximately $100,000 in lost income for time truck was in the shop getting repaired which was over 6 months.  Court said that amount was not reasonably part of the direct out-of-pocket costs that should be assessed against the defendant.  Amount of restitution due was lowered to insurance deductible of approximately $1,000.

State of Minnesota v. SB (Sibley County, 2021) – Restitution

Case where Defendant had pled guilty to an assault, but the amount of restitution was still an issue,

 Victim requested approximately $5,000 in restitution for travel and medical appointments. However, it turned out her back issues preceded the incident and she had been getting therapy on her back before the incident.  Also, Defendant had virtually no income or means to pay the restitution.  As a result, no restitution ordered by the Court in this case.

In the matter of DB – (Sibley County, 2021) – Juvenile case dismissed.

Case went before the Judge for a Court Trial.

Facts were that 1.25 grams of Methamphetamine were found in a vehicle on the driver’s side floorboards.  However, other people were in the vehicle who could have tossed the cigarette pack containing the methamphetamine there.  As a result, driver did not have “dominion and control” over the controlled substance.  Prosecutor could not demonstrate beyond a reasonable doubt that he had constructive possession of the illegal drugs.   Result: Petition for Juvenile Delinquency dismissed by the Judge.

State v. GW (Sibley County 2020) – Probation Violation found not be be justified.

Defendant was cited for violating the terms of his probation which included a “no use” of alcohol requirement.  The facts were that the Officer knew the defendant, had heard that he had been acting strangely and that he had been putting bags of garbage on a driveway and on a car. 

When the Officer saw the person, he walked up to Defendant and told him to put his bike down and that he was not free to leave.  The Officer said he saw an open plastic bag and saw an open can inside which he thought was a beer can, but he couldn’t say for sure.  The Officer also testified that he smelled a faint odor of alcohol.  The Officer didn’t ask explicitly ask defendant to submit to a preliminary breath test (PBT). He asked him to take a test, but then moved on to other issues.   Defendant never took a preliminary breath test.  After a hearing, the Judge dismissed the case ruling that there wasn’t sufficient proof that Defendant had consumed alcohol.  Result:  Probation violation dismissed.   

State v. DP (Dakota County 2017) – DWI stop of vehicle

Improper stop by Officer for a very minor traffic offense of “drifting within his lane,” and Client was subsequently charged with a DWI for being over the legal limit.   The stop of the vehicle was found to be improper because it was for a minor traffic offense and Officer who stopped client’s vehicle was off duty and was outside her city and county of jurisdiction.  Based on facts presented at the hearing, the Judge dismissed the DWI case because the stop was improper.   

However, note that peace officers do have Statewide jurisdiction. So, had the stop been for a more serious offense involving circumstances that would have permitted the use of deadly force, then the stop of the vehicle would have been justified.   

State of Minnesota v. W.K. (April 6, 2016 - Dakota County)

My client was charged with Felony – Threats of Terror and Misdemeanor Domestic Assault. Jury verdict was not guilty on both counts after 2 hours of deliberations. In terms of evidence, the Complainant initially reported the incident as a verbal argument, but later changed her story 2 days later to state that he had physically assaulted her and made threatening statements. The change in her statement helped the defense a great deal. There were lots of text messages during that 2 day period that were fairly cordial and which helped the defense win case. If you are involved in a case of this type, remember that your text messages and emails can help you win your case! Be sure to call Attorney Ohlenberg so that you have good representation in your case and get the best possible result!

State of Minnesota v. C.O. (March 17, 2014 - Carver County)

Along with Co-Counsel, the Ohlenberg Law Office obtained a dismissal from the District Court Judge of a felony charge where client was charged with “possessing a pistol/assault weapon where he had a prior conviction for a crime of violence.” As a result, the Defendant would not normally be allowed to possess firearms. However, under the facts and circumstances that existed here, the Judge dismissed the case because he agreed with the defense that the State, “by its repeated conduct, passively and actively? has misled the Defendant as to his ability to possess firearms in a lawful manner.”

The District Court decision is currently being appealed by the County Attorney’s Office To the Minnesota Court of Appeals in St. Paul. Oral arguments are scheduled for the middle of May, 2014.

Minnesota v. T.G. (Jan 11, 2013 - Blue Earth County)

Along with co-counsel, Michael McDonald, Ohlenberg Law Office obtained a Not Guilty verdict In an extremely high stakes Criminal Sexual Conduct touching case in Blue Earth County. The jury came back not guilty on all 6 counts, which would have taken away the career, reputation and freedom of an M.D./Opthalmologist who was charged with improperly touching two female patients.

State of Minnesota v. D.C. (Dec 1, 2011 - Hennepin County)

Client was charged with felony criminal sexual conduct in the 2nd degree.
The case was based solely on the uncorroborated statement of a child and there
was a lot of fantastical elements to his story. The alleged incident supposedly occurred approximately 2 years ago, but the State did not know in what month it supposedly occurred, and changed the date of the alleged offense by 7 months at the end of the trial. Client was 65 years old with no prior sexual offense charges or convictions on his record. The jury came back with a Not Guilty verdict within 2 hours of being given the case. All charges dismissed!

State of Minnesota v. R.W.(decision pending)

Mr. Ohlenberg is currently handling an appeal to the Minnesota Court of Appeals of a probation violation case where the defendant’s sentence was executed and defendant was sent to prison to serve the balance of his sentence for failing to successfully complete sex offender treatment. This is a situation where the defendant did not re-offend but, instead, his violation was that he did not get along well with his counselors at the treatment program who thought he was not progressing at a rapid enough pace through the treatment process.

Suppression Hearings (known in Minnesota as Rasmussen Hearings)

In addition to seeing if the parties you resolve a criminal case prior to the start of trial, other issues are decided by a judge before the start of trial. The most common types of pretrial matters that are heard before trial are issues relating to the admissibility of evidence were there to be a trial.

State of Minnesota v. M.J.R. (2008)

Client was originally charged with a first degree assault allegedly resulting in great bodily harm to the victim. We had a hearing on the extent of the harm which the victim had suffered and that charge was dismissed. Eventually a plea bargain was worked out that resulted in defendant serving some local jail time, and not being sent to state prison as has originally been anticipated.

Amicus Brief

In February of 2011 Mr. Ohlenberg co-authored a friend of the court Brief to the Minnesota Supreme Court in the State v. Randolph Case (A10 – 1557) on behalf of the Minnesota State Bar’s Criminal Law Section arguing the Minnesota’s 87 counties need to pay for the cost of appealing cases to the Minnesota Court of Appeals for people who are too poor to pay to appeal their misdemeanor level cases.

Felony 2nd degree drug case dismissed by Dakota County prosecutor in the interests of justice:

At the suppression hearing before trial, the Detective testified that over 7 grams of meth was found in a film canister located in a 30 gallon plastic storage bin located not in the apartment storage unit but underneath it, ie., sitting out in the parking space because my client was in the process of moving between units in the apartment building. I told prosecutor that – at trial – the State couldn’t prove the meth was my client’s, and she ultimately agreed with me. Anyone could have put the meth in the unlocked plastic storage bin for temporary storage. The only thing that tied my client to the drugs was that there was some women’s clothing in the storage container and an old speeding ticket in her name. The Prosecutor handling the case decided to Dismiss it prior to trial in the “interests of justice.”

T.A.N. v. Commissioner of Public Safety

Court in Dakota County rescinded petitioner’s drivers license revocation holding that the officer did not show by a preponderance of the evidence that a hand to hand drug exchange had occurred or that he saw an object hanging from petitioner’s rear view mirror prior stopping the vehicle. (2009)

State v. N.J.L.

Court after trial to a Dakota County judge found defendant not guilty of going 57 mph in a 45 mph zone because “there is reasonable doubt pertaining to … the calibration and daily logs.” (2007)

State of Minnesota v. B.G.L.

Jury acquittal for client in Kannebec County on charge of felony terroristic threats. Client told his Mother that the jury decision instilled in him a trust for the legal system when he plays by the rules. (2007)

J.E.S. v. Commissioner of Public Safety

Dakota County judge rescinded petitioner’s drivers license revocation holding that the officer did not vindicate the petitioner’s right to counsel when the officer advised petitioner that he had forfeited his phone privileges when he slammed down the telephone after using the phone for approximately seven minutes.

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