The firm of Ryan & Grinde, Ltd. would like to congratulate Wayne Mehrkens on his recent retirement. As a valued and dedicated member of the firm, Mr. Mehrkens staffed the St. Charles office for more than 25 years. While we will miss him and his upbeat, cheerfulness each day, we are grateful that Mr. Mehrkens will remain “of counsel” to the firm. The Ryan & Grinde, Ltd. St. Charles office will continue to serve the legal needs of St. Charles and the surrounding communities.

The value of complicated expungements

Having a criminal record in Minnesota can hamper a person’s efforts to get a job or a professional license. It may also cause a bit of embarrassment. It is often well worth it to look into the possibility of a legal expungement.

Expungement law is complex, with many technicalities concerning what a court may expunge and what it may not. There can be differences in the extent to which the law may order the sealing of records. The petitioning party will also need to take many steps to have best chances of an order of expungement.

Petition seals but does not destroy records

Petitioning for an expungement is essentially a request to the court asking it to seal a court record. The court does not destroy the record, however. That court may order a sealing of its own records from certain access, such as a standard background check that would-be employers can perform.

The judge cannot always seal criminal records for other purposes or from certain government employees in the scope of their duties, including the following:

  • Police
  • FBI
  • Immigration officers

There may be other public officials who can access sealed court files for appropriate and legal purposes.

Circumstances determine full expungements

Many exceptions exist that complicate expungement laws. Minn. Stat. §609A.02 provides particular circumstances when a court may order a full expungement. A full expungement allows for the sealing of all government-held records. Some possible situations amenable to full expungement include the following:

  • Certain initial drug possession offenses
  • Certain juvenile offenses where the prosecution of the defendant was conducted in adult court
  • Cases where the court or jury found the defendant not guilty
  • Cases where a court dismissed the charges

There are other instances where full expungement may be available as well.

Steps lead to expungement

Successfully filing for expungement includes properly serving notice on all interested government agencies. The person seeking the expungement will often later appear in court for a hearing. He or she may explain to the judge the reason for needing the expungement. The agencies or offices served notice may object to the expungement that the judge will also consider.

Despite the complexity of expungement requests and the technicalities involved, the value to the person who successfully gets such an order is immense, both to future livelihood and personal satisfaction.

The financial costs of a DUI

If you are charged and convicted of DUI, the costs go well past the fine. To start with, the maximum fine for a felony first-degree charge is $14,000. At the other end of the spectrum is a relatively low but still hefty $1,000 for a misdemeanor DUI.

Then there are many associated costs, some of which might not become evident until years later.

Upfront costs

Among the upfront costs are the fine along with any effects you may feel from not having a driver’s license. For example, if you lose your license, how will you get to work? Perhaps you are lucky enough to be able to bike or walk there when weather permits. Otherwise, though, you may have to shell out for taxi rides or wake up an hour earlier than you normally would for public transportation.

You will likely also have to pay car storage and towing charges along with a driver’s license reinstatement fee. Your insurance rates are all but guaranteed to increase, and you could have to pay for new license plates.

There is also the fact that if you have to go to jail for at least a few days, you may lose your job because you cannot show up to work. If your job is related to driving, you might also not be able to carry out your duties depending on the situation with your driver’s license.

These upfront costs might be minimal, or they could end up costing many thousands of dollars along with ripple effects for the rest of your life.

Longer-term costs

A criminal conviction, whether for a misdemeanor or felony (DUI can be either) is something many employers do not like to see. Thus, a DUI could end up costing you tens of thousands of dollars or more in lost future income. After all, your job prospects may be limited.

An Overview of Chapter 7 and Chapter 13 Bankruptcy

Nobody enjoys having to file for bankruptcy; however, many people run into unfortunate circumstances in life and are forced to declare bankruptcy. When people are thinking about how to get back on their feet, it is important to make the correct first step and file for the proper type of bankruptcy.

The two types of bankruptcy that most people hear about are Chapter 7 and Chapter 13. Deciding which form of bankruptcy to file can have significant consequences for the future.

What is Chapter 7 Bankruptcy?

In Chapter 7 bankruptcy, the person filing will have the opportunity to have a release from some, if not all, forms of unsecured debt. Prior to this relief, the person filing for Chapter 7 bankruptcy will have to sell off almost all of their nonexempt assets to pay back as much of their debt as they possibly can. This means that while many people could lose a significant amount of their equity or assets, their property could be saved from the bankruptcy process. People can take advantage of Chapter 7 bankruptcy to slow down the process of any foreclosure; however, once people get back on their feet the foreclosure process may continue. Many people ask about how long this process takes.

Most filings for Chapter 7 bankruptcy will take anywhere from three to four months to run their course. People with a high annual income may not be eligible for Chapter 7 bankruptcy, while people who make below the national average are likely eligible for Chapter 7 bankruptcy. Of course, filing for Chapter 7 bankruptcy is a complicated legal venture. There is a significant amount of paperwork that individuals may want legal advice on to ensure accurate filing.

What is Chapter 13 Bankruptcy?

Chapter 13 bankruptcy has a few key differences from Chapter 7 bankruptcy. First, people filing for Chapter 13 bankruptcy will not receive a release from their debt in most cases. In fact, people filing this form of bankruptcy will typically be forced to come up with a repayment plan as part of their bankruptcy agreement. This payment plan will typically last a few years. At the end of this period, the remaining debts may be discharged.

Similar to Chapter 7, people filing Chapter 13 bankruptcy will typically be able to avoid liquidation of their property. To be eligible for this form of bankruptcy, people will need to have a steady income on a monthly basis in order to finance the repayment plan. This requires submission of a repayment plan to the court system.

The differences between Chapter 7 and Chapter 13 have important implications for the future. It is important that people file the proper kind of bankruptcy to make sure they set themselves up well for the future recovery process. Speaking with an experienced attorney will help you be able to make a more informed decision about filing for one form or the other.

Federal officials acknowledge junk science is making it into court

For defendants in legal proceedings, forensic evidence can be just as confusing as the legal terms. Because many people may not have a degree in science, they may not realize that much of the courtroom science presented may be in reality merely junk science.

What is “Junk Science”?

In recent years, legal analysts have become increasingly worried that paid consultants often fool juries, and even judges, with what sounds like sophisticated, impartial forensic evidence. In reality, that “evidence” is sometimes either sloppily gathered or dishonestly compiled.

Faulty scientific evidence can enter the courtroom process for a number of reasons. Most obviously, a prosecutor might be pressing for a quick result, and willing to use questionable evidence — including junk science — to achieve that result.

In some cases, law enforcement may simply not have the resources to evaluate forensic evidence properly. Instead, they either rely on their own rudimentary skills, or that of outside consultants who themselves might use faulty evaluation tools.

Examples of Junk Science

  • Bite mark identification. The President’s Council of Advisors on Science and Technology has found that it’s often impossible to tell whether a bite was made by a human, much less which human.
  • Firearm analysis. Although “experts” sometimes testify that bullet wounds and shell casings can be linked to a single owner’s firearm, the National Academy of Sciences (NAS) has found that there’s no basis for believing this to be true.
  • Fingerprint and hair evidence. The NAS also found that, far too often, analyzing this kind of physical evidence still comes down to human judgment, rather than impartial technology with sophisticated data matching systems.

If you’re in a situation in which “junk science” of a crime investigation implicates you, it’s important to seek expert legal help. A dedicated lawyer is trained to point out the specific flaws in forensic testing that can very well lead to the best legal outcome for you.

Health Care Directives | Ryan & Grinde, Ltd.

By: Masood Dehnavifar

Why Does a Person Need a Health Care Directive?

A health care directive is extremely helpful in situations where a person is still alive, but lacks capacity to make their own health care decisions. Examples of situations where a person benefits from a health care directive include traumatic brain injuries, strokes, dementia, Alzheimer’s and other similar health related situations. You must create a health care directive while you have capacity. Once you no longer have capacity, a person would need to go through a court process to have a guardian appointed. As you would expect, the court process is typically time consuming, expensive, and can be emotionally draining on loved ones.

What is a Health Care Directive?

A health care directive is a simplistic, straightforward, and low-cost document that appoints a person to communicate with doctors and make health care decisions on your behalf. The document allows you to provide instructions about the health care you expect to receive. The health care agent you appoint it under a duty to make health care decisions pursuant to your wishes. A health care directive can be revoked or amended as long as you still have capacity.

What Can a Health Care Agent Do?

You can give broad powers to your agent or you can limit the powers given to your agent. Your instructions can be detailed with respect to hypothetical health care situations or they can remain broad. A health care directive typically includes provisions for the following:

  • Consenting to or refusing health care treatments
  • Choosing your health care providers
  • Choosing where you live
  • Reviewing your medical records and discussing care with your doctors
  • Choosing whether to donate your body parts
  • Choosing cremation or burial
  • Choosing whether to administer intrusive mental health treatments

Mistakes for the Unwary – Including Attorneys

The number one mistake a person can make is not having a health care directive. It is a low-cost and simplistic alternative to a guardianship court proceeding. Decisions can immediately be made on your behalf, rather than having to go through an expensive and time consuming court process. Additionally, avoiding a court proceeding helps your loved ones minimize the emotional stress and pressure of dealing with your incapacity. Instead, your loved ones can focus on what matters most, which is caring for you in your time of need.

Another common mistake, often made even by attorneys, is failing to properly execute the health care directive. The health care directive must be witnessed, as opposed to notarized, if you want to give your agent the authority to make decisions with respect to the administration of intrusive mental health treatments.

A third common mistake, again often made even by attorneys, is failing to specifically grant your agent the ability to access medical records and referencing HIPPA in your health care directive. Without the proper provisions in your health care directive, a health care organization may respect the decision made by your agent, but may not allow your agent access to medical records.

4 things to know when divorcing in senior years

For many couples, “Till death do us part” is no longer uttered with the same zest that it was in the past. Divorce has become an integrated part of society, an occurrence so common that it no longer deserves the hushed tones of years past. However, if you’re one of the growing number of people age 50 or older who decide to call it quits on matrimony, you’ll likely face a whole slew of challenges unique to your demographic. Here are four issues you need to keep in mind if divorce becomes part of your retirement plan.

Money often becomes a struggle

Older couples find it more challenging to compensate for the money lost during a divorce. Most likely, retirement funds and other assets will be split evenly during the proceedings. Alimony is harder to come by, so spouses who stayed home with the children aren’t able to count on that extra money as they did in generations past. Some people offer more of their pension to thwart having to pay alimony as well. For those couples married more than ten years, however, there is good news: You may qualify for spousal Social Security benefits.

Get a prenuptial agreement if ready to say, “I do” again

Remarriages are more likely to end in divorce than first marriages, thereby underscoring the importance of a prenuptial agreement. The first divorce took your retirement savings and split them in half; the second (or later) divorce will do the same, leaving you with even less money.

Consider health care

After a divorce, you aren’t able to stay on your ex’s insurance plan. You also aren’t able to utilize Medicare until the age of 65. Without the support system you once counted on, it’s more important to obtain long-term care insurance in case you need assistance with living.

Even adult children are a consideration

Even if you aren’t contending with parenting plans and custody arrangements, there are considerations to be made with regards to older children. Unless a child has a disability or is in school, support for adult children isn’t often written into divorce decrees. Nonetheless, your children may have come to expect a certain level of financial support that you’ll have to reconsider. There are also emotional reactions. Adult children may not want parents to divorce or to date again.

Divorce is rarely easy and it can be complicated by all sorts of issues. While separating in your “golden years” can be challenging, you fortunately have years of wisdom behind you to navigate the obstacles.

CFPG proposes new debt collection rules to better protect consumers

A phone ring. It shouldn’t strike fear into anyone. But for some 70 million consumers whose debt is in collections, it is not just a ring. It is an attack on their well being and their sanity. The tactics used by collectors are often unconscionable, generating more complaints than any other financial service. Of course, you understand that they serve a function. You may owe the debt, but this does not give them the right to mistreat you.

The Consumer Financial Protection Bureau (CFPB) has released a proposal for new rules to better protect the consumer. Their goal is to curb the harassment and stop the attacks on consumers who, most often, are trying to do the right thing or may not even owe the debt in the first place.

While these are currently in the proposal stage, meaning that they have not yet gone into effect, these are new rules that you need to know about. Among them debt collectors must:

  • Do their due diligence:

They would have to take reasonable steps to assure that the person who they are contacting actually owes the debt by verifying both the contact information and the existence of the debt.

  • Stop harassing consumers:

They would be cut off at 6 communication attempts per week, and consumers could request that they not be contacted at certain numbers like a work phone.

  • Be more transparent:

They would be required to disclose details about the debt and if it is too old to collect.

  • Respond to disputes:

If a consumer requests verification that the debt is owed, then the collector would have to provide it or stop contacting them.

  • Stop moving debt to avoid handing disputes:

The proposed rules would close the loophole that allows collectors to transfer the debt to another agency to avoid responding to disputes. If transferred, the new agency would not be able to collect until the dispute was resolved.

It is important to remember that the approval process is lengthy and these rules may change, but this proposal demonstrates recognition that certain behaviors are not okay. By getting informed, you can be confident that you know your rights and can protect yourself against unlawful behavior.

Effects of a wage increase during a Chapter 13 Bankruptcy

Individuals and married couples in Minnesota who are having difficulty making ends meet due to overwhelming debt frequently choose to file for Chapter 13 bankruptcy relief. Chapter 13 is a versatile tool that can allow you to protect assets, while restructuring debt over the course of 36 to months. After a successful conclusion to the bankruptcy process, people enjoy a fresh financial start.

Sometimes, a person’s earnings will increase during the Chapter 13 bankruptcy process. The question arises, what becomes of the increase in income?

Bankruptcy law requires the debtor to contribute projected expendable income to the repayment plan for three to five years. Disposable income is that portion of the debtor’s income that remains after deducting all of the expected reasonable costs of living are deducted from total income. Changes in your total may affect the payment plan only if relevant circumstances are deemed appropriate for such a change. When an individual receives an increase in income during the process, the bankruptcy trustee will generally file a motion to modify the payment plan to conform to the new change in income.

It is important to work with an experienced bankruptcy lawyer from the beginning to protect interests. It’s possible, for example, that overall income will change after filing the petition. When changes occur, the trustee will consider any salary increase, as well as any other increase in expendable income which the payment structure will be based on. Should expenses grow commensurate with income, then disposable income may remain the same and any payment plan will also remain the same. If the disposable income is substantially increased, the trustee can ask for larger payments.

Anyone Filing a Chapter 13 bankruptcy, should speak to a lawyer

It can be demoralizing to get a well-deserved raise only have to give it over to the trustee. An attorney, experienced in bankruptcy law can help you to protect your financial interests throughout the bankruptcy process.

The “Rocket Docket” Blasts Into Olmsted County Court!

Litigation. A word that causes the fearless to fear; a process that does not make one’s bucket list. Black’s Law Dictionary defines litigation as a legal action, including all proceedings therein. The emphasis is added for good reason. The litigation process includes everything from that first meeting with the attorney to the conclusion of the case, which can be years down the road. Yes, years.

A person suing or being sued is called a party. That sounds like fun, right? Wrong. A party has the duty to gather and disclose documents regarding the lawsuit; to be examined by opposing counsel under oath; to undergo physical, psychological, or vocational evaluations, depending on the issues involved; and to appear at court hearings, including the trial. Litigation often takes on a life of its own and to many, feels like a part-time job.

Something has to give during the litigation process. The most common victims of litigation are those most precious to the party: family and friends; business and employment; and mental and physical health. A party relies on others to care for children while long hours are spent on the case. Personal time from work is used for litigation meetings and court hearings rather than field trips and vacations. Poor business decisions can be made and excessive absenteeism can lead to job loss. A bad habit or addiction can resurface. It can be a very difficult time for the party.

Does this mean that a party should not assert a legal right or defend against a lawsuit in court? Of course not. Many things require the court’s involvement. A key to maintaining a healthier balance is in the management of the litigation. The Minnesota Judicial Branch has taken steps to better manage the litigation process. Improving the Process. Welcome, Expedited Litigation Track (ELT).

As a family law attorney, I have had the opportunity to participate in Early Case Management (ECM) in Olmsted County for the past five years. As a seasoned attorney, I have practiced for more years without ECM and see EMC as an efficient litigation management tool. I am grateful for the Judiciary’s expansion of this management tool to non-family civil cases. Litigation in Olmsted County just got a bit less scary.