House Version of Competing Minnesota Medical Marijuana Bills Faces Legal Hurdles That Senate Version Does Not

Last week the Minnesota House and the Minnesota Senate each passed different versions of a medical marijuana law to provide relief to some of the sick and dying.  (Current SF 2470 is the House Delete-All Bill; while current SF 1641 is the Senate Bill.)  The previous post points out some of the differences in the two Bills, which will go to a Senate-House Conference Committee.  Once the Conference Committee negotiates a single Bill from the two versions, the Bill will go back to the House and Senate for an up or down vote; and if passed, it will then go to the Governor for consideration for approval into law.

One key difference between the two versions is that the the House Bill follows a medical, clinical study format with distribution through pharmacists.  This fundamental difference will trigger presumably unintended consequences that will likely may the proposed law unworkable under other, existing Minnesota laws relating to pharmacists.

These other laws relating to pharmacies are not an issue for the Senate Bill because it follows a dispensary model, as other the other twenty-one medical marijuana states do; and does not include pharmacists  in distribution of medicine.

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House bill affirmatively requires a pharmacist to dispense cannabis. Senate bill does not.

Here are some pharmacist-related Minnesota laws and rules that will create trouble for the House bill:

Minnesota Statutes §151.15 COMPOUNDING DRUGS UNLAWFUL UNDER CERTAIN CONDITIONS.  “It shall be unlawful for any person to compound, dispense, vend, or sell drugs, medicines, chemicals, or poisons in any place other than a pharmacy, except as provided in this chapter.”

Minnesota Statutes §151.06 POWERS AND DUTIES. Subdivision 1. “Generally; rules. a) Powers and duties. The Board of Pharmacy shall have the power and it shall be its duty:
(7) to deny, suspend, revoke, or refuse to renew any registration or license required under this chapter, to any applicant or registrant or licensee upon any of the following grounds: …
(ii) in the case of a pharmacist, conviction in any court of a felony; …
(vii) employing, assisting, or enabling in any manner an unlicensed person to practice pharmacy; …
(ix) violation of any of the provisions of this chapter or any of the rules of the State Board of Pharmacy;”

Minnesota Administrative Rules § 6800.2250 UNPROFESSIONAL CONDUCT.  “Subpart 1. Prohibited conduct. Unprofessional conduct shall include, but is not limited to, the following acts of a pharmacist or pharmacy:

H. The violation of any law, rule, regulation, or ordinance of the state or any of its political subdivisions, including the Board of Pharmacy, or the United States government, or any agency thereof relating to the practice of pharmacy.

Subp. 3. Accessories to illegal drug traffic. The selling, giving away, or otherwise disposing of accessories (i.e., glassine papers, empty capsules, quinine, lactose, or similar products), chemicals, or drugs found in illegal drug traffic is unprofessional conduct by a pharmacist when the pharmacist knows or should have known of their intended use in illegal activities.

It is unclear how the House version (SF 2470 the House Delete-All Bill) can be fixed to avoid these problems which would appear to make it completely unworkable and illusory.  It is based on distribution through pharmacists — a new, first-time experiment in the United States.  No other medical marijuana state has ever tried this approach before.  On the other hand the Senate version (SF 1641 the Senate Bill) relies upon the tried and true method of dispensaries, which has been used for years in the other states with legal medical marijuana programs.  If Minnesota truly wants to provide needed compassionate relief to the sick, ill and dying in Minnesota, let’s hope the legislature’s Conference Committee agrees to send the Senate version for final approval to the House, Senate and Governor.

Conflicting Medical Marijuana Bills in Minnesota: Senate version is Good, House version is Bad

This week, the MN Senate passed a medical marijuana Bill that is better than nothing. Friday May 9, 2014,The MN House passed a Bill that is worse than nothing. The two Bills will now go to a Sentate-House Conference Committee to negotiate one Bill that will then face an up or down vote in the House and Senate, and if passed in both, then go to the Governor.

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We need to advocate, now, for the Senate version in MN. We need to urge our respective MN Senators and MN House members, as well the MN Governor, to support the current Senate version, not the current House version

A side-by-side comparison of the two bills for your reference, created by Minnesotans for Compassionate Care is reproduced below.  Please contact your legislators (and the Governor) and make sure they know what you need. Share!

SF 2470 and SF 1641

A Side-By-Side Comparison of Medical Cannabis Bills (as of May 10, 2014):

  SF 2470 The House Delete-All Bill SF 1641 The Senate Bill
Net Cost to Minnesota $4.9 million during the first three fiscal years; in the third year (FY 2017), the net cost is projected at $962,000 Cost neutral; during the first two years, the net cost is projected at $4.5 million, mostly from the Special Revenue fund; beginning in FY17, net savings are projected, with the savings in FY17 being $390,000; Note: even states with lower patients registry fees — such as Michigan — have seen multi-millions annual surpluses, as has Arizona
Sources of Cannabis A single state-approved manufacturer (3.27-3.29) 55 regulated and licensed alternative treatment centers (ATCs) (7.22-7.31)
Access Points A single manufacturer with 2 satellite locations; patients must pick up cannabis from an on-site pharmacist; pharmacists must deliver it to the patients’ homes if they are disabled, and may charge for delivery (9.21-9.23; 10.14-10.20, 13.12) 55 regulated ATCs with one in each county with over 20,000 residents, none in less populous counties, two to three in the most populous two counties, and two in St. Louis County; each patient must designate a single ATC (7.22-7.31)
Permissible Modes of Administration of Cannabis Only liquids, pills, and oils are initially allowed, patients could only vaporize liquids and oils (though extracts are more intoxicating and make dosage control difficult) (1.19-2.4) Smoking is prohibited; other means of administration are allowed (See: 4.16)
Laboratories One laboratory, selected by the manufacturer, is allowed (4.18-4.22) The commissioner will regulate and license safety compliance facilities to perform lab testing and training (3.21-3.27, 6.20-7.21)
Qualifying Conditions Cancer, glaucoma HIV/AIDS, Tourette’s, ALS, seizures, severe and persistent muscle spasms, Crohn’s disease, and other conditions added by the commissioner (2.30-3.4) Cancer, glaucoma, HIV/AIDS, Tourette’s; ALS, seizures, severe and persistent muscle spasms, Crohn’s disease; severe, intractable pain; severe nausea; cachexia or wasting; PTSD, hepatitis C, and conditions added by the commissioner (2.12-2.23)
Caregivers Only patients who are so disabled that their practitioner specifies they cannot administer their own medicine may have a caregiver; caregivers cannot pick up their medicine and can only help with the administration of cannabis at the patient’s home; caregivers must be at least 21 and can assist a single patient   (2.20-2.24, 10.19-10.20) Each patients may designate a caregiver to pick up their medicine and help administer cannabis; caregivers must be at least 21 and can’t have certain convictions; caregivers can assist no more than five patients (2.24-2.26)
Cost to Patients for Registry Identification Card and Cannabis Patients would pay $200 per year (or $50 in some cases) for registration and the single manufacturer will determine the cost of cannabis (13.3-13.16) Patients would pay $140 per year (or $26 in some cases) for a state ID card; patients could compare the costs of medical cannabis and decide which ATC to designate (8.15-8.17)
Patient Registry Identification Each patient and caregiver must have a registry identification number; no photo is mentioned (See: 2.17-2.18) Each patient and caregiver must have a registry ID card with a photograph of the cardholder (9.31); the department must set up a phone or web-based verification system for law enforcement and ATC staff (13.6-13.14)
Additional Requirement for Minors None specified, except that the manufacturer will dispense the cannabis to a minor patient’s parent or legal guardian (9.24-9.32) Minors must have two certifications and their parent/guardian must consent and control the acquisition of cannabis, the dosage, and the frequency of is use (9.5-9.18)
Selection of Provider(s) Requirements include that the manufacturer must have experience growing medical cannabis (meaning it must be from out-of-state), have long-term financial stability, and must have “demonstrated an ability to meet the medical cannabis production needs” of the program (4.1-4.17) ATCs are selected using a merit-based numerically scored selection process considering the location, character and experience of applicants, the business plan, the security plan, and the ability to maintain an adequate supply; ATCs must comply with local zoning and be 1,000 feet from schools (5.5-5.13; 7.1, 7.10-7.13)
Anti-Discrimination Provisions Includes limited anti-discrimination protections in housing, employment, child custody, and medical care (such as organ transplants) (12.12-13.2) Includes limited anti-discrimination protections in housing, employment, child custody, and medical care (such as organ transplants) (17.20-18.9)
Limitations Patients could not drive while impaired or undertake anything while impaired that would be negligence or malpractice, they could not possess cannabis at schools or correctional facilities; they could not vaporize cannabis in a public place or where minors would inhale it; patients needing caregivers could only use cannabis at their own home (3.5-3.19, 11.28-11.31) Patients could not drive while impaired or undertake anything while impaired that would be negligence or malpractice, they could not possess cannabis at schools or correctional facilities; they could not vaporize cannabis in a public place or where minors would inhale it (4.8-4.25)
Security Provisions for Manufacturer/ATCs The manufacturer’s application must show it can provide appropriate security measures (4.12) The commissioner will set security requirements, including an alarm system, facility access controls, perimeter intrusion detection systems, personnel identification system, and a 24-hour surveillance system that is accessible to law enforcement and the commissioner (5.16-5.26)
Medical Practitioners’ Role Practitioners certify that the patient has a qualifying condition; throughout the treatment, practitioners must submit the patient’s health records to the commissioner; it is not clear how often and how much data must be sent (8.12-8.14, 8.30-8.35) After a full examination of the patient, in the course of a bona fide patient-practitioner relationship, practitioners would be able to sign a written certification that a patient has a qualifying condition and that the patient is likely to receive therapeutic or palliative benefit from cannabis, allowing the patient to enroll in the program (3.34-4.6)
Available Medical Cannabis Strains The commissioner must decide the chemical composition of the cannabis (1.21, 4.23-4.27) The ATCs can decide what strains to produce based on patients need and may innovate
Medical Cannabis Business Fees The single manufacturer will pay a $20,000 annual fee; $19,000 will be refunded to unsuccessful applicants; labs appear to pay no fee (3.31-3.32) Each of the 55 ATCs will pay a $15,000 annual fee; each lab will pay $5,000 per year; $14,000 and $4,000 are refunded to unsuccessful applicants (6.27-6.30)
Packing Requirements None appear to be specified Must be compliance with the U.S. Poison Prevention Packing Act regarding child resistant packaging and exemptions for packaging for elderly patients (5.27-5.30)
Labeling Requirements Cannabis must be labeled with the patient’s name, registry number, and date of birth; the dosage; and the chemical composition (10.3-10.11) The commissioner will develop labeling rules, including the ratio of THC and CBD in products for oral consumption (5.32-5.34)
Signage and Advertising There is no mention of restrictions of advertising, marketing, or signage The commissioner will develop rules to restrict signage, marketing, and advertising (6.3-6.4)
Penalties There is no mention of the ability to suspend or revoke a manufacturer’s registration or of additional penalties for violating department rules or the medical cannabis law The department will accept complaints and may revoke the registration of ATCs, patients, and caregivers that violate the law (18.16-19.7); in addition to existing penalties, a new felony is created for any diversion of medical cannabis; a petty misdemeanor is created for a patient’s failure to provide certain notifications; new penalties are also created for letting someone else fraudulently use one’s ID card, for fraudulent records or statements, and for violations by ATCs (19.9-20.23)
Advisory Council or Task Force A task force would be established with four legislators, four patients, four health care practitioners, four members of law enforcement, four substance abuse treatment providers, and the commissioners of public safety, health, and human services; the task force would issue an impact assessment of eight things, including program design and implementation, patients’ experiences, access to and quality of cannabis, impact on law enforcement, and the impact on incidence of substance abuse; the task force would issue a biennial report (15.6-16.21) An advisory council of four health care practitioners; one patient; public safety, human services, and health designees; and one chemist or scientist will make recommendations on implementation and on adding qualifying conditions, and will assess whether ATCs are meeting patients’ needs (21.12-22.9); in addition, the health commissioner, consulting with the advisory council, will make a biennial assessment on the same factors as are in SF 2470’s task force, along with information on others states’ experience, medical literature, and a method to track practitioners who certify patients and their conditions (22.11-23.2)
Permissible Amount of Cannabis The commissioner must set ranges of doses and the manufacturer must determine the patient’s dosage; patents may have no more than a 30-day supply (9.34-10.2, 10.12-10.13) 2.5 ounces at a time (1.17)
Timeline for Access The single manufacturer must begin distributing cannabis by July 1, 2015 (4.3), but the commissioner is allowed up to three six-month delays in all deadlines, meaning cannabis may not be available until 2017 (5.1-5.3) The commission must begin issuing registry identification cards to patients and registrations to ATCs by July 1, 2015 (20.28-20.29)

 

Religious use of marijuana defense prevails in Minnesota Rastafarian case.

Is religious use of marijuana a defense to a marijuana criminal charge?  A recent Minnesota Court of Appeals case indicates the answer may be “yes.”  In an unpublished opinion, In the matter of the Welfare of J.J.M.A.,  A13-0295, filed September 23, 2013, the Minnesota Court of Appeals reversed a juvenile’s delinquency adjudication based on his sincerely held religious belief as a Rastafarian, on a petty misdemeanor marijuana paraphernalia charge.

Rastaman-Vibration  The fifteen year old boy was a practicing Rastafarian – a religion that has incorporated religious use of marijuana for nearly 100 years.  The lower court found him guilty of the paraphernalia charge, despite also finding that “Rastafari is a true religion and that J.J.M.A. has a sincerely held belief in the tenets of that religion,” because he “failed to satisfy his burden of showing that the Rastafari religion requires him to carry his pipe with him at all times.”  The Minnesota Court of Appeals reversed that adjudication of guilt, based on the Minnesota Constitution’s freedom-of-conscience clause, article 1, section 16:

The right of every man to worship God according to the dictates of his own conscience shall never be infringed . . . nor shall any control of or interference with the rights of conscience be permitted . . . ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.

Minnesota’s Constitution provides more protection for religious freedom than the United States Constitution does.  “’This language is of a distinctively stronger character than the federal counterpart’ because it ‘precludes even an infringement on or an interference with religious freedom.’”  State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990) (Hershberger II).

The court analyzed the four prongs of the compelling state interest balancing test:

1) whether the individual holds a sincerely held belief;

2) whether the regulation burdens the exercise of religious beliefs;

3) whether the state’s interest is overriding or compelling; and,

4) whether the regulation uses the least restrictive means to accomplish the state’s interest.

The court ruled that the evidence at trial satisfied the defense burden to establish a firmly held belief worthy of protection under section 16.  It contrasted this case with past cases where the defendants had failed to meet the burden to establish a sincerely held religious belief, due to being unable to connect his conduct to a religious practice or principle.

The court stated,  ”once an individual has demonstrated a sincerely held religious belief intended to be protected by section 16, the burden shifts to the state ‘to demonstrate that public safety cannot be achieved by proposed alternative means,’” and that the state failed to meet this burden in this case.   Though the case did not expressly address the applicability of the defense to a marijuana possession case, it contains language that may be helpful in doing so.

Given the fact that marijuana is safer than alcohol, presumably the state will never be able to meet its burden of proving that restricting religious freedom with a statute that criminalizes marijuana possession somehow improves public safety.

Thomas C Gallagher is a marijuana lawyer in Minneapolis.

Thomas Gallagher Elected President of the Minnesota Society for Criminal Justice.

Thomas Gallagher was elected President of the Minnesota Society for Criminal Justice by a unanimous vote of its members on January 8, 2011.

The Minnesota Society for Criminal Justice (MSCJ) is the oldest association of criminal defense lawyers in Minnesota.  It is a lawyers’ College, meeting each month - sharing information and continuing legal education, providing  support for litigation to help protect the rights of Minnesotans.

Leading the Way.

The Minnesota Society for Criminal Justice also fights for justice both legislatively and through the courts.  For example, the MSCJ Source Code Coalition led by MSCJ has been litigating the most significant and expensive fight against Minnesota’s unfair DWI laws in history:  the CMI-Minnesota Intoxilyzer machine computer source code litigation in Minnesota.

Minnesota Society for Criminal Justice attorneys fight for the civil rights and constitutional rights of the People against the government.

Countermeasures at a DWI Stop: the Party Question

Is it a crime to drink and drive? Of course it is not.  But there are people out there – like MADD people – who appear hellbent upon changing the laws to bring back the Alcohol Prohibition, one step at a time.

It used to be “drunk driving” was a crime. Then in the 1970s the criminal laws were expanded to include “per se impaired driving laws.”   Per se roughly translates from the Latin to “the thing itself” or “by itself.”  A per se drunk driving law is a law that makes driving with an arbitrary alcohol-level a crime – even if the driver is not drunk, not impaired at all. That’s why you don’t hear the term “drunk driving” much anymore.  But why should it be a crime to drive when driving skills are not impaired?

Ok.  So the laws are unfair, and morally bankrupt – punishing the innocent and their families for no good purpose.  Fine.  There it is.  So how can you protect yourself and your family from this potential injustice?

What can a person do during a DWI stop to protect their rights?

This is mostly a question that criminal defense lawyers hear at a party.  Why?  Because almost all people stopped and later charged with DWI didn’t do any of these things.  But it can make for great conversation at a party.  There are a few different approaches and answers to the question.  So let’s narrow our hypothetical, and provide one.

Since most people stopped for a possible DWI have an alcohol concentration of less than 0.15, have no priors, and have not exhibited impaired driving conduct – let’s start with all of those assumptions, as well as assuming Minnesota laws.  Given the low speed limits these days and the most drivers travel faster than the speed limit most of the time, let’s assume a police officer stops the driver for speeding late one Friday or Saturday.   The police squad car take-down lights are visible in the rear-view mirror.  Now what?

The Police Officer Approaches the Vehicle

Police are trained to observe all of your actions and note any that could be interpreted as supportive of suspicion of impairment (and ignore the rest).  At this phase these include:

  • odor of alcohol
  • eyes – “bloodshot, watery”
  • couldn’t find or fumbled with driver’s license and insurance card
  • admitted drinking, coming from a bar, a party

What are some potentially effective countermeasures, then? If the window is not open, or open about an inch or so – that is plenty to pass the drivers license and insurance card through, but not enough to expose the odor of alcohol.  You can refuse to do lower the window to force the officer to make a forceful command to do so, making it difficult for them to argue you did so voluntarily.  When speaking to the police officer through the almost closed window, the driver can avoid eye contact.  This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.  It’s a good idea to have the drivers license and insurance card in hand immediately after stopping, well before the police officer walks up to the vehicle to request those.  They are in your hands already, which are in plain sight on the steering wheel.  If asked “have you been drinking tonight?” you are not required to answer or answer responsively.  It is a bad idea to lie, for many reasons.  It is also a bad idea to admit facts the officer can use to build “probable cause” to ask you out of the car, or for arrest later.

If you were stopped for speeding, the police officer should just write you a speeding ticket and send you on your way – unless you give him or her probable cause or reasonable suspicion to justify asking you out of your vehicle.

Police ask you to step out of the car.  Now what?

If you use the car or car door for support when getting out or walking, they will note that as suspicious.  So don’t.  They will ask you to walk behind your car, in front of theirs.  Their squad car lights will be on full bore.  They will ask you to perform field exercises they like to call “Field Sobriety Tests.”  These are not scientifically valid, though the government claims otherwise.  Sober, trained police officers “fail” these “tests.”  How will you “pass” them?  And who is your judge?  The police officer!  What to do then?  Do not perform field exercises when asked to do so.  Do not do “Field Sobriety Tests!”  Common ones include:

  • Nine step walk and turn
  • One leg stand
  • Recite the alphabet, backwards etc.
  • Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
  • Walk a straight line

You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them.

“Preliminary Breath Test” (PBT)

Minnesota statutes authorize police officers to require a driver to blow into a PBT machine – a portable breath-alcohol machine only under certain conditions where there is a basis to suspect DWI or selected other alcohol-related offenses.  Don’t worry about whether those preconditions exist.  Your lawyer can do that later if need be.  What is important is that a PBT machine report of 0.08 or more can provide probable cause to arrest for DWI, and so can “refusal” to perform a PBT. Refusing a PBT is not a crime.  That would only provide probable cause to arrest.  One can imagine a logical person, knowing that, deciding to refuse the PBT if they felt sure they would end up with a PBT report of well over .08, for example .20 or more.  That person might feel they would have nothing to lose by refusing – since they would be arrested either way.  Compare that to a person who believed they would get a PBT report of less than 0.08.  That person would be foolish to refuse it, since it could result in their not being arrested.

Keep in mind that the little PBT machine on the side of the road, is not the same as the big, evidentiary breath-alcohol machine at the police station.  If a person is arrested, they can be asked to submit a sample for alcohol testing again, even though they already submitted to a PBT.  The PBT report is not admissible in a criminal DWI trial because they are too unreliable and inaccurate.

If arrested, then what?

Every step further in the chain of events described above brings the driver closer to arrest (unless the PBT is less than 0.08).   If the PBT reads too high, that and the rest will be followed typically with handcuffs and the back of the squad car.  Then normally the arresting officer will wait for back up or a tow truck, and leave for the police station once either arrives.  Talking is not a good idea at any point, including while in the squad car.

At or near the police station (or hospital for a blood draw), the police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.  The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.

It is always, always, always – a good idea to call a lawyer first!  The police are required by law to help you do so.  If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.  You should always make every effort to call a lawyer in this situation – even if you are still sitting in the squad car in handcuffs!  Tell the officer you want to call a lawyer.   This part is usually recorded – a good thing.

The other important right is secret in the sense that it is never mentioned in the “Implied Consent Advisory” by the cop.  what is it?  It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.”  Say what?  You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. In this situation, the arrested person should always, always, always request an Additional Test.  If you do, the police are only required to give you a phone to use.  You can use the phone to call whoever you need to call to arrange for an additional test.  See the midnight DWI jail call to a Minnesota lawyer blog post for more on this issue.

Stay safe out there.

By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer

Prostitution and Minnesota Law

How can we best understand prostitution?  It involves two important aspects of human existence: sexuality and money.  Given the controversy each of these inspire, can it be any surprise that prostitution has been controversial as well?  Prostitution has likely been around longer than money has been – quite a long while.  Throughout the history of the world, and among its many peoples, there have been many different views on prostitution.

Do we believe that social harms are caused by our sexuality, our money, our prostitution?  Put that way – yes, we do.  We have a social consensus that these do cause or contribute to social harms.  This begs the question, then, what best to do about it?  Can the laws play a role in reducing these harms?  If so, how?  Apart from the best legal approach to reducing social harms related to prostitution, what are the laws currently in Minnesota, in the United States?

Social Harms of Prostitution Are Reduced in the Netherlands

 Malum Prohibitum

Criminal laws can divided into malum in se and malum prohibitum

Malum In Se is literally “Evil in itself.”  A criminal statute addressing malum in se is one which is naturally evil, like murder, theft, etc.  Crimes at common law were generally mala in se.   An offense malum prohibitum, however, is not naturally an evil, but by legal fiat becomes one as a consequence of its being forbidden; like some gambling, drugs, which have become unlawful in consequence of being forbidden.

Does a law forbidding something make it go away, or reduce the social harms that thing may cause?  The examples of drug prohibition laws in the United States show us that the answer is “no.”  In fact, criminalizing disfavored social practices like alcohol and other drugs, and prostitution has greatly increased social harms associated with them.

Which social harms associated with prostitution can be attributed to the act of prostitution alone, as opposed to the underground economy created by legal criminalization?  Considering that question further, let’s make a list of social harms commonly associated with prostitution:

  1. Coercion.  Where prostitution is legal, there is little or no coercion of sex workers, compared to places where it is unregulated and criminalized.  Human trafficking thrives within a context of criminalized prostitution.  Where prostitution is legal and regulated, the hypocritical double standard and corruption issues do not provide a barrier to cracking down on kidnapping and human trafficking.  The use of drugs, threats, and violence to coerce sex workers is enabled and encouraged by criminalization.
  2. Exploitation of Children.   Where legal and regulated, it is rare to find children or underage people working in the sex industry.  In Minnesota, as in other places where it is crime, anything goes and prostitutes commonly begin before the age under 18.
  3. Nuisance.  In recent years, prostitution has been called a “neighborhood livability crime.”  Were it legal and regulated it could be zoned into a red light district, as pornography has been in Minneapolis.  Another recent trend, the move of prostitution from the streets to the web, has reduced this issues a bit in recent years.
  4. Corruption.
  5. The above are all direct products of criminalization; while those below are related to the act of prostitution, but aggravated by criminalization.
  6. Public Health.  Certain diseases are commonly spread through sexual activity, such as AIDS.  In places where prostitution is legal, regulation enforces frequent medical examinations, education, and makes police and other help more available to resist coercion.  Drug addiction overlaps with prostitution more where it is criminalized.
  7. Morality.  Many view the act of prostitution as immoral and unethical as a general matter, though compared to others, a minor sin.  Of course, many things just short of it are viewed differently.  What about compassionate use of prostitution for the physically handicapped, etc.?  Should the ‘law of man’ allow one to exercise virtue, and leave the domain of saving souls to God’s law?  By binding someone’s hands, do you not prevent them from exercising the free will to be virtuous?  Which is more immoral, prostitution or criminal laws creating and aggravating all of these social harms?

Minnesota Laws on Prostitution

Prostitution is an unregulated crime in Minnesota, part of the underground economy.  Minnesota’s criminal statutes on prostitution address the both the common and the unusual.

By far the most common prostitution prosecutions in Minnesota are those against would be customers and providers.  These are generally the result of police sting operations, which employ deception.  Traditionally these began on the streets, often motor vehicles, or in storefronts or other places.  In recent years, they often begin online over the internet, for example on Craigslist.  These are generally charged as misdemeanor or gross misdemeanor crimes.

Felony prostitution crimes in Minnesota are relatively rare, and include those involving people under 18 years old, pimps and promoters, and coercion.  It is likely that the fact that prostitution in Minnesota thrives in an unregulated, underground economy makes it extremely difficult for law enforcement (police) to effectively investigate these kinds of problems.  Ironically, legalizing prostitution would make it vastly easier for law enforcement to target these higher priority problems directly (under 18 years old, pimps and promoters, and coercion).

By Minnesota prostitution lawyer  Thomas C Gallagher .

Legislative Update: The Minnesota Bong Water Crime Case

Remember the recent Minnesota Supreme Court case that took a literal interpretation of a statute - to an absurd result - ruling that water could enhance the severity of a drug crime?  It was a bare majority decision, 4-3, with a concurring opinion and strongly worded dissents.  After the majority, concurring and dissenting opinions are all tallied, five out of seven wrote that the legislature should amend the statute to cure the injustice.  The case ruled that Bong Water (water used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree (30 years of prison maximum), though it contained only trace amounts of illegal drugs.

Tap Water Contains Drugs

The case is Minnesota v  Peck, Minnesota Supreme Court, October 22, 2009.  The blog article here, written the day the opinion was published is: Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess.

The case gained worldwide infamy.  If trace amounts of criminalized drugs in bong water could be a crime based upon the weight of the water “mixture,” then would not trace amonts of illegal drugs in our drinking water also be a crime to possess?  And if that is the case, which of course it must be, then is not every citizen of Minnesota a drug criminal – by virtue of possessing river sourced tap water?  (Those with well water presumably can rest easy, without fear of a drug-police home invasion.)

A Bill in now being considered by the Minnesota Legislature, for the Safe Drug Disposal Act is an attempt to ameliorate the problem of pharmaceutical drugs in our drinking water supply, and rivers.  It is a crime in Minnesota to possess prescription drugs without a prescription for those drugs.

Will Minnesota lawmakers heed the call of the Minnesota Supreme Court and public outrage and undo the “Minnesota Bong Water Case?”

A Bill has been introduced in the Minnesota House, H.F. No. 2757, to amend Minnesota Statutes section 152.01, subdivision 9a, to read:

Subd. 9a.  Mixture.  “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of where purity is relevant only when weighing the residue of a controlled substance.

If adopted into law, this would bring back proportionality of the severity of a drug crime to quantity.

Advocates of drug legalization (regulation and taxation) may have mixed feelings about this reform.  Yes – it would cure an outlandish, gross injustice to people facing exaggerated convictions and prison terms based upon possession of water or other non-drug media.  On the other hand, the Prohibitionists really shot themselves in the foot on this one.  The Minnesota Bong Water case has helped undermine what public confidence there was in criminal drug laws and their enforcement.  As stated in the dissent in the Peck case:

The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.

To the extent the public confidence in our criminal justice system is undermined by Peck, the Minnesota Bong Water Case, and its literal interpretation of the statutory definition of a drug; this hastens the day when common sense will finally prevail with the Repeal of all drug Prohibition laws in Minnesota.

Written by Thomas C Gallagher, Minneapolis Criminal Defense Attorney.