Get Out of Jail After Arrest – Tips for Getting Your Loved One Out

liberty-torch2-ps-cr-smOut of the blue – someone you love has been arrested and is in jail.  What should you do?  What do you need to know?  Here is a handy guide with ten tips on how to get your loved one out of jail and other essential information.

He or she is in jail.  That means their ability to act on their own behalf is severely limited – at least until they get out.  Keep these things in mind:

  1. Regain emotional balance. Being arrested and jailed is just about always a huge shock, and an unwelcome one at that.  This may be even more true for loved ones, who may feel a flood of conflicting emotions from anger to sadness to a sense of powerlessness.  But there are things you can do to help.  Gaining knowledge and asserting some control will help you (and your loved one) regain your emotional balance; and your ability to begin problem-solving.
  2. Phone calls from jail. It is vital to understand that phone calls from jail are recorded and generally provided to police investigators and prosecutors.  The last thing a criminal defense lawyer like Thomas Gallagher wants to see is one or more sets of discs labeled “jail calls” provided by the prosecutor as pretrial discovery in one of his cases.  As a result, learn and apply this rule:  “Avoid talking about the incident or alleged offense that led to arrest or criminal charges over the phone when one party is in jail.”  Of course you’re curious.  Of course they may want to tell.  But don’t ask about it until they are out.  And don’t let them tell you or talk about it on the phone!  This is even more important when the person is actually innocent, since words can be and often are twisted to help convict the innocent.
  3. Big picture vs. immediate problem. The most important thing in the long run will be how the criminal case turns out in the end, the outcome.  Nothing should be done to jeopardize that in any way (for example, jail phone calls).  In the short run, however, it’s important to get the accused person out of jail quickly if at all possible.  Why?  Having a job not only provides needed income, it also helps reassure that the accused is less likely to break the law in the future.  But most importantly, when people are held in jail waiting trial they generally become demoralized and are more likely to plead guilty – even when they are innocent.
  4. Minnesota criminal defense lawyer. Consulting a criminal defense lawyer is a good idea.  We can help with everything discussed here, and then some.  When someone has been recently arrested we (criminal defense lawyers) should help educate loved ones supporting the accused and the accused about the big picture solutions as well as solving the immediate problem of getting out on a pre-trial basis.  Start with a phone call.  A jail visit may follow.
  5. Bail bond company. When someone has recently been arrested and may have a pretrial release hearing coming up, a good bail bond company can provide helpful services, well beyond simply posting a bail bond with the court.  The criminal defense lawyer should be able to recommend one.
  6. Arrest without an arrest warrant. Many people in jail were arrested without an arrest warrant.  (An arrest warrant would include a preliminary finding of “arrest probable cause” by a judge.)  In Minnesota we have the so-called 36 hour and 48 hour rules limiting how long a person can be detained (in jail) without a judicial finding of arrest probable cause.  Due to rules about which days count towards those limits, you may not need to know right now the specifics of how those rules are applied.  What you really want to know is “how long can they hold my loved one without filing a criminal charge with the court; and without a pre-trial release (bail) hearing before a judge?”  The easiest way to find out is to ask the jail: “what is the deadline for releasing him or her if charges haven’t been filed?”  The Deputy at the jail will normally tell you, “noon,” of such-and-such day of the week.  To go beyond that call Thomas Gallagher or another Minnesota criminal defense lawyer.
  7. Arrest with an arrest warrant. Minnesota Rules of criminal Procedure, Rule 3.02, Subd. 2. “Directions of Warrant. The warrant must direct that the defendant be brought promptly before the court that issued the warrant if the court is in session.If the court specified is not in session, the warrant must direct that the defendant be brought before the court without unnecessary delay, and not later than 36 hours after the arrest, exclusive of the day of arrest, or as soon as a judge is available.” See also, Rule 4.01.
  8. Right to Pretrial Release. The Minnesota Constitution includes two clauses guaranteeing the right to bail.  The first says “excessive bail shall not be required.” Minn. Const. Article 1, § 5, similar to the United States Constitutional protection against excessive bail.  The Minnesota Constitution, however, also provides: “All persons before conviction shall be bailable by sufficient sureties, except for capital offenses.” Minn. Const. Article l, § 7. Under Section 7, all persons are entitled to bail except those charged with capital offenses.  Because Minnesota no longer has the death penalty, all defendants have the right to have bail set, to pretrial release.
  9. Pretrial release hearing. A judge determines the conditions of release. Conditions, including bail, are meant to assure a person’s appearance at future court proceedings. Court rules tell judges to release individuals without conditions unless a judge determines that such a release “will endanger the public safety or will not reasonably assure the defendant’s appearance.”  Though there is no maximum bail for felonies, the maximum bail for non-felonies is four times the maximum fine ($12,000 for a Gross Misdemeanor; $3,000 for a Misdemeanor).  The defendant has the right to unconditional bail.  Most judges will set two bail amounts, one with and one without conditions (sometimes zero with conditions).  If a judge does not set an unconditional bail amount, the defense attorney should immediately request that the judge do so.  The defendant will need to choose one of the two options, and will not be able to change his or her mind later unless a judge allows that.  It is possible for a person in jail presented to a judge to request that the court postpone consideration of pretrial release issues.  Sometimes this is a good idea, but we can leave this as a point for discussion with the defense attorney beforehand.
  10. Remedies.  What if these rights are violated by the jail, the police, the prosecution, or the court?  What remedies are available?  One type of remedy is designed to force a hearing or immediate release if an immediate hearing is denied.  A Petition for a Writ of Habeas Corpus, a type of equitable remedy, asks a judge to Order immediate release of a person being illegally detained.  Another approach is for the defense attorney to contact court officials to request and demand that a prompt hearing be scheduled.  If the police get a confession from an illegally detained person, the defense lawyer can ask the Judge to suppress the confession as illegal, coerced and unreliable.  In cases where bail has been set but the amount is beyond the reach of the defendant, Thomas Gallagher has made multiple motions for a speedy trial, or immediate release pending trial in the alternative, with some success.
Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

For more information about pretrial release and bail:  Do you have more questions about how to get your loved one out of jail, or need to find a good criminal defense lawyer for him or her?

You can call Minneapolis Criminal Lawyer Thomas Gallagher to discuss.  He can help you.

How to Get Rid of a Domestic Abuse No Contact Order in Minnesota

In a criminal case with a “domestic relationship” element, it’s common for the court to issue a No Contact Order prohibiting the accused from having contact with the person claimed to be “the victim.”  The person they’re calling their victim is not consulted; is not asked.  In fact, the witness they’re casting in the victim role has no real voice in this – at least not in Minnesota in 2017.  He or she cannot “press charges;” can’t “drop the charges.  The current system takes the control away from him or her, and gives it to the prosecutor.  It’s been that way for decades.

If you are the accused, forget it.  The judge is not going to drop the no contact order for you.  No, this is written for the witness – one forced into the role of victim of the prosecution.

Ain't Nobody's Business If I Do

Ain’t Nobody’s Business If I Do

If you are the witness in a misdemeanor domestic assault case, for example, chances are you want the no contact order dropped.  But how?  The information here should help get you started, regaining control over your life – taking it back from the government.

Does this scenario sound familiar?  You and your other were enjoying some free time together, with adult beverages.  After a few drinks, some conflict and less restraint in expressing it.  Somehow, the police got called.  The 911 call – by whomever – was recorded.  Tempers flared.  Police officers showed up.  They picked someone to arrest, sometimes with help.  In what now seems like no time, it’s over.  They’re gone.  And so is your other, who is now in jail.  Work was missed.  Bail money.  A lawyer.  And – a No Contact Order.  The pretrial No Contact Order could be in place for months.  After that, it may be replaced with a probation No Contact Order for years.

In order to know how to try to get rid of it, it’ll help to understand what it is – to drill down into it.  Here we go.

In a criminal case, any kind of criminal case, the court can and often does set conditions of pretrial release.  Or it can release the accused on their personal recognizance (meaning no conditions, just show up for court appearances.)  One condition of pretrial release the court can require is bail.  Bail can be in the form of cash or a bond.  In Minnesota, we have the right to pretrial release on money only bail, or unconditional bail.

In other words, we have the right to be presumed innocent before a trial and release without any conditions other than bail.  For non-felony cases there is a maximum bail.  (For felony cases, there is no maximum.)  The maximum bail for a non-felony case is four times the maximum fine.  The maximum for a misdemeanor is $1,000 so the maximum bail is $4,000.

For a gross misdemeanor the maximum fine is $3,000 so maximum bail is $12,000.  Since we have the right to money-only bail, without any other conditions, in a non-felony case the maximum bail must be without other conditions.  And, perhaps not coincidentally, when judges set unconditional bail amounts in non-felony cases, it’s equal to the maximum:  $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case.  This is good to know, since most domestic assault cases are non-felony.

It also means that the court cannot issue a no contact order as a condition of pretrial release in a non-felony case if the defendant posts maximum bail.  Some people were not happy with that.  So, several years ago Minnesota adopted a statute authorizing courts to issue a Domestic Abuse No Contact Order – a name so long it soon was more often referenced by an acronym, D.A.N.C.O.  It was modeled after the earlier Minnesota Domestic Abuse Act’s Order for Protection law, a civil case heard in family court but with criminal penalties for violations.

Bottom line, a defendant can now post maximum bail in a non-felony domestic assault (or similar) case, and get no other conditions of pretrial release, yet still be subject to a DANCO.  Minnesota Statutes §629.75, Subdivision 1 (b), says in part:

“A domestic abuse no contact order is independent of any condition of pretrial release or probation imposed on the defendant. A domestic abuse no contact order may be issued in addition to a similar restriction imposed as a condition of pretrial release or probation.”

Perhaps a court will properly strike down the law as unconstitutional one day, but that is beyond the scope of this article.  This is a description of what courts are doing now in Minnesota.

It’s important to understand that in a criminal case there could be two no contact orders: one as a condition of pretrial release, the other as a DANCO.  It may help to understand the distinction by looking at the remedy for a violation to each.  If a condition of pretrial release is violated, the remedy is for the court to issue an arrest warrant, book the defendant into jail, and revisit the issue of pretrial release in a new bail hearing.  If a DANCO is violated, that can be charged as a new, additional crime with a different date of alleged offense (compared to the original criminal charge).  There could be an arrest, jail, a bail hearing, on that new charge of violation of a DANCO.   (The one, same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)

As a result, at least when it comes to the No Contact condition, it may not matter much whether the defendant posts maximum, unconditional bail or not.

Do courts ever rescind or get rid of No Contact Orders?  Yes, sometimes, but they make it difficult.  The reality is that the witness (“the victim” of the prosecution) has no real voice unless they work hard and persevere.  It helps if he or she knows how to go about it.  It also helps to have a witness lawyer helping make sure that he or she will be heard.

Domestic violence cases, perhaps like many things, vary along a continuum.  A few are horrific; but the vast majority are not.  Just ask any police officer what the most common 911 response call is – “a domestic.”  In how many of these cases is alcohol a factor?  Almost all.  The majority do not involve any physical harm or injury or minimal like a slap, bruise or scratch.  The harm caused by the criminal prosecution in response is typically massive and disproportionate.  But you already know that now, don’t you?

The number one question when you go to court will be: “are you afraid of him or her?”  What is written in the police reports will be reviewed, over and over.  People are not always the best historians when they are angry and drinking.  (But discussing the events of the night in question is often not a good idea.  Discuss with your lawyer before doing so.)

“Did you say, ‘when you go to court?”  Yes, you as the witness, were never asked and now the burden has been squarely placed on your shoulders to go to court to plead with the prosecutor, then the judge to drop the no contact order.  It’s your only chance.  (The prosecutor or their “advocate” may discourage you from coming to court to ask the No Contact Order be dropped.  If you don’t come, it won’t get dropped.)

Many prosecutors have people working for them claiming to be “victim advocates.”  Leaving aside the prejudicial “victim” labeling, are they really advocates?  A few good ones are.  But many see themselves as the advocate of the prosecution agenda, whose job it is to control and manipulate “their” victim to serve the ends of the state.  The few good ones actually listen. The best will even fight for the witness’s position and truly advocate for it.  Which type will you get?  Luck of the draw.  If you get a good one, this is good fortune.  The bad ones are best ignored to every extent.

Minnesota has a Victim’s Rights Act, Minnesota Chapter 611A.  One might think that prosecutors claiming to represent “victims” interests would use and cite this law often.  I’ve almost never heard it happen.  But I have cited it in most of my domestic assault defense cases, and every time I’ve represented a witness.  Why?  Because the law says that prosecutors and courts are required to listen to the “victim” and allow them a voice.  But many don’t seem to want to hear it.  Many prosecutors want to use the witness for their purposes and disregard the effect on their real lives, only to discard after use without thought or care.

It helps for the witness to have a lawyer experienced in domestic violence cases.  Your lawyer should know the courtroom, the players, and how to make sure your voice is heard.  We will not be ignored.  We will make your voice heard.

More can be written.  More could be said.  Hopefully this brief discussion has been useful for you.  It’s a stressful situation to call police for help, only to have them and their prosecuting lawyers turn into the enemy that threatens to ruin you and your family.  But there are countermeasures.  You can assert your power.  You don’t need to let them have it.  You can fight back, and regain control over your life.

If you have more questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense to discuss your options.

Thomas C. Gallagher is a Minnesota domestic violence defense lawyer with decades of experience with domestic assault and other domestic crime cases and Minnesota restraining orders.  He regularly represents the accused to successful outcomes; and sometimes is retained as a witness lawyer.

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.   But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

What can you do to reduce the chance of getting caught? Here are nine tips:

  1.  Situational awareness.  Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.  Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.  There will be a traffic stop.  When it does happen; marijuana should not be in the car.  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
  2.   Odor.  The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.  Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.  And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.  Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.  It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)
  3.   Consent?  “No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.  Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.  Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”   If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
  4.   You can do both: don’t lie and don’t admit. How?    Remain silent.  Or if words come out of your mouth make sure that they are not lies, and do not relate to illegality.  More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong!  Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.  Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe it for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
  5.   Unlawfully prolonged detention: “Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”  Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.Is that legal?  Suffice it to say that the courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.  But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. assert and communicate a desire to end it and leave?”  A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity. Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.  The best way to make a record of that is to ask: “Officer am I free to go now?”  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.  This will help your lawyer challenge the legality of the search and arrest later, should it come to that.  At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)
  6.   “You have the right to remain silent.” When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!  If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.  No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.
  7.   Field Exercises. Sometimes police may want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.  What to do?  Don’t!  Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.  When you do, the police officer may invite an excuse.  But don’t take that bait.  Any excuse could be incriminating, even if falsely.  Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
  8.   Smile, you’re being recorded. From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.  This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.  Phone calls from jail are almost always recorded for potential later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.
  9.   Keep your cool if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm.  The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent.  Most people will be able to get out with a few days or less.

Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Have a comment?  You are welcome to leave your comments and responses below.

Thomas C. Gallagher Elected Chair of Minnesota NORML Board of Directors – Marijuana Legalization in Minnesota

On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board.  Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016.  He was the endorsed candidate of Republican Party of Minnesota in both election cycles.

Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted.  “Our goal is legal marijuana in Minnesota for responsible adult use.  Minnesotans should have equal rights to cannabis as to beer and wine.  This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”

Thomas C. Gallagher, Chair, Minnesota NORML

Home grow” Gallagher said, “is essential.  Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom.  We want to empower the People, support Liberty for all.  With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money.  Freedom should not be limited to people with money.”

“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.

If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!”  Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine.  Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide.  We support these Bills.

“It’s not inevitable.  There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned.  “’How soon will it be legal?’ people ask me.  ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.

Minnesota NORML holds monthly Members Meetings and other events and activities to help people connect and get involved.  For further information:
https://mnnorml.org/
https://www.facebook.com/mnNORML

#LetThePeopleDecide

The Romeo and Juliet Syndrome: Minnesota Sex Crimes Based On Age

In Shakespeare’s Romeo and Juliet, Lady Capulet says her daughter Juliet is “not yet fourteen,” being about two weeks from her fourteenth birthday.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen, older, but still of tender chin (without beard).

Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic.  But were they criminals?  Not then, as Juliet’s mother makes clear.

Would they be criminally prosecuted for age-based sex crimes in Minnesota today?  Young people like them can be and often are prosecuted in juvenile and adult criminal courts in Minnesota.  Should they be?  Should we instead change the laws in Minnesota to decriminalize young love?  Should foolish love be a crime?

 “Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)

Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age.  Common law rape required an element of force, coercion or lack of consent.  The more modern invention, often-called “statutory rape” since it does not require an element of force or lack of consent, involves quite consensual acts.

But it rests upon the legislative fiat that a person younger than 16, for example, is so feeble-minded as to be incompetent to consent to sexual acts.  (See, Minnesota Statutes §609.342, subdivision 1 (a) “Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.” The “complainant” is usually opposed to the prosecution.)

This premise appears deceptive – the more so considered next to the fact that in Minnesota the minimum age for competence to be criminally prosecuted in a delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).

Why would the same body of law, the same jurisdiction, consider a ten year old competent to form intent in her mind to do a criminal act, but consider a thirteen year old incompetent to intend to have sex?  A tangled web, indeed.

O Romeo, Romeo, wherefore art thou Romeo?

“O Romeo, Romeo, wherefore art thou Romeo?”

Do we really want to permanently label our Romeos and Juliets sex criminals, for the crime of being young lovers?  Do we want them to have to Register as a Predatory Offender for a minimum of ten years up to life?

Though many of Minnesota’s Criminal Sexual Conduct statutes contain exceptions for lovers within a range of 24 to 48 months depending upon the crime, for those outside these exceptions “mistake of age,” they say, is not a defense.

 “The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”   — George Orwell (1984)

These days, one could categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch.  When sexual penetration is criminal, it is a more serious crime than touch, which in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

Before our modern day Romeo and Juliet became lovers, their flirting included sexting.

Young lovers have been around long before Minnesota criminalized them.  But some non-touch sex crimes are an artifact of recent technology, like smart phones.  Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.  Then they share them with each other over cell phone towers and Wi-Fi connections to the internet.  The images may be stored on their phones or in the data cloud.  Sexting is a new word meant to describe sex texting – sending images via text messaging applications.

Minnesota laws have not kept pace with the times.  Should every foolish act be made a crime?  Our laws criminalizing child pornography are now being used to prosecute young people for taking naked and arguably sexual images of themselves, then sharing them with each other.

A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession of Child Pornography, Dissemination of Child Pornography, or both, under Minnesota Statutes §617.247.  Such prosecutions appear to violate the young person’s fundamental right to freedom of speech and expression under the First Amendment of the U.S. Constitution as well as the Minnesota Constitution.  Better, let’s change the laws to make them less unfair.

 Can a juvenile be a “predatory offender” due to sexting or being a young lover?

Labeling juveniles “predatory offenders,” requiring them to register their whereabouts, vehicles, schools, addresses, and on and on; and sending them to lock-up in prison of they slip up any little part of doing so – is that what we really want to do after a juvenile has had consensual sex with his or her beloved, or after sexting?

Rehabilitation vs. Predatory Offender Registration for ten years to life.

Juvenile courts were a result of social reform movements of the late 19th Century.  Rather than criminally prosecute juveniles like adults, a separate juvenile court has been set up with a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.

An important aspect of juvenile courts is that they have traditionally been non-public – confidential – to protect the juvenile from severe collateral consequences, and allow the kid to leave youthful mistakes in the past.  In recent years, that has been eroded to a degree.  In Minnesota, if a juvenile is charged with a felony and is 16 years or older, the case is public. (Almost all “sex crimes” are felonies in Minnesota.)

Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”   See, Minnesota Statutes § 243.166.  This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.

The only ways to prevent a juvenile charged with a sex crime from being required to register with the state as a sex criminal for ten years to life; is to get the entire case dismissed, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.

Criminal lawyers and courts can wrestle with these things, to try to save some young people from the jaws of the law.  But wouldn’t it be better to change the laws to make them less unfair and less harmful?

Thomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile sex crime delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.

Forfeiture Law: Minnesota Legislature Protects Marriage, Brings Back Innocent Owner Defense for Co-Owners

Imagine that you are married to someone who has been struggling with alcohol addiction.  Your spouse has been sober for an encouraging length of time.  Then one day you get a call.  Your spouse has had a slip and been arrested for DWI.

The police have seized your $40,000 car – the one he or she was driving at the time – for administrative forfeiture.  That doesn’t feel right, does it?  Could it be the last straw that stresses and breaks a struggling relationship, leading to another failed marriage?

Effective August 1, 2017 in Minnesota, as an innocent owner you will now be able to challenge the forfeiture of your vehicle to the government in court and assert the “innocent owner defense” even where your spouse was the DWI driver of that vehicle – thanks to the Minnesota legislature and Governor this year.

The new law, which amends Minnesota Statutes Section 169A.63, subdivision 7, effectively overrules a 2009 Minnesota Supreme Court case, Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009).  In that case the court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), did not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle.

The majority’s rule was that all joint owners of a motor vehicle must be innocent in order for any owner to employ the innocent owner defense in Minn. Stat. § 169A.63, subd. 7(d).  For a discussion of the Laase case the day the decision was released click here: Minnesota Supreme Court Rules Against Innocent Spouse under DWI Car Forfeiture Statute.

Though spouses may be the most often affected, as co-owners of a vehicle with a DWI offender, the law in this area goes beyond spouses and applies to “family or household members” of the offender who are co-owners.  The definition of “family or household member” is broad, and includes a parent, stepparent, or guardian; persons related by blood, marriage, or adoption as brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; and persons residing together or persons who regularly associate and communicate with one another outside of a workplace setting.

Who is an “owner?”  The innocent owner defense statute defines “owner” as “a person legally entitled to possession, use, and control of a motor vehicle, including a lessee of a motor vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner.”  Note that the car title is prima facie evidence of ownership.  In other words, it creates a rebuttable presumption.  Ownership can be proven by other evidence as well.

What is the innocent owner defense?   As of August 1, 2017, Minnesota Statutes 2016, section 169A.63, subdivision 7 “Limitations on vehicle forfeiture.” will read:

“(d) A motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence that the petitioning owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the petitioning owner took reasonable steps to prevent use of the vehicle by the offender. If the offender is a family or household member of any of the owners who petition the court and has three or more prior impaired driving convictions, the petitioning owner is presumed to know of any vehicle use by the offender that is contrary to law. “Vehicle use contrary to law” includes, but is not limited to, violations of the following statutes:
(1) section 171.24 (violations; driving without valid license);
(2) section 169.791 (criminal penalty for failure to produce proof of insurance);
(3) section 171.09 (driving restrictions; authority, violations);
(4) section 169A.20 (driving while impaired);
(5) section 169A.33 (underage drinking and driving); and
(6) section 169A.35 (open bottle law).”

The burden of proof is on the owner petitioning to get their car back, to prove by “clear and convincing evidence” either that he or she “did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law” or that he or she “took reasonable steps to prevent use of the vehicle by the offender.”  The term “constructive knowledge” is not commonly used outside a legal context.

“Constructive” here means, essentially, circumstantial evidence proving “knowledge.”  It may refer to the list that follows, for “family or household members” who are  “presumed to know of any vehicle use by the offender that is contrary to law.”  Though that last phrase may be ambiguous, it seems to refer to past (as opposed to future) “vehicle use by the offender that is contrary to law.”

This presumption is rebuttable, however, and so does not seem to change the burden of proof, already upon the owner asserting the innocent owner defense.  In other words, the burden is on the owner asserting lack of knowledge that he or she did not know.

Thomas Gallagher is a Minneapolis DWI Defense Lawyer who regularly represent people in forfeiture cases.

 

Less Than One-Quarter Gram Possession Gross Misdemeanor Crime < New Minnesota Laws 2016

The 2016 Minnesota Legislature made some changes to Minnesota “Controlled Substance” crime laws, effective August 1, 2016.  One of those created a new Gross Misdemeanor level crime for certain “controlled substance” possession crimes, for less than 0.25 grams or one dosage unit or less – but only for a person “who has not been previously convicted of a violation of this chapter or a similar offense in another jurisdiction; and only for possession of “controlled substances” other than heroin.  This is an improvement since before this new law, even these tiny amounts were charged as felony level crimes; and since a felony conviction can render a person unemployable in many jobs, lifetime loss of civil rights, severe immigration law consequences, and other big problems.

The statutory language is:

Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”

hash-quarter-gram-lighter

one-quarter gram of hash relative to the size of a lighter

Does this mean defense lawyer will no longer need to litigate trace amount issues and cases?  No.  A Gross Misdemeanor is still a serious crime.  Also, this new law does not apply to heroin or federal cases.

What about marijuana, including derivatives such as wax, dabs?  Minnesota law still defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only).  Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.”  So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor.  When it comes to the “resinous form of marijuana” (presumably wax, dabs, etc.), however, the “small amount” definition would not apply but the new trace amount Gross Misdemeanor possession law would apply – rather than a felony crime as before August 1, 2016.

What drugs could be charged as a quantity expressed in dosage units, rather than weight?  These could be divided into two categories: prescription drugs and underground economy drugs.  Most prescription drugs are made into and possessed in pill form.  A “dosage unit” could be one pill, or could be more than one pill, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.  For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it.  For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit.”).  Medical marijuana produced by a legal maker may be the same as prescription drugs, in terms of evidence of dosage units.

What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18?  They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime Fifth Degree, Gross Misdemeanor, since the Gross Misdemeanor charge is a Fifth Degree charge against a person without prior drug convictions.

Thomas Gallagher is a Minneapolis Drug Defense Lawyer, since 1988.  He is also serves on the Board of Directors of Minnesota NORML, since 2011.