And support is bipartisan. Though more Democrats support marijuana legalization than Republicans, “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”
Students of history draw lessons from the alcohol Prohibition life cycle. Why did it take so long to end it, even after a majority of Americans opposed it?
The five percent tipping point
Marijuana legalization at the Capitol. Minnesota NORML.
One answer? The tipping point was when about five percent of the voters made legalization a wedge issue. In other words they would disregard political party, other issues, and vote for a political candidate solely on the issue of re-legalization. The alcohol Prohibition repeal soon followed.
In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota. Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.
How many elections are won or lost by less than five percent of the vote in Minnesota? Opposition to the majority will now has a severe price: losing.
The time has come for marijuana legalization. But what should it look like in Minnesota?
What should marijuana legalization look like in Minnesota?
The issue is Liberty, not marijuana. Ending marijuana Prohibition is consistent with conservative political values. Less government means more freedom. Prohibition is a government bloat program, that destroys lives, destroys our freedom.
We the People have at least equal rights to marijuana as we do to beer and wine. The fact that marijuana is safer than beer and wine, undercuts the Prohibitionist lie that “marijuana is a dangerous drug.” Death by overdose happens with alcohol, but cannot happen with marijuana. Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.
The three legal models for marijuana
We’ve seen three models for our legal rights to marijuana, in chronological order:
The Tomato Model
The Prohibition Model
The Beer and Wine Model
The Tomato Model
The Tomato Model of marijuana legalization
Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes. The law lightly regulates tomatoes. Tomatoes are not a crime to grow, possess, or sell.
The Tomato model means laws the repeal of laws criminalizing it. People are free to do with marijuana what they can do with tomatoes. We call it de-criminalization.
This was the state of the marijuana laws before the marijuana Prohibition era began. Advocates of the tomato model say we should return to this. Of the three legal models, the tomato model is the most conservative. It protects the People’s Liberty most.
The Prohibition Model
The writing is on the wall: Vote Against Prohibition
Marijuana Prohibition never would have happened but for the alcohol Prohibition. As the alcohol Prohibition was winding down in the 1930s, state by state, the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism. They succeeded. They tricked the public into funding a massive anti-marijuana government bureaucracy. It was a solution in search of a problem. At the time, marijuana usage rate was infinitesimal. Now almost every American has used marijuana at least once, thanks to Prohibition.
Though ten states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition. The government still pays police officers to break down doors, toss people’s cars, searching for marijuana. Then we pay prosecuting attorneys to charge people with marijuana with crimes, label us criminals, strip our civil rights and lock us up.
And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups. Marijuana legalization ends these social evils.
The Beer and Wine model
Wine may not be for everyone, but a crime?
Under “the beer and wine model,” the people of Minnesota have equal rights to marijuana just the same as to beer and wine.
The metaphor works because people are familiar with beer and wine. The law treats marijuana the same as beer and wine in every way. It also works because marijuana is safer than beer or wine. This undercuts opponents’ “public safety” argument.
Wherever the law now says “beer” or “wine,” we can add the word marijuana. What could be more simple?
Step one – decriminalization
Prohibition Still Doesn’t Work. NORML.
Of course, we need to delete all criminal laws referencing “marijuana” and “THC.” This includes deleting both from the Schedules in Minnesota’s version of the Controlled Substances Act, now in Minnesota Statutes Chapter 152. We call this “de-scheduling.”
In addition, the criminal drug laws will be amended to delete all references to THC and marijuana. Most of these are also in Chapter 152.
That is the decriminalization component. For supporters of The Tomato Model, that is all we should do.
Step two – regulation
Under the beer and wine model, we not only completely decriminalize, we also enact a set of laws regulating marijuana production and sale. Here the existing beer and wine laws guide us.
We have equal rights to marijuana as to beer and wine. So the marijuana laws mirror those regulating beer and wine.
Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition. But here history has another lesson for us.
The legal framework for alcohol was The Tomato Model before the alcohol Prohibition. But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages. We’ll skip the reasons for that.
Suffice it to say, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model. The ten states that have legalized so far have substantially followed The Beer and Wine Model. Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.
What’s the Big Idea?
The Beer and Wine Model is the big idea. Liberty. Equal rights. Civil rights. Racial justice. These core American values support the beer and wine model of legalization, far better the evils of Prohibition.
What should marijuana legalization look like in Minnesota? The People should have at least equal rights to marijuana as to beer and wine. With that core principle, the rest takes care of itself.
Details Matter Too
We’ll take a deeper dive into the details of proposed legislation in the future. But now let’s take a look a few of the important details of re-legalization in Minnesota.
Home Grow is Alright With Me
Even with regulated beer and wine, we have the right to produce beer and wine at home in small batches. Under the beer and wine model for marijuana regulation, we can grow marijuana on our own property, in small batches.
A little Minnesota history
Minnesota laws contradict each other when it comes to forms of marijuana.
Yet in the 2010s, the Minnesota legislature crafted a Medical Marijuana law which favored “the resinous form” (concentrates) and disfavored plant-form marijuana. More recently they thought that the resinous form was safer than plant-form. The legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.
The public policy in these two sets of laws conflict.
A rose is a rose is a rose
The time has come to end the legal distinction between plant-form and the resinous form. We should treat all forms of marijuana as marijuana. It’s the same plant, the same substance. The distinction between forms creates needless confusion. If it made any sense, the legislature would not have contradicted itself.
Repair the Minnesota Medical Marijuana Program
The once and future medical cannabis
The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it. Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people. And insurance does not cover it.
The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost. Plant-form is less costly to produce.
The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people. They can grow their own, cheap.
Suppliers and distribution
The law of supply and demand is stronger than criminal law
The “bad model” at this point is Colorado, the first state to legalize. Why? Because it has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion. Now that ten states have legalized for adult use, this is an unneeded expense.
If retail cost is too high, the underground economy will continue. We need to destroy the underground economy using the laws of economics, not failed criminal laws.
Suppliers and distribution. The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers.
In some other states, over-taxation is a problem. If retail cost is too high, the underground economy will continue.
Equal rights, and justice: The “beer and wine model” comes to the rescue again. We should not tax marijuana more than the beer and wine. The “sin tax” on beer and wine is already sky-high.
What are transitional issues? These are issues that are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation. But we expect that ten years after legalization many of these issues will subside.
There are many transitional issues. Let’s mention a few.
Automatic record voiding of convictions and expungement
Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.
Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court due to cost barriers. The law should require the government to automatically vacate every criminal conviction related to marijuana or THC, and expunge those public records. We should remove the burden from the victims of Prohibition and put it on the government.
We should immediately release all people locked up for any marijuana or THC crime, from jail or prison.
Force the Minnesota Department of Corrections to follow the law
When a court sentences a person to prison, it strips them of their civil rights and are commits them to the Minnesota Department of Corrections (DOC). The Minnesota DOC revokes supervised release for legal medical marijuana users. We must stop this Minnesota DOC policy and practice. We need a statute to reign in this Minnesota DOC violation of existing Minnesota law.
What do you think?
Drop your comment below.
About the author
Thomas C. Gallagher, Minnesota NORML Member
Written by Thomas C. Gallagher. Gallagher has worked on re-legalization issues for over 30 years.
A Minnesota felony doesn’t always impair gun rights. But many still believe that “a Minnesota felony conviction will mean a lifetime loss of gun rights.” That’s wrong.
Upon completion of probation, gun rights lost after a felony conviction are automatically restored along with other civil rights, under the general rule of Minnesota law. Exceptions to that general rule are discussed below.
The Right to Firearms
The right to self-defense and firearms is a natural, human right. It belongs to you because you were born a human being. The United States was born in revolution and violent struggle to force government to respect our natural rights. The United States Constitution makes this respect clear.
Fighting for Natural Rights to Firearms, 1781
As the U.S. Supreme Court recently ruled: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” District of Columbia v. Heller, 554 US 570 (2008).
The law, however, does limit our rights under some circumstances. Even so, strict scrutiny must be given to any legal limitations upon our fundamental rights. We are skeptical of legal limitations of our rights.
Certain pending criminal charges or convictions historicallyhave limitedour civil rights to firearms. As criminal defense attorneys, part of our job representing our clients is to understand how to protect their civil rights.
Will any felony conviction cause a lifetime loss of civil rights to firearms?
A common misconception holds that “any felony conviction will cause you to lose your civil rights to firearms forever.” But a Minnesota felony doesn’t always impair gun rights.
We have heard that wrong statement of the law (that a felony conviction always means a lifetime loss of gun rights) from people who should know better. Is there any possible explanation for such a widespread misconception about the law? The two main reasons for this common misunderstanding of the laws are:
Gun laws are complex – short of in-depth study.
The laws have changed – many have failed to update their knowledge.
Solution: This article will walk you through the law and explain why “a felony conviction”doesn’t always impair Minnesota gun rights indefinitely. Two common exceptions to that general rule are: 1) “felony crimes of violence” and 2) “misdemeanor crimes of domestic violence.” If lost, these rights may either be automatically be restored by operation of law; or, their restoration may be possible through a court order or pardon.
Loss of gun rights upon certain pending criminal charges and convictions
Civil rights to firearms can be temporarily suspended while certain criminal charges are pending before the Minnesota court. They can be also be temporarily or indefinitely lost upon conviction of certain crimes under Minnesota law. For example, Minnesota Statutes §624.713, subd. 1 (10) (i), says:
Subdivision 1. Ineligible persons. The following persons shall not be entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon or, except for clause (1), any other firearm:
(10) a person who:
(i) has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
For someone who has not fully studied the web of Minnesota gun laws, the above excerpt, in isolation, could be misleading. It seems to say that a felony conviction will result in an indefinite loss of civil rights to forearms in Minnesota. But below we discuss the other, specific Minnesota statutes to the contrary.
Every person convicted of a Minnesota felony will lose their civil rights to firearms from the moment of adjudication or conviction until the moment the person is discharged from probation or sentence. Minnesota Statutes §624.713, subd. 1 (10) (i). Unless their conviction was for a “felony” “crime of violence” or other exception; their rights are automatically restored upon completion of sentence (e.g., probation).
Why a Minnesota felony conviction doesn’t trigger loss of gun rights
The general rule: Following a Minnesota conviction,civil rights to firearms are restored by operation of statute at the completion of, or discharge from sentence “the same as if such conviction had not taken place.”Minnesota Statutes §609.165:
“RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION, Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”
Note that it doesn’t matter what level the conviction was – felony or misdemeanor. Gun rights are restored under this general rule statute upon discharge from sentence. Clearly, a Minnesota felony doesn’t always impair gun rights.
But a Minnesota “felony crime of violence” conviction now causes a default lifetime ban
One of the two major exceptions to the general rule stated above is Minnesota’s statute stripping away civil rights to firearms for life after a conviction for “felony crime of violence.” Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:
“Subd. 1a. Certain convicted felons ineligible to possess firearms or ammunition. The order of discharge must provide that a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“
The specific list of crimes defined as “felony crimes of violence” is in Minnesota Statutes §624.712, subdivision 5. A listed crime triggers a lifetime loss of civil rights. Otherwise, discharge from felonyprobation or sentence will generally restore gun rights by law. It’s important to check the list, since despite the label, many convictions on the list are factually non-violentand listed as a technicality, notably marijuana crimes.
Exception to the exception: restoration of gun rights after a Minnesota “felony crime of violence” indefinite ban
What about a federal statute saying a felony conviction triggers a loss of gun rights?
Federal laws are in need of some housecleaning, to convey clear meaning. Bottom line – federal law says that when it comes to taking away and restoring civil rights to guns, the state laws control, not federal.
The Untied States Supreme Court explains
This United States Supreme Court case offers the most succinct explanation:
A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:
“It shall be unlawful for any person—
“(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …
“to … possess in or affecting commerce, any firearm or ammunition …” 18 U.S.C. § 922(g). …
Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119—122 (1983). Congress modified this aspect of Dickerson by adopting the following language:
“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, …” §921(a)(20).
The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994). …
We note these preliminary points. First, Massachusetts restored petitioner’s civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of §921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term “pardon” connotes a case-by-case determination, “restoration of civil rights” does not.
Caron v. United States, 524 U.S. 308 (1998)
Minnesota law controls
Minnesota law controls
Therefore, Minnesota law, not federal law determines whether a Minnesota felony conviction makes a person ineligible to possess a firearm in Minnesota. See, also 18 U.S. Code § 921, (a) (20) The term “crime punishable by imprisonment for a term exceeding one year;” and, 27 CFR 478.11.
This is Black Letter Law. The law is clear and unambiguous. Minnesota law, not federal law, determines whether a person loses their civil rights to firearms for a felony conviction, and how those rights can be restored.
If you hear anyone repeating the old misinformation about this, refer them to this article for a simple, succinct explanation of the law. At minimum, know that a Minnesota felony conviction doesn’t always impair gun rights.
“What if I had a felony conviction reduced to a gross misdemeanor after successful completion of a Stay of Imposition?”
Short answer: When it comes to gun rights, it doesn’t matter. Why?
Rights are automatically restored upon discharge from probation or sentence if the Minnesota felony conviction was for a crime not listed in the section 624.712, subdivision 5, list of “felony crimes of violence.”
If the conviction level was later reduced to a non-felony under Minnesota Statutes § 609.13, Subdivision 1; if the conviction was for a “felony” listed as a “crime of violence,”the person convicted is banned from possessing firearms under Minnesota Statutes §724.713, Subd. 1 (10), because the charge was “punishableby imprisonment for a term exceeding one year.”
What about juvenile adjudications for felony crimes?
For purposes of gun rights a Minnesota juvenile adjudication will trigger the same civil rights disabilities for firearms as a conviction will for an adult. A juvenile “adjudication” is the functional equivalent to an adult “conviction.” See, Minnesota Statutes §242.31, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS. For juveniles, a Minnesota felony adjudication doesn’t always impair gun rights.
What about civil rights to firearms after a Minnesota “misdemeanor crime of domestic violence” conviction?
Significant events along a criminal law & gun rights timeline
Let’s consider a hypothetical timeline in a person’s life taking into account the effect of criminal law events on their civil rights to firearms. The person is born in the U.S.A. with their natural rights to firearms subject to mild regulation for age, etc.
Then a felony or selected misdemeanor charge may temporarily suspend the person’s gun rights pending the outcome of those charges in court. Dismissal, a not-guilty verdict, or a conviction could result.
If convicted of a felony and selected misdemeanor crimes, the person loses their civil rights to firearms. After that, the general rule Minnesota statute restores their civil rights to firearms upon completion of sentence (including completion of probation), with exceptions. For some felony and selected misdemeanor crimes, the Minnesota law exceptions trigger an indefinite or lifetime ban. Gun rights can later be restored, for example by court order or pardon for people so affected.
The key event periods along the timeline are:
Pending criminal charge
Pending sentence (after conviction, before completion of probation, sentence)
After discharge from sentence, before restoration of civil rights to firearms
The legal grey area between the black letter law
Gun laws are more complex than they need to be. And we have both Minnesota and federal laws to review – statutes and case-law. Grey areas of ambiguity exist between the clear, unambiguous areas of gun laws on either side. Looking forward, no one wants to be on the wrong side of the law or even in a legal grey area. Once already charged with a crime, however, no one can change the past. In criminal defense, the legal grey area usually means “not guilty.”
Some prosecutors and some defense attorneys fail to understand gun laws. This can result in a wrongful conviction for felony “ineligible person in possession of a firearm” of an innocent person, based on a non-listed past Minnesota felony conviction. Be sure to to retain a criminal defense attorney who knows not only criminal law, but gun law. One basic test: does the attorney know that a Minnesota felony doesn’t always impair gun rights? Be sure your defense attorney knows the law.
But a person with a past conviction, does not want to take any unnecessary chances of being on the wrong side of the law as interpreted by some random law enforcement officer or prosecutor. Their civil rights may have been fully restored by law, but they may have trouble with a gun purchase permit denial by someone who fails to understand that a Minnesota felony doesn’t always impair gun rights. To avoid grey-area trouble, that person may wish legal help to ensure recognition of their full civil rights as a citizen.
If someone says that a felony conviction always means a loss of civil rights to firearms, remember that a Minnesota felony conviction doesn’t always impair gun rights. And recommend that they read this article for the map of the law.
“Can my rights to firearms be restored after a conviction for a misdemeanor crime of domestic violence?”
Yes, but it’s complicated. There was a time, not so long ago, when the law stripped all of a person’s civil rights upon conviction for a felony, but not for a misdemeanor. A nice bright line. Well, not any more.
What happened? Politics, legislation, new laws.
On the bright side, problems caused by new laws can be solved by even newer laws. The Minnesota legislature could solve this problem; and so could the United States Senate and Congress. Here the focus will be practical, on the law as it now stands.
The federal so-called Violence Against Women Act, a/k/a the Lautenberg Amendment, created a definition of a “misdemeanor crime of domestic violence,” which stripped persons convicted of their civil rights to guns.
Does the Minnesota Conviction fit within the Federal Definition?
The federal definition of “misdemeanor crime of domestic violence:”
“(A) Except as provided in subparagraph (C) [Note: No subparagraph (C) has been enacted], the term ‘misdemeanor crime of domestic violence’ means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal  law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.“
18 U.S.C. § 921(33) (a).
This definition is narrower than Minnesota’s definition in at least three ways. First, it requires an element of physical force (or a deadly weapon) which is lacking in most Minnesota cases. Second, the federal relationship element is narrower than Minnesota’s broad relationship definition (which includes for example, college roommates). Third, the due process protection qualifiers exclude cases where the right to counsel was not vindicated, or a factual basis was lacking.
As a result, Minnesota domestic crime convictions which might appear at first glance to qualify as federal “misdemeanor crime of domestic violence” may actually not qualify. If the Minnesota case does not qualify under the federal law definition, then the convicted person’s gun rights were not impaired by the federal law.
Even if the federal ban does not apply to a person with a Minnesota misdemeanor conviction, there are Minnesota statutes which now strip civil rights to guns from a person convicted of a Minnesota domestic assault. Let’s take a look at the Minnesota three-year ban now, before we get back to the federal laws.
Minnesota’s three-year ban and automatic restoration
The general rule is an automatic three-year prohibition on possession for a Minnesota domestic assault conviction, Minn. Stat. § 609.2242, subd. 3:
“(e) … a person is not entitled to possess a pistol if the person has been convicted after August 1, 1992, or a firearm if a person has been convicted on or after August 1, 2014, of domestic assault under this section or assault in the fifth degree under section 609.224 and the assault victim was a family or household member as defined in section 518B.01, subdivision 2, unless three years have elapsed from the date of conviction and, during that time, the person has not been convicted of any other violation of this section or section 609.224. Property rights may not be abated but access may be restricted by the courts. A person who possesses a firearm in violation of this paragraph is guilty of a gross misdemeanor.”
Minnesota Statutes Section 624.713, subd. 1 (8), says the same – broad ban on firearm possession for three years after date of conviction.
At the end of the Minnesota automatic three-year ban, are one’s gun rights automatically restored or is it necessary to petition the court?
Gun rights are automatically restored three years after the date of conviction (the date the judge accepted the guilty plea or verdict, usually the sentencing date), assuming the other statutory requirements are (i.e., no other convictions). However, it may be necessary to petition to the Minnesota court to restore rights in a way that will satisfy the requirements of the federal ban, if the conviction that qualifies under the narrower federal definition. For convictions that are outside the federal “misdemeanor crime of domestic violence” definition, no further court action should be necessary.
The Federal Law Puts the States in Charge
The courts have summarized the legal history and current situation that the states decide who has their civil rights to firearms restored, as stated by this court:
“The Second Circuit Court of Appeals has concisely stated Congress’s purpose in enacting § 921(a) (20). ’The exemption at issue was passed in 1986 in response to a 1983 Supreme Court decision which held that the definition of a predicate offense under the Gun Control Act of 1968 was a matter of federal, not state law.’ McGrath v. United States, 60 F.3d 1005, 1009 (2d Cir.1995); see Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), superseded by statute, Firearms Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (1986). ‘Section 921(a)(20) was expressly crafted to overrule Dickerson’s federalization of a felon’s status by allowing state law to define which crimes constitute a predicate offense under the statute, and thereby to determine which convicted persons should be subject to or exempt from federal prosecution for firearms possession.” McGrath, 60 F.3d at 1009. ‘Calling its new legislation the `Firearms Owners’ Protection Act [FOPA],’ Congress sought to accommodate a state’s judgment that a particular person or class of persons is, despite a prior conviction, sufficiently trustworthy to possess firearms.’ Id. Thus, the determination of “whether a person has had civil rights restored [for purposes of § 921(a) (20)] . . . is governed by the law of the convicting jurisdiction.” Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994).”
DuPont v. Nashua Police Department, 113 A. 3d 239 (New Hampshire Supreme Court 2015).
Another court emphasizes this, including for those with misdemeanor convictions:
“It is clear from the federal law that the majority of domestic violence offenders will not regain their firearms possession right. However, there are procedures for the restoration of the right … It is up to state legislatures to constrict or expand the ease with which convicted misdemeanants may apply for a receive relief under these measures.” U.S. v Smith, 742 F.Supp.2d 862 (S.D.W.Va. 2010), cited in, Enos v. Holder, 855 F. Supp. 2d 1088, 1099 (Dist. Court, ED California 2012).
Conclusion? Yes – Minnesota courts can restore civil rights to firearms after a “misdemeanor crime of domestic violence.” The federal court and federal law acknowledge this.
We’ve already discussed how the Minnesota three-year ban is automatically triggered at the moment of conviction (or adjudication) and automatically expires three years later assuming no further convictions. What remains is the question of what it will take to get relief from a Minnesota court that will end the federal ban for those whose convictions do fit within the narrow federal “misdemeanor crime of domestic violence” definition.
The federal law’s three pathways to full civil rights
Let’s begin with a look at the applicable federal statute, 18 U.S. Code § 921 (a) (33):
(B) (ii) A person shall not be considered to have been convicted of such an offense [“misdemeanor crime of domestic violence”] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
This federal statute, as interpreted by the courts, currently contains three potential pathways to regaining full civil rights, including Second Amendment rights, after a “misdemeanor crime of domestic violence.” We’ll explain, but first the 18 U.S. Code § 921 (a) (33) (B) (ii) list:
“the conviction has been expunged or set aside;”
“the person has been pardoned;” or
“the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”
And then there is the “unless clause.” Of course, in order to accomplish full civil rights restoration, any of the three remedies listed should not “expressly provides that the person may not ship, transport, possess, or receive firearms.”
In Minnesota, a convicted person can apply to the Minnesota Pardons Board for a pardon. If a full pardon is granted, civil rights to firearms would be restored to the satisfaction of the federal law requirement just cited. A person can apply for a pardon without a lawyer, or can retain a lawyer to help with it.
2. “Conviction has been Expunged or Set Aside”
A plain reading of the phrase “expunged or set aside” would communicate that either of two separate ideas have been mentioned. Yet rarely, in English usage we use the conjunctive “or” to really mean “and.” This redundancy is unusual in our written language; more common in speech, used for emphasis, or to unwind our thoughts into words.
In the legal context, “to expunge” has a specific meaning different from the specific meaning of “to set aside.” In Minnesota at least, expungement means to retroactively erase criminal history records, including records or arrest, charge, conviction, and so on. It’s a legal remedy with a range of possibilities but all are intended to give the person benefitted the opportunity for a fresh start.
The meaning of “to set aside” in the legal context is different, connoting setting aside a conviction. Other similar words used in Minnesota include “vacate and dismiss,” The essence of “to set aside” is to undo the problematic conviction. When this is done, the conviction could be undone completely by court Order. Or, the prosecuting attorney and the defense attorney could make an agreement acceptable to the Court to vacate the problematic conviction and replace it with another that will not trigger the federal disability.
A federal court decision has rendered a Minnesota Expungement Order a potentially ineffective way to restore gun rights.
“While this interpretation only addresses the term “expunge,” given our determination that Congress intended the two terms to have equivalent meanings, we find that this interpretation offers persuasive support in favor of our conclusion that § 921(a)(33)(B)(ii) requires the complete removal of all effects of a prior conviction to constitute either an expungement or a set aside.”
Wyoming Ex Rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008) (holding “expunge” and “set aside” interpreted to have equivalent meanings under 18 U.S. Code § 921 (a) (33) (B) (ii))
While it remains to be seen whether other courts, especially those with jurisdiction over Minnesota, will agree with this Tenth Circuit case, prudence dictate navigating around its dangers prospectively.
The lawyer for the person seeking full civil rights after a “misdemeanor crime of domestic violence” conviction, can seek an Order Setting Aside Conviction, which overcomes the problems presented by the 10th Circuit’s Wyoming v. US.
3. “Person has had Civil Rights Restored”
The third pathway mentioned in the federal statute is “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” On the surface, the plain language reading is good for the person seeking to solve this problem. But here again, courts have interpreted this language is a restrictive way, essentially rendered this path uncertain for people with Minnesota misdemeanor convictions.
Unlike the bad “expungement” case, the 10th Circuit’s Wyoming v. US, here there are numerous court cases repeating the unhelpful interpretation – though a few take an opposing view. An issue here is that though there are several published court opinions on these issues, few are Minnesota specific.
Take for example, US v. Keeney, 241 F. 3d 1040 (Court of Appeals, 8th Circuit 2001), holding that defendant’s civil rights to firearms could not be restored within the federal statute’s meaning because as a misdemeanor no other civil rights had been taken away in the first place (voting, jury duty, hold public office.) Other cases have held that where a defendant served even one day of executed jail time, they lost all of their civil rights while locked up, which then qualifies them for restoration of civil rights, after all.
This restrictive interpretation of the statutory language may be subject to challenge where defending a new, criminal charge based on a prior. But again, prospectively a person seeking a clear and unequivocal full rights restoration would be better served by taking another path.
If we can look specifically at Minnesota’s law, we can observe that Minnesota Statutes automatically take away civil rights to firearms for a three-year period for a misdemeanor domestic assault conviction, and these civil rights are automatically restored after that period assuming no other convictions. In addition, Minnesota has a Statute that automatically restores civil rights lost due to anyconviction, including to firearms, upon discharge from sentence (most commonly, discharge from probation or supervised release). That statute, Section 609.165, titled “RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION,” lays out the general rule of rights restoration, with an exception for “felony crimes of violence.”
Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION. “Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”
This supports the proposition that a person convicted of a “misdemeanor crime of domestic violence” (as defined) who has completed three-years after date of conviction without a new criminal conviction, has had their civil rights to firearms restored by operation of these two Minnesota statutes. Since federal law leaves it to the states to restore civil rights to firearms, either by statute or court order (or pardon), it would appear that a person in that situation has had their gun rights restored under both state and federal law.
Though this legal analysis seems plain enough, a person with a “misdemeanor crime of domestic violence” may wish something that unambiguously will be accepted as evidence of restoration.
Bottom line on a Petition to “Restore Civil Rights to Firearms” after a “misdemeanor crime of domestic violence” conviction? It’s not the best solution because several cases hold that the other core civil rights are not lost for a misdemeanor, and cannot then be restored (though some cases take an opposing view). (Note exception for defendants who served any executed time in jail.)
What is the best remedy, then? How should the remedy be characterized?
Seek a full pardon from the Minnesota Pardons Board.
Don’t call the remedy a “restoration of civil rights,” at least not just that. Instead use the other remedy pathway labels. Avoid the term “expungement.” Instead use the term “set aside.”
That was a lot of law, boiled down to an outline. There is more law on this topic, but these are the main related points for now. Need an even briefer recap?
Minnesota and federal laws affect the rights to firearms of people convicted of certain a misdemeanor domestic crimes.
The Minnesota gun rights disability general rule is an automatic three-year ban beginning on the date of conviction.
The federal statutes provide for a lifetime ban for persons convicted of a narrowly defined federal “misdemeanor crime of domestic violence.” Unlike the Minnesota state statute, the federal definition requires “physical force” or a “deadly weapon,” and due process protections such as right to counsel and a valid factual basis for the conviction.
For persons with Minnesota convictions that fall within the federal definition, the federal law provides that the States, Minnesota, can decide when civil rights to guns will be restored – either by operation of statute, court Order, or both.
The best remedies to prospectively ensure recognition of the full restoration of civil rights to firearms after a “misdemeanor crime of domestic violence” conviction are (1) a full Pardon; or (2) a court Order fully Setting Aside Conviction. Such a court Order could be the result of either litigation with the State, or of an agreement or stipulation with the prosecutor to amend the record to a conviction for a crime that does not fit under the federal definition. The latter can be a way to clean up problems caused by a court record that fails to detail the specific statutory subdivision of conviction, where one subdivision falls within the federal definition and the other does not – for example domestic assault cause fear vs. bodily harm; or disorderly conduct speech vs fighting or brawling.
The problems presented here could be fixed with new legislation, either Minnesota or federal. Unless they are, in the meantime there can be no doubt that is it far easier to prevent the loss of civil rights than to regain them once lost. A good criminal defense lawyer like Gallagher can help you do that.
But if it’s too late for prevention, this article has laid out the pathways to redemption. No one can guarantee efforts to restore civil rights will be successful, but knowing the paths will help.
The law could be easier to follow, but the answers are here. CBD sourced from hemp is legal under Minnesota law. And a federal law prohibits spending on federal prosecution of people with state-legal hemp CBD. Here is the breakdown, with the related Minnesota and Federal laws.
Cannabidiol, CBD, is trending strongly. Why?
The main reasons are:
CBD has desirable health and wellness benefits.
CBD has no psychoactive effect, unlike psychoactive drugs such as alcohol, etc.
It is not now, nor has it ever been, illegal. And, it’s unregulated.
Only the third reason listed — the laws — could change. The biology of the plant and of humans will not change.
Green Light for Hemp
Despite the fact that CBD itself is not illegal, its federal legal status is still more complicated in 2018, than that statement seems to imply. We’ll dig into it here.
First though, what is Cannabidiol, or CBD? The second-most researched chemical in cannabis is Cannabidiol. CBD relaxes muscles, has other therapeutic effects, and is non-psychoactive.
Commercially extracted from cannabis plant resin, CBD is then concentrated into an oil high in CBD, low in THC.
What is THC?
Tetrahydrocannabinol (THC) is one of the other 113 cannabinoids found in cannabis plants. THC is the principal psychoactive constituent of cannabis, giving adult-use users the desired marijuana “high.” In marijuana, CBD and THC balance each other. CBD counters and mitigates (reduces) the psychological effects of THC.
Cannabis with high CBD is specially bred, grown or both with the goal of producing a high CBD-yielding plant. Medical marijuana can contain more than twenty percent CBD, while most adult-use marijuana has one percent CBD or less.
Science vs. Law – Two Worlds, Three Words
“Cannabis” has generally been a botanical, scientific name for the plant. The word “marijuana” came into common usage mainly because it was used in laws. The definition of marijuana was purely legal, defined by statute – not defined by science. The word “hemp” was in usage apart from its legal definition, but it now has a legal definition embedded in statutes.
As a result, cannabis is primarily a scientific term for the plant. “Marijuana” and “hemp,” on the other hand, are primarily legal terms, defined by statute as two separate categories of cannabis.
Currently under the law in Minnesota, “hemp” is not “marijuana,” and “marijuana” is not hemp.
The cannabis plant has many varieties – high resin varieties as well as low resin varieties.
The resin contains most of the THC and CBD and other, entourage cannabinoids.
The older legal definition of “marijuana” focused on the resin as being problematic. The 1970 Controlled Substance Act definition of “marijuana” demonstrates this. The Minnesota version’s definition focuses on resin as well. Minnesota Statutes §152.01, subd. 9 (2018):
“Marijuana.”Marijuana” means all parts of the plant of any species of the genus Cannabis, … whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
(Despite this statutory definition language: “all parts of the plant of any species of the genus Cannabis,” another statute defining hemp provides that the hemp form of cannabis is not “marijuana.” Discussion of the Minnesota hemp statute follows.)
The THC level dividing line — hemp is not marijuana
More recent developments in the law draw a THC-level line between “marijuana” and “hemp.” Hemp has “no more than 0.3 percent THC by dry weight” under federal and now Minnesota law. (Other states, however, have higher THC thresholds for hemp than Minnesota does –and for good reason.)
This historical, legal development over time has created unintended consequences and legal ambiguities. Such as?
Here is the big problem. People want to be able use CBD products for health and wellness support. No one seems to object to CBD itself, as CBD, after all, it has no intoxicating effects; has no euphoric effect. But, the best CBD comes from “marijuana” not hemp, as legally defined under the federal and Minnesota legal definitions.
CBD from legal hemp is currently legal. But CBD from illegal marijuana is currently illegal.
It’s the source that makes it legal or not, in 2018.
Hemp as a Source of CBD
Though CBD can be extracted from a hemp source, hemp has little resin (compared to marijuana); and so has little CBD. CBD, like its sister THC, concentrates in the plants’ resin.
Absolute vs. Relative Levels of cannabinoids
Hemp is a less efficient source of cannabinoids, including CBD (two-to-four percent). But the low-level of THC in hemp does not prevent the ratio ofCBD-to-THC from being high, ten-to-one, or more. In this relative sense, hemp varieties can be claimed to be “CBD rich.”
Cannabis plant varieties with higher absolute levels of CBD exist. If a plant contains more than twelve percent CBD in the flower buds, it will also normally contain more than three percent THC. (Over the three percent level of THC would make the cannabis “marijuana,” not “hemp.”)
The extract from that sort of plant can be purified to produce crystalline CBD. (Note the difference possible between the THC level of the plant vs that of the end product.) Again, the current laws make CBD legal if from a legal source (i.e., hemp), but illegal if from an illegal source (i.e., illegal “marijuana”).
Manipulation of the plant to comply with the law
Plants can be genetically bred and crossbred, as well as specially cultivated to increase the CBD level while decreasing the THC level to less than the legal threshold for hemp.
Hemp is a low-yield source of CBD. Large amounts of hemp must be used to extract a relatively tiny amount of CBD, as compared to “marijuana.” A side effect of that is that hemp-sourced CBD is at risk of containing high levels of environmental contaminants, because hemp is a bio-accumulator. The quality of the soil should be tested, since large amounts of hemp are cultivated to produce small amounts of CBD,
Marijuana-sourced CBD is not only more efficient, but results in a higher quality and safer end product.
Clear Legal Landmarks and Ambiguities
The plant vs. the end product
The legal status of CBD products, in Minnesota in 2018, depends upon the THC level in the source plant, not the end product. In other words, a CBD-product with “no more than 0.3 percent THC by dry weight” would still be illegal if it was sourced from a “marijuana” plant (a cannabis plant with 0.3 percent THC by dry weight). This, even if the product has zero THC. What sense does that make?
The current situation with CBD, hemp and the law in Minnesota:
It’s not a crime if it’s not listed in the federal or state version of the Controlled Substances Act, CSA schedules.
Both “marijuana” and THC are listed; in both Minnesota and federal CSAs.
CBD is not listed in either the Minnesota or the federal CSA, and so is not illegal as CDB.
The only commercially feasible sources for CBD are “marijuana,” and to a lesser extent “hemp” – both legally-defined categories of the cannabis plant.
CBD sourced from “marijuana” plants, is a crime to possess.
Hemp sourced CBD (or theoretically another non-“marijuana” source) is not a crime to possess. It is unregulated.
Products marketed as CBD may be contaminated due in part to the lack of regulation and the legal push away from “marijuana” as a source. Compared to marijuana, hemp is an inferior source of CBD.
Simple solution: Completely legalize marijuana. Then legally source CBD from “marijuana” – a better source for safe, quality CBD.
Baby step:Increase the THC threshold for hemp from .03 percent to 1.0 percent or more. (For example, West Virginia defines hemp as cannabis with a THC concentration of less than 1 percent.) This would improve the quality of hemp sourced CBD.
Baby step: Law authorizing and regulating the maximum THC-levels of CBD products, regardless of plant source.
The Legal Grey Areas
As is often the case with the law, the law relevant to the legal status of CBD is the result of history. Metaphorically, lawyers and judges are like archaeologists – digging down through the layers to discover how the past influenced later developments, to arrive at the current state of the law.
The development of laws relating to the cannabis plant strongly influence the legal status of CBD is a because it is a component of the cannabis plant.Those laws have been buffeted by controversy since about the end of the U.S. Alcohol Prohibition era, when the marijuana Prohibition era began.
Since then, the political back-and-forth on marijuana laws over time has resulted in a ragged edge in the laws – legal ambiguities. It’s a bit messy, but lawyers are trained to sort out such messes. So here we go.
First, a succinct topical description of the conflicting policies and laws, will be followed by explanation. The following legal factors interact and often conflict with each other:
Restrictive Federal Hemp Research law (“Farm Bills”), vs.
federal statutory recognition of State authority, vs
preemption of State laws by federal laws, vs
federal comity or non-enforcement policies (“Appropriations Acts” – no money to enforce; plus local U.S. Attorney discretion).
In Minnesota, the ambiguity seems to come from the federal laws, not our state laws, so we’ll look at the federal laws first.
Federal Legal Timeline
1970, Federalism, Down for the Count
The 1970 Controlled Substances Act introduced the idea of five “schedules” ostensibly based upon social risk vs. benefit. Schedule 1 drugs are those claimed to have a high potential for abuse; and no currently accepted medical treatment use.
Despite expert disagreement with claims that marijuana had “a high potential for abuse and no currently accepted medical treatment use,” “Marijuana” was included in Schedule 1 in 1972,
In 2018, thirty-one states now have legal medical marijuana programs, and fifteen states (e.g., Wisconsin) allow marijuana-sourced “low THC, high cannabidiol (CBD)” products for health use. The majority of the U.S. population now lives in a state where medical marijuana is legal. How do these facts square with the claim that it has “no currently accepted medical treatment use?”
Note that Minnesota adopted its own state version of the federal CSA, with five schedules of listed drugs. It is not identical to the federal version.
Schedule 1: marijuana and THC are listed, CBD is not listed
The federal CSA schedule defines “marihuana,” as the cannabis plant except for the mature stalks and non-germinating seeds. THC is separately scheduled under the federal CSA — the only natural cannabinoid specifically scheduled.
CBD is not a scheduled drug under the CSA. Plant components chlorophyll and CBD share the same legal status. When sourced from marihuana, both chlorophyll and CBD are “schedule 1 drugs.” Nevertheless, CBD itself is not scheduled. You won’t find it listed on the CSA. Go ahead and check. It’s not there.
Despite this welcome clarity in the law, some remain confused about this easily verifiable law. For example, the Wikipedia entry for “Cannabidiol” (as of this writing), incorrectly claimed that Schedule 1 of the federal Controlled Substances Act lists Cannabidiol (CBD). A five-minute online fact-check of the statute proves that CBD is notin Schedule 1 of the federal Controlled Substances Act.
2008, the Dawn of the Federal Non-enforcement policy
By 2008, state after state had passed laws decriminalizing marijuana, and legalizing medical marijuana; and the trend was clearly accelerating.
Prosecutorial discretion era
2009: “the Ogden memo” in 2009, instructed all U.S. Attorneys to make federal prosecution of marijuana possession a low priority, especially for people complying with a state’s medical marijuana law.
By 2012 in Colorado’s November 2012 general election, marijuana legalization got more votes than the winning Presidential candidate, Barack Obama. Clearly, legalization transcended partisan politics and politicians took note.
2013: “The Cole memo” in 2013, suggested that federal prosecutors rely on the states to enforce state law except “marijuana-related conduct” within one of eight limited federal “enforcement priorities.”
The memos identified Controlled Substance Act enforcement priorities. They encouraged federal prosecutors to avoid enforcing federal drug laws against “seriously ill individuals” using marijuana consistent with state laws.
These administrative directives encourage federal comity to the states, and non-enforcement of federal marijuana laws against people legally authorized under state law.
2014, The Rebirth of Federal Legal Hemp – Baby Steps
Federalism returns – the statutory era
Hemp growing legal
2014 “Farm Bill,” the Agricultural Act of 2014, 7 U.S.C. § 5940: While legal experts insist CBD is already legal under the 2014 Farm Bill, some government agencies claimed the contrary.
Much of this confusion is due to a lack of attention to the importance of the source of the CBD under current law. CBD is not the subject of these laws; hemp is.
Section 7606 of the 2014 Farm Bill provided for the legal cultivation by states of “industrial hemp” without a permit from the federal DEA (“Hemp Pilot Programs”). The 2014 Farm Bill protected cultivators registered under a state’s hemp research pilot program, who cultivate cannabis containing no more than 0.3% of THC, and who meet the requirements imposed by their state department of agriculture.
Lawyers for the hemp industry argued that 2014 Farm Bill’s language is broad enough to include market research, including sales of hemp-based CBD products. The federal Drug Enforcement Administration (DEA) had emphasized their view that CBD remains illegal under the Controlled Substances Act, leading to lawsuits by the hemp industry.
Court interprets the Farm Bill
Regardless of the DEA’s prior position, courts have recently weighed in, and clarified the law:
“The Agricultural Act provides that “[n]otwithstanding the Controlled Substances Act . . . or any other Federal law, an institution of higher education . . . or a State department of agriculture may grow or cultivate industrial hemp,” provided it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and those activities are licit under the relevant State’s laws. 7 U.S.C. § 5940(a). The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, Court of Appeals, 9th Circuit 2018
The court emphasized that the 2014 US Farm Bill federally legalizing hemp where legal under state law, overrides any conflicting language in the 1970 Controlled Substances Act (such as the definition of “marijuana”). Section 7606 of the 2014 US Farm Bill (the “Farm Bill”) allows states to grow “Industrial Hemp” defined as having less than 0.3% THC on a dry weight basis in states that have implemented agricultural pilot hemp programs. Minnesota has done so.
The Court found that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
2015: Federal Nonenforcement – the Sequel, this time with Congress
2015: Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015), limits the Justice Department from spending federal dollars to intervene in, or prosecute state-sanctioned activities involving marijuana or industrial hemp.
The court removed any doubt about the plain language of the federal statute, mandating federal non-intervention in state legal marijuana and hemp rights.
“The Consolidated Appropriations Act forbids the use of federal funds from being used “in contravention of . . . the Agricultural Act” or “to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014.” Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
In 2014 and 2015, Congress passed the landmark Rohrabacher-Farr amendment to the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act, which prevents the federal Department of Justice from using any funds to interfere in state medical cannabis programs and bars ongoing federal cases. Subsequently, state medical marijuana programs increased from 20 states to 31 states.
2017: DEA Rule by Fiat Fizzles
The court lays it out
New DEA Drug Code (7350) for Marijuana Extract – “went into effect on January 13, 2017:”
“Petitioners Hemp Industries Association, … (collectively “Petitioners”) petition this Court to review a final Drug Enforcement Agency (“DEA”) rule that establishes a new drug code for marijuana extract. We … deny the petition. … The rule went into effect on January 13, 2017, and Petitioners timely filed the instant petition for review that same day. A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails “to make an argument before the administrative agency in comments on a proposed rule,” they are barred “from raising that argument on judicial review.”… The Final Rule put this question to rest when it rephrased the definition to apply to an “extract containing one or more cannabinoids [.]” 81 Fed. Reg. 90195 (Dec. 14, 2016).” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
Then the DEA backtracks
The DEA’s Clarification of the New Drug Code (7350) for Marijuana Extract, concedes that the legal status of CBD is dependent upon the legal status of its source, though it fails to acknowledge the clear language of the law as quoted with approval by the court that the Farm Bill legalizing hemp overrides the federal Controlled Substances Act definition of “marihuana:”
“Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations.
As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.
According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk. …
However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids.”
Hemp CBD is effectively legal in Minnesota
After all of the above, the conclusion must be that CBD is effectively legal federally if sourced from federally-legal hemp. Hemp is federal-legal if it complies with the federal “Farm Bill” which requires it be state-legal. But CBD from “marijuana” sources remains, in 2018, illegal-federally.
Well, technically illegal. “The Appropriations Act” language prohibits spending funds on federal prosecution where people are in compliance with State laws on marijuana and hemp.
So, though some state-legal hemp might arguably not be federally-legal (due to violating the Farm Bill’s restrictions), the Appropriations Act prohibits federal criminal enforcement.
In other words, CBD is legal if sourced from “Farm Bill”-complaint-hemp.
But even if not “federally legal,” the “Appropriations Act” language prohibits federal prosecution, provided it’s:
state legal-hemp sourced (even if not “Farm Bill” compliant); or
it is made from “marijuana” and state legal as part of the state’s medical marijuana program.
Non-cannabis sourced CBD products?
Beware claims that CBD is from a non-cannabis source and therefore legal. Although theoretically possible, claims of commercially available, non-cannabis sourced CBD lack credibility, proof or factual support. It’s just not commercially feasible, at least to date. Beware claims made to the contrary.
2018: Good Things Ahead?
These two key federal laws, often referred to as the “Farm Bill” and the “Appropriations Act,” have been renewed in subsequent laws with some variation in the intervening years since their first enactment. A potential “Farm Bill” successor, the Hemp Farming Act of 2018 (the “2018 Farm Bill”) appears unlikely to pass in 2018. It would have further improved the U.S. trade and economy from Hemp Agriculture, and included more protections for Hemp-sourced CBD. Given its bipartisan support, it may yet be adopted in 2019.
Minnesota State Laws
Under Minnesota law, anything sourced from “marijuana,” is marijuana and as a result criminal to sell or possess in any amount.
Possession or gifting 42.5 grams or less plant-form marijuana, “a small amount,” has been decriminalized.
Marijuana-CBD legally from the Minnesota Medical Marijuana program by a state authorized patient; or medically prescribed, pharmaceutical Epidiolex.
Hemp-sourced-CBD. If from non-“marijuana” sources, it’s legal under Minnesota law.
There is no law that specifically addresses the legal status of CBD itself, in Minnesota. Now, its legal status depends entirely upon its source. If “marijuana” sourced, CBD is “marijuana” even if it contains zero THC. Of course, that could change.
Of course, Minnesota could pass a law clarifying that CBD itself is legal regardless of source, perhaps also regulating production, content, and sale.
Non-“marijuana” sources of CBD: Industrial hemp
Minnesota “Industrial Hemp Development Act.” Minnesota Statutes Chapter 18K (2018):
“18K.02 DEFINITIONS. Subd. 3. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.
Subd. 4. “Marijuana” has the meaning given in section 152.01, subdivision 9.
18K.03 AGRICULTURAL CROP; POSSESSION AUTHORIZED.
Industrial hemp is an agricultural crop in this state. A person may possess, transport, process, sell, or buy industrial hemp that is grown pursuant to this chapter.
Minnesota law is clear; federal laws are a mess
Minnesota law on hemp is cleaner than federal law in that it avoids the convoluted federal “notwithstanding …” layered definitions and non-enforcement laws.
Minnesota law simply draws a clean and clear line, saying above the 0.3 percent on a dry weight basis THC threshold – it’s “marijuana.” Below that threshold it’s “industrial hemp” and that “industrial hemp is not marijuana.”
Though, as discussed above, Minnesota should consider increasing the THC threshold to one percent, as West Virginia has done. This compromise would allow for safer, quality hemp-derived CBD, and help solve some of the problems we are seeing today with unregulated CBD products.
Recommendations. What solutions make the most sense?
Minnesota: Legalize marijuana for responsible adult use, including small batch home-production commensurate with home-production of beer and wine.
Federal: Repeal all laws criminalizing marijuana, resume federalism by leaving it to the States. Carve out federal recognition of legal hemp and hemp products, and their free trade in interstate commerce.
Baby step solutions – detailed above.
Thomas C. Gallagher, Minneapolis Criminal Lawyer
DISCLAIMER: Nothing in this article, comments, or this blog is legal advice.
Out 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 ten tips 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!
Patience 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.
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.
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.
For more information about pretrial release and bail
Thomas Gallagher, Minneapolis Criminal Lawyer
Do you have more questions about how to get your loved one out of jail?
Or do you need to find a good criminal defense lawyer for him or her?
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
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.
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.
“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).
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.)
“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 do 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 that 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?
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. 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,” “One leg stand,” “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.
Important: (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 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.
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