Category Archives: minneapolis criminal law

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

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

The statutory language is:

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

hash-quarter-gram-lighter

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

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

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

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

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

Thomas Gallagher is a Minneapolis Drug Defense Lawyer.  He is also a member of the Board of Directors of Minnesota NORML.

How to Know > Do You Need a Criminal Defense Lawyer?

Do I need a Minnesota Criminal Lawyer?
Do I need a Minnesota Criminal Lawyer?

Do You Need a Lawyer?

When it comes to criminal law, most people have been fortunate never to have ask themselves that question.  We do not expect the unexpected.  How do you know when, “I need a lawyer!”

Value of Keeping Your Public Criminal Records Clean

With no public criminal record, your potential future employers won’t be scared off by a criminal conviction.  You could be disqualified from certain occupational licenses  in the event you were convicted of a crime.   Certain convictions can also result in: loss of civil rights, such as voting and firearms rights; removal and deportation from the U.S.; denial of naturalization; loss of student financial aid; offender registration, and other negative consequences.

For many, the largest, quantifiable impact will be to future income stream.   How can a criminal conviction affect your future income?  If you assume a person is age 30 and will work until 70, that is 40 years. Multiply 40 years times a conservative $10,000 estimated reduction in annual income as the result of a conviction.  That would amount to $400,000.  At eight percent interest per year, that would be over one million dollars in lost income by age 70. I have had clients suffer a $45,000 per year reduction in income while an expungement proceeding was pending in court, so the real number could be in the millions, depending upon career path.

Is Jail or Prison Time Probable if Convicted? 

If you are charged with a serious criminal offense, there may be a threat of jail or even prison time.  Even for minor crimes, jail can be a real threat, when a person has prior convictions.  The maximum possible incarceration term specified in the criminal statute charged is rarely executed.  In felony cases, the Minnesota or Federal Sentencing Guidelines will provide a “presumptive sentence” after based upon the severity level of the offense of conviction and criminal history score.  Though there can be upward or downward departures from the presumptive sentence, it is useful to look at the presumptive sentence. There are also “mandatory minimum” sentencing statutes in Minnesota and United States Statutes which can be cruel, severe, and lengthier than the presumptive guidelines sentence.  It is vital to consult a criminal defense lawyer to discuss these factors. In non-felony, misdemeanor cases, up to one year in jail can be possible in Minnesota cases.

If It Is Important to You, Then It’s Worth Getting the Best Lawyer You Can to Help

For many reasons, it is valuable to prevent a criminal charge, to prevent a criminal conviction, and to prevent a criminal sentence in Minnesota.  The rule is simple.  If it is important, then it is important to have a good lawyer’s help in protecting it.  You and your family are worth a lot.  A good criminal lawyer can help protect your future, and your future income earning potential.  Protect your good name while you can – before it’s too late, before a guilty plea.  (Keep in mind that in order to qualify for a Minnesota expungement someday under Minnesota’s expungement statute, you’ll need to avoid being convicted and avoid a guilty pleayou must plan ahead in order to do so!)

This article was written by Minneapolis Criminal Lawyer  Thomas Gallagher.  Gallagher answers questions about Minnesota law court cases and issues every day, free, over the phone.  He also provides free half-hour office consultations by appointment.  You can give Gallagher a call with your question or to make an appointment at 612-333-1500.

Underage Consumption > Do I Have to Submit a Breath Sample to Police Upon Request in Minnesota?

martiniMost people are aware that if a person is driving a motor vehicle in Minnesota, a police officer can in certain circumstances invoke legal authority under a Minnesota Statute to demand the person submit to a search by providing a breath sample for a Portable (or Preliminary) Breath Test (“PBT”) machine.  If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  There is no statute or law that requires that young person to consent to a search by providing a breath sample simply because they are walking down the street, or found at a house party, with an odor of an alcoholic beverage about them.  A young person in this position can simply refuse to consent to such a search.  Refusal to submit to a PBT does not give police legal authority to arrest a pedestrian (unlike a driver, in certain circumstances).  Note that although the Minnesota Statute in the DWI Chapter concerning Preliminary Screening Tests (link above) does authorize use of these in underage consumption cases in court, it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

An interesting, recent case in Michigan illustrates some of the key points in this type of case, Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  There, the City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors, and this was ruled unconstitutional.  The court in that case notes that police did not claim to have obtained consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

Under the Fourth Amendment of the United States Constitution, in order for police to search a person they must have a search warrant, or a recognized exception to the warrant requirement must a then apply.  Consent can be an exception.  If “consent” is coerced, then it is not real consent.

I know of no statute or local ordinance in Minnesota that gives police legal authority to “require” a breath sample for alcohol testing (unless in connection with weapons or motor vehicles).  Police often will seek actual consent, or sometimes try to coerce “consent.”  The person (with no weapon, or not in relation to a motor vehicle) faced with such a request from a police officer does not have to consent to such a search or provide a breath sample simply because police want it.

The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other available evidence.  (The most damning are verbal admissionsby the accused.)  Regardless, a person accused of this crime could be expected to have a stronger defense case if they refuse to blow into the PBT and refuse to talk about drinking. 

Other problems commonly occurring with these kinds of cases include criminal charges of giving false information or identity to police, and less often, fleeing.  I know of no law in Minnesota that requires a person to identify themselves to police (except in certain circumstances such as driving, hunting, carrying, etc.)  If a person is not driving, they need not carry a drivers license or other ID.  A person should be careful to avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.  If a police officer asserts their authority as a police officer, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.

In general, a person suspected of a crime cannot be compelled to talk or provide information, or consent to a search (and this is normally the best approach); however, any information that is provided should be truthful.  When in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

Author: Thomas Gallagher Minneapolis Criminal Lawyer

Minnesota Super Lawyers rating awarded to Thomas Gallagher again for 2009

 
Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

Minnesota Law & Politics magazine has again awarded Thomas C Gallagher its Minnesota Super Lawyers rating in Criminal Defense for 2009, in its August issue.  This is awarded to the top 5% of lawyers in Minnesota.  Gallagher is grateful to all those who voted for him.

Gallagher, with over 20 years of experience as a Minneapolis Criminal Lawyer, has been awarded this top-rating many times over the years.

For Further Information about other ratings of Thomas Gallagher, click this link: top-rated Minnesota defense attorney.

Minneapolis police investigate MyFastPass.com

According to recent news reports on press releases from Minneapolis police; local and federal law enforcement have arrested at least one suspect and executed search warrants – yielding a database of subscribers to My Fast Pass, apparently in connection with claimed criminal prostitution. An interesting twist in this case, police have publicly declared:

“As part of our ongoing criminal investigation, it is our intention to have face to face contact with people on this list, to include men and women. If you feel it is in your best interest to have input into the time and place of this meeting you can email [minneapolis police].”

I guess you can’t blame a fellow for trying, right?  One must wonder though – what kind of person (in that database) would find it in their best interest to set up an appointment for a police interrogation?  Why help the government take you down?

BillofRightsMost everyone realizes their sacred Constitutional right to silence in the face of police questioning, and their right to have a lawyer present from television and movies.  Unfortunately, many of those entertainments show the fictional suspect waiving their rights, to quickly commit legal suicide – but it does help move the story along, doesn’t it?

Too few movies and television stories show the innocent bullied or tricked into confessing or admitting facts by trained police officers. Criminal defense lawyers generally advise people suspected by police to (a) remain silent; (b) do not consent to any search of person or property; and (c) consult and retain a good criminal lawyer as soon as possible. In pre-charge, investigatory cases, an ounce or prevention is worth much more than a pound of cure.

FFI about Prostitution Laws in MinnesotaMinneapolis criminal law: www.Mpls-Criminal-Lawyer.com

(Note: This was originally posted on another of the authors blogs on June 20, 2009 – moved to here, deleted there.)