Category Archives: Minnesota Law

Marijuana Legalization in Minnesota: What Should It Look like?

Has the time come for marijuana legalization in Minnesota?

Opposing legalization is now political suicide

Opposing marijuana legalization for responsible adult use is now political suicide.  That might surprise a few.  But much has changed.

Last month Gallup reported its polling on the issue“Sixty-six percent of Americans now support legalizing marijuana.”

Democracy?  Bipartisan Majorities

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.”

Pew Research Center reports similar polling, pointing out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; it rhymes

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.

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.

Elections matter

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:

  1. The Tomato Model
  2. The Prohibition Model
  3. The Beer and Wine Model

The Tomato Model

The Tomato Model of marijuana legalization

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

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?

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.

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.

A rose is a rose.

A rose is a rose.

In the 1970s, the laws favored plant-form marijuana and disfavored “the resinous form,” which we now call “wax.”  Then they thought “the resinous form” more dangerous than plant-form.   The distinction remains in Minnesota Statutes definition of a “small amount of marijuana.” That definition makes an exception for a small amount of the resinous form of marijuana, which currently remains a crime.

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 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 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.

Over-taxation

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.

Transitional issues

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.

Many do not know that a typical Minnesota court expungement Order will not fully restore civil rights under federal law.  The conviction itself must be undone, vacated and dismissed, as if never happened.  We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.  A simple sealing of public records will not fully restore civil rights.

Amnesty for Drug War P.O.W.s

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

Thomas C. Gallagher, Minnesota NORML Member

Written by Thomas C. Gallagher.  Gallagher has worked on re-legalization issues for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Gallagher is also a criminal defense lawyer in Minneapolis with a heavy portion of marijuana defense cases.

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

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

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

Ain't Nobody's Business If I Do

Ain’t Nobody’s Business If I Do

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 1. Situational awareness

Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.

Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.

There will be a traffic stop.  When it does happen; marijuana should not be in the car.

If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).

2.  Odor

The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.

Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.

And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.

Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.

It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

3.  Consent? 

“No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.

Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.

Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.

One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”

If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.

4.  You can do both

Don’t lie and don’t admit. How?

Remain silent.  Or if words 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.

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

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

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

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

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

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

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

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

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

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

O Romeo, Romeo, wherefore art thou Romeo?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Marijuana Medical Necessity: Why Minnesota Needs a New Law Affirming Your Right to Present a Medical Necessity Defense to a Marijuana Charge

Minnesota needs to adopt a new statute affirming your right to present the defense of medical necessity to a marijuana criminal-charge.  Why?

Marijuana, or cannabis, has been used by humans as medicine for thousands of years successfully for relief and treatment of disease.  Modern medical research, as well as clinical practice, has proven its efficacy in relieving symptoms as well as curing diseases — from the bothersome all the way to cancer.

Marijuana had never been a crime.  But beginning in the 1930s in the United States, as the alcohol Prohibition regime was disintegrating, a new experiment in Prohibition was being developed to replace it — the marijuana Prohibition.  Marijuana was widely used as medicine at the time, and its medicinal use persisted for decades but was eventually driven underground after increased criminalization policies in the United States, and in Minnesota.  Its use, including medical use, continued but was made criminal.

Necessity has been a recognized legal defense to what otherwise would be a crime, since ancient times.  In The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil some of this history is summarized:

The English courts stated the principle of necessity in 1551 in Reninger v. Fagossa (1 Plowd. 1, 75 Eng. Rep. 1): “A man may break the words of the law, and yet not break the law itself … where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.” The case cites the New Testament example of eating sacred bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Older English cases contain many examples which recognize the general principle of necessity. It was a defense to breaking a law that the person committed the act to save a life or put out a fire. Jurors could depart without the permission of the judge in case of emergency. Prisoners might escape from a burning jail without committing a crime. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.

The necessity defense is sometimes called the lesser-of-two-evils defense.  It is often a justification type defense.  If the defense is accepted by the jury, it does not mean the defendant did not intentionally do the prohibited act, but rather that he or she reasonably did so to avoid a greater evil, out of necessity.  It is a common law defense — old and widely accepted.  Like many other common law defenses, it has often been codified in statutes over the past several decades, in many jurisdictions.

med-mj-mn-signThe term “medical necessity defense” is a special application of the more general, necessity defense.  If you are sick with glaucoma or cancer and marijuana provides you with relief or cure, even though marijuana may be a crime to possess or grow in some states, you may decide that preserving your health (or your child’s life) is a greater necessity than complying with the criminal Prohibition.  The majority of people in the United States today, according to poll after poll, agree that medical use of marijuana should not be a crime.  As a result it is likely that many if not most jurors may share that majority view, that medical marijuana is not a real crime.  But in Minnesota jurors are not currently empowered to decide cases with all of the evidence.

Since you are constitutionally guaranteed the right to a jury trial, and the right to present a complete defense — to present the jury with your true defense, for the jury to do with it as it will —  how could it be that the Minnesota appellate courts have so far held that you have no right to present a medical necessity defense in a marijuana case?

To find out, you can read the Minnesota Court of Appeals case from 1991, State v. Hanson.  Though every court case is fact specific to a great extent, the court’s main rationales in the State v. Hanson case are captured in this excerpt:

“The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has “no currently accepted medical use in the United States.” Minn.Stat. § 152.02, subd. 7(1) (1990). The legislature has enacted a single exception, in the THC Therapeutic Research Act (TRA), exempting from criminal sanctions possession or use of marijuana for cancer patients undergoing chemotherapy who are receiving the drug under the strict controls of an approved medical research program. Minn. Stat. § 152.21, subds. 1, 3, 6 (1990). These statutory provisions demonstrate that the legislature has specifically addressed and determined the possible medical uses of marijuana.”

The first point, that marijuana has been classified by Minnesota as “a Schedule I substance” meaning they claim that it has “no currently accepted medical use in the United States,” if it has ever been true, is certainly not true today.  Though marijuana is still arbitrarily classified by Minnesota as “Schedule I,” the majority of the United States population now lives in states with legal medical marijuana programs, and marijuana is now currently accepted as having medical use — including by the United States Surgeon General.

The second argument advanced in Hanson, was that since the Minnesota legislature had enacted THC Therapeutic Research Act (which created a “research” program so restrictive that nothing ever came of it); that therefore the legislature must have intended to preclude any other consideration of any other exception or defense for medical use of marijuana (though it never said so).  Not particularly persuasive here, the argument is of the classic rhetorical form — expressio unius est exclusio alterius, a Latin phase meaning “the expression of one thing is the exclusion of the other.”

The Hanson case was from 1991.  Much has changed since then, politically, legally, and in the medical research community, has it not?  So would a modern Minnesota appellate court right this 1991 wrong?  In 2014, it didn’t. In a 2014 decision the Minnesota Supreme Court, in State v. Thiel left intact the Schedule I classification despite a constitutional challenge by a defendant convicted of marijuana possession who had not been allowed to let the jury know the truth about his medical  condition, his medical recommendation for marijuana as medicine, or his California medical marijuana card.

It seems reasonable to conclude then, that the Minnesota courts are unlikely to remedy this injustice and restore our right to a fair jury trial, and our right to present a complete defense in Minnesota — at least not in the near term.

That is why we need the Minnesota legislature to restore some measure of Liberty and Justice in Minnesota, by passing a Bill for a new statute guaranteeing your right to let the jury hear the truth, that medical marijuana is a lesser evil (if it is an evil at all) than violating the criminal law prohibiting marijuana.

The Bill currently in the Minnesota legislature would restore the necessity defense to medical marijuana patients charged with a marijuana crime in Minnesota.  It would guarantee that the accused could use this as an affirmative defense — meaning the defendant would have the burden of showing prima facie evidence of medical necessity, and if successful, the ultimate burden of proving criminal guilt would then shift to the prosecution.  This would help restore the right to a jury trial to an extent as well.  The jurors have the right to hear the truth before condemning a person.

Contact your Minnesota House of Representatives member, your Minnesota State Senator, and the Governor to urge support of the medical necessity Bill, HF 542.

Thomas Gallagher is a Minnesota Marijuana Lawyer with a criminal defense practice based in Minneapolis.

Minnesota’s Incomplete Marijuana Decriminalization – the Hashish Technicality

In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it?  Minnesota has only partially decriminalized a small amount of marijuana.  Here is how.

Hashish is marijuana (or cannabis). It is a compressed preparation of marijuana, that people around the world have safely used for thousands of years for recreational, medicinal and religious purposes. It’s made of cannabis-plant trichomes, flower and leaf fragments.  makehashMechanical methods remove the trichomes from the plant, screening by hand or with motorized tumblers. The resulting powder is heated and compressed into hashish.  Does hashish fit the definition of “the resinous form” of marijuana in Minnesota Statutes?  Probably not, since it is still plant-form, not chemically processed .

Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin, which is filtered.  Then the solvent is boiled off leaving behind the resins – called honey oil, “hash oil,” wax, dabs, shatter – the “resinous form.”  The “resinous form of marijuana” is commonly an ingredient in medical marijuana edibles.

The problem:

Minnesota Statutes contain technical definitions that don’t always make common sense, and are sometimes inconsistent with a dictionary definition or common understanding of a word.  In this case, Minnesota Statutes Section 152.01, subdivision 16, defines a “small amount” of marijuana as 42.5 grams or less, but says “this provision [defining a “small amount”] shall not apply to the resinous form of marijuana.”

Increasingly in Minnesota, people found by police to be in possession of a small amount of marijuana wax or similar “resinous form of marijuana” are being charged with felony crimes.  Under current Minnesota law, any amount – even a small amount – of marijuana oil, cannabis wax, or a similar “resinous form of marijuana” can be charged as a felony crime.  This includes people who are lawful  medical marijuana users in other states, found with a small amount of the resinous form of marijuana in Minnesota.

In contrast, 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana is decriminalized in Minnesota.  It’s a petty misdemeanor; not a crime; cannot legally be the basis of an arrest; with the only penalty being a fine.  See, Minnesota Statutes Section 152.027, subdivision 4.

Why the exclusion of “resinous form of marijuana” makes no sense:

It’s marijuana:  There is no question that the “resinous form of marijuana” (honey oil, cannabis wax, etc.) is marijuana.  It’s simply a form of marijuana.  Another provision of Minnesota law explicitly recognizes this.  The definition of “Marijuana” in Minnesota Statutes Section 152.01, subdivision 9, defines it as “all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin…”

Minnesota Public Policy favors the resinous form over the plant-form:  In 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program which specifically found that resinous form of marijuana was safer and preferable to the plant-form of marijuana.  Minnesota law now contains a preference for the resinous form of marijuana, over the plant-form, as a matter of legislatively declared public policy.  Minnesota medical marijuana program participants will be able to lawfully possess and use the resinous form of marijuana obtained through the program, but will be deemed criminal if they use or possess the plant-form of marijuana.

If someone does possess “a small amount” why should it make any difference whether it’s plant-form or the resinous form of marijuana?  A small amount is a small amount.  One should not be a felony crime while the other is decriminalized.

Has the time come to update Minnesota’s 1970s era decriminalization law, to treat small amounts of all forms of marijuana equally?  More importantly, should Minnesota law continue to make felons out of people in Minnesota who possess a small amount of the “resinous form of marijuana”?  The technical distinction between marijuana in plant form versus resinous form is lost on most people, who typically believe they are in compliance with the state’s decrim law – only to discover their error after it is too late.

The law should be consistent.  It should treat people fairly.  It should not create felons based upon arbitrary distinctions and technical legal definitions that don’t make sense.

The simple remedy?

The Minnesota legislature can fix this.  How?  Pass a Bill that amends Minnesota Statutes Section 152.01, subdivision 16, defining a “small amount” of marijuana, to delete the language “this provision shall not apply to the resinous form of marijuana.”  That should solve the problem, and bring more common sense and equity into the law.

Thomas Gallagher is a Marijuana Lawyer in Minneapolis, and serves on the Board of Directors of Minnesota NORML.