Category Archives: top criminal defense lawyers

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.

 

Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

Water Bong

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

The majority opinion takes an absurd literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels.

If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But – dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general, courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an instance to the contrary.

If the government wants to charge a more serious drug crime – what to do?  Just add water!  (Water is heavy – heavier than drugs.  Drug crimes are based on weight.  Water is not currently defined by law as an illegal drug.)

Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.

As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. 

The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.”  Under the Peck case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy.  Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.

Even if you believe some drugs possession should be a crime – should one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense.  Here is what Justice Paul Anderson wrote in dissent of the majority opinion:

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

It’s a good read (link at the beginning of this article, above).  It is shocking that four in the majority could have disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug Lawyer

Minnesota Super Lawyers rating awarded to Thomas Gallagher again for 2009

Thomas Gallagher, Minneapolis Criminal LawyerMinnesota 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.