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

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

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

Keep these 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.

4.  Minnesota criminal defense lawyer

Consulting a criminal defense lawyer is a good idea.  We can help with everything discussed here, and then some.  When someone has been recently arrested we (criminal defense lawyers) should help educate loved ones supporting the accused and the accused about the big picture solutions as well as solving the immediate problem of getting out on a pre-trial basis.

Start with a phone call.  A jail visit may follow.

5.  Bail bond company

When someone has recently been arrested and may have a pretrial release hearing coming up, a good bail bond company can provide helpful services, well beyond simply posting a bail bond with the court.  The criminal defense lawyer should be able to recommend one.

6.  Arrest without an arrest warrant

Many people in jail were arrested without an arrest warrant.  (An arrest warrant would include a preliminary finding of “arrest probable cause” by a judge.)  In Minnesota we have the so-called 36 hour and 48 hour rules limiting how long a person can be detained (in jail) without a judicial finding of arrest probable cause.  Due to rules about which days count towards those limits, you may not need to know right now the specifics of how those rules are applied.

What you really want to know is “how long can they hold my loved one without filing a criminal charge with the court; and without a pre-trial release (bail) hearing before a judge?”

The easiest way to find out is to ask the jail: “what is the deadline for releasing him or her if charges haven’t been filed?”  The Deputy at the jail will normally tell you, “noon,” of such-and-such day of the week.  To go beyond that call Thomas Gallagher or another Minnesota criminal defense lawyer.

7.  Arrest with an arrest warrant

Minnesota Rules of Criminal Procedure, Rule 3.02, Subd. 2. “Directions of Warrant. The warrant must direct that the defendant be brought promptly before the court that issued the warrant if the court is in session.  If the court specified is not in session, the warrant must direct that the defendant be brought before the court without unnecessary delay, and not later than 36 hours after the arrest, exclusive of the day of arrest, or as soon as a judge is available.” See also, Rule 4.01.

8.  Right to Pretrial Release

The Minnesota Constitution includes two clauses guaranteeing the right to bail.  The first says “excessive bail shall not be required.” Minn. Const. Article 1, § 5, similar to the United States Constitutional protection against excessive bail.

The Minnesota Constitution, however, also provides: “All persons before conviction shall be bailable by sufficient sureties, except for capital offenses.” Minn. Const. Article l, § 7. Under Section 7, all persons are entitled to bail except those charged with capital offenses.

Because Minnesota no longer has the death penalty, all defendants have the right to have bail set, to pretrial release.

9.  Pretrial release hearing

A judge determines the conditions of release.

Conditions, including bail, are meant to assure a person’s appearance at future court proceedings. Court rules tell judges to release individuals without conditions unless a judge determines that such a release “will endanger the public safety or will not reasonably assure the defendant’s appearance.”

Though there is no maximum bail for felonies, the maximum bail for non-felonies is four times the maximum fine ($12,000 for a Gross Misdemeanor; $3,000 for a Misdemeanor).  The defendant has the right to unconditional bail.

Most judges will set two bail amounts, one with and one without conditions (sometimes zero with conditions).  If a judge does not set an unconditional bail amount, the defense attorney should immediately request that the judge do so.

The defendant will need to choose one of the two options, and will not be able to change his or her mind later unless a judge allows that.  It is possible for a person in jail presented to a judge to request that the court postpone consideration of pretrial release issues.  Sometimes this is a good idea, but we can leave this as a point for discussion with the defense attorney beforehand.

10.  Remedies

What if these rights are violated by the jail, the police, the prosecution, or the court?  What remedies are available?

One type of remedy is designed to force a hearing or immediate release if an immediate hearing is denied.  A Petition for a Writ of Habeas Corpus, a type of equitable remedy, asks a judge to Order immediate release of a person being illegally detained.

Another approach is for the defense attorney to contact court officials to request and demand that a prompt hearing be scheduled.

If the police get a confession from an illegally detained person, the defense lawyer can ask the Judge to suppress the confession as illegal, coerced and unreliable.

In cases where bail has been set but the amount is beyond the reach of the defendant, Thomas Gallagher has made multiple motions for a speedy trial, or immediate release pending trial in the alternative, with some success.

For more information about pretrial release and bail 

Thomas Gallagher, Minneapolis Criminal Lawyer

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?

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

How to Drop a No Contact Order in Minnesota

Can you drop a no contact order in Minnesota?  If you asked for it in family court in the first place, it’s civil and you can drop it.  But if it’s in a criminal case, you’ll need to work at it.  Here’s how.

No Contact Orders in Criminal Cases

A crime with a “domestic relationship” element is a domestic crime.

In domestic crime cases, courts issue a No Contact Order.  It prohibits the accused from having contact with the person claimed to be “the victim.”

They’re not consulting the person they’re calling their victim.  In fact, the witness they’re casting in the victim role has no real voice in this – at least not today.  He cannot “press charges.”  And. she can’t directly “drop the charges.”

The current system takes the control away from her.  And it gives her control to the prosecutor.  It’s been that way for decades.

Your Role in the Drama Makes a Difference

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

Billie Holiday: "Ain't nobody's business if I do."

Billie Holiday: “Ain’t nobody’s business if I do.”

If you are the witness in a domestic assault case chances are you want to drop a no contact order.

But how?  The information here should help you start 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, a call went to the police.  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.

How Long Does a Criminal No Contact Oder Last? 

The pretrial No Contact Order could be in place for months.  After sentencing, a judge may replace it with a probation No Contact Order, for years.

To know how to drop a no contact order, you need to understand what it is.  So let’s drill down into it.

Conditions of Pretrial Release

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.  And 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.

Unconditional Bail

In other words, we are presumed innocent before a trial.  And we have the right to pretrial release without any conditions other than money-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.  For a misdemeanor $1,000 is the maximum fine, 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, in a non-felony case the maximum bail must be without other conditions.

And, perhaps it’s no coincidence.  But when judges set unconditional bail in non-felony cases, it’s equal to the maximum.  That’s $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case.  That could matter, since most domestic assault cases are non-felony.

Therefore, if the defendant posts the unconditional bail, a no contact” cannot be a condition of pretrial release

“Well, we can’t have that.”

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.  That name is so long that we often use the acronym, D.A.N.C.O.

The earlier Minnesota Domestic Abuse Act’s Order for Protection law was the model.  The OFP is from a civil case heard in family court but with criminal penalties for violations.

They got you covered, either way

Bottom line, a defendant can now post unconditional bail, with no pretrial release conditions, but 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 strike down the law as unconstitutional one day.  But that is beyond the scope of this article.  And this is about what courts are doing now in Minnesota.

Two layers of no contact orders

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.  The distinction is clear when we look at the remedy for a violation of each.

If a condition of pretrial release is violated, the court’s remedy is to issue an arrest warrant, jail, and revisit the issue of pretrial release in a new bail hearing. 

But a prosecutor can charge a DANCO violation as a new, additional crime.  The DANCO violation crime will have 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 same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)

As a result, when it comes to the No Contact condition, the defendant gets no benefit from the higher, unconditional bail.

Do courts ever drop a No Contact Order?

Yes, sometimes, but they make it difficult.

The reality is that the witness has no real voice unless they work hard and persevere.  To drop a no contact order, it helps if 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 knew that, didn’t you?

Are You Afraid of Him?

The number one question when you go to court will be: “are you afraid of her?”  Hearsay 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.  So discuss with your lawyer before doing so.)

when you go to court?” 

Yes, you as the witness, were never asked.  And now they’ve placed the burden  squarely on your shoulders to go to court.  You will plead with the prosecutor, then the judge to drop a 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.)

Prosecutors have “victim advocates.”  Leaving aside the manipulative “victim” labeling, are they really advocates?  A rare few are.

But most see themselves as the prosecution advocate, whose job it is to control and manipulate “their” victim to serve 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.

Your Rights under Minnesota’s Victim’s Right Act

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 must listen to the “victim” and allow them a voice.  But many don’t seem to want to hear it.  Many prosecutors just want to use the witness for their purposes.  Prosecutors often  disregard the effect on witness’s real lives.  The prosecutor discards the witness after use, without thought or care.

A Lawyer Can Help You Drop a No Contact Order

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.  And 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 stressful to call police for help, only to have them take over your life.  They and their lawyers turn into an enemy that threatens to ruin you and your family.  But there are countermeasures.  You can assert your power.  Don’t let them have it.  You can fight back, and regain control over your life.

Drop a no contact order in Minnesota

Drop a no contact order in Minnesota

If you have questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense.

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 told him that we needed to keep client’s public record clean.  We don’t want words like “marijuana,” “drug paraphernalia,” and “criminal conviction” there.  And he mischievously said, “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.  So, how can you avoid a marijuana arrest in a car?

Safety in the final days of Prohibition

Avoid a marijuana arrest: do not consent to any search

Avoid a marijuana arrest: do not consent to any search

As of this writing, ten states have legal marijuana for responsible use by adults 21 years and older.  And, most of the U.S. population now lives in a state with legal medical marijuana, including Minnesota.  And hemp is now legal in Minnesota.  Today in Minnesota, not all marijuana is illegal to possess.

We should all know by now that marijuana is safer than alcohol.  After all, there is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.

But in Minnesota in 2019 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.  We should re-legalize in Minnesota.  And here is What Marijuana Legalization Should Look like in Minnesota.

In the meantime, know your rights.  And watch your six!

What can you do to reduce the chance of getting caught? Here are nine tips for avoiding a marijuana arrest in a car:

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 best 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?

Be smart.  Play the long game.  If a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.

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

Minnesota:  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, she:

  • keeps it under the “small amount” 42.5 grams, plant-form only (not concentrates), but
  • always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).

Beware: a “small amount” of marijuana concentrates such as THC oil, dabs, marijuana wax, is always a crime under a loophole in Minnesota’s decrim law.  And over 1/4 gram of the resinous form of marijuana is a felony in Minnesota under that technicality.

The number one way to avoid a marijuana arrest in a car is: don’t have it the car.

2.  Odor

The most common excuse police officers use as probable cause to search after a traffic stop is “odor of marijuana.” The odor can be either fresh or burned.  But this is prone to abuse by police officers since it’s impossible to verify.

Even so, avoid having the odor of marijuana either on your person or in your car.

And, if the odor of marijuana is there, be sure not to have any actual marijuana in your car.

Have you or anyone you know experienced “nose blindness?”  A cigarette smoker may not be able to smell the odor of past cigarette use on another.  And a person who has been drinking alcohol– can’t smell the odor of alcohol on another person.  But non-users can smell it, right off.

Assume that if you’ve been smoking it that day, there is 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.)

The second way to avoid a marijuana arrest in a car is: don’t smoke in the car. Don’t have fresh in the car.  And avoid any odor in the car.

3.  Consent? 

“No, officer, I do not consent to a search.”

Remember Paul Simon’s song “50 ways to leave your lover?”  Similarly, there are at least fifty ways to tell a police officer that you do not consent to any searches.

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

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

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 insist. After all, it’s your legal right to be secure from searches and seizures, unless they have a search warrant or an exception to the warrant requirement.  That’s the Fourth Amendment.

The rape metaphor:  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.”  And if police coerce you into “consent to a search,” is that really consent?

Change it to sex.  If someone coerces you into sex, did you consent?  Your lawyer may need to make that argument.  Far better if you resist all coercion, and do not consent.

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

The third way to avoid a marijuana arrest in a car is: do not consent to any search.

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 answer!

Instead, remain silent – meaning you do not produce words.  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!  Be ready for that trick.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.

The fourth way to avoid a marijuana arrest in a car is: avoid talking to police.

5.  Unlawfully prolonged detention

“Am I free to leave?”  Police stop you for a headlight out.  Normally it takes ten minutes to complete the stop.  Then they hand you the ticket, and walk away.  The government intrusion upon your liberty is over.  And you are “free to leave.”

Now, let’s change the scenario.  Police stop you for something normally resulting in a traffic ticket in ten minutes.  But this time the officer prolongs the detention.  Is that legal?

The courts apply a “totality of the circumstances” balancing test.  Courts balance the intrusion upon your Liberty, against the reasonable suspicion of criminal activity.

Avoid a marijuana arrest: "Officer, am I free to go?"

Avoid a marijuana arrest: “Officer, am I free to go?”

But one factor is: “did the person acquiesce to the detention?  Did the person communicate a desire to leave?

Police may say in court that “at that point, the person was free to leave; the prolonged time was consensual.”  If believed, then the prolonged detention needs less justification; fewer facts supporting a reasonable suspicion of criminal activity.

Since “Fleeing a police officer” is a crime, whether police are detaining should be a simple black and white question.  Either you are “free to leave,” or not.

It’s best to make a record.  Ask: Officer am I free to go? And do it more than once.  Say it loud and clear, for the camera.  If you’re asking, you’re winning.

This will help your lawyer challenge the legality of the prolonged detention, search and arrest later.

Or, 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 the driver.)

The fifth way to avoid a marijuana arrest in a car is: if you’ve been detained for a while, ask “officer, am I free to go?” Repeat as necessary.

6.  “You have the right to remain silent.”

Button your lip: Remain silent

Button your lip: 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!

It’s best to say nothing.  But if you want to say anything:  “Officer, 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 talking.”  Repeat as necessary.

No matter what they do or say, they cannot require you to speak.  So don’t.

But follow physical police commands to:

  • show your hands,
  • lie down,
  • hands behind your back,
  • stand over there. 

Again, however, do not speak.

The sixth way to avoid a marijuana arrest in a car: do not talk about marijuana, smoking, if you have any, where it is, anything at all.

7.  Field Exercises

Sometimes police want to build a case for marijuana impaired driving.  They ask you to perform “Field Sobriety Tests.”

But these are not scientifically valid.  And their purpose is to incriminate.  Even completely sober people have a difficult time “passing” them.  If you do them, you will fail.  If you don’t, you won’t.

What to do?  Don’t! 

Police cannot legally require you to do these field exercises.  They include the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test.  So, 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.  Instead say: Officer, I am aware of my legal rights.  And I respectfully choose not to do any field exercises or tests.”  Police will ask you again and again.  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:  (If the police officer has a factual basis to suspect impaired driving, she can request that you blow into a Preliminary Breath Test (PBT) machine.  And if you refuse, she can arrest you for that refusal.)

The seventh tip for avoiding a marijuana arrest in a car is: politely decline any request to perform Field Sobriety Tests.

8.  Smile, you’re being recorded

From the traffic stop, to sitting in a squad car, to the police station, assume that you are being recorded.

This recording may later hurt you, or help you.  And even when alone or with another person in the back of a police car, this is recorded.  The recording is on, even when no police officer is in the car.  Heads up!

Phone calls from jail are recorded for later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.

The eight tip for avoiding a marijuana arrest in a car is: be camera aware.

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.  So remain calm, cool, collected.

You can win the long game, 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.  And most people will be able to get out within a few days or less.

The ninth and final tip for avoiding a marijuana arrest in a car is: don’t let them push your buttons.  Keep your cool.  Quiet confidence wins.

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.  In his spare time, he works on legalizing marijuana as a Board Member of Minnesota NORML.

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

Thomas C. Gallagher Elected Chair of Minnesota NORML Board of Directors

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

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

Thomas C. Gallagher, Chair, Minnesota NORML

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

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

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

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

For the City Pages article: New NORML chair is a Republican lawyer with tips on driving with marijuana.

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

#LetThePeopleDecide

Romeo and Juliet Law: Minnesota Sex Crimes Based On Age

Juliet is “not yet fourteen”

In Shakespeare’s Romeo and Juliet, Lady Capulet said her daughter is “not yet fourteen.”   Juliet was two weeks from her fourteenth birthday.  Ready for marriage, her mother said.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen.  Romeo is older, but still of tender chin (without beard).  Today, that would be “statutory rape,” a crime.  Should we make young lovers into criminals?  Should Romeo have to register as a predatory offender in Minnesota?  Or should Minnesota pass a Romeo and Juliet law to  spare them?

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.

Romeo and Juliet Law

Would prosecutors charge Romeo and Juliet with age-based sex crimes in Minnesota today?  Prosecutions of young people like them are common in juvenile and adult criminal courts in Minnesota.  Should we 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.)

“Statutory rape”

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.  A more recent invention, “statutory rape” does not require force or lack of consent, involves quite consensual acts.

But it rests upon a legislative fiat that a person younger than 16, for example, is mentally feeble; 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” usually opposes the prosecution.  Minnesota could make a Romeo and Juliet law so that consensual acts by young people are no longer a crime.

Double standard in Minnesota law

This premise “incompetence to consent” appears false.  After all, the minimum age for competence to be criminally prosecuted in a Minnesota 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 laws deem a ten-year-old competent intend a criminal act, but consider a thirteen-year-old like Juliet incompetent to intend sex?  A tangled web, indeed.

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

O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota

O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota

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 ten years to life?

Many of Minnesota’s “statutory rape” laws contain exceptions for lovers within a range of 24 to 48 months.  But for those outside these exceptions “mistake of age,” they say, is not a defense.  Minnesota could pass a Romeo and Juliet law to end the criminalization of young lovers.

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)

Sexting and proximity

These days, we can 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.  Touch in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

21st Century Romeo and Juliet

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 on their phones or in the data cloud.  Sexting is a new word.  It merges and abbreviates “sex texting.” Sexting is 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.  Prosecutors are charging young people for taking naked and arguably sexual images of themselves, then sharing them with each other.

Can a picture of yourself be child pornography?

A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession or Dissemination of Child Pornography. Minnesota Statutes §617.247.  Such prosecutions violate the young person’s right to freedom of speech and expression under the U.S. Constitution as well as the Minnesota Constitution.

We can do better.  Let’s change the laws to make them less unfair.  Let’s pass a Romeo and Juliet law to spare young people from being made into criminals.

Predatory Offender Registration for juveniles

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

Labeling juveniles “predatory offenders,” requires them to register their whereabouts, vehicles, schools, addresses, and on and on.  And it sends them to prison if they slip up any little part of doing so.  Is that what we really want to do after a juvenile had consensual sex with 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, we set up a separate juvenile court.  Juvenile courts have 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.  This protects the juvenile from severe collateral consequences.  It allows the kid to leave youthful mistakes in the past.  In recent years, that has eroded.

In Minnesota, if a prosecutor charges juvenile 16 years or older with a felony, the case is now public. (Almost all “sex crimes” are felonies in Minnesota.)

Juveniles are not safe from predatory offender registration

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.

Adjudication is the trigger

How can we save a juvenile from having to register as a sex criminal for ten years or more?  We must get a dismissal of the entire case, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.

Reform Minnesota laws

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

Why not enact a Romeo and Juliet law in Minnesota to stop turning young people into criminals?  You don’t have to be Christian to recognize the wisdom in Jesus as Defense Lawyer: The Woman Accused of Adultery.

Until then, your Minnesota criminal defense lawyer can help

Liberty-Lawyer.com logo sm wideThomas 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.