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.
The Minnesota Society for Criminal Justice (MSCJ) is the oldest association of criminal defense lawyers in Minnesota. It is a lawyers’ College, meeting each month – sharing information and continuing legal education, providing support for litigation to help protect the rights of Minnesotans.
Leading the Way.
The Minnesota Society for Criminal Justice also fights for justice legislatively and through the courts. For example, the MSCJ Source Code Coalition led by MSCJ litigated the most significant and expensive fight against Minnesota’s unfair DWI laws in history: the CMI-Minnesota Intoxilyzer machine computer source code litigation in Minnesota.
Is it a crime to drink and drive? Of course it is not. But there are people out there – like MADD people – who appear hellbent upon changing the laws to bring back the Alcohol Prohibition, one step at a time.
It used to be “drunk driving” was a crime. Then in the 1970s the criminal laws were expanded to include “per se impaired driving laws.” Per se roughly translates from the Latin to “the thing itself” or “by itself.”
A per se drunk driving law is a law that makes driving with an arbitrary alcohol-level a crime – even if the driver is not drunk, not impaired at all. That’s why you don’t hear the term “drunk driving” much anymore. But why should it be a crime to drive when driving skills are not impaired?
Ok. So the laws are unfair, and morally bankrupt – punishing the innocent and their families for no good purpose. Fine. There it is. So how can you protect yourself and your family from this potential injustice?
What can a person do during a DWI stop to protect their rights?
This is mostly a question that criminal defense lawyers hear at a party. Why? Because almost all people stopped and later charged with DWI didn’t do any of these things. But it can make for great conversation at a party. There are a few different approaches and answers to the question. So let’s narrow our hypothetical, and provide one.
Since most people stopped for a possible DWI have an alcohol concentration of less than 0.15, have no priors, and have not exhibited impaired driving conduct – let’s start with all of those assumptions, as well as assuming Minnesota laws. Given the low speed limits these days and the most drivers travel faster than the speed limit most of the time, let’s assume a police officer stops the driver for speeding late one Friday or Saturday. The police squad car take-down lights are visible in the rear-view mirror. Now what?
The Police Officer Approaches the Vehicle
Police are trained to observe all of your actions and note any that could be interpreted as supportive of suspicion of impairment (and ignore the rest). At this phase these include:
odor of alcohol
eyes – “bloodshot, watery”
couldn’t find or fumbled with driver’s license and insurance card
admitted drinking, coming from a bar, a party
What are some potentially effective countermeasures, then? If the window is not open, or open about an inch or so – that is plenty to pass the drivers license and insurance card through, but not enough to expose the odor of alcohol. You can refuse to lower the window to force the officer to make a command to do so, making it difficult for them to argue you did so voluntarily. When speaking to the police officer through the almost closed window, the driver can avoid eye contact. This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.
It’s a good idea to have the drivers license and insurance card in hand immediately after stopping, well before the police officer walks up to the vehicle to request those. They are in your hands already, which are in plain sight on the steering wheel.
If asked “have you been drinking tonight?” you are not required to answer or answer responsively. It is a bad idea to lie, for many reasons, so don’t. It is also a bad idea to admit facts the officer can use to build “probable cause” to ask you out of the car, or for arrest later.
If you were stopped for speeding, the police officer should just write you a speeding ticket and send you on your way – unless you give him or her probable cause or reasonable suspicion to justify asking you out of your vehicle.
Police ask you to step out of the car. Now what?
If you use the car or car door for support when getting out or walking, they will note that as suspicious. So don’t. They will ask you to walk behind your car, in front of theirs. Their squad car lights will be on full brightness. They will ask you to perform field exercises they like to call “Field Sobriety Tests.” These are not scientifically valid, though the government claims otherwise. Sober, trained police officers “fail” these “tests.” How will you “pass” them? And who is your judge? The police officer! What to do then?
Do not perform field exercises when asked to do so. Do not do “Field Sobriety Tests!” Common ones include:
Nine step walk and turn
One leg stand
Recite the alphabet, backwards etc.
Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
Walk a straight line
You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them. “Why won’t you do them?” “A lawyer told me that I don’t need to, and shouldn’t.”
“Preliminary Breath Test” (PBT)
Minnesota statutes authorize police officers to require a driver to blow into a PBT machine – a portable breath-alcohol machine only under certain conditions where there is a basis to suspect DWI or selected other alcohol-related offenses. Don’t worry about whether those preconditions exist at this point. Your lawyer can do that later if need be.
What is important is that a PBT machine report of 0.08 or more can provide probable cause to arrest for DWI, and so can “refusal” to perform a PBT. Refusing a PBT is not a crime. That would only provide probable cause to arrest.
One can imagine a logical person, knowing that, deciding to refuse the PBT if they felt sure they would end up with a PBT report of well over .08, for example .16 or more. That person might feel they would have nothing to lose by refusing – since they would be arrested either way. Compare that to a person who believed they would get a PBT report of less than 0.08. That person would be foolish to refuse it, since it could result in their not being arrested.
Keep in mind that the little PBT machine on the side of the road, is not the same as the big, evidentiary breath-alcohol machine at the police station. If a person is arrested for DWI, they can be asked to submit a sample for alcohol testing again, even though they already submitted to a PBT. The PBT report is not admissible in a criminal DWI trial because they are deemed too unreliable and inaccurate for that purpose by the legislature.
If arrested, then what?
Every step further in the chain of events described above brings the driver closer to arrest (unless the PBT is less than 0.08). If the PBT reads too high, that and the rest will be followed typically with handcuffs and the back of the squad car. Then normally the arresting officer will wait for back up or a tow truck, and leave for the police station once either arrives. Talking is not a good idea at any point, including while in the squad car.
At or near the police station (or hospital for a blood draw), the police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.
It is always, always, always – a good idea to call a lawyer first! The police are required by law to help you do so. If they fail to help you call a lawyer, the chemical test could be suppressed from evidence. You should always make every effort to call a lawyer in this situation – even if you are still sitting in the squad car in handcuffs! Tell the officer you want to call a lawyer. This part is usually recorded – a good thing.
The other important right is secret in the sense that it is never mentioned in the “Implied Consent Advisory” by the cop. what is it? It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.” Say what? You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. In this situation, the arrested person should always, always, always request an Additional Test. If you do, the police are only required to give you a phone to use. You can use the phone to call whoever you need to call to arrange for an additional test. See the midnight DWI jail call to a Minnesota lawyer blog post for more on this issue.
Stay safe out there.
By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer.
Today the Minnesota Supreme Court released a decision interpreting a Minnesota Statute in a way to deprive an innocent spouse of their legal right to keep their car, jointly owned by a spouse who drove it in violation of a law. The Case, David Lee Laase vs 2007 Chevrolet Tahoe, A07-2023, December 17, 2009, was another 4-3 split and splintered decision – with the majority reversing the Minnesota Court of Appeals, to rule against the civil property rights of the individual.
Divorce to Protect Your Property?
The court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), does 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 new rule is 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).
As Justice Paul Anderson points out in his dissent,
“The context of the case before us involves a DWI forfeiture statute that contemplates both the ability of law enforcement agencies to seize and forfeit motor vehicles used in the commission of designated offenses and protection for innocent motor vehicle owners. Thus, the context within which we must conduct our analysis is a disfavored forfeiture statute that we must strictly construe which means that if we have any doubt about the application of the statute, that doubt is to be resolved in favor of joint owner … .”
The case involves Minnesota’s DWI forfeiture statute which creates both a presumption that a person arrested for suspected DWI will forfeit their car to the State; and also contains an affirmative defense for innocent owners of cars driven by someone else arrested for suspected DWI. What about the case where a car is jointly owned by two or more people, such as the family car that the non-offending spouse needs to get to work?
Justice Page concludes his dissent with:
“I would construe the word ‘owner’ to refer to each individual owner throughout section 169A.63. Thus, under subdivision 7(d), a vehicle is not subject to forfeiture if any of its owners can demonstrate that he or she, individually, did not know the vehicle would be used contrary to law. Similarly, under subdivision 7(d), it is up to each of the owners to demonstrate that he or she ‘took reasonable steps to prevent use of the vehicle by the offender.’ An owner that can make the required showing cannot be divested of his or her interest in the vehicle, which subdivision 1(h) instructs extends to the whole of the vehicle. Because Mr. Laase made the required showing, I would hold that his interest in the vehicle is not subject to forfeiture.”
Is this another bad 4-3 splintered decision, with the slim majority again ruling against the rights of the individual? So it would seem. At least in this unjust situation, the Minnesota legislature could fix it next legislative session by amending the statute the court was interpreting.
Will the legislature repair this injustice in the law? Public anger has been building for years over the use of asset forfeiture laws to legally steal private property, with the excuse of some crime having been committed, or the possibility of one. The most frequent use of these laws has been in the areas of Minnesota asset forfeitures in drug cases, and in DWI cases. Most of the injustices in these laws are common to all types of asset forfeiture statutes (whether based upon drugs, DWI or prostitution). The innocent owner issue is only one of many.
One of these issues is the conflict of interest created by allowing the law enforcement agency which legally steals the property from the citizen, to keep much of the money proceeds from that seizure and forfeiture. Two of the Justices concurring with the majority in David Lee Laase vs 2007 Chevrolet Tahoe highlighted the issue, in Justice Barry Anderson’s concurrence:
“[T]here is reason to question the balance struck by the legislature between various competing interests. For example, given the general disfavor of forfeiture statutes, the wisdom of vesting the right to possession of a forfeited vehicle in the law enforcement agency responsible for the arrest of a defendant and the forfeiture of a defendant‘s vehicle is not immediately evident. See Minn. Stat. §§ 169A.63, subds. 1(b), 2, and 3 (2008). But such issues are for the legislature to address, not this court.“
The 4-3 majority opinion, was supported by two concurring Justices who wrote, in essence, that the law was unfair and should be changed – but by the legislature not the court (see quote above). The three dissenting Justices also noted the serious unfairness of the statute as interpreted by the majority opinion. Therefore five of the seven essentially agreed on one thing – the statute allowing the government to take the private property of an innocent spouse or other co-owner is unfair and should be changed.
This issue was referenced in a recent article in the Star Tribune newspaper, Crime fighters gone rogue, where a leader of the Minnesota Gang Strike Force explained in relation to financial stress due to underfunding from the legislature, he:
“… turned in 2003 to the only major source of cash he could find: money seized from suspected drug dealers, gang members and other targets. Over the next two years, Ryan told state examiners, his unit survived on virtually nothing else.
‘We had no money and we were begging, borrowing and I hesitate to say stealing, that would be the wrong place, but … that’s the way we were operating,’ Ryan said, according to a transcript of his formal interview with the Legislative Auditor’s Office.”
Is it fair to law enforcement officers to create laws like this with inherent conflicts of interest – inciting them to take from the poor, and give to their own agency of the government? Can a normal human be completely immune to such powerful temptations? Why should Minnesota laws encourage such mischief upon the individual people of Minnesota?
Let’s see if the Minnesota legislature will reform forfeiture laws in Minnesota this year.
When it comes to criminal law, most people have been fortunate never to have ask themselves that question. We do not expect the unexpected. How do you know when, “I need a lawyer!”
Value of Keeping Your Public Criminal Records Clean
With no public criminal record, your potential future employers won’t be scared off by a criminal conviction. You could be disqualified from certain occupational licenses in the event you were convicted of a crime. Certain convictions can also result in: loss of civil rights, such as voting and firearms rights; removal and deportation from the U.S.; denial of naturalization; loss of student financial aid; loss of housing; offender registration, and other negative consequences.
For many, the largest, quantifiable impact will be to future income stream. How can a criminal conviction affect your future income? If you assume a person is age 30 and will work until 70, that is 40 years. Multiply 40 years times a conservative $20,000 estimated reduction in annual income as the result of a conviction. That would amount to $800,000. At eight percent interest per year, that would be over one million dollars in lost income by age 70. I have had clients suffer a $45,000 per year reduction in income while an expungement proceeding was pending in court, so the real number could be in the millions, depending upon career path.
Is Jail or Prison Time Probable if Convicted?
If you are charged with a serious criminal offense, there may be a threat of jail or even prison time. Even for minor crimes, jail can be a real threat, when a person has prior convictions. The maximum possible incarceration term specified in the criminal statute charged is rarely executed. In felony cases, the Minnesota or Federal Sentencing Guidelines will provide a “presumptive sentence” after based upon the severity level of the offense of conviction and criminal history score. Though there can be upward or downward departures from the presumptive sentence, it is useful to look at the presumptive sentence. There are also “mandatory minimum” sentencing statutes in Minnesota and United States Statutes which can be cruel, severe, and lengthier than the presumptive guidelines sentence. It is vital to consult a criminal defense lawyer to discuss these factors. In non-felony, misdemeanor cases, up to one year in jail can be possible in Minnesota cases.
If It Is Important to You, Then It’s Worth Getting the Best Lawyer You Can to Help
For many reasons, it is valuable to prevent a criminal charge, to prevent a criminal conviction, and to prevent a criminal sentence in Minnesota. The rule is simple. If it is important, then it is important to have a good lawyer’s help in protecting it. You and your family are worth a lot. A good criminal lawyer can help protect your future, and your future income earning potential. Protect your good name while you can – before it’s too late, before a guilty plea. (Keep in mind that in order to qualify for a Minnesota expungement someday under Minnesota’s expungement statute, you’ll need to plan ahead in order to do so, with the help of a good criminal defense lawyer while the charge is still pending.)
This article was written by Minneapolis Criminal Lawyer Thomas Gallagher. Gallagher answers questions about Minnesota law court cases and issues every day, free, over the phone. He also provides free half-hour office consultations by appointment. You can give Gallagher a call with your question or to make an appointment at 612 333-1500.
Minnesota Law & Politics magazine has again awarded Thomas C Gallagher its Minnesota Super Lawyers rating in Criminal Defense for 2009, in its August issue. This is awarded to the top 5% of lawyers in Minnesota. Gallagher is grateful to all those who voted for him.
Gallagher, with over 20 years of experience as a Minneapolis Criminal Lawyer, has been awarded this top-rating many times over the years.