Cell Companies Required to Disclose Location of Their Customers

Seems like the great fear of conspiracy theorists that the government will implant a chip on each of us and track our every move was unfounded. The government will simply use our cell phones to do so.

The Kelsey Smith Act, which becomes effective on August 1, 2010, will allow any law enforcement agency in the State of Minnesota to simply ask for and obtain from the wireless companies the geographical location of any of their telecommunication devices, (and thereby the location of the person carrying such a device) by simply stating that it is an emergency situation that involves the risk of serious physical harm.

The wireless companies are able to pinpoint with excellent accuracy the location of the devices that are part of their network by the use of their cell phone towers. When the phone is being used, but also when it is not, it communicates with the nearest tower, or the tower with the stronger signal; however, in any event with one tower and one tower alone. Based on the strength of the signal and the location of the tower your location can be easily ascertained. Imagine driving from Rochester to the Twin Cities. As you drive along you phone will send a signal (ping) that will be picked up by a certain tower. As you progress in your trip the ping will be captured by a different tower and so forth. Thus your location and your progress are easily monitored. Do not confuse this with the GPS function that some smart phones have and that can be turned on and off. The pinging is far more basic and is part of every phone, where you are using them, or not, whether they are on or off.

Prior to this law coming into effect the law enforcement agencies had to obtain a subpoena from the Courts to get the ping records of a particular cell phone. This law does away with the need for judicial involvement and simply relies on the law enforcement agencies to simply state that there is an emergency and that the is the possibly of serious harm. Imagine being an abuse victim and not wanting to be found. Your abuser can say you are lost, it's an emergency and that you could be harmed. The police obtain the records of your phone location and presto you are found and reunited with the abuser. And even if the police lets you stay where you are, the abuser can still obtain your whereabouts because the police investigation reports are public data.

As often is the case the question becomes how much do you trust your government and along the same lines quis custodiet ipsos custodes?

Bong Water Case: The Veto

The legislative effort to at least exclude the first four ounces of weight of the fluid used in a water pipe in determining the weight of a controlled substance mixture has met the governor's veto, who does not want criminal justice to be watered down. For a more detailed description of the legislature's efforts see here.

What this means is that literally if you happen to have 1 and 3/4 tablespoons of water that somehow contains a trace of methamphetamine that is the same as you possessing 25.88 grams of meth, a controlled substance crime in the 1st degree and has the same punishment as assaulting and inflicting great bodily harm on someone, starting at 86 months, assuming no prior history.

Speaking of Drugs

Beginning August 1, 2010, Minnesota will join Delaware, Florida, Hawaii, Illinois, Kansas Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota and Virginia in making the sale and possession of Salvia divinorum and Salvinorin A, a crime. Selling any amount is a gross misdemeanor and possession of any amount is a misdemeanor.

There is a paucity of medical research regarding the effects of Salvia, however there seem to be plenty of YouTube videos, (19,200 at last count) showing people using Salvia, which are convincing legislators of the presumably LSD-like effects of this plant. This coupled with the unfortunate death of a teenager in Delaware, whose suicide may or may not have been linked to Salvia, has created a knee-jerk effect to make this plant illegal. In the interim alcohol continues to be responsible for 100,000 deaths a year in the US alone and tobacco for 400,000 deaths a year.

Also of note is that possession of small amounts (as long as it is not mixed with water as seen here) of marijuana is a petty misdemeanor, so basically the legislature is saying that Salvia is a worse plant than Cannabis.

Bong Water Case: The Amendment

Following a highly divided 4-3 Supreme Court decision on October 22, 2009, that drew a very sharp dissent; the legislature of the State of Minnesota amended the drug possession statutes to try to eliminate the perverse results that came from that decision.

In the case in question, State v. Peck, the defendant was charged with a first degree controlled substance crime (30 year in prison maximum) based on the fact that the police found a water pipe (bong) that had 37.17 grams of water (1.3 fl.oz) which contained traces of methamphetamine. The district court dismissed the charge, and the Court of Appeals upheld the decision of the district court; however the Supreme Court overturned the lower courts and ruled that the first degree controlled substance crime, which states that a person is guilty if they unlawfully possesses one or more mixtures of a total weight of 25 grams of methamphetamine, applied in this case and the 37 gram mixture of water and trace meth that the Defendant possessed would allow the State to charge her with first degree possession.

The new statutory amendment partially remedies this situation by stating that the weight of the fluid used in a water pipe may not be considered in measuring the weight of a mixture, except in cases where the mixture contains 4 or more fluid ounces of fluid. This amendment is very narrow and seems designed solely for this case. because it does not cover any situation in which the weight of the water may be more than 4 ounces (literally 8 tablespoons)

This is better than nothing I suppose, however because of the Peck ruling and the fact that in the criminal statutes, "mixture" continues to mean a preparation, compound, mixture, or substance containing a controlled substance regardless of purity, one is still bound to encounter scenarios that go counter to common sense. Here's one that is not even that far fetched: You are the homeowner decide to have a party and invite some friends, who invite their friends. You have a pool in the back yard and some people decide to jump in the water with their clothes on and all, only they forgot they had meth in their pockets and while they swim the meth dissolves in the pool water. The police gets called because the party is getting loud, and they decide the test the pool water, which now contains traces of meth. Because the purity of the mixture does not matter, you are now the possessor of meth in the amount of the weight of the whole pool water, which for a small 15,000 gallon pool equals 62 tons of meth. And in case you are wondering that is a minimum of 86 months in prison.

US v. Comstock and Civil Commitments of the "Sexually Dangerous"

On Monday the United States Supreme Court issued its decision on US v. Comstock that dealt with the constitutionality of the 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of “sexually dangerous” persons who are already in the custody, but who are coming to the end of their federal prison sentences.

On a very narrow holding and without reaching or deciding

any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution the Supreme Court held that Congress had the authority to enact the statute. In deciding so the Court considered

(1) the breadth of the Necessary and Proper Clause,

(2)

the long history of federal involvement in this arena,

(3)

the sound reasons for the statute’s enactment in lightof the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.

So as it can be seen this is a two-tiered process; first the Court decides whether Congress is even authorized to enact this law, which the Court said it was, and second whether the law infringes on the Constitution. That question was left open for another day.

How does this case affect civil commitments in Minnesota? Legally it does not. The constitutionality of these State statutes has been already litigated and in Kansas v. Hendricks, 521 U.S. 346 (1997), the Court upheld the Kansas statute against substantive due process, double jeopardy, and ex post facto challenges, recognizing that “States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health". A few years later, when addressing a Washington State program, the Court again emphasized that states have “an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions.” Seling v. Young,531 U.S. 250, 262 (2001). Likewise the Minnesota Statutes have also been held constitutional.

From a practical point of view States have a great interest in the Federal Government having a sex offender civil commitment program. With costs running in the $64,000.00 per year per person, the states are eager to share some of those costs with the federal government, because until the federal program was enacted they were shouldering this burden alone. Now they now longer have to do so.

New Minnesota DUI License Laws

The Minnesota statutes for DUI license revocations are about to get much harsher. Under the new law, which seems to give great preference to the use of the ignition interlock device, the license revocation penalties will increase substantially and the drivers, especially those with multiple DUIs will have to use an ignition interlock device, or the alternative will be a very extended revocation period of 2, 3, 4 or 6 years. Any restricted license that will be issued will require the driver to have an ignition interlock device. On the positive side the wait times to obtain a restricted license with the ignition device have been eliminated and unless the license revocation is for criminal vehicular homicide or injury, in which case the wait time is one year, the normal waiting period will be for 15 days.

Also of note is that the driver’s license revocation penalties increase at twice the BAC legal limit or .16 and not at .20 as it was before. However for purposes of criminal charges, in order to be charged with an aggravated factor, the BAC continues to remain at .20.

Here’s the chart of the new penalties and the old ones next to them for comparison purposes.

TEST REFUSAL ADMINISTRATIVE PENALTIES

	New Rule	Old Rule
First violation	1 year revocation	Same
One prior within 10 years, or two priors	2 year revocation	1 year revocation
Two priors within 10 years, or three priors	3 year revocation	1 year revocation
Three priors within 10 years	4 year revocation	1 year revocation
Four priors	6 year revocation	New

TEST REFUSAL CRIMINAL PENALTIES

	New Rule	Old Rule
First violation	90 day revocation	Same
One prior within 10 years, or two priors	2 year revocation	1 year revocation
Two priors within 10 years, or three priors	3 year revocation	1 year revocation
Three priors within 10 years	4 year revocation	1 year revocation
Four priors	6 year revocation	New R

TEST FAILURE ADMINISTRATIVE SANCTIONS

	New Rules	Old Rule
First violation .08-.15 BAC	90 days /180 if under 21 years old	Same
First violation >.15	1 year	Was 6 months at >.19BAC
One prior within 10 years, or two priors .08-.15 BAC	1 year revocation	Was 6 months
One prior within 10 years, or two priors >15 BAC	2 year revocation	Was 1 year at > .19BAC
Two priors within 10 years, or three priors	3 year revocation	Was 6-12 months
Three priors within 10 years	4 year revocation	Was 12 months
Four priors	6 year revocation	New

TEST FAILURE CRIMINAL SANCTIONS

	New Rules	Difference with the Old Rule
First violation .08-.15 BAC	30 days /180 if under 21 years old	Same
First violation >.15	1 year	Was 6 months at >.19BAC
One prior within 10 years, or two priors .08-.15 BAC	1 year revocation	Was 6 months
One prior within 10 years, or two priors >15 BAC	2 year revocation	Was 1 year at > .19BAC
Two priors within 10 years, or three priors	3 year revocation	Was 6-12 months
Three priors within 10 years	4 year revocation	Was 12 months
Four priors	6 year revocation	New

The reason that there are both criminal and administrative driver’s license sanctions is that sometimes, but not very often, the commissioner of the Department of Public Safety does not invoke the implied consent law, thus the administrative sanctions do not apply and the driver can suffer the license consequences through his criminal conviction. Other times, most cases, the implied consent law is invoked and the sanctions are done administratively, thus should the criminal case be dismissed or the driver be found not guilty he/she would have already suffered the license consequences administratively.

This law will not go into effect until July of 2011, presumably to allow the Commissioner of the Department of Public Safety to get in place the ignition interlock program.