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.

New Court Filing Fees Coming Up July 1, 2009

In In order to offset the judiciary's budget deficit, the State of Minnesota is significantly increasing the filing and surcharge fees it will charge beginning July 1, 2009.
Please note that Olmsted County was already charging $255 for a Civil Filing Fee, $335 for a Dissolution and $65 for a Conciliation (Small Claim) Fee, so it is likely that the filing fees in Olmsted County beginning on July 1, 2009 would become $325 for a Civil Filing Fee, $405 for a dissolution and $80 for Small Claims. However no official announcement has been made as of yet. The most significant increase (percentage wise) is the cost of filing a motion, which will increase from $55.00 to $100.00.
Here are the detailed changes effective July 1, 2009.

Fee	Amount of Increase
Civil Filing Fee	$240 to $ 310
Dissolution Filing Fee	$320 to $390
Conciliation Court Filing Fee	$50 to $65
Appellate Court Filing Fee	$500 to $550
Jury Trial Request	$75 to $100
Certified Copies	$10 to $14
Uncertified Copies	$5 to $8
Subpoenas	$12 to $16
Motion Fee	$55 to $100
Issuance of executions and writs	$40 to $55
Issuance or filing of transcript judgment	$30 to $40
Annual Trust Account filings	$40 to $55
Deposit of a will	$20 to $27
Child Support motions	$55 to $100
Parking Surcharge	$4 to $12
Public Defender Co-Pay	$28 to $75

Jury nullification; the power to forgive

In a published decision, State v. Hooks, which came out today, the Court of Appeals addressed the issue of jury nullification. It defined it as "the extraordinary power of the jury to issue a not guilty verdict even if the law as applied to the proven facts establishes that the defendant is guilty." It continued by saying that: "It is the jury’s prerogative to disregard the law without actually committing an unlawful offense in doing so; its exercise is literally illegitimate (contrary to law) but practically legitimate (allowed by law). It is the physical power to disregard the law that has been laid down to the jury by the court."

However, although the courts must instruct jurors on the legal framework to guide their decision whether to convict or acquit, they are not required to instruct jurors that they also have the power of lenity allowing them to disregard that legal framework.At the same time courts are prohibited from directing verdicts for the state even if all the facts point only to guilt.

Thus, a defendant is entitled to have all the elements of the offense with which he is charged submitted to the jury even if the evidence relating to these elements is uncontradicted, because the Court must recogize the fact that the defendant can still be found not guilty based on the jury's power to disregard the law and be lenient to the defendant.

MN Family Law: Can I divorce my spouse due to abandonment?

Unlike other states Minnesota has a "no-fault" divorce law. This means it is not necessary to prove your spouse is at fault by abandoning you and that was the cause of the breakup of the marriage. The only reason that the Courts in Minnesota will recognize in granting a divorce is that there has been "an irretrievable breakdown of the marriage relationship." This means that there is no hope that the spouses will want to live together again as husband and wife. Thus, a spouse who wants a divorce is almost certain to be granted one by the court even if the other spouse does not want a divorce.
Usually fault of either spouse in the breakup of the marriage will not be considered by the court in granting the dissolution, however it may considered in determining custody of the children.
For more Q&A check out my website.

FAQs - MN Family Law: Guardian v. Guardian ad Litem

Q. Is there a difference between a "guardian" and a "guardian ad litem"?
A. Yes! The "guardian" is the person who by a court order, has been given custody of the child and acts as the parent for the child. They can be a biological parent or a third party (i.e. grandparent). They make the decisions about a child and the child’s needs. The guardian decides where the child lives and how the child is brought up.
The "guardian ad litem" ("ad litem" means "for the lawsuit") is a person the Court asks to work with a child or a person who has a disability that makes it hard for them to understand a case that involves them. In other cases, like in custody cases or neglect or abuse cases, a guardian ad litem may be appointed to investigate and stand for the child’s best interests. Guardians ad litem tell the court what is best custody and parenting time arrangement for the child. They do an independent investigation, by talking to the child, the parents and other care-givers. In the end they provide a report to the court outlining the best interests of the child. Their recommendations are not dispositive; however they do carry great weight.