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.

Maintenance: Karon Waiver Invalid Without Independent Findings Required in Minn. Stat. 518.552(5)

In an unpublished decision in McDaniel v. McDaniel, MN COURT OF APPEALS 06-2446, the Court of Appeals held that the district court's failure to make the required findings made the parties' Karon Waiver ineffective.
In McDaniel, the parties’ marriage was dissolved on August 21, 2000. The dissolution decree, which was based on a stipulated agreement, awarded the wife spousal maintenance of $600 per week for 20 years and provided that payments would not terminate upon her remarriage. The Karon waiver was included, stating:
It is further stipulated and agreed that except for the aforesaid maintenance, each party waives and is forever barred from receiving any spousal maintenance whatsoever from one another, and this court is divested from having any jurisdiction whatsoever to award temporary or permanent maintenance to either of the parties.
It is further understood and agreed that both parties specifically waive any right to return to court to seek a modification of either the amount or the term of the aforesaid maintenance, based upon a change of circumstances . . . or to seek cost-of-living increases . . .
It is further agreed that the court shall retain jurisdiction solely to enforce husband's obligation to pay maintenance to wife . . . . Wife's waiver of the right to further or additional maintenance is null and void if wife's economic rights and/or responsibilities are adversely affected by husband's discharge of any obligation in a bankruptcy proceeding or non-payment .
Husband then moved for modification of his spousal maintenance obligation in August 2006, claiming that "the terms of the Judgment and Decree were unfair and inequitable" and that he and the wife both had a substantial change in income. Husband also claimed that, when he signed the marital termination agreement, he was suffering from major depression and was not represented by counsel.
The district court denied husband’s motion for modification, concluding that the dissolution court had met the requirements of 518.552 (5) by specifically finding that the marital termination agreement’s waiver provision was fair and equitable and supported by consideration and that full disclosure of financial circumstances occurred between the parties.
The aforementioned statute requires the following specific findings of the district court in order to preclude or limit modification of maintenance:
1. The stipulation is fair and equitable;
2. The stipulation is supported by consideration described in the findings;
3. Full disclosure of each party’s financial circumstances has occurred.
The Court of Appeals relied on the plain language of the statute, which requires the district court itself to specifically make the findings, not to merely recite the parties’ agreed-upon stipulations.
The Court of Appeals found that the District Court merely recited the parties' agreement into the findings, and that this mere repetition of the parties’ language did not fulfill the statutory requirement that the dissolution court specifically find that the agreement was 1.fair and equitable, 2. supported by consideration, and 3. that full disclosure has occurred.
Based on the foregoing the Court of Appeals ruled that the dissolution court’s judgment failed to divest the district court of subject matter jurisdiction over modification of appellant’s spousal maintenance obligations because the dissolution court did not make its own independent findings as required by Minn. Stat. § 518.552(5).

MN DUI Law: One foot in the car and tossing the keys to a third party is not "Physical Control"

Snyder v. Comm'r of Pub. Safety, 2008 Minn. App. LEXIS 11
On September 2, 2006, Jason Snyder attended a wedding reception, where he was involved in an altercation with some of the other guests. The police arrived as Snyder, his wife, and two of their friends were walking toward a vehicle parked in a lot adjoining the reception site. As they approached, they observed Snyder unlock the driver's side door. Snyder opened the door, placed his right foot inside the passenger compartment, and had his left hand, which was holding keys, on the door. Snyder noticed Deputy Wirkkula approaching, and turned around and began walking toward the squad car. As he walked, he tossed the keys to his wife. Snyder was then arrested for DWI and his license was revoked under the implied consent law.

In reversing the decision of the District Court, the Court of Appeals stated that, "a person's license is revoked if he or she was in physical control of a vehicle and had an alcohol concentration higher than .08. "The term 'physical control' is more comprehensive than 'drive' or 'operate.'" The Minnesota Supreme Court has determined that an acceptable jury instruction describing "physical control" may read as follows: Being in a position to exercise dominion or control over the vehicle. Thus, a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle, and this is true whether the vehicle can be driven on the highway at that point or not.Furthermore, "physical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." Intent to operate does not have to be shown in order to find that an individual is in physical control. But mere presence in or about the vehicle is not enough to show physical control; a court examines the overall situation in making its determination. In certain circumstances, the overall situation has indicated that a defendant was in "physical control" of a vehicle even when not located inside the passenger compartment. For example, a motorist standing at the rear of the vehicle was found to be in "physical control" when the vehicle had a flat tire, the engine was running, the key was in the ignition, no one else was present, and she owned the vehicle. But often, whether the motorist involved is seated in the motor vehicle is an important factor involved in the overall consideration of whether he or she is exercising physical dominion over a vehicle. Moreover, Snyder handed his keys to a third party before getting into the car, ending the prospects for his driving or taking control of the vehicle. Before appellant relinquished his keys, he was someone who could start the car without much trouble. But a showing that he had physical control, creating danger, required evidence of special circumstances surrounding recent use, or evidence that he became seated or otherwise dealt with the operation of the car.
Based on the record the Court of Appeals found that Snyder could not be found to have been in "physical control" sufficient for license revocation under the implied consent law therefore the decision sustaining revocation of his license was reversed.