In part 2 of their series on the implications of Missouri v. McNeely, which has the potential to affect DUI laws across the nation, Criminal Defense attorneys

The best place to start our discussion of the issues surrounding this whole McNeely frenzy is identifying the fundamental constitutional protections that all of us enjoy, as enshrined in the Bill of Rights, and how these rights are implicated by a DWI arrest.  Which of these rights are implicated throughout a DWI arrest, and how the courts have decided the rights are or are not protected in these situations, will give us a good foundation to navigate exactly what McNeely means for DWI law in Minnesota.

The first ten amendments to the United States Constitution, known as the Bill or Rights, were designed to protect individual liberties and freedoms from governmental intrusion.  Keep in mind that the tyrannical rule of Great Britain was fresh in the minds of the authors of the Constitution, and that during the debates over adopting the Constitution, the fear of tyranny from one’s own government was a very real concern.  To alleviate the fears of governmental abuses of power that many of the framers of the Constitution harbored, the Bill of Rights, designed to limit the power of the government to intrude on the rights of its citizens, was ratified shortly after the Constitution itself.

Government intrusion is generally either in the form of actions by government agents – most often law enforcement; or by political action through the legislative branch – Congress, and the executive branch – the President.  Both branches are elected offices designed to advance the will of the people at a given time, and the founders were quite rightly fearful of vesting too much power in any source, knowing full well how majorities have a tendency to get swept up in political fervor at the expense of minority rights.  Therefore, the Constitution structured the United States government with the goal of balancing and separating authority into three separate branches – legislative, executive and judicial – to provide a system of checks and balances.  The judicial branch, i.e. the courts, is supposed to be immune to political pressure, and was therefore assigned the task of safeguarding individual rights from the whims of the public, out of the concern that majorities, if unchecked, would adopt legislation that while popular, would undermine the rights of others.

The Growth of Individual Freedoms

The preference for individual freedom over government intrusion in criminal investigations and prosecutions is known in modern times as Blackstone’s Ratio.  Written in 1765 by the famous English legal scholar William Blackstone, the principle that it is “Better that ten guilty persons escape that that one innocent suffer,” actually dates back to the ancient Greeks and the Bible.  Evidence appears in the writings of ancient Greek and Roman philosophers, specifically Aristotle is said to have written that, “It is a serious matter to decide in the case of a slave that he is free; but it is much more serious to condemn a free man as a slave.” (Problems – though Aristotle’s authorship of Problems has been disputed). The idea also appears in the Bible’s opening pages, when The Lord told Abraham that “He would not destroy [the righteous] for ten’s sake” (Genesis 18:23-32).

The notion weaves its way through time, appearing in early English law and during the Salem Witch Trials of 1692, when Increase Mather, an early rabble-rouser in the American Colonies, wrote while decrying the injustice of the prosecutions that, “One would much rather that twenty guilty persons should escape, than the Innocent Person should be Condemned.” (Salem Story: Reading the Witch Trials of 1692).  Most importantly to American Constitutional history, though, Benjamin Franklin claimed in a letter to a colleague that the maxim, “has been long and generally approved; never, that I know, controverted.” (Benjamin Franklin to Benjamin Vaughan). Furthermore, John Adams invoked the principle when defending British Soldiers from charges stemming from the Boston Massacre, arguing that, “there never was a system of laws in the world, in which this rule did not prevail.” (Trial of British Soldiers)

Blackstone’s Ratio is the basis for what is known in American law as the Exclusionary Rule, which is intended to deter government misconduct by preventing the state from using evidence that it obtained through a violation of a person’s Constitutional rights to prosecute that individual.  The basis for this rule, again, is that while society does not like to see offenders go unpunished, it is a far greater evil to allow the government to violate our rights at will.

Protecting Our Rights

Chemical testing for blood-alcohol, which is used as the basis for arresting, detaining, prosecuting, convicting and sentencing offenders, implicates a number of fundamental rights granted by the Bill of Rights.  Most notably, chemical tests implicate the right against unlawful searches and seizures – the 4^th Amendment, the right against self-incrimination – the 5^th Amendment, and the right to due process – the 5^th and 14^th Amendments.

The framers of the Constitution believed that individuals had an inherent right to be free from unwarranted searches and seizures.  As a general rule, police cannot arrest or detain a person, or search their person, their belongings or their homes, without the explicit approval of a Judge signing off on a warrant.  It should be noted that although law enforcement and judges are often thought of as working together, law enforcement is actually an arm of the executive branch, whereby judges obviously belong to the judicial branch, and are thus charged against protecting individual rights against intrusions by the other branches of government.  Judges are therefore given the important role of being the first line of defense in the protection of the Bill of Rights in that they are charged with neutrally reviewing law enforcement requests for search warrants and arrest warrants to ensure that probable cause exists to justify the requested intrusion.

In addition, the framers of the Constitution firmly believed that a person should not be compelled by the government to provide incriminating evidence, as formalized in the Fifth Amendment.  Self-incrimination can take many different forms; the police may attempt to question a person who is their custody, but before doing so they must inform that person that they have Constitutional protections, one being the right against self-incrimination, or more popularly known as a person’s Miranda rights (a reference to the landmark United States Supreme Court case, Arizona v. Miranda.)

Self-incrimination can also be found in courtroom testimony; witnesses and defendants are protected against providing evidence against themselves when answering questions that may tend prove their own guilt.  A person is allowed to invoke their right against self-incrimination, or “plead the Fifth [Amendment],” which guarantees that person will be required to answer any incriminating questions and that the state cannot comment on that person’s silence to a jury.  Self-incrimination can also take more subtle forms, as when suspects are compelled to provide evidence other than verbal testimony that can be used against them. For instance, DWI suspects are asked to submit to field-sobriety tests, a battery of physical or mental tests that will provide evidence of impairment, evidence that is intended to be used in prosecuting that suspect.

Necessity of Due Process

The framers of the Constitution also believed that due process, and fundamental fairness, were essential elements of a just, free society and legal system.  Criminal penalties for impaired driving are significant, including incarceration, fines, and the stigma of having a permanent criminal record. Impaired drivers are also subject to severe civil penalties, including the loss of their driving privileges, which for many affects their livelihood and ability to attend to the needs of themselves and their families, and can also include the forfeiture of their license plates and vehicles. Given the high stakes of being charged with, and potentially adjudicated guilty of, an impaired driving offense, courts have recognized that certain due process protections must apply to both the criminal and civil sides of an impaired driving case.

Over the next several weeks, Stacy and I will delve deeper into the specific aspects of each of the Constitutional rights implicated, where the Courts have drawn lines in the sand – or not; and talk about how the ruling in Missouri v. McNeely has affected the laws concerning these fundamental protections.

Related Sources:  http://www2.law.ucla.edu/volokh/guilty.htm

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Although more people may be opting for public transportation now that Minnesota has the highest average price for a gallon of gas in the entire United States, carpoolers and motorists should make sure they have their seat belt fastened to stay safe and keep themselves from getting a ticket.

The goal of the annual Click it or Ticket campaign is to reduce “preventable fatalities” by ensuring all motorists fasten their seat belts during their commute.  The extra patrols will occur statewide until June 2, which means you may notice an increased police presence during your Memorial Day travels.

Police hope their presence will remind people to buckle up each time they hit the road.  According to their data, of the 864 traffic deaths that have occurred over the past few years, 41 percent of those victims were not wearing a safety belt.  They also said a person is six times more likely to suffer an injury in a traffic accident if they are not wearing a seat belt.

When discussing this year’s data, the Minnesota Department of Public Safety said of the 102 deaths so far on Minnesota roads, at least 30 individuals were not wearing a seat belt at the time of the crash.

A ticket for failing to wear a seat belt is $25, but it can cost more than $100 with administrative fees and court costs.

Seat Belts Save Lives

Taking three seconds to buckle up may be one of the easiest ways to protect yourself in the event of a traffic accident.  But don’t just take our word for it, check out some of the stats below!

• Seat belts reduce “serious crash-related injuries” by roughly 50%

• Men are 10% less likely to wear their seat belt than women

• People between the ages of 18-34 are less likely to wear a seat belt than individuals 35 and older

• According to data from 2010, 90.2% of Minnesotans wear their seat belt when they are driving.  That ranks 13^th nationally and is well above the national average of 84.0%

• Adults who live in rural areas are 10% less likely to wear their seat belt than those who live in a city or suburb

• Your chances of being killed are four times greater if you are thrown from your vehicle during a traffic crash

• Being thrown against the dashboard at 30 mph is the equivalent of falling from a third story window

• People are less likely to wear a seat belt at night than during the day, and individuals who have consumed alcohol are less likely to wear a seat belt than sober drivers

• On average, one person dies every hour in America in a “preventable fatality” because they neglected to wear their seat belt

Related source:  CBS Minnesota, CDC

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Over the last few months, we have seen an influx of questions about the offenses, penalties and potential ramifications of being convicted of a sex crime in Minnesota.  We decided to conduct a three-part series to answer some of the most common questions surrounding criminal sexual conduct.  In Part 1, we explained what

According to Minnesota Statute 243.166, there are numerous regulations a person must follow if they are convicted of a crime that requires them to register as a predatory offender.   Once they are released from prison, the first thing they need to do is register as a “predatory offender” in person with their assigned corrections agent.  The registration must be done in person because the corrections agent needs a signed statement, fingerprints, and a current photo for their database.

In addition, in accordance with subd. 4a. “A person required to register under this section shall provide to the corrections agent or law enforcement authority the following information:

• The person’s primary address;
• All of the person’s secondary addresses in Minnesota, including all addresses used for residential or recreational purposes;
• The addresses of all Minnesota property owned;
• The addresses of all locations where the person is employed;
• The addresses of all school where the person is enrolled;
• The year, model, make, license plate number and color of all motor vehicles owned or regularly driven by the person.”
• A person must also register in another state if they enter and remain in that state for 14 days or longer

An individual is required to notify law enforcement or their corrections officer at least five days before moving to a new address.  When applicable, the offender must also give five days notice if any of the above information changes, i.e. a five-day notice before they start a new job.

Staying Registered

Registering as a predatory offender is not a one-and-done deal.  As the law states, “A person who is required to register is subject to the law for ten years from the time he or she initially registered in connection with the offense, or until probation, supervised release, or conditional release period expires, whichever occurs later.”  This means that each individual who has to register as a predatory offender will need to keep his or her registration current for a minimum of 10 years.  If part of a person’s sentence is 15 years of probation, they’ll need to register as an offender for 15 years.

Also, it’s extremely important for a predatory offender to follow the conditions of their registration, or they could be forced to register for a longer period then they expected.  The police have the authority to add five years to the end of an offender’s registration period if they:

• Fails to register a change in primary address
• Fails to register with the local law enforcement authority if the person has no primary address
• Fails to notify authorities of any other change in registered information
• Fails to return the verification form sent by the Bureau of Criminal Apprehension within ten days of receiving the form

In order to stay current with the BCA, the predatory offender must fill out and return a yearly verification form.  The BCA usually mails the form to the offender’s last known primary address within 30 days of the anniversary of the offender’s initial registration.  As noted above, once the offender receives the verification form, he or she has ten days to return the completed form or they will be subject to additional years of registration.

Most predatory offenders only need to complete the yearly verification form to stay current with their registration; however, some offenders (those who are deemed sexually dangerous, a sexual psychopath, or a level III offender) are required to complete verification forms on a more regular basis, sometimes as many as four per year.

Lifetime Registration

While 10 years is the minimum amount of time a predatory offender needs to keep his or her information current, some individuals are required to register for the rest of their lives.  Lifetime registration is required for three types of convicts:

Sexual Predators – Any person who is required to register following commitment as a sexual psychopathic personality or sexually dangerous person under Minnesota law is considered a sexual predator.

Aggravated Offenders – Any person who commits a sexual act with a victim of any age through the use of force or the threat of serious violence, or commits a sexual act on a victim under the age of 13 is considered an aggravated offender who must register for life.

Reoffenders – Any person convicted of a crime for which predatory registration is required who has previously been convicted of an offense where registration was required will need to stay on the predatory offenders list for life.

Related source: Minnesota House of Representatives

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Adrian Raine has spent 25 years in the US studying cognitive development, and before that he spent years in Britain attempting to decipher why criminals committed the crimes they did.  In 1994, Raine conducted a small but comprehensive study on 41 convicted killers and 41 “normal” individuals in a control group.  Raine used brain-imaging technology to reveal the size and functionality of different parts of the brain.  After looking at the images, Raine found that the two groups exhibited different metabolic activity in certain parts of the brain.  In the group of convicted killers, Raine noticed a significant reduction in the development of the prefrontal cortex, or the decision-making part of the brain.

Neuroscientists have done extensive research on the problems associated with an underdeveloped prefrontal cortex, linking it to many behavioral problems including:

• Less control over the generation of strong emotions, like anger and rage
• A greater addiction to risk
• A reduction in self-control
• Poor problem solving skills

All of these traits, of lack thereof, may mean a person is more predisposed to violence than other individuals.

The Slippery Slope

Raine has dedicated his life’s work to better understanding the criminal mind, piling up books of evidence that reveals humans may not be as in control of our actions as we believe to be.  While he has been able to define set of “biomarkers” which may make a person more predisposed to crime or violence, the question he keeps circling back to is, “What should we do with this information?”

If stopping crime before it happens sounds like something out of Hollywood, you’re not wrong; the film Minority Report tackled just that subject.  Set in a futuristic world, Tom Cruise works as a government agent that fights “PreCrime” with the help of three physics who can see into the future.  Crime is at an all-time low with this system, but the issue at the core of the movie is how guilty is a person who has yet to commit the crime of which they are accused?  Not surprisingly, the movie’s protagonist has no problem locking up would-be murderers until the physics foresee that he’ll murder someone, which causes him to run for his life all while proving that the physics are wrong.

The question at the center of Minority Report has been around long before it hit the big screen.  If you knew with 100% certainty that a person would commit a murder or sexual assault, should they be arrested for the crime before it is committed?  While it’s hard to argue that a person should be locked up before they commit a crime, if the tragedies at Newton or Columbine could be prevented, do we have an obligation to protect the innocent?  As Raine said, “If we buy into the argument that for some people factors beyond their control, factors in their biology, greatly raise the risk of them becoming offenders, can we justly turn a blind eye to that?”

Many will argue that we cannot lock up would-be criminals because you can never say with 100 percent certainty that they would have committed the crime.  Even if you knew with 99.9 percent certainty, there’s still a possibility that the person would decide against their actions.  While people can argue over the logistics of such propositions, it appears that Raine and his colleagues are getting closer to formulating an exact science for recognizing the likelihood to commit crime.

Technology in the Courtroom

As scientific evidence continues to mount, it seems more likely that brain imaging may soon become more popular in the courtroom.

“Raine’s findings could lead to new avenues for criminal defense,” said attorney Melvin Welch.  “Although it is not uncommon for the defense to argue that their client should be admitted to a mental health facility instead of a prison on the grounds of mental illness, these findings can help support the argument, which could greatly affect the outcome of the trial. Science may soon tell us that what is perceived as ‘normative’ is different for each individual based on uncontrollable circumstances.”

Raine touched on a similar issue when discussing who is actually at fault for committing a crime.

“Is it really the fault of the innocent baby whose mother smoked heavily in pregnancy that he went on to commit crimes?” said Raine. There is, and increasingly will be, an argument that he is not fully responsible and therefore, when we come to think of punishment, should we be thinking of more benign institutions than prison?”

Brain Scans at Parole Hearings

While preventing the initial crime before it occurs may not be feasible, Raine believes parole boards oftentimes use poor evidence when deciding if a criminal is fit for parole.

“The fact is parole boards are making exactly these kind of predictive decisions every day about which prisoner or young offender we are going to release early, often with crummy evidence,” said Raine. “At the moment, the predictors are social and behavioral factors, marital status, your past record. What is not used are biological measures. But I believe that if we added those things even now into the equation, we could only improve the prediction.”

To support his claims, Raine conducted two studies on prisoners who were set to be released form prison.  In the first study, he found that if the anterior cingulate in the brain is lower than normal before a prisoner is released, the person is twice as likely to be reconvicted within three years.

The second study found that is the prisoner has a significantly smaller amygdala, which helps process memory and emotion, the prisoner is 2-3x more likely to reoffend.

“Now, this is only two studies, but what they are beginning to show is proof of concept, that if we added neurological factors into the equation we could do a better job at predicting future behavior.”

Related source: Guardian.co.uk

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According to the police report, officers were called to the home in response to a noise disturbance phoned in by a neighbor.  You can see video of the incident below.

As you hear in the video, both the man and the woman say there hasn’t been any domestic violence, and they acknowledge that one child is inside the house while another is outside playing.  When the cops ask them why they won’t open the door, the man responds, “Because we don’t live in a police state, sir.  Martial law has not been established in this country.”

This appears to upset the officers, and they order the couple to get on the ground.  The officers inform the couple “We’re going to kick in the door.”

Shortly after stating their intentions to forcibly enter the house, the officers break through the door.  The man responds by telling the officers “You have no right to be in here!”

The woman is seen with her hands in the air, but she begins to scream after she is tazed by an officer.  This upset the man, who receives some volts of his own seconds later.

The video has gone viral over the past week, with voices coming in from both sides.  Some argue that the police were within their rights to enter the house because they did not know the welfare of the child in the house, but others say authorities crossed the line when they used excessive force.  Legalities aside, this isn’t the first time the Cotati police department has come under scrutiny for using excessive force.

The above video is a little unclear, but it appears that the Cotati officers used excessive force during their arrest of a suspect.  Although the suspect was not complying with a demand to get on the ground, it hardly seems like two cracks of a nightstick and a Taser were necessary to subdue the individual.

Attempts to reach the Cotati Police Chief were unsuccessful.

Avery Appelman comments

We won’t speak to the issues in the second video because the audio is limited, but we did consult Criminal Defense Attorney Avery Appelman regarding the first video.  Here’s what he had to say:

First off, one needs to understand that the alleged victim of domestic violence is routinely uncooperative with the police and prosecution. The police know this. The victim of domestic violence can be coerced to alter their story by the abuser.

When the officers came to this home, the door was closed and those inside advised the police this was not a situation involving violence. The police confronted with people who were not cooperative, and that there was a child in the house, the police may assert that they needed to enter the home to check on the health and safety of the child. While they may fall back on the argument that they were protecting the welfare of the child, I am skeptical of this proposed defense of the police use of force: in this case the officers tazed two people.

Homeowners should be safe from warrantless searches and seizures in and of their homes. The police escalated this situation. They raised their voices when the homeowners exercised their rights and refused to come outside. The police then gave the homeowners warning that they were making a forcible entry into the home, and for what purpose? To investigate a crime and check on the safety of a child inside. Once the situation escalated, the officers screamed at the homeowners to get down.  Then the officers used a significant amount of force, a Taser, to put the people to the ground. This is simply unacceptable conduct by those police officers.

Each police department has a use of force policy, and I am certain that the circumstances these officers were confronted with would not justify the use of force employed. The homeowners should seek criminal prosecution of the police officer and should seek civil remedies, such as suing the individual police officers, the police department, and the city for civil rights violations.

Related source:  Liveleak.com

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The proposal was one of nearly 20 recommendations the NTSB offered in hopes of cutting down on drunken driving fatalities, which account for roughly 10,000 of the 30,000 yearly deaths on US roads.

In their argument, the NTSB cited over 100 countries that have adopted the .05 legal limit.  Investigators pointed to the significant reduction in drunken driving fatalities in Europe within ten years of the .05 legal limit taking effect.

While everyone can agree that we would benefit from reducing the number of traffic fatalities, more drivers may be at risk for driving under the influence if the proposal went into effect.  A woman who weighs less than 120 pounds can register a BAC above .05 after only one drink, while a 160 pound man could get there after two drinks.  The recommendation has the potential to put many people at risk of driving over the limit if they simply have a beer or two during dinner or with friends.

NTSB Chairman Deborah Hersman said she wants to focus on drunk driving fatalities because they are more preventable than other traffic accidents.

“Our goal is to get to zero deaths because each alcohol-impaired death is preventable,” Hersman said. “Alcohol-impaired deaths are not accidents, they are crimes. They can and should be prevented. The tools exist. What is needed is the will.”

While the recommendation may have some powerful proponents, it will likely be met with significant resistance at the state level.  Jonathan Adkins, an official with the Governors Highway Safety Association, said the proposal would face significant backlash because it has the potential to strongly influence both societal and economic norms.

“It was very difficult to get .08 in most states so lowering it again won’t be popular,” Adkins said. “The focus in the states is on high (blood alcohol content) offenders as well as repeat offenders. We expect industry will also be very vocal about keeping the limit at .08.”

The NTSB also called for states to adopt stricter Ignition Interlock Device laws, which require some DUI offenders to install a device to monitor their BAC before they drive.  The NTSB said the IID laws have failed to significantly reduce drunken driving fatalities because many individuals refuse to have the device installed in their vehicles.

Criminal Defense Attorney Geoffrey Saltzstein comments

Unfortunately, the NTSB is attempting to battle drunk-driving the same way that we’ve fought the “war on drugs,” a policy akin to relieving a headache by punching yourself in the face.

What the numbers don’t tell you is that the vast majority of alcohol related traffic deaths are committed by young drivers, repeat offenders, high blood alcohol concentrations or some combination of those three.

The actual reason behind the reduction in alcohol-related traffic deaths over the last two decades was the raising the legal age of alcohol consumption to 21, eliminating a large percentage of traffic deaths due to alcohol consumers under the age of 21.

Lowering the legal limit to .05 does not do anything for the other two categories. All it does is force states to spend more of their already limited resources fighting first-time, low-level DWI offenders.

Comparing the US to Europe in terms of DWI is like comparing apples to Volkswagens. We need to battle the addiction behind high BAC and multiple offenders, or we’ll keep spinning our tires, much like the old “war on drugs”.

Related source: Fox News

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Authorities decided to conduct the patrols on the eve of opening fishing weekend, an unofficial holiday for many across the state.  According to the Minnesota Department of Public Safety’s Office of Traffic Safety, over 150 squads from 70 different agencies across the state were involved in the crackdown.

Officers said about half of the roughly 150 arrests came in the Twin Cities metro area.

Friday’s DWI enforcement drew added attention because of the role social media played advertising the increased patrols.  The Minnesota State Patrol used social media to inform the public about the increased police presence in hopes of deterring would-be drunk drivers.

Here are the squads rolling out for extra DWI patrols. Plan ahead for a sober ride & keep roads safe. #May10DWI twitter.com/MnDPS_OTS/stat…

— MnDPS_OTS (@MnDPS_OTS) May 11, 2013

In addition to tweeting out pictures of the squad cars as they left the station, the Department of Public Safety tweeted out information about DWI arrests using the hashtag #May10DWI.

Previous reports had stated that authorities would tweeted out the names of those individuals arrested for driving under the influence, but they appeared to back off that statement, as they only tweeted out the age, sex, and location of a handful of perpetrators who were arrested.

However, the Twitter account @Mpls_DWI_Arrests tweeted out the names of some of the individuals arrested, also using the hashtag #May10DWI.  State Patrol Lt. Eric Roeske said that account was in no way affiliated with the Minnesota State Patrol or the Department of Public Safety’s Office of Traffic Safety.  The account which tweeted out the names has since been deleted from the Twittersphere.

The Office of Traffic Safety did not say if they planned to have another large DWI patrol in the future, but they do plan on concentrating their efforts to prevent drunk driving in the 13 counties that report the most DWIs.  That includes many of the Twin Cities metro counties, including Hennepin and Ramsey.

Related source:  TwinCities.com

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Over the last few months, we have seen an influx of questions about the offenses, penalties and potential ramifications of being convicted of a sex crime in Minnesota.  We decided to conduct a three-part series to answer some of the most common questions surrounding criminal sexual conduct.  In Part 1, we explain what type of crimes will require you to register as a sex offender in Minnesota.  In future posts, we’ll explain “How to Register as a Sex Offender in Minnesota”, and “The Penalties for Failing to Register as a Sex Offender”.

According to Minnesota law, any person convicted of specific sexual offense is required to register on the offender list.  In Minnesota, this list is known as the “Predatory Offender Registration”, and a person is required to keep their registration current for a minimum of 10 years.  Depending on the offense, a person may be required to say on the list for the rest of their life.

In order to be required to register as a predatory offender in Minnesota, a person must commit one of the following offenses:

• Criminal sexual conduct in the first, second, third, fourth or fifth degrees.  Specific offenses include unlawful penetration, contact, conduct, or lewd behavior.
• Felony indecent exposure.
• Criminal sexual predatory conduct.
• Soliciting a minor to engage in sexual conduct or prostitution.
• Possession, production or distribution of child pornography.  This also includes transferring pornographic images to minors.
• Murder while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence.
• Kidnapping.
• Using a minor in a sexual performance.

A person convicted of criminal sexual conduct in the first degree may be sentenced to imprisonment for not more than 30 years or a fine of up to $40,000, or both.  The majority of people who are convicted of a predatory crime will serve at least some time in jail.  Upon their release, they are required to register as a predatory offender with the state.  They may also face certain restrictions like mandatory curfews or the inability to live within a certain distance of a school, park, or daycare.

Predatory offenses are some of the most serious crimes a person can commit.  There is a general social stigma about sexual offenses because oftentimes the perpetrator occupies a position of trust in the eyes of the victim.  While this is not true in all cases, it is not uncommon to hear about these crimes being committed by close friends or family members of the victim.

In Part 2, we’ll explain the process for registering as a sex offender in Minnesota.  We’ll also talk about what happens when a Level 1, Level 2, and Level 3 Predatory Offender is released from prison.

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This Friday, 150 squads will hit some of the most-traveled Minnesota roads in the largest one-night DUI crackdowns in Twin Cities history.  If the authorities find that a person is driving over the legal limit, they’ll relay the information to the Department of Public Safety, who will publish the person’s name on Twitter along with the hashtag #May10DWI.

Increased DWI enforcement this weekend. Lt. Roeske reminds drivers to plan for a sober ride.

— MN State Patrol (@MnDPS_MSP) May 8, 2013

This is the first time state authorities have decided to use social media as a way of “shaming” those who are charged with DUI.

The Minnesota State Patrol decided to target this weekend because Saturday is the season opening day for fishing across the state.  With plenty of sunshine in the forecast, authorities expect increased traffic on the roads, and they hope their presence will help some fishermen make smart decisions regarding their alcohol consumption.

Nearly 30,000 people are arrested for DUI in Minnesota each year, and drunk driving accounts for one-third of the traffic fatalities in the state.

Related source:  My Fox 9

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Below, Stacy and Geoff discuss the implications of Missouri v. McNeely, and foreshadow upcoming blog posts that will build off this historic ruling.

On April 17^th, 2013, the United States Supreme Court delivered an opinion, Missouri v. McNeely, which called into question nearly every aspect of Minnesota’s DWI law.  Not only does the ruling in McNeely raise doubts about the constitutionality of our DWI law in its entirety, Supreme Court Justice Sonia Sotomayor explicitly overturned what has become the constitutional basis for Minnesota’s DWI law.

Up until now, the legality of our DWI law has been based on the natural metabolism of blood-alcohol in a suspect’s body causing the forensic evidence of DWI, your blood-alcohol concentration (BAC), to be diminished as time passes. This allowed law enforcement to take samples of your blood, breath or urine without a warrant, as required in the Bill of Rights of the United States Constitution.

McNeely’s Argument

Missouri v. McNeely involved a DWI suspect, Tyler McNeely, who was stopped by a Missouri police officer for speeding and crossing the centerline.  After declining to take a breath test to measure his BAC, he was arrested and taken to a nearby hospital for blood testing.  The officer never attempted to obtain a search warrant, and McNeely refused to consent to the blood test.  The officer then directed a lab technician to take a blood sample, which revealed a BAC well above Missouri’s legal limit.  McNeely was ultimately charged with DWI, and asked the court to suppress the evidence of the blood test, arguing that there was no consent, and certainly no warrant, as required by the 4^th Amendment of the Constitution.

Issues of warrantless blood tests have been argued, and rejected, regularly throughout the country; but in a decision by the U.S. Supreme Court in 1966, Schmerber v. California – which has been routinely misinterpreted – most notably by the State of Minnesota – the court ruled that the metabolism and natural dissipation of alcohol levels in the bloodstream created a situation where law enforcement did not need to get a warrant because the evidence was being lost with every minute that passed.  The ruling was deliberately limited to the circumstances specific to that case; and with advances in technology such as email, fax, and even video conferencing, the ability for law enforcement to obtain warrants has become infinitely more convenient, a fact that has been overlooked by nearly every state court in the country.

After almost 50 years, the Missouri courts finally decided that enough was enough.  The Supreme Court of Missouri ruled that, other than the natural dissipation of blood alcohol, there was no reason that the officer could not get a warrant, and he therefore violated McNeely’s constitutional right against warrantless searches, meaning the evidence of McNeely’s BAC could not be used against him, and that the body’s natural metabolism of alcohol can no longer be used as the sole-factor for a warrantless search.

Sotomayor Defends McNeely’s Rights

The State of Missouri appealed to the United States Supreme Court, and Justice Sonia Sotomayor delivered the high court’s ruling, agreeing with the Missouri courts throughout her 15-page opinion, saying specifically that, “In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute [a situation] in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, 133 S.Ct. 1552 (2013).

In discussing the history of the law, Sotomayor pointed to a handful of egregious examples of state law with particularity, Minnesota being near the top of that list, and admonished the reasoning courts have used to justify warrantless blood tests.  These warrantless searches for evidence have not only become routine in DWI stops across the country, they’ve become part of the Minnesota DWI law by making refusal to submit to the blood-alcohol tests a crime in and of itself.

What’s Next?

The best place to start the discussion is the fundamental Constitutional rights that are implicated, violated routinely, and why they exist in the first place.  We’ll then move into the 4^th Amendment right to privacy, and more specifically, the requirement that law enforcement obtain a warrant for any search.  Next, we will discuss what is known as the Frost Doctrine, or the “unconstitutional conditions doctrine,” meaning that the government cannot condition a privilege – driving, in this case – on the waiver of constitutional right – the warrant requirement for searches and seizures.  Then we’ll take you under the hood of the DWI process a little, and discuss the implications of the Due Process Clause in the 5^th and 14^th Amendments of the Constitution.  You’ll also get a glimpse into the crime of Refusal to Submit to Chemical Testing, a gross misdemeanor that you will be charged with, and convicted of, if you don’t “consent” to the chemical testing process.  Finally, we’ll wrap up the discussion, for the time being, with some of the more ancillary issues that will be raised, and any new developments in the Court of Appeals, or in the DWI law itself.

Even a cursory reading of Missouri v. McNeely raises questions about the constitutionality of Minnesota’s DWI laws.  But a closer study of the decisions and rulings that form the constitutional foundations of our DWI laws, and the effect that McNeely has on those foundations, reveals the potential effects of the ruling to be widespread and dramatic.  In the coming weeks Stacy Kaye and Geoff Saltzstein will discuss the various issues in greater detail, what the impact of McNeely will be in the near future and what the legacy of McNeely may hold for the future of Minnesota’s DWI laws. Stay tuned. Film at 11.

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