Minnesota's Bill for Shared Parenting

Over the last few years, there has been a push in Minnesota seeking to significantly modify the child custody laws.

The reformers argue that the present statutory system as applied has a discriminatory effect against fathers and that it fails to represent what is in the best interests of the child. What the reformers seek is a statutory presumption that placed both parent’s on an equal footing in custody proceedings by creating a presumption in favor of shared custody.

Those who oppose the bill, including the Minnesota State Bar Association, contend that the existing statutory scheme is sufficient since it allows a Court to make custody determinations based on the best interests of the child regardless of the parent’s gender. Opponents of the bill also argue that a joint physical custody schedule is generally not something that serves the child’s best interests and citing a 1999 publication entitled “A Parental Guide to Child Focused Parenting Time Decisions” prepared for the Minnesota Supreme Court by the Advisory Task Force on Visitation and Child Support Enforcement. That Guide may be found online at http://www.mncourts.gov/documents/CIO/pubsAndReports/PARENTING_TIME_PAMPHLET.pdf

While the Guide includes some valuable information regarding how parents involved in custody proceedings should interact with their children, its recommendations suggest that shared parenting is far too difficult on younger children. It even suggests limiting overnight visits with the non-custodial parent until some nebulous time when children are able to make the transition more smoothly.

Proponents for shared custody believe that the research behind the Guide is flawed and, in fact, more recent research regarding the impact of divorce and separation on children has generated useful knowledge which indicates that, where conflict between parents is reduced by joint custody, children thrive.

The Children’s Equal and Shared Parenting Act, or House File 322, would require a presumption for shared parenting of children where each parent would be presumptively awarded at least 45.1 percent of parenting time. That presumption may be overridden if the court find the arrangement is not in the best interests of the child. The only exceptions would be in cases of domestic abuse or if one parent was causing substantial harm to the child.

Last year H.F. 322 passed a hearing in the House Civil Law Committee in April and is now poised for additional hearings this session in the House Judiciary and Policy Committee and the Senate Judiciary Committee. The bill’s chief author, Rep. Peggy Scott, R-Andover, supports the bill and has stated that it is an equal rights issue in custody proceedings. “This bill is really a common sense idea,” Scott said. “Why in our day and age when fathers and mothers both work and share equally in the responsibility of raising children, why should that change just because of a divorce?”

The bill is located online at https://www.revisor.mn.gov/bin/bldbill.php?bill=H0322.0.html&session=ls87

Presently, there appears to bi-partisan support for the new legislation which boasts a list of 25 legislative authors. On February 21, 2012, there is a meeting of the house Judicial Policy and Finance Committee at 8:15 in room 10 of the State Building with a second session scheduled for Thursday February 23, 2012 at the same time and place. The MN State Legislature website lists this information and has added an invitation for people to testify.

The House Judicial Policy and Finance Committee membership can be located online at: http://www.house.leg.state.mn.us/comm/committee.asp?comm=87014

If you support this bill, now is the time to contact you State Representatives.

Urine Tests Inaccurate for DWI - Still May be Used

The Minnesota Supreme Court decided the case of State v. Tanksley on February 8, 2012. That ruling allows the State to continue using urine tests in DWI cases despite the significantly flawed nature of the test in relationship to intoxication.

First, alcohol in the bladder does not impair a person's reactions. They would not necessarily react as if they were under the influence since the alcohol in the bladder does not reflect alcohol introduces at the cellular level.

Second, a person's urine alcohol may have little relevance to that person's level of intoxication or blood alcohol levels. After a person stops drinking, ethanol is continuously removed from that individual's blood by their metabolic processes. That ethanol is processed by the body and ends up in a person’s bladder as part of waste excreted by te kidneys. Ethanol in urine may accumulate until the person voids their bladder. During that time, very little oxidation of the ethanol occurs. Oxidation is the process by which alcohol is broken down. The oxidation process is interrupted and slowed by the introduction of alcohol to water.

In Minnesota, a first void test is not used. This is the most unreliable method of urine testing. That means drivers suspected of DWI provide a sample of urine that has been stored in the bladder without first clearing the bladder and testing a subsequent sample. It is not at all uncommon for persons to have high levels of alcohol in their urine and very low or no levels of alcohol in their blood.

Minnesota is to a great extent, an island. It is the only state without rules and required methodology for administering a urine test, collecting and testing the sample Many states have statutes specifically precluding urine testing for alcohol deeming the test to be unreliable and inaccurate.

Nonetheless, the Supreme Court agreed with the State in Tanksley allowing continued use of the significantly flawed urine test. The Court stated that Minnesota's DWI statutes do not require that there is a correlation between the alcohol content of urine and the alcohol content of blood. Instead, the statute requires only that the urine test with a certain level of alcohol regardless of whether that content has any bearing on intoxication.

The Minnesota Supreme Court stated, as follows:

"The alcohol-concentration offense requires the State to prove two elements. First, the State must establish that the defendant drove, operated, or physically controlled a motor vehicle within the State of Minnesota. Second, the State must prove that the defendant's alcohol concentration was .08 or more at the time, or within 2 hours of the time, the defendant drove, operated, or physically controlled the motor vehicle. Minn. Stat. § 169A.20, subd.1(5). Minnesota Statutes § 169A.03, subd. 2 (2010), in turn, defines 'alcohol concentration' as: '(1) the number of grams of alcohol per 100 milliliters of blood; (2) the number of grams of alcohol per 210 liters of breath; or (3) the number of grams of alcohol per 67 milliliters of urine.'"

"Whether first-void urine results correlate with blood alcohol concentration is not relelvant to whether the State has proven the two elements of the alcohol-concentration offense. Section 169A.20, subdivision 1(5), requires proof of 'alcohol concentration,' but under the statute, 'alcohol concentration' can be proven by the number of grams of alcohol in 100 milliliters of blood, in 210 liters of breath, or in 67 milliliters of urine. Minn. Stat. § 169A.03, subd. 2. The statute thus provided three methods for proving the requisite alcohol concentration, and does not express a preference for one method over another. * * *"

Despite the Supreme Court's ruling, urine testing remains under attack. Experienced DWI attorneys have been requesting Frye-Mack hearings.

A Frye-Mack hearing is an evidentiary hearing, held before any trial takes place, and it is used to determine if “scientific evidence” can be presented against an accused defendant. Before scientific evidence can be presented, the State must prove that:

(1) the test has gained general acceptance in the scientific community; and
(2) that the test was properly performed.

Minnesota Supreme Court Rules Warrant Required to Attach GPS to Car

The Minnesota Supreme Court in a unanimous ruling has determined that law enforcement attaching a GPS device to a vehicle is a search within the meaning of the 4th Amendment. As a result, probable cause must be demonstrated before such warrant may be issued and a device attached.

See http://latimesblogs.latimes.com/nationnow/2012/01/supreme-court-gps-tracking.html

Unable to pay child support, poor parents land behind bars. An article suggests that child support laws may unfairly result in incarceration of poor parents based on an inability t pay child support. What makes the issue particularly concerning is the fact that such incarceration may occur without a full trial where facts related to ability to pay can be completely and fairly determined.

Minnesota Criminal Statute of Limitations Laws - FindLaw

Minnesota Criminal Statute of Limitations Laws - FindLaw

Getting Rid of the B card - no alcohol restriction

I receive numerous calls each week from drivers inquiring how they may get rid of the B-card, the driver's license restriction that disallows the holder from ever again consuming alcohol in any form inorder to retain their driving privileges. New laws enacted in July, 2011, have confused many.

The new law amended Minnesota Statutes Sec 171.09. Specifically, subdivision 3 has been amended to read as follows:

"Subd. 3.No-alcohol restriction. (a) As used in this subdivision, "impaired driving incident" has the meaning given in section 169A.03, subdivision 22.

(b) Upon proper application by a person having a valid driver's license containing the restriction that the person must not consume alcohol or controlled substances, who has not been documented as having consumed alcohol or having possessed or used a controlled substance within the past ten years, and whose driving record contains no impaired driving incident within the past ten years, the commissioner must remove the no-alcohol/controlled substance restriction on the person's driving record and issue to the person a duplicate driver's license that does not show that restriction."

This statutory amendment allows a person, who has reinstated their license and held it for a period of no less than ten years, to apply for a NEW license which removes the no alcohol/controlled substance restriction on the person's driving record and on the physical license itself. The process for seeking a new license is administrative. that means no hearing is required. You may appear at the Department of Public Safety where licenses are issued and apply to have th restriction removed.

B Card Forever - No More!

Under New law in 2011, a B card may no longer be the permanent scarlet letter that it has been in the past.

With 2011 legislation effective June, 2011, the no-alcohol restriction of the B-card may be removed if a licensed driver has no alcohol violations within a ten year period. At that point they may contact the Department of Public Safety to request the restriction be removed.