DNR Checking Fish Houses for Underage Drinking

I remember the old T-shirt cartoon — on it was a sign that read “Fisherman’s Hell:  Choose One.”  Next to the sign was a double arrow pointing to worms OR beer.  Choose one only…Beware to those who are consuming, alcohol, underage and too noisy — the DNR is looking for you.  Check out the StarTribune link. Specifically, they are looking for underage drinking in fish houses.

It is very easy to avoid police intervention into a fish house.  Thanks to the Minnesota Supreme Court Ruling in State v. Larsen you can read here, the Court put a stop to DNR warrantless entry into a fish house just to perform a routine license check.  The Court correctly determined that a fish house was no different than someone’s home (have you seen some of these palaces?) — and entry into the fish house required a warrant.  So the solution is pretty clear — don’t open the door unless the police/DNR have a warrant.  If multiple lines is the issue, it may take a while for the DNR to “unbank” all of your snow to check.  Underage drinking?  Be careful whom you accidentally elect as the spokesperson of the group (and try to have the owner present — the owner is the person who can deny a lot of things to the police).  And did I mention don’t open the door?  Don’t open the door!  And keep the window shade shut, the police/DNR can look into any open window.  From the time the police have seen behavior (you may realize that they are on to you) giving them probable cause to ask a judge to sign a warrant, it might be a couple of hours before they can actually come back and execute it.  Make sure you take that time to calm things down, or remove the offending elements from the fish house.

Why all the fuss?  Have you ever been to the Eelpout Festival in Walker?  Small cities can pop up in the middle of the lake, and there’s very little fishing going on.  Just Google it, go to Youtube, etc….

Snowmobiles can now drive faster on Lake Minnetonka

Some little known facts are revealed in this article on new speed limits for a popular metro-area lake.  Among them, the fact that there actually is no state-wide automobile speed limit on frozen lakes.  One still has to drive carefully, and not recklessly or carelessly, but unless a local ordinance states a limit, well, the sky is it.

Case in point, Lake Minnetonka.  For years there was a 15 MPH speed limit near shore, 30 MPH at night and 50 MPH during the day — and that was for snowmobiles as well as cars.  Now it’s 25 MPH close to shore and 50 MPH away from shore at any time of day or night.  Minnetonka was always tricky for snowmobilers, there were always special regs and sometimes the speeds were posted, sometimes not.  Outcroppings and points could appear out of nowhere, and patrols were happy to snag drivers who were trying their best and also trying to have fun, but who were barely in violation of the law.

The article talks about the pros and cons — both sides have valid points.  Minnetonka does not strike me as the type of lake where cars should be all that upset about not being able to drive fast.  Depending on where you start from, it shouldn’t take more than five minutes to get just about anywhere.  Now on a lake like Mille Lacs or Red, when even with plowed roads it can take 20 minutes to get to your fish house, I can see wanting to open the throttle a bit more.

One more thing — yes, you can get a DWI on the ice.  The word “ice” appears all over Minnesota’s DWI laws — see for yourself.  Operating any motorized vehicle on the ice while impaired by alcohol will attract the attention of the police.  Best bet is to use something powered by wind only, or use an ice sobercab.

Snowmobile trails brought to you by GPS, DNR

Minnesota recently was named the state with the “best trails.”  Now the DNR has put them all in the palm of your hand.  Follow the link, here.  Download the maps right to your mobile device, here.

Inimical to Public Safety — What Does it Mean?

In the news recently was a North Mankato man who was charged with DWI and Driving After Cancellation — Inimical to Public Safety.  Read the St. Peter Herald Story, here. Any criminal practitioner who does not know the term “DAC-IPS” (pronounced “dack-ipps”) is unhireable for that offense — the term has standard meaning and portent for the driver-defendant and their attorney.  It is a Gross Misdemeanor offense.  See Minnesota Statute 171.24.

In Minnesota, a driver is declared inimical to public safety often after their third DWI offense.  Inimical to public safety essentially means “completely unable to control a vehicle without endangering others.”  Drivers must go through a difficult and prolonged chemical dependency treatment in order to have their driving privileges reinstated.  In addition, that renewed license will be subject to a B-Card restriction — meaning any use of alcohol by the driver will invalidate his or her license, even if they aren’t driving when discovered to be drinking.  If there is a violation, there are subsequent rehabilitation periods that can last several years depending upon the number of DWI’s the driver has.  Rehabilitation will require complete abstinence, affidavits from people who can attest to the same, and a lot of time devoted to dependency groups.

Why is the State doing this?  The State has recognized that it is impossible to get people to stop drinking, even if they know they have a problem and want to stop it.  So the State simply assumes that people with alcohol addiction are always driving intoxicated.  The remaining option is to take away the driver’s license, or at least make it very difficult to keep while still suffering from the effects of alcohol.  1 in 7 Minnesotans has a DWI.  Of the people who get a first, only 10% get a second.  But of the people who get a second, 60% get a third.  The State has thrown the repeat offenders into very specific grouping as a way to identify and keep track of this specific population.

Nearly every client says the same thing — they can handle the criminal consequences of DWI, but it’s the license sanctions that are the real punishment.  Try not driving for six years and see how easy it isn’t.  If you have been charged with a DAC-IPS offense, there are ways to reduce the impact and potentially maintain your license — but you must talk with an attorney in order to find out if these options are available to you.

Alleged Hunter Harassment Leads to Fall, Criminal Charges

There are two sides to this story and, unfortunately, one of them will never be heard.  Kevin McCormick of Breezy Point has been charged by Clearwater County prosecutors with First Degree Assault and Hunter Harassment for what investigators believe is his role in terribly mishandling a dispute over who properly was in a deer stand.  Here is the link to the Star Tribune article.  Investigators believe that McCormick intentionally tipped over the deer stand of Jerry Bennedict after he asked him to get down, and after Bennedict refused to do so, claiming he was on permissive tribal land.

It doesn’t matter who is/was right, because things have now progressed too far since Bennedict died from his injuries related to the fall.  More serious charges are now likely pending, as it is not a defense to manslaughter to say that you were dealing with trespassing via street justice means.  The law would protect the rightful owner of the stand, if the process had been allowed to play out.  Some of the DNR regs are hard to find, so you can sort of rely on the Hunting and Trapping book for reference.  But more specifically, Minnesota Statute 97A.037 discusses Hunter Harassment — even if you think you are in the right, you can’t harass another hunter out of your stand.  Just call the local authorities / CO for their assistance in enforcing a civil or agricultural trespass citation.

This is a no brainer — in these confrontations, both parties think they are in the right and both have firearms.  Just let things calm down and leave the dispute to the law enforcement agencies, because you don’t want things to escalate out of control.

Increased DWI Enforcement over the Holidays

From now until New Year’s, keep the needle under the limit and keep track of how much you drink.  Why?  Increased DWI enforcement is here starting Wednesday night:  KSTP story; StarTribune story.  This isn’t exactly news, as this happens every year.  But the stories talk about which counties have the most DWI‘s, and thus the most enforcement focus — frankly, that’s a function of population, and what happens when there is a large population, as more bars, restaurants, neighborhoods, etc. arise when there is a population center.  Thus, no big surprise that the numbers would be high for Hennepin County — a drive from downtown Minneapolis to Eden Prairie, all in Hennepin county, leaves the driver with the possibility of meeting the Sheriff, the State Patrol, along with Cities of Minneapolis, Edina, Minnetonka, possibly Bloomington, Richfield and Hopkins, St. Louis Park, Golden Valley…it just depends on how you get home.  But they all have separate police forces and favorite stop locations.

It’s worth noting that, if you are pulled over, you are under no obligation to perform roadside field sobriety tests.  The test back at the station is required — you can’t refuse the test back at the station — but anything roadside, you can simply and politely decline, especially if you don’t think you can perform well on the tests.

Being mindful of ways to avoid getting pulled over also is important.  Speed is the number one culprit.  But watch out this weekend with the weather conditions.  Police can pull you over just for determining that you are driving too fast for conditions.  So when it’s icy on the roads, go under the limit for sure.  Also, if you get in an accident, that’s an obvious time for the police to investigate why it happened.

Hunters Convict Themselves of Poaching by Posting Pics on Facebook

I remember what my Professional Responsibility professor in law school once said — “Assume everything you do will become public knowledge.”  Good advice — but note that he didn’t say “Purposely make everything you do become public knowledge.”  Case in point, this Minnesota hunter who posted pictures of his poaching activities on Facebook.  Somebody saw the pictures and notified the Turn in Poachers (TIP) program, which then led to an enforcement action by the Minnesota DNR.

His friends can thank him as well, as they were cited for their part in being over the bag limit of Canada geese — they were in the picture.  Further scouring of his Facebook page revealed an unregistered buck from the archery season, along with his registered, bigger buck from later in the archery season.

I can recall prosecuting a case some years ago when the use of social media was becoming more prevalent.  I secured a plea to an Order for Protection violation in part because one of the victims had access to the defendant’s MySpace page, which contained information bragging about how he was violating the Judge’s Order by being present at a certain location.

As a defendant you aren’t required to testify, but these Facebook postings are what we call Admissions by a Party-Opponent, and they will be introduced as evidence by the prosecution in their case in chief.  The defendants in this story have essentially provided testimony against their own case without ever actually taking the witness stand.

The story goes on to note that the poacher “escaped” potential violations of the federal Lacey Act, even though he transported the deer across state lines to Wisconsin.  Recall that the Lacey Act was what caught Troy Gentry of Montgomery Gentry when he killed a captive bear inside a national wildlife refuge.  Not so fast…the feds can still pursue that case if they wanted without running afoul of double jeopardy prohibitions.  Recall that Michael Vick was prosecuted under both state and federal law for his role in the dog fighting ring — two separate sovereign entities each taking their turn.  So this hunter isn’t out of the woods, yet.

Here’s something else to consider as well — your cell phone is searchable by the conservation officers as an “electronic container.”  So if you are in the field and the CO properly suspects you of violating fish and game laws, they do have the option to arrest and, if they do, they can search you incident to that arrest, and they can cycle through your phone to retrieve information — including any texts you have been sending back and forth with your buddies.  There are many laws on the books regarding the illegal use of cell phones while hunting, and certain texts such as “He’s coming your way” would be grounds for additional charges.

DWI with Kids in the Car Will lead to Increased Penalties in Minnesota

Be advised that as the holiday season approaches (and as federal dollars help increase patrols) there will be more opportunity to be pulled over on suspicion of drinking and driving.  All it takes is a minor traffic or equipment violation to properly arouse reasonable articulable suspicion sufficient enough to warrant police intrusion into your evening.

Specifically, keep in mind that as you are shuttling the family around this holiday season, a garden-variety DWI can soon turn into a more serious event if there is anyone in the vehicle aged 16 years of age or younger.  Minnesota law provides that a person suspected of DWI can be charged with a gross misdemeanor offense if the driver is at or above .20 blood alcohol level, refuses testing or has an aforedescribed youth in the vehicle.  So even if you blow a .08 on the Intoxilyzer (normally a misdemeanor event if you have no prior DWI’s), if there is a child in the car you will be looking at a gross misdemeanor charge, and that also means you are looking squarely into mandatory bail provisions and increased court scrutiny.

Case in point, this driver from Renville, MN found out the hard way about having a kid in the car — well, 4 kids in the car — when you are too impaired to drive.  He was given a conditional release, meaning that, in his case, he agreed to wear an alcohol monitor (at the cost of @ 14 bucks a day) and only drive with a valid license in exchange for his release from custody pending future court appearances.

Which reminds me of another thing worth noting.  In Gross Misdemeanor DWI cases in Minnesota, a person can post the maximum $12,000.00 bail and have no conditions whatsoever — i.e., you walk out free without court interference in between court appearances.  Most bail bondsmen charge a 10% fee for posting bail.  So you pay the bail bondsmen $1,200.00 to be free and clear — sound expensive?  Nope, do the math.    Most DWI cases aren’t resolved within 90 days of the bail hearing.  At 14 bucks a day on the 85th day you’ll have overpaid what it would have cost you do pay the bail bondsmen — and you will have had to put up with the joys of monitoring — the call in’s, the false positives, the showering with a bag over your ankle.  If you add in the initial set-up fees, it’s more like at the 60 day mark that the amount paid to be monitored versus the amount paid to the bail bondsmen are equal.  And very few DWI cases are resolved within 60 days of the bail hearing.  The lesson?  If you think you are in for the long haul, just pay the bondsmen’s fee and avoid the expense and annoyance of the court-ordered sanctions.

Get the Lead Out? The EPA Says no to Interest Groups Wanting to Ban Lead

The Environmental Protection Agency (EPA) recently turned down a request by environmentalists to ban the use of all lead in fishing tackle and ammunition.  The claim was that lead left behind by sportsmen (and sportswomen) was leading to an unacceptable level of death to wildlife.  Here are a few links to the story — StarTribune, CBSNEWS, EPA.

This debate has been going on for some time.  Small game and bird hunters are well aware of prohibitions on using lead shot in protected wetlands and wildlife production areas.  Many hunters don’t even bother carrying lead anymore for fear of unknowingly approaching a protected area — and it is illegal even to carry the lead shells on you in those protected field areas, regardless of whether they are loaded in your gun.  Hunters will tell you that the stopping power of lead over steel cannot be overstated, and that is why it is the preferred choice.

For fishing, lead simply provides the perfect split shot set-up.  Small, heavy, less likely to be a distraction to a lunker, and down the hole it goes. And lead is a lot cheaper than steel — ask anyone buying ammunition lately.  Prediction?  It won’t be long until you won’t be able to use lead anymore.  It just seems like the trend.

Third trial for Brainerd music downloader — pay $1.5 million, please

In the third trial in this case, a music downloader in violation of US copyright laws was ordered to pay damages in excess of 1.5 million dollars — about $62,500 per song she downloaded.  She was given the opportunity at one time to settle for $25,000.  Just the other day, Limewire was ordered to shut down…this may be the beginning of the end of the sort of “in your face” public file sharing, but file sharing is certain to continue privately as long as media companies continue to distribute content in the form of zeros and ones.