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In the Hopper: Ignition Interlock; consent defense nullified

Friday, April 13, 2018  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

Ignition interlock: A bill that would force more DWI offenders to use ignition interlock devices so their cars will start would also require creation of a new “judge unit” — meaning a new judge position, a court reporter and a law clerk.

House File 3726 is authored by Rep. Marion O’Neill, R-Maple Lake. It would require offenders whose licenses are revoked because of their second DWI in 10 years, or third in a lifetime, to use ignition interlocks for a year before they could reinstate full driving privileges.

Anyone who loses a driver’s license because of a blood-alcohol concentration that is twice the legal limit, or who refuses to take a sobriety test, would have to use the device for two years under the bill.

The legislation also creates a new misdemeanor offense for driving after a DWI-related license suspension, revocation or cancellation. It prohibits the state’s Judicial Council from including that offense on its “payables list.” That is the list of offenses that can be cleared by paying a fine without a court appearance.

That component of the new law would create the need for a new judgeship, O’Neill told members of the House Public Safety and Security Policy and Finance Committee on Tuesday.

“You would actually have to go in front of a judge,” O’Neill said. While all that extra court activity would entail cost, she said, “I think it is well worth it because it actually is a really great deterrent.”

The new judge unit would cost the state $456,000 in the first year and $423,000 annually thereafter, according to the bill’s accompanying fiscal note.

Ed Cohen, co-owner of ignition interlock vendor Smart Start Minnesota, testified for the bill. He cited a 2017 Department of Public Safety study that shows voluntary interlock enrollment is low — just 14.5 percent — among the types of offenders affected by the bill.

He also cited DPS data showing that offenders who do not participate in ignition interlock programs reoffend at double the rate of those who complete them. “In short, this is a very good bill that will provide a very strong public safety effect,” Cohen said.

Though he is an ignition interlock supporter, Rep. Jeff Howe, R-Rockville, challenged the devices’ reliability. He suggested that vendors should pay for tows and repairs when they malfunction. That happened to a young woman who is a constituent in his district, Howe said.

The woman, whom he did not identify, enrolled after a DWI conviction and fully complied with the program, Howe said. But one day in December she was unable to start her car to get to work, even though she was sober. The young waitress was told she needed a new car battery, Howe said, so she bought one. But that wasn’t the issue.

She then had to pay to have her car towed to get the problem — a malfunctioning interlock device — fixed, Howe said. “Before this is all done she is out well over $300,” Howe said. “I just got issues with that.”

Enrolling in an interlock program costs about $100 a month, said Rep. Debra Hilstrom, DFL-Brooklyn Park, a former prosecutor. That is a burden to constituents in her district, where 98 percent of students receive reduced-price or free school lunches.

“If parents are in a position where they can’t afford to feed kids a school lunch, it’s not likely that they are going to be able to afford $100 a month, or even $75 a month, for ignition interlock,” Hilstrom said.

She said she supports the O’Neill bill. “I just think there has to be way to pay for it,” she said.

The bill was laid over Tuesday for possible inclusion in a public safety omnibus bill. O’Neill said she will continue to work on its language to take members’ concerns — particularly those expressed by Howe — into account.

Consent defense nullified: Teachers and others in positions of authority over high school students would lose an existing age-of-consent loophole for sexual misconduct if a bill presented Tuesday becomes law.

House File 3203 is authored by Rep. Drew Christensen, R-Savage. He said that sexual contact between adults and students in schools is not common, but does occasionally occur. His bill would protect high school students who have reached the legal age of sexual consent, and special needs students up to age 21.

Under current law, if a student and has sex with an authority figure at a school but the conduct is considered a matter of “voluntary consent,” it is not considered an offense, said Phillip D. Prokopowicz, chief deputy Dakota County attorney.

Prokopowicz, who spoke before the House Public Safety committee in support of the bill, said his office has been unable to prosecute some cases because of that loophole.

“It is our position that with this type of conduct — when you have a teacher relationship, a position of authority or at least where you have these ongoing relationships — that it’s necessary for us to proceed in these situations,” Prokopowicz said. “This bill would address that type of situation.”

The bill criminalizes sexual relationships between older high schoolers and anyone who has a position of authority at a school, Prokopowicz said.

That could include assistant coaches, volunteers and independent contractors, if they have some position of authority, he said. For young vulnerable adults who are students, it could include bus drivers, custodians and other non-certified school district workers, he said.

“A lot of employees or contractors or volunteers with school districts do have positions of authority over the care and welfare of a child during activities, assisting in classrooms and that type of thing,” Prokopowicz said.

The bill adds new language to Minnesota Statutes Section 609.344, subdivision 1.

It creates a third-degree sexual assault crime for instances where a complainant is a secondary school student who is at least 16 years old but less than 21, and the actor is a school employee or independent contractor acting in a position of authority. The crime carries a maximum penalty of 15 years imprisonment and a $30,000 fine, according to statute.

Neither a mistake about the student’s age nor a misunderstanding about consent is a defense against the charge, the bill says. Other portions of the statute already protect students who are younger than age 16.

Rep. Jamie Becker Finn, DFL-Roseville, supports the bill. “These are young people who are potentially being victimized,” she said. “It is a good loophole for us to be closing.”

The bill was laid over Tuesday for possible inclusion in a public safety omnibus bill to be considered later in the legislative session.

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