WinnebagoViking wrote:

Actually, you do need to ask the Court to declare these stops to enforce this law unconstitutional. While the similarities to DUI checkpoints are analogous, they are not identical. Since you are not disputing the evidence nor the law but means by which the law is enforced, you have the burden to argue the means of enforcement are a violation of Constitutional principles. The Supreme Courts of MN and the U.S. have established a precedent test for such instances which you will need to demonstrate applies to this case. That test is known as the Brown balancing test which was established in the case Brown v. Texas: 1) is a ‘stop’ considered a ‘seizure’ under the 4th amendment (yes, in all cases); 2) does the gravity of public concerns justified the seizure. In other words, is there a compelling govt interest? (as you point out, if DUI is not sufficient interest, then AIS probably isn’t either.); 3) how far an intrusion, or inconvenience, a checkpoint presented to the normal, law-abiding motorist is allowable to advance the govt interest.

With that said….You will not be able to represent yourself and win this argument. You must have a professional. A good one. You might find it useful to contact the MN ACLU.

I think it is debatable whether the DWI checkpoint case is not close enough for the lower court to go with that ruling on its face. Time will tell.

I am disputing the law, not just how it is enforced.

You are correct about the balancing test and those are points I’m prepared to argue, but I’m not including all details in all posts on this subject, both for brevity and, to some degree, strategy.

I guess we disagree about whether a person can represent themselves (in county court). Not that I wouldn’t welcome someone representing all of us in this matter and/or helping me. That’s half the reason for me posting here in the first place.

Contacting the MN ACLU is a good idea. I’ve already done that, however, and as of now, haven’t heard back from them.

What I can tell you is that the MN Supreme Court was *very* clear about their stance on roadside checkpoints being unconstitutional, because there is no individualized suspicion of the people being stopped. They have referred back to this key point in cases since then and emphasized again that they believe strongly in this key point. In short, they weight the rights of a person much higher than SCOTUS does, when compared to the government’s interest, in the case of checkpoints, thus the balance goes the other way.

A lower court can either go with the logic of the higher court or it can ignore it. If it ignores it, that’s one reason we have appeals.

It is a pet peeve (that’s probably putting it lightly) of mine when government officials (if elected, swearing to uphold the constitution) know darn well that something is unconstitutional, yet they put it in place anyway, forcing it to finally make its way through the court system, harming people in the meantime. These officials are not accountable for these actions. That is a problem and it has led to the continued erosion of our rights, along with poor case law that has found its rationalization in mental gymnastics, such that very plain concepts from the 18th century (and well before) are now monkeybuttized into something completely unrecognizable for what they were.

That last rant wasn’t directed at you, WinnebagoViking. Sometimes you just have to vent. I appreciate you taking the time to post.

Thanks,
David

hl&sinker wrote:

This system we have is geered towards criminalizing people in order to control.
Is this a democracy by product? This is going the way of the war on drugs campaign .

David I support what your doing. I wish I knew how to help you out, I just don’t know what I can do.
if you decide taking it past pretrial, not I’m pushing for this, this is a choice that you must make, I’ll be in the court room hopefully with others.

hl&sinker (and desperado) – Thanks for your support. The court case is just one avenue to fight this. It may take some time, but I’ll be trying to organize people together through a website specifically for this purpose. Getting the word out to anyone you know who boats or fishes or is liberty minded is the best you can do at this point.

Buzz – I believe in a multi-pronged approach. Right now, all my energy and time is being put into the court case. I will turn my attention toward the legislative process afterward.

We agree that roadside checkpoints are a poor use of resources. Where we disagree is on the legality of them. The MN supreme court has already said they are not constitutional. The court where my case is being heard does not need to declare them as unconstitutional, they just need to recognize the very clear case law from their higher court.

Thanks for posting.

David

deertracker wrote:

Just wondering as I have never seen a roadside check for invasives. Were you by your trailer when the check was done or did you have to wait in your vehicle?
DT

deertracker – They came to my window and told me that they would be checking my boat and trailer. Shortly thereafter, they asked me to step out of the vehicle and go with them behind the boat, because they said they found a significant amount of weeds. When we were behind the boat motor, they pointed somewhere under the trailer where they saw weeds. I saw nothing. I was looking for an armful of weeds based on what they were describing. I told them I didn’t see what they were pointing at. They described where they saw them and then I saw what they were talking about. It was about a 4 inch strand that was about the diameter of a twist tie on a bag of bread, hanging off one of the axles. This is when I knew this wasn’t going to end well, because that amount was significant to them and I could barely see it even after they pointed it out a few times. Remember, this is a 24 foot long pontoon boat and we are looking underneath it, where it is darker, from a distance.

They then had me go around to the side and pointed out where they saw another strand behind the rear wheel on the port side of the boat trailer. They then said I could return to my vehicle, while they had 2 or 3 officers climb under the boat for 5 to 10 minutes. They gave me the ticket and we discussed that a bit. Next, they told me that I should remove the rest of the weeds before going into Wisconsin. Surprised, I asked them if they had not removed the weeds they found. They said they had only removed a sample of them. I told them that I’d need to go back and remove the weeds. They then told me to wait while they talked to the other officers. They came back and said that the other officers had removed all the weeds, not just a sample. I asked to see the weeds. I exited the vehicle again and walked over by their vehicles. One officer went into one of their vehicles and removed the clear bag with the weeds that fit in the palm of her hand. I took a picture and that is the picture that is in my original post in this thread. I had a discussion with them about what constitutes a significant amount of weeds and then got back in my vehicle and left.

Thanks,
David

Mike W wrote:

On the other hand I sure hope you dont find a judge that wants to throw your butt in the clink for 90 days for lake weeds. They dont even do they for reel weed.

I sure hope so too!

Mike W wrote:

Have you hired a attorney yet to help you with this?

No, I am still looking for someone to help me.

deertracker wrote:

If you are taking the content of a website with “police state” in it as truth, Ill bite my tongue and bow out of this thread.
DT

Here are some other sources. Hopefully they span the political spectrum enough to show that it isn’t a left or right issue. I’m not trying to prove a point with fictional information, so if you find something indicating this isn’t true, please let me know.

http://modernfarmer.com/2014/02/state-michigan-vs-pigs-5-court-cases/
http://www.npr.org/blogs/thesalt/2012/08/31/160394513/battle-over-michigans-new-swine-rules-goes-hog-wild
http://healthimpactnews.com/2014/family-farm-in-michigan-threatened-with-armed-enforcement-from-dnr-for-raising-heritage-pigs/
http://www.dailykos.com/story/2012/04/17/1084093/-Romney-s-Michigan-Goes-Hog-Wild-as-DNR-Orders-Killing-of-Hogs-Piglets#

Here are a couple other examples of government out of control with respect to invasive species laws (in this case, Michigan):

http://www.policestateusa.com/2014/mark-baker/

…
Mike Adams joins Robert Scott Bell to discuss the Natural News Exclusive on how the Michigan Department of Natural Resources has, in total violation of the Fourth Amendment, conducted two armed raids on pig farmers in that state, one in Kalkaska County at Fife Lake and another in Cheboygan County. Staging raids involving six vehicles and ten armed men, DNA conducted unconstitutional, illegal and arguably criminal armed raids on these two farms with the intent of shooting all the farmers’ pigs under a bizarre new “Invasive Species Order” (ISO) that has suddenly declared traditional livestock to be an invasive species.
…

Mike W wrote:

Have you thought to have them prove its a aquatic macrophytes? How do they know its not just some matted up weeds from you yard or blown up of the road onto the trailer. Tell them you washed and cleaned your trailer religiously and that was not on your trailer. Make them prove it was.

Thanks for your response, Mike.

I did ask them, at the time of the checkpoint, when they stated that *any* amount of weeds was a violation, how they would distinguish between yard weeds, where the trailer was parked, and lake weeds. They said they knew the weeds in question were lake weeds and that non-lake weeds would not be a violation.

I understand you are talking about how to face the legal challenge and I appreciate that.

My last post was less about weeds or no weeds and what that means or doesn’t mean to Minnesota lakes. It is about whether we want to allow this erosion of our rights with the roadside checkpoints and whether we want to allow a law that can put people in jail for 90 days for having a couple pieces of weeds on their boats/trailers, regardless of the type of weed or shellfish or how they got there.

Some people feel very strongly about slowing the spread of invasive species. Other people feel the horse is out of the barn and the effort should be put into removing the invasives when they do make it into a body of water. Yet others question whether humans should be standing in the way of mother nature at all. There is no objective right or wrong here, it is down to personal opinions. We can agree to disagree on these personal opinions. And that doesn’t mean we shouldn’t have these discussions of our opinions — we should have those discussions.

What I’m trying to communicate here is that everyone who pulls a boat in Minnesota is at risk for very serious penalties regardless of how you feel about invasive species and how diligent you are about checking for them. I urge people, regardless of your opinions on invasive species, to push back against roadside checkpoints and excessive penalties.

Thanks,
David

David wrote:

In addition, the DNR has requested, and I have to assume will continue to request, the legislature (and Minnesota Judicial Council) to significantly increase the fines to the level of fish and game violations. It is unknown whether this will include increasing it from a misdemeanor to a gross misdemeanor and/or a payable offense to a criminal offense including a minimum of 90 days in jail. The most recent information I have indicates that the DNR has not yet requested a change from a civil violation to a criminal violation.

I wrote the above 2 weeks ago. At that point in time, I was still working under the information I was given by the Minnesota State Court Administration when I called them to ask about my citation, back in September. At that point in time, I was told it was a $130 penalty and that I could contest it in court.

As a reminder, the state statute in question is this: https://www.revisor.mn.gov/statutes/?id=84D.09#stat.84D.09.1

That’s chapter 84D, section 84D.09, subdivision 1, which reads:

…
Subdivision 1.Transportation prohibited. Unless specifically authorized under a license or permit issued by the commissioner, a person may not transport aquatic macrophytes, except as provided in this section.
…

$100 of that penalty comes from this: https://www.revisor.mn.gov/statutes/?id=84D.13#stat.84D.13.5

That’s chapter 84D, section 84D.13, subdivision 5, of which the first numbered item reads:

…
Subd. 5.Civil penalties. (a) A civil citation issued under this section must impose the following penalty amounts:
(1) for transporting aquatic macrophytes in violation of section 84D.09, $100;
…

Presumably, the $30 is additional administrative fees added to the $100 penalty amount.

However, the county attorney’s office has decided to change the penalty from this civil violation to the one appropriate for a criminal violation: https://www.revisor.mn.gov/statutes/?id=84D.13#stat.84D.13.3

That’s chapter 84D, section 84D.13, subdivision 3, of which the first lettered item reads:

…
Subd. 3.Criminal penalties. (a) A person who violates a provision of sections 84D.03 or 84D.06 to 84D.11, or a rule adopted under section 84D.12, is guilty of a misdemeanor.
…

A careful reading of this shows that even though 84D.09 is not present, it is included due to the phrase “84D.06 to 84D.11”. That represents a range of sections, including 84D.09.

When I wrote the above post, I was not aware that 84D.09 was included under the criminal penalties subdivision. Again, I was told it was a $130 penalty and that I could contest it in court.

Fast forward to earlier this week. I received a the formal written complaint that I had requested 2 weeks prior, at the first appearance at the courthouse. I requested this because all I had was an illegible hand-written citation. The charge and penalty listed on that complaint is:

…
Charge: DNR – Aquatic Macrophytes – Transport Prohibited
In Violation of: 84D.09 Subd. 1
Penalty: 90 Days Jail and/or $1,000 Fine
…

I was able to speak to someone in the county attorney’s office on Friday. I explained that the penalty had been changed from the civil violation, with a fine of $130 to a criminal violation with the possibility of a much larger fine and/or 90 days in jail. I was told it was always considered a criminal violation and that is the maximum fine for a misdemeanor. I was told that I will not find out the penalty being pursued, most likely, until a few days before the pretrial date. I was told that any problem I had with being told that it was a $130 fine, that I could contest that in court, and now being a much greater penalty, including possible jail time, should be taken up with the judge.

I am posting this both as an update for those following this case and as an informational service for others (this is not legal advice). It doesn’t matter if you are from Minnesota and traveling in Minnesota, from Minnesota and traveling to a location outside the state, from another location and traveling to Minnesota, or from another location and traveling through Minnesota to get to another location.

It would appear, if they so desire, a Minnesota county prosecutor can try to put you in jail for 90 days and fine you $1,000 if you get a citation for having any amount of non-invasive species of plant on your watercraft equipment after leaving a boat access and you contest that citation in court. For some reason, some people may feel that contesting being accused of a crime is a bad thing. In fact, it is your right under the 5th Amendment to the U.S. Constitution (and applied to the states through the 14th Amendment):

…
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
…

And in the case of Minnesota, your right under Article 1, Section 7 of the Minnesota Constitution:

…
No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. The privilege of the writ of habeas corpus shall not be suspended unless the public safety requires it in case of rebellion or invasion.
…

Will this Minnesota prosecutor pursue the maximum penalty? Only time will tell. Will another Minnesota prosecutor pursue the maximum penalty? Only time will tell.

My question to you is, fines aside, should the government *be able* to put anyone in jail for 90 days because the person didn’t find and remove pieces of non-invasive aquatic plants from their watercraft equipment?

Thanks,
David

Deertracker – I’m the original poster. You are correct as far as the progression of hearings. A first appearance (where you can request formal documentation of complaints and can plead one way or the other or plea bargain with the prosecutor, and pick a jury or judge trial), then a pre-trial (discovery process of trading evidence between the prosecutor and the defense and a motion to dismiss, if so desired), then the regular trial.

For this particular citation, there are not going to be a lot of people showing up at the same time in the courtroom for the first appearance, because it is a payable offense that does not require going to court. You can simply call up the number on the ticket and pay it over the phone. They do put a court date for the first appearance on the ticket, but I’m guessing the vast majority of people pay it rather than scheduling to appear on the court date. Even after calling the courthouse to tell them I’d be there, I still wasn’t put on the docket and had to be added that morning when I showed up.

I’m in between the first appearance and the pre-trial currently.

Thanks for your posts.

David

I too am interested in what that hole insulator is made out of (both the tube and the square piece).

I went from an 8″ strikemaster gas to a 10″ jiffy propane this last year. You still need to open the windows/doors with the jiffy (I recommend a carbon monoxide gauge that shows you the level and put it close to where the auger is to find the maximum concentration), but it is still a lot cleaner than gas.

I’m posting again to let everyone know that I respect your right to your opinions even if we disagree with each other. My purpose in posting this was not to argue or debate the merits of the purpose of the law with those who disagree. I posted it to try to get help from those people who want to remove the unconstitutional laws and enforcement and to provide information for those who may not be aware of the issue or are unaware of the slippery slope this is headed down. If I don’t respond to people on the other side of this issue directly, that is why. And believe it or not, I do read what you write, even if you are on the other side. I am simply not here to argue.

I will point out one thing, however. My original post was written, on purpose, for those who are completely unaware of these laws and enforcement methods. The same text was used for contacting lawyers, legal help groups and others who may not have the same level of awareness as us boaters. As it stands now, I’m representing myself without any legal help, so I need to be efficient with the use of my time. I only have time outside job hours to prepare for my case and my weekends are busy with preexisting obligations. Reusing the same text for multiple outlets was the only way I could effectively manage this. I’ve been aware of all the invasive species laws since they came into being and have been especially disappointed in checkpoint portion of the laws.

I forgot to include it in my original post, but effective July 1st, 2015, anyone found guilty of breaking this law, in addition to fines, will lose their ability to operate a watercraft until they complete an invasive species course. Again, I’m guessing there is a good chance those people who agree with this law are happy to see these additional measures being taken and I am not trying to change the minds of those people. I’m making this information available to those people who are not aware of and/or those who disagree with these laws so that they might decide to take action to remove the laws.

In this particular case, the rig was gone over by two separate adults when it was taken out of the last lake. The weeds in question had been embedded in the suspension system of the trailer, behind the wheels (dual axle), at the boat access and thus were not visible. Some rigs have a lot of cracks and crevasses where weeds can become trapped and in some cases they cannot be even be seen or removed without putting the boat back in the water, such as when the weeds are trapped between the boat and the bunks/rollers of the trailer.

I mention this, because for people with these rigs, I want them to be aware that they may receive a citation despite their best efforts to comply with the law, as was the case in my situation. This is a zero tolerance law, so if properly enforced by law enforcement, a single, short strand of weed is a violation. Enforcing it in some cases, for some people, and not in other cases, for other people, is a violation of your right to due process/equal protection. And enforcing laws via roadside checkpoints has already been ruled by the Minnesota Supreme Court to be in violation of the Minnesota constitution.

There were at least 2 and possibly 3 officers under the boat for 5 to 10 minutes in order to come up with the relatively small amount of weeds shown in the picture. Yes, I realize this is subjective and opinions vary all over the map on how much is significant. A lot of that has to do with how big a rig is and whether a large quantity of weeds is removed every time the boat is put in/out, as in my case. I believe, although intertwined when put into the bag, it represents separate strands that were found in the workings of the suspension system of the trailer. One strand wrapped around a surge brake coil can be longer when unwrapped than it exists when adhered to a trailer.

To those people who have offered support, thanks for taking the time to reply to my request. I know it isn’t easy to do so when there are strong emotions on the other side of this.

Those who believe as you do, that these laws are unconstitutional, can bring awareness to these overreaches by talking about it with others and urging them to push for change. Without a citation, contacting legislators and informing them that the laws violate the state constitution, as decided by the Minnesota Supreme Court, may make a difference. With a citation, allow the judicial branch to check the legislative branch by going to court.

Unfortunately, I believe it will require organization to have an impact, because it was organized groups that requested these laws and that will continue to request more laws, leading to increased violation of rights.

This is not merely about a single fine. After receiving the citation, my family and I discussed the issue on our way to our destination. As we had done everything feasible and safe to remove the visible weeds the last time the boat was taken out of the water, we were resigned to the fact that we may have to include $300 extra in the budget for boating in Minnesota each summer. With the base fine being $100 (the $130 includes administrative extras) and guessing at the possibility of 2 tickets per year, and given that a second citation doubles the fine, we came up with this $300 figure. This assumes only non-invasive weeds are present. Invasive weeds carry a higher fine.

However, with the changes coming in 2015, it is now not only a matter of fines, but also a loss of the ability to use a watercraft until completion of a mandatory course. The course is mandatory as of July 1st, 2015, for everyone trailering a watercraft in Minnesota anyway (including people coming to Minnesota from other states or driving through Minnesota), so it isn’t clear what happens if you already have the sticker and then get a citation. It isn’t clear if you need to re-take the course or if already completing the course is sufficient. Not completing the course/having the sticker and not being in violation of the weed transportation laws will only result in a warning at this point in time. My guess is that this will change over time.

In addition, the DNR has requested, and I have to assume will continue to request, the legislature (and Minnesota Judicial Council) to significantly increase the fines to the level of fish and game violations. It is unknown whether this will include increasing it from a misdemeanor to a gross misdemeanor and/or a payable offense to a criminal offense including a minimum of 90 days in jail. The most recent information I have indicates that the DNR has not yet requested a change from a civil violation to a criminal violation.

All this is to say that it is much more than paying a single fine for a single violation that has already taken place. It is about the unconstitutionality of the laws and enforcement methods, the harm they have caused citizens in the past and the impact they will have on everyone in the future. This is not just about boating. They set a dangerous precedence, allowing for continued erosion of our rights.

Thanks,
David

I want to thank everyone who has posted positive comments and provided information. I’m in the middle of a hectic week for work, and out of town this weekend, so I’m not able to respond to each of you individually right now, but I will next week. Just know that I have read every single word when time allows and it is appreciated.

And please continue to post!

Thanks,
David