2011-09-14 Handouts @ Mtg. - Laserfiche WebLink

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Legal Analysis The old law, M.S. 357.021 (2009), subd. 6, formerly read that the surcharge shall be applied to "A person who successfully completes a diversion or similar program" for violation of chapter 169. A municipal ticket payment program likely fell within the term of "or similar program." The 2011 amendment reads that the surcharge shall be applied to: "A person who enters a diversion program, continuance without prosecution, continuance for dismissal, or stay of adjudication" for violation of chapter 169 (traffic offenses). Removing the term "or similar program" appears to have big consequences for Cities. The follow paragraph parses the new definition by process of elimination. The following phrases within quotations marks require payment of the Surcharge. 1) "Continuance for dismissal" and "stay of adjudication" are procedures which must be approved by a judge. This revision may ruin prosecutor's plea bargaining efforts in court but has no effect on a municipal ticket payment program which occurs before court proceedings begin. 2) A "diversion program" is defined by statute. There are only two such programs for criminal or traffic offenses (with the exception of juvenile offenses). The first such program is "pretrial diversion" defined under M.S. 401.065. This statute authorizes only County Attorneys to conduct this form of pretrial diversion. The second such program is "pretrial diversion" defined under M.S. 628.69. This statue does authorize City Attorneys to conduct this form of pretrial diversion; however, it is strictly limited to `worthless check' charges. Accordingly, as long as the municipal ticket payment program does not include worthless check charges then this revision does not appear to have an impact on a municipal ticket payment program. (Hence, the reason to stop calling municipal ticket payment programs, `diversion programs.') 3) "Continuance without prosecution" is a generic term which is not defined by statute. Two aspects of this phrase appear to allow a prosecutor to have a ticket payment program. a. First, if a municipal program is not based on a continuance of the case over a period of time but instead is based on the achievement of an objective then such a program does not appear to be subject to the Surcharge. Payment of a fee to the City plus completion of an objective appears to fit within this parameter. The objective could be an education component, "fix -it" ticket, reinstatement of license, etc. b. Second, if a ticket is issued by the police or by a complaint charge by the prosecutor then a "prosecution" has begun. That part of the phrase appears to bar programs whereby the City issues no citation or complaint but instead issues an administrative ticket. This phrase seems necessary to bar traditional municipal administrative ticketing (aka "city tickets ") for traffic offenses. (Please note that "livability" / nuisance crimes or municipal civil regulation is not addressed as part of this discussion.)