Q & A: Drinking and driving and marijuana use (Novel thoughts in the law: If it's illegal, you can get in trouble. And even if not illegal, too.)

Q: I was arrested for drinking and driving, blew a .10, and have been able to get a plea deal for driving while impaired, instead of the higher charge. But the thing is, I was tested for use of marijuana at a later alcohol and substance abuse assessment. I have been working on getting a card for medical use of marijuana but it hasn't happened yet. Why did they test me for THC? This charge had nothing to do with that.

A: They tested you because they can, and because marijuana use is still illegal. Sorry, but even when you are showing that you may have a medical need, but your medical marijuana card isn't issued yet, the court may order you to test "clean" or negative for any other substances (including alcohol) during the period of your probation.

An alcohol and substance abuse evaluation is often part of the sentencing process. It's a report that is later given to the Court and Probation department, and it can be quite influential regarding your sentence.

Let's face it, taking care of your legal problems should be foremost in your mind right now. So take your time with the evaluator, and don't feel like it's an inconvenience. Spending time in jail or on community service are inconvenient as well.

The evaluator may also ask questions about your family life, whether your parents had alcohol or drug problems, and other questions that don't seem particularly relevant to why you were pulled over. Sorry, but that's  part of the assessment as well, and gives a clearer picture to the evaluator as to whether you may be at a risk to re-offend. A second evaluation may also be part of the sentencing and probation process, nearer to the end, to show that you're improved over the term of probation.

The test, for which you tested positive, will possibly be re-administered between now and the end of your probation. Today's test will be used as a "baseline" for the THC that's in your system, and as long as you're ordered to test, that level needs to go down in your blood, otherwise you may be facing a violation of your probation - no laughing matter. It means that the underlying sentence from the drunk driving charge may actually happen to you, even if it was pleaded out in court.

And here's the novel thought in the law: If it's illegal, you can get in trouble. If it's not illegal, but it is part of your probation conditions, you can also get in trouble. So that means that you might be restricted from all alcohol use as a term of your probation, even though alcohol is totally legal, it currently isn't legal for you, because of probation. Likewise, talking to someone is not a crime - but if there's a no-contact order as part of your probation because of alleged domestic violence, then talking to that person is illegal for you during the term of your probation.

Job postings: How to look for work

Job searches are almost all online now, and that's fine. The thing is that you have to know where to look. Here's some good websites for jobs in various areas:

This is the City of Grand Rapids' employment listing.

Here is the State of Michigan's listings.

This is USA jobs, working for the US government.

This is the State of Michigan, specific to employment in the Courts. (but not necessarily as a lawyer, for example Information Tech for the courts, etc.).

Kent County's website.

Indeed.com - the nice thing about Indeed is the jobs are searchable by income, job title (not just description), etc. etc.

Legal research: for Michigan bar members only

In case you really need to find an opinion issued by Michigan's court of Appeals, or Supreme Court, where do you go?

Aha: The state bar's website has a searchable feature for the e-journal, and it is located here. 

Enjoy! 

1 in 10 Michigan children have a parent who's incarcerated

One in 10 Michigan children have a parent who has been incarcerated, an often traumatic event that can lead to increased poverty, stress and family instability, according to a report released today.

The report, from the Annie E. Casey Foundation, shows that 10 percent of Michigan children have a parent who has been in jail or prison. The data only counts children whose incarcerated parent lived with them at some point. It does not include children with a parent who was incarcerated prior to their birth.

Article here (via mlive).
Michigan is in the top three of states nationwide for this statistic. 

The equivalent of a legal TED talk topic: Should non-lawyers be allowed to own law firms?

This is the equivalent of a legal "TED talk" topic: what is the future of the legal profession? Will it stay its same old way, stodgy and traditional, or will it start to change?

It's currently against the rules of professional ethics that govern lawyers for a non-lawyer to own a law firm. Most states also bar law firms and non-lawyers from sharing or splitting fees.

This is starting to change, with some states allowing fee sharing, also known as multidisciplinary practice, but overall, not OK.

However: 

An ABA commission is seeking comments on an “issues paper” examining ethics rules that bar nonlawyers from owning and managing law firms.
The ABA Commission on the Future of Legal Services “revived a contentious debate” on the issue with a request for comments, which are accepted until May 2, according to the ABA BNA Lawyers’ Manual on Professional Conduct.
The commission is asking whether it should make a recommendation to the ABA House of Delegates regarding the ethics rules that bar nonlawyer ownership, according to the article. The ABA Model Rules of Professional Conduct and ethics rules in most states bar nonlawyer ownership.

Article here (via aba journal). 

Ignition Interlock cuts repeat drunk driving in half, according to report

Let's say you're a driver who has had a prior drunk driving, and then gets a partial driving privilege restored. That partial privilege usually comes with the requirement that the vehicle be operated ONLY when an ignition interlock device is installed. The device requires that any driver "blow" to show that his or her blood alcohol content is accepted before the car can be started. 

The 61st District Court in Grand Rapids is among five courts involved in a pilot program that began in 2011. The devices, which prevent a driver's car from starting if his or her blood-alcohol content is above a certain level, are also used in Kalamazoo, Oakland, Grand Traverse and Marquette counties.

The Michigan Supreme Court this week released a study evaluating five years of the project, saying the devices have helped put repeat offenders on the track for success. 

Article here (via mlive). 

Revenge porn bill proposed by Michigan Senate

Revenge porn - when an ex lover has intimate photos of a lover and decides to publish those images in revenge when the relationship goes sour - may be illegal soon in Michigan. That is, if the bill proposed by Michigan's senate becomes law. (Please note: It's already illegal if the alleged victim is under age, because that falls under the child porn laws, which would necessarily have a sex offender registry requirement, aka SOR).

The text of the bill can be seen here on the Michigan Legislative service website. (which, as I have mentioned before, contains all sorts of information on Michigan laws (those that are already law, and those that are proposed.))

The bill will make it a misdemeanor to "disseminate" sexually explicit visual material on a computer, network, or other electronic device or medium of communication, when the person who's image is being disseminated did not consent, is being threatened, coerced or intimidated by those images, and is more than 18 years of age. A second offense under this bill is still a misdemeanor, just with a higher fine.

Common law marriages in Michigan (Novel notes in the law, part 42)

Q: My niece was living as a girlfriend to this man who passed away last week. He said he wanted to make sure she was "taken care of," while he was going through his last illness. He even told his best friend the same thing. They lived together for 7 years, or maybe more. Now that he's died, his family is kicking her out of their house, and telling her that she should be gone in 14 days. I thought that there was common law marriage in Michigan, so she should be covered as far as "being taken care of," am I right?

A: No, you are wrong. Your niece's situation presents three issues in three areas of law: 1. Family law 2. Probate Law and 3. Landlord/tenant law.

1.  Family Law.
It's a myth that there is any common law marriage in Michigan. It has not been a part of Michigan law for decades. As of 2011, there are only 16 states which recognize common law marriage. Michigan has not recognized common law marriage since 1957, so unless your niece has been with her boyfriend since then (7 years = no), or had the common law marriage recognized in a state which does allow common law, then this relationship will not give her status as next of kin, spouse, etc, as far as having any rights to the estate, or the house, etc.

But: Had the niece actually gotten married to the boyfriend this situation would be totally reversed, as she would most likely inherit the property, have the right to stay in the property, and share in his estate as spouse.

2. Probate Law / Estate Planning.
Telling someone that he wants  to "take care of her" when he is gone is not the same as having created a valid will or trust in Michigan which benefited your niece. The only way to make sure that someone is provided for out of the estate is to place those intentions IN WRITING (I can't emphasize that strongly enough), and observe the proper formalities of writing a will in Michigan (signed by the testator while in the presence of two witnesses). A verbal expression to anyone about how one's assets should be distributed means nothing, I am sorry to say.

3. Landlord/Tenant Law. 
I imagine that there was no lease from the owner of the property to the niece. In that situation, the law would treat the niece most likely as a month-to-month tenant. In that case, the family of the deceased should treat her as if they were the landlord, and give her proper notice as to when she should vacate the premises. This is done under the Summary Proceedings Act, which is designed to quickly restore the property to those who have rightful ownership (more information can be found here ). Most likely, the family of the deceased will need to give a 30-day Notice to Quit to your niece). 

Retired US Tax Judge indicted for tax fraud - $400,000 worth

U.S. Attorney Andrew M. Luger for the District of Minnesota today announced a federal indictment charging Diane L. Kroupa, 60, and her husband, Robert E. Fackler, 62, with conspiring with each other to evade assessment of taxes. Each defendant is charged with conspiracy, tax evasion, making and subscribing false tax returns and obstruction of an Internal Revenue Service (IRS) audit. The defendants are expected to appear later this week in U.S. District Court in Minneapolis, Minnesota.

Article here (via taxprof).

"Mr. Social Security" is accused of defrauding the government in scheme

The defendants are accused in an alleged conspiracy that defrauded the Social Security Administration out of more than $600 million in disability payments with the use of false medical documentation.

Article here (via aba journal). 

Job opening? Sort of - an opportunity to take an exam for Administrative Law Judge

Want to be an ALJ (Administrative Law Judge)? Sure, we all do. (If you are lost on the TV reference to the early 90's, I apologize).

Anyway, if you're a licensed attorney with at least 7 years experience, apply to take the ALJ exam! Details here.

Man says undercover officers beat him unconscious: Civil suit against police

A 23-year-old man says he was tackled and choked unconscious by undercover officers who were searching for a fugitive in Grand Rapids.

Article here (via mlive). 

James King claimed he thought he was being mugged when a plainclothes Grand Rapids Police detective and FBI special agent asked for his identification and held him against an unmarked SUV on July 18, 2014. He said didn't know the men were law enforcement.

King, who wasn't the man police were seeking, says he tried to run but was assaulted during a chaotic, confusing scene described in a lawsuit filed Monday, April 4, in U.S. District Court in Grand Rapids. King is represented by attorney Patrick Jaicomo, of the firm Miller Johnson.

King, who was charged in the earlier incident and found not guilty, was previously a GVSU student.

On a side note: this case brings up the legality of whether police can be videotaped during the course of their jobs. One of the officers allegedly involved in Mr. King's arrest asked that bystanders delete any video they may have captured with their cell phones.

This article (from 2012) says that "Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you're an aspiring cop watcher you must be uniquely prepared to deal with hostile cops." Michigan does allow recording of police - this doesn't mean that it will make the police who are being recorded very friendly to the subjects who are doing the recording. Or that it will prevent any charges from being filed - even in connection with the recording, such as disturbing the peace, obstruction of officers, etc.