Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Wednesday, December 31, 2014

Drunk Driving Blood Alcohol Lowered for Snomobiles & Boats

We have seen the drunk driving laws get tougher over the past two decades. The legal blood alcohol level, easily measured by law enforcement with the advent of modern toxicology devices, has been lowered while enforcement has been a top priority with judges and local police.

Consistent with that legal trajectory, Governor Snyder signed a bi-partisan bill into law yesterday that lowers the legal blood alcohol for drivers of snomobiles, boats, and other recreational vehicles from 0.1 grams of alcohol per every deciliter of blood to .08 grams, finally bringing the BAC into line with vehicles.

Note: since 2013, the NTSB has been howling for states to lower the legal BAC for operation of a vehicle, boat or other moving device to .05 grams. For most of us, that's two beers.

So beware Jobbi Nooner boaters next summer on Lake St. Clair; if your captain has more than a few drinks, it could be the drunk tank for the afternoon. Well, perhaps that is as it should be.

We here at the Law Blogger are mindful that it is not illegal to drink alcohol and drive; it's just illegal to operate a vehicle, or now a boat or snomobile, with a BAC over .08. The challenge for us all is knowing when you are approaching the limit; not everyone uses the same level of discretion and common sense after a drink or two.

This new law will not come into play tonight here in Southeast Michigan where, thanks to El Nino, there is no snow cover and the lakes remain unfrozen and unusable for snomobiles. Up North, however, is a different story.

As always, the best policy if you plan to drink while celebrating New Year's Eve is to utilize a "designated driver". So Happy New Year and be safe out there tonight.

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Friday, December 26, 2014

Iowa Tries Digital Drivers License App

Earlier this month, Iowa's Department of Transportation announced it was developing a digital drivers license. Hoping to render the plastic card version of a drivers license obsolete, state officials touted a 2016 implementation for the app.

Licensed drivers in Iowa would have a choice: a traditional card license, or the mobile app. The virtual license would contain the same personal information, including the mysterious bar code, as the plastic card version. During a traffic stop, a police officer would scan the bar code to verify the driver's information with the Department of Transportation.

This could be a problem given the amount of information contained on a typical cell phone. Privacy concerns arise for those Iowa motorists opting to use the digital license. For example, an officer might be privy to incoming text or email messages; an officer might glimpse a photo or the driver's call log, or other information to which the officer would not ordinarily have access.

Aside from the information stored on the driver's mobile device -a fully functional computer these days- questions also arise concerning what information the app retrieves, how such information is being secured or stored, and what information is being exchanged during the interface transaction.

Anticipating these basic privacy concerns, the Iowa DOT described a two-step authentication process, possibly including biometric user verification, and a security feature that would block a police officer from accessing any other part of the mobile device while the app was in use. For their part, law enforcement leaders in Iowa have reacted cautiously to the announcement, implying the digital license may cause more problems for police departments than it solves.

All of this brings to mind the recent SCOTUS decision in Riley v California, where the High Court ruled that in order for police to access the information on a motorists' cell phone, a warrant is required. The utility of this app depends on how it will be used by law enforcement and whether motorists are better served with one less plastic card to carry on one's person.

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Wednesday, December 24, 2014

Lawyer Not a Popular Profession in On-Line Dating Services

Over the past-half decade, lawyers have taken a beating professionally so it stands to reason that they also have suffered collateral effects on the social front.  The former is borne out in verifiable statistics [i.e. a historic low law school application rate] while the latter is apparently a matter of conjecture.

When it comes to one's profession, there may not be any better barometer of desirability than the on-line dating service.  According to Inside Counsel Magazine, lawyers are among the least desirable on-line dates.

This notion caught our attention when perusing our daily newsfeed, and we thought -what the heck- sounds interesting; another form of social lawyer-bashing.  But when you check out the story, the so-called "survey" is linked to a site called Special Counsel and no link to the survey is visible anywhere on the site or their blog.

Full disclosure: with one exception, the lawyers in our law firm are married and, presumably, not uploading profiles to dating sites.  Yet, the premise that lawyers are not the most desirable dates does makes some intuitive sense to us, lodged as we are in the profession.

The legal profession trains litigators that pay attention to all the details; to advance a specific agenda competitively; to present evidence in accord with a complicated set of rules; to present said evidence in a logical simplified fashion; and, to always have confidence in what you're saying; always.  Who seeks out that persona in a dating partner?

One trait that we have observed in many a lawyer: they just cannot turn it off, ever.  And if they are not talking about the law, they are talking about themselves, which is the functional equivalent to talking about the law.

If you are single, sitting in a nice restaurant across from a lawyer, and that lawyer is going on and on about his or her profession, serving-up anecdote after anecdote, dropping names you've never heard of, while taking calls on his cell... Well, waiter, check please.

So what are the more desirable professions to those seeking dates in cyberspace?  Doctors, of course, top the list.  Surfing the Internet for such lists -yes, there're out there- you will find engineers, architects, and entrepreneurs all consistently make the top-ten, but no lawyers.

Oh well.  We here at the Law Blogger are neither shocked nor offended.  In many cases, lawyers need to get over themselves.  

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Tuesday, December 23, 2014

Same-Sex Adoption Couple Has Oakland Family Court Ties

Judge Lisa Gorcyca
November 25 is recognized in Michigan and Oakland County as Adoption Day. Accordingly, there were events scheduled to commemorate the event in the Oakland County Family Court, including a visit by Michigan Supreme Court Justice Brian Zahra, who presented a resolution of the Michigan Supreme Court officially recognizing Adoption Day in Oakland County.

Oakland County Family Court Judge Lisa Gorcyca presided over the event, and then performed an adoption for April DeBoer, who adopted her third child.  Ms. DeBoer is one-half of the same-sex couple that have garnered headlines for challenging Michigan's adoption law, which disallows adoptions by same-sex couples.

This blog has followed the same-sex couple's federal case, now heading to the SCOTUS, as it has wound its way through the federal court system  -starting in Detroit, then Cincinnati, and now Washington, D.C.-  picking-up lots of public interest along the way.   Currently, their case is getting briefed right here in Oakland County and oral arguments likely will be scheduled before the Supreme Court for late spring or early fall.

In granting the adoption, Judge Gorcyca, looking beyond the politics of DeBoer's case, said, "I've had a chance to follow the love you feel for your entire family.  If they prevail in their adoption case, Ms. DeBoer and her partner, Jayne Rowse, will be able to jointly adopt the four adopted children living in their Hazel Park home.  Presently, the couple must adopt the children independent of one another.

Even the couple's opponent in their high-profile case, the Michigan Attorney General, has acknowledged that DeBoer and Rowse are excellent  parents.  As noted by Ms. DeBoer at her recent adoption proceeding, she feels the love and acceptance in Judge Gorcyca's courtroom, but when she walks out the door, she is jarred by the reality that she, her partner and their adopted children are not recognized as a legal family.

We here at the Law Blogger hope that will change soon. Should the change come from our Legislature, or from the High Court; that is the real question.

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Saturday, December 20, 2014

Federal Judge Overturns Ban on Domestic Partner Benefits

U.S. District Judge David Lawson
Over a year ago, U.S. Federal District Judge David Lawson enjoined public entities from refusing the provide government benefits to domestic partners or same-sex couples.

Last month, in Bassett, et al vs Governor Snyder, Judge Lawson finally issued a 34-page opinion disposing of the cross motions for summary judgment filed in the matter. The decision cites to Judge Friedman's ruling in the DeBoer case as well as the seminal case on federal benefits: United States v Windsor.

The Michigan law that was struck in the federal case bans public schools and local governments from offering benefits to same-sex couples. In striking down the state law, Judge Lawson characterized the law as being imbued with an "irrational prejudice".

In so ruling, Judge Lawson distinguished his case from the multitude of same-sex marriage and adoption cases now pending on appeal.  Judge Lawson noted that, "this case is not about marriage." He said the state law ban, "amounts to a classification based on an irrational prejudice which cannot be sustained."

Contrary to the state's assertions that the ban was merely designed to save money, Judge Lawson saw an animus against gays; a punishment of same-sex couples.

Considering that the Sixth Circuit Court of Appeals reversed Judge Friedman's DeBoer decision supporting same-sex couples, an appeal filed by the Michigan Attorney General would seem inevitable; the deadline recently passed so we will be checking PACER on Monday.

These issues will continue to play out in the federal appellate circuits over the next few years. For our part, we will continue to monitor and report on the developments. The pace quickens for this task.

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Friday, December 12, 2014

Oakland County Prosecutor Addresses Digital Danger With Middle School Students

Yesterday, Oakland County Prosecutor Jessica Cooper addressed the students of Clifford Smart Middle School in Commerce Township about the dangers of social media and potential criminal liability for conduct involving the transmission of naked images through the Internet.  The presentation was part of the ongoing Educating Our Youth initiative at the prosecutor's office.

The prosecutor warned the students that nothing is ever deleted once posted to the Internet via social media.  She also advised that the hard drive of a computer can be seized by law enforcement and explained the trove of information that resides on such devices.

The wide-ranging talk covered sexting, how to exercise proper caution when online, and the recent case in Brandon where a student hacked into an after-school app to post violent threats that included references to the Colombine massacre.  Often, coming of age in the post-modern world now involves facing certain digital realities.

With a compelling digital backdrop for her presentation, the primary thrust of Jessica Cooper's address to the middle school students was the dangers of sexting one another.  She warned students of the serious felonies of: possession, distribution and solicitation of child sexually explicit materials and the steep penalties those convicted could face.  She cautioned students that deleting such images does not make the problem go away.

Recently, Cooper's office has exercised its prosecutorial discretion to bring charges against a large group of middle school and high school students in Rochester Hills.  The students were sending nude images of themselves to one another through their cell phones.

No one wants to witness the witch-hunt that could result from mass prosecutions of teenagers; that was not the point of Cooper's message.  Rather, the digital youth culture needs to scale back some of its reckless nubile abandon in our digital age.

We here at the Law Blogger applaud the prosecutor's efforts in the Educating Our Youth initiative.  With an overburdened schedule, Madame Prosecutor is finding the time to personally take her serious message to the youth who need to hear it the most.

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Saturday, December 6, 2014

Detroit Home Foreclosure & Auction Leads to Murder

We have all heard the news streaming from Detroit over the past half-decade regarding the effects of the real estate collapse.  In order to generate some much-needed revenue, the Mayor's office has designed several programs to demolish the thousands of vacant condemned homes across Detroit, and auction salvageable properties that have been foreclosed for non-payment of taxes.

When property owners do not pay their property taxes, Michigan law provides a foreclosure process for the county treasurer to sell the property out from under the owner, similar to a mortgage foreclosure.  In Detroit, the tax foreclosure process has taken on a Kafkaesque dimension due to the sheer volume of distressed homes and the unusual tenacity of squatters.

Just as 75,000 properties in Wayne County are being prepared for tax foreclosures and sale by auction in 2015, a father and his adult daughter were gunned-down last week when entering their newly acquired home in the bucolic Rosedale Park section of Detroit.  They purchased the home at a tax foreclosure auction and were taking possession the day after Thanksgiving.

Unfortunately for the now-deceased new home owners, the former tax-delinquent owners were either unaware of the foreclosure sale, or did not care, leaving an uninformed family member to occupy the home over the holiday weekend; he was armed and probably thought he was protecting family property.

The most discouraging aspect of this story is where the murders took place.  Rosedale Park is the largest historic district in Michigan; it's homeowner's association is nearly a century old.  Among the residents of these historic and beautiful neighborhoods -Rosedale, North Rosedale and Grandmont- are some of Detroit's leading citizens.

The percentage of distressed homes in Wayne County, especially Detroit, that have delinquent tax issues, squatters, auction complications, or outright condemnation is critically high.  Getting law enforcement from Detroit and Wayne County to coordinate these property transfers with the County Treasurer will be a challenge.

This challenge must be met, however, or more blood will flow in the "D" as new property owners clash with former property owners, and as squatters are confronted with self-help eviction methods.

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Monday, December 1, 2014

Facebook Goes to the SCOTUS Today

Only one hour of oral argument has been allotted by the Supreme Court this morning in a case testing the limits of free expression on the Internet. A federal law proscribes the transmission of threats across state lines; Anthony Elonis was charged with violating that law when, after his wife filed for divorce on the same day he was fired from his job, he posted a torrent of violent rap "lyrics" on Facebook describing how he would kill her.

Later, when a female FBI agent interviewed him about the posts, he posted similar comments about the agent.  The United States cried "foul" and charged him under the federal law that criminalizes the interstate transmission of, "any threat to kidnap any person, or any threat to injure the person of another."  Elonis was jury convicted and is doing 44-months in federal prison.

Elonis' appellate lawyers' comparisons to Eminem [he used some Slim Shady lyrics] will not doubt get the justices attention.  Comparisons to the famous rapper were made in Elonis' appellate briefs filed with the High Court.

The SCOTUS, in granting certiorari, instructed the parties to address the meaning of the federal statute at issue.  This suggests that it may be able to decide this case without fully addressing the scope of the First Amendment.

On the other hand, Elonis' lawyers are touting this case as the Internet case of the century; the Internet as a megaphone for "Everyman".  Whenever it can, the SCOTUS will attempt to avoid sweeping pronouncements of constitutional law.

The NYT Magazine had this to say about the case in the Sunday paper:
The central question for the Supreme Court will be whose point of view -the speaker's or the listener's- matters.  In essence, the court will have to decide what matters more: one person's freedom to express violent rage, or another person's freedom to live without the burden of fear?
In the recent past, the SCOTUS has held that "true threats" against harming an individual may be proscribed by statute.  In this case, the High Court has to sort through what it means to "communicate" via the Internet; and what constitutes the intent to communicate an illegal threat of harm to another.

There will be plenty of lawyers dancing on the head of that pin this morning in the chamber of the SCOTUS.  For our part, we here at the Law Blogger will watch for and report to you the decision.

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