As statistics, injuries and deaths mount, distracted driving is evolving from minor ordinance violation to misdemeanor and, in some cases, felony status. Hand-held devices and on-board computing, while very useful and powerful these days, distract drivers from their primary task: staying focused on the road at all times.

Operating a cell phone has been prohibited by the Motor Vehicle Code in Michigan since October 2013. The applicable language of the Code provides:

Except as otherwise provided in this section, a person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person's hand or in the person's lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state. As used in this subsection, a wireless 2-way communication device does not include a global positioning or navigation system that is affixed to the motor vehicle.

Statistics now reveal that as many as one in four vehicle accidents are caused by a distracted driver. There are many forms of distracted driving:

• cell phone use of any kind; 
• GPS input on vehicle dash or device;
• tending to the vehicle console in any way, including changing a radio station;
• hands-free interaction with the vehicle console;
• eating;
• reading documents; and
• talking to passengers in a manner that takes your eyes from the road ahead.

Even for those not driving, but texting someone whom they know is driving a vehicle, contributes to this dangerous problem now being addressed by the law. Distracted driving is any activity that takes a driver's full-attention from the road ahead and places it somewhere else.

A case of distracted driving from St. Johns, near Lansing, caught our attention this past summer. A driver, distracted by using her cell phone, struck and killed a bicyclist.

Mitzi Nelson pled to a misdemeanor and the district judge fashioned an interesting sentence: she could not own or possess a cell phone during her two year probation; she did 90-days jail "up front"; and she was obligated to address 20 separate drivers education classes. A very light sentence for causing someone's death.

In Rock County, Minnesota, Chris Weber was driving his truck at night and decided to check his cell phone to see about paying his mortgage. While doing so, he struck and killed a mother of two on a bike; her two daughters were in a carrier attached to the bike.

Unlike Nelson's case here in Michigan, Weber was convicted of vehicular homicide, a felony in Minnesota. He did 120-days in jail; a relatively small price to pay. Now he is assisting the Minnesota State Patrol by making a video with the victim's husband.

For busy mobile folks living in a world of 24/7 connectivity, constant contact has become the standard. What better time to "catch up" or to knock-out that one email task or make that one call than while you are on the road between appointments.

We know all about it over here at the Law Blogger, as we are in 2 or 3 courts each day, driving all over Southeast Michigan on deadlines. Here are a few habits we ask our legal team to develop while on the road:

1. When putting on your seat belt, make a conscious resolution each time that you will not answer your cell phone until you have reached your destination; 
2. To that end, prior to pulling-out from your parking spot, check your phone for any messages, and send any messages that you need to send; 
3. Likewise, make any calls you need to make prior to reaching your next destination; 
4. If possible, leave enough time on both ends of your trip segment to complete the above tasks; 
5. When a call comes in while you are on the road, ignore it because your life, and our lives, are more important.
6. Do not text someone that you know is over the road.

It is the height of arrogance to believe that you are so busy, and that your schedule is so important, that you must tap into your phone, constantly, while on the road. Veteran drivers have been doing this, and getting away with it for years.

Statistics and circumstances, however, will eventually catch-up to such drivers. Just because a driver is busy does not mean the rest of us have to pay the price.

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Judge Kathy Viviano

Our lawyers appear in front of Macomb County Family Court Judge Kathy Viviano on a regular basis. Her father was a long-serving family court judge from Macomb; her brother sits on the Michigan Supreme Court.

Earlier this summer, a father with a custody case before Judge Viviano began emailing threats to court staffers that he was going to blow-up her car with a pressure cooker bomb. The 55-year old man, Keith Rebar, also made threats to shoot the judge if things did not go his way in the child custody proceedings.

Rebar's threats came to light a few weeks ago when they were renewed and, ultimately reported to the sheriff.  Atta boy Keith; now your children will get to read about their loose cannon father and may even be deprived of your company while you pay your debt to society for your threats.

Over the years, we have had our share of litigants, both clients and opponents alike, who have taken a dim view of the family court system. These folks talk a lot about taking matters into their own hands when they feel helpless within the system.

Often, such folks have visceral disagreements with the family court professionals assigned to their case. These people feel that no one can decide matters, or can make parental decisions, better than they can.

When they see their case taking a few turns in a direction they do not support, they tend to overreact. In the case of Judge Viviano, Macomb County Prosecutor Eric Smith took Rebar's threats seriously, charging him with making a false report or threat of terrorism; a 20-year felony.

Because family court judges make decisions that hit so close to home, they are faced with situations on a daily basis where one party in every case views the judge's decision as a vital threat to the very existence of their family.

A trip through family court is a rough road for the hot head. Good legal counsel is the best bet to keep things moving in the right direction.

Making threats to the family court professionals is never a good move. It amazes us here at the Law Blogger how often that occurs.

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Last week, the Michigan Court of Appeals reversed the felony marijuana manufacturing conviction of a Tuscola County man based on how the 68 pot plants seized from his warehouse were weighed by the Sheriff. The defendant in the case had a valid medical marijuana card.

The Sheriff deputy testified probable cause was obtained based on the pot smell coming off the building and from the numerous pot plants that were visible by looking into the windows of the warehouse.  All the plants were seized and Johnny Randall was charged with manufacturing marijuana, a felony.

In his defense, Randall moved to dismiss the charges under the immunity section of the Medical Marijuana Act; he asserted that he was a care provider for 5 individuals [the maximum under the Act] and was a certified "patient" himself.  The trial judge wasn't having it at Randall's bench trial, denied the motion to dismiss, convicted the defendant, and sentenced him to 180-days jail, held in abeyance pending an appeal.

This is not just another pot case on appeal.  This case featured a detailed analysis of how pot plants are counted and weighed within the context of the criminal manufacture statute and the Medical Marijuana Act.

Randall's was a full-on hydroponic marijuana manufacturing operation which included dozens of plants in various stages of the process. This included drying plants and others in the mid-growth cycle.

At his bench trial, the deputy sheriff testified that some of the seized plants were dried; other plants were still maturing.  The sheriff pulled out the live plants and left them out to dry before sealing them up in an evidence bag to be used in Randall's trial.

The Court of Appeals held that only the dried marijuana leaves are to be considered the "usable" portion of the plant and thus, still growing plants and the "incidental" seeds, stalks, and unusable roots cannot be counted against the caregiver-patient.

Under this interpretation of the Medical Marijuana Act, Randall was well-below his 15-ounce weight limit as a caregiver for himself and 5 other individuals. His conviction was therefore dismissed and his sentence was vacated.

These and other aspects of the immunity provision contained in the Medical Marijuana Act were recently argued before the Michigan Supreme Court in three consolidated cases from Oakland County; a decision is expected later this spring.

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On the final day of the 2010 term, as their long summer break beckoned, SCOTUS issued a notable decision involving the regulation of video game content.   Brown v Entertainment Merchants Association is a 7-2 decision invalidating California's ban of violent video game sales to minors on the grounds that such regulation is an unconstitutional restriction on protected free speech.

So now, when California's pre-teens are committing untold violent capital felonies in Grand Theft Auto, at least they will not be breaking the law in the real world.

Under the First Amendment, SCOTUS held that such speech is protected, even if expressed in the format of a violent video game available to minors.  Therefore, the state regulation of such speech would be subjected to a reviewing court's "strict scrutiny".

Under such a standard, California's video game regulation did not survive.  The SCOTUS decision affirms the 9th Circuit's opinion, reaching a similar conclusion that, like books and plays before them, video games are a valid and recognized form of free expression in our society, cloaked with all the protections of the First Amendment.  Such free speech protections do not vary with a new and different medium of communication.

The High Court was unpersuaded by California's rationale that interactive video games posed a special problem by the child's participation in the outcome of the violence depicted on the screen, and therefore required content-based restrictions.

This is one of those "in your face" moments of Americana.  It seems that, if left to our own devices, our multi-faceted talents and diverse commerce-based culture will unerringly produce this stuff for mass public consumption.

Some of the legistlators on the left coast tried to regulate the content of such expression, at least where minors were concerned.  Well, our babies gotta grow-up sometime; why not inject them at an early age with a serious dose of interactive urban crime or intergalactic slaughter. 

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Last winter, a 14-year old from Olympia, WA wanted to send her boyfriend a special momento.  In an exercise of judgment she would come to profoundly regret, she snapped a full-on frontal nude with her cell phone.

She then attached the pic to her boyfriend Isaiah's number and pushed send, sealing her fate.

For his part, Isaiah was coaxed by another girl he thought was good friends with his girlfriend into forwarding the pic.  Actually, the other girl was a rival for Isaiah's affections with an epic episode of cyber-bullying on her mind.
 
Annotating the pic with a disparaging comment, the rival did a global attach, publishing it to all her contacts.  From there, it went viral within hours.

Before school started the next day, parents and middle school administrators alike were scrambling with damage control.  By mid-day, local police were on the scene conducting interviews.  Isaiah was arrested at the school by the end of the day.

Isaiah, the rival, and another middle school student were charged with distributing child pornography; a felony.  The three teenage offenders spent at least one night in the local juvenile detention center and were brought before a magistrate in standard blue jumpsuits.

The community was pitched into an uproar.  Some parents wanted the accused teens tried as adults; others wanted the subject of the photo charged along with the publishers.

In the end, the prosecuting attorney moderated the charges, offering a misdemeanor reduction equivalent to our "disorderly conduct", with the opportunity to earn a dismissal in exchange for some very targeted community service.

As a component of their probation, the teen misdemeanants were required to create a public service  campaign about the hazards of sexting.  The prosecutor fashioned a sentence that would both capitalize on the aftershock of the incident as well as educate the public about what was acceptable conduct for their children.

Looks like "mission accomplished".

But you would be fooling yourself to think that our culture's sexual saturation is going to change anytime soon. Our children are bombarded with images on a 24/7 basis.  Remember Motorola's Super Bowl ad of Megan Fox snapping a pic of herself in a bubble bath.  Wonder who she sent that pic to...?

We here in the Detroit area are well familiar with sexting hazards; it basically brought down the hip-hop Mayor after all. [Well, technically a perjury conviction accomplished that; but still, just sayin....]

So think twice before you push send folks.  This bit of digital common sense applies to any manner of content you are about to publish.

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Please; Not in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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Oakland County Prosecutor Jessica Cooper has elected to prosecute a Rochester Hills man for accessing his wife’s email account. The emails were accessed from a computer that the husband purchased for family use.

The criminalization of conduct involving computers and privacy has had federal and state law components. For example, in the federal realm, the Electronic Communications Privacy Act was initially passed to proscribe electronic eavesdropping and was significantly expanded in 1986 from traditional “wired” forms of electronic communication, to include all forms of digital electronic communication.

A few years earlier, the Computer Fraud and Abuse Act outlawed electronic espionage. The federal computer crime scheme also features several “technology-neutral” provisions allowing prosecution for a variety of criminal acts involving a computer.

By creating a statutory right to privacy in Internet communications, the federal law creates an expectation of privacy in our digital transmissions and provides a tool for selective prosecution.

But does that expectation of privacy extend to a marital home? To the family computer?

A Rochester Hills woman, Clara Walker, is the complaining witness in the Oakland County case against her third (former) husband, Leon Walker. The husband purchased a family computer and set-up a gmail account for his wife. Shortly thereafter, suspecting his wife was conducting an affair with her second husband, Mr. Walker accessed his spouse’s gmail account to get the proof.

Apparently, his suspicions were well-founded as the couple was divorced last year.

The price of this confirmation, however, was high. Walker has been charged with unauthorized access to a computer; a five-year felony charge due to Walker's circumstances. The case, charged early last year, has kicked around the 51st District Court and the Oakland County Circuit Court since March, surviving the defendant's motion to dismiss.  Trial has been scheduled for Valentines Day.

The unauthorized computer access provisions of the Michigan Penal Code under which Walker has been charged are part of a 1979 statute designed to combat identity theft and computer hacking.  The provisions in the act create a presumption that access to another person’s computer file or digitized data was unauthorized. Various access or password-related exceptions are available to rebut the statutory presumption.

Two prior convictions, or an amount involved in the crime between $1000 but less than $20,000, elevates this computer crime from a misdemeanor to a felony.  Cooper has received criticism for charging an individual for alleged conduct which was resolved in family court. As she'll tell you; "happens all the time."

The case recently began receiving national attention when Walker, formerly an IT professional for Oakland County, cast Attorney Ray Cassarr aside in favor of "Feiger Law".  Figures.

Mr. Walker’s trial, over which Oakland Circuit Judge Martha Anderson will preside, should present some interesting evidence. The private family circumstances leading to the Walker's divorce proceedings may be deemed relevant to the criminal case.  Also, given the way the statute is worded, some interesting defenses can be presented to a jury. Among them, the defense counsel could focus the jury on whether a spouse’s separate email account on a family computer is private and whether there is an expectation of privacy in such an account when your husband has the password.

Any conviction will most likely be appealed.  We here at the Law Blogger will keep an eye on this one for you.  Expect updates.

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