LaBre on Law

Short Stories on Michigan and Indiana Law

Month: March, 2013

Second Amendment Defense for the Home

Case O' Guns

Case O’ Guns (Photo credit: Gregory Wild-Smith)

“So, what happened?”

“I got into an argument with my buddy while we were drink’n.  We were yell’n at each other and push’n each other around before I booted him outta my house.  Next thing I know, cops show up and arrest me from my home.”

“Did you talk to the prosecutor at the arraignment?

“Yep.”

“What did she say?”

“Said I was being charged with possession of a gun while intoxicated, whatever that means.”

“Michigan has a law making it a misdemeanor for a person to have possession or control of a firearm while intoxicated.  It’s punishable by up to 93 days in jail or a $100 fine or both.”

“Yeah, whatever.  So now what?”

“Did you blow over a .08?”

“Think I blew a double deuce when I got to the station,” he said with a grin on his face.

I whistled.  “Sounds like a good time.”

“Sure was.  My buddy was even in the tank to greet me.  That’s how ya know ya have a good friend.”

“Do you own any guns.”

“Sure do, lots of ‘em.”

“They registered in your name?”

“Yep.”

“Have you ever been convicted of a felony?”

“No.  Why?”

“If you’re convicted of a felony, you’re not allowed to own a gun,” I replied.  “Did you grab a gun during the altercation with your buddy that night?”

“Nope.  I wouldn’t put a bullet at risk of touching that man, it’s bad for the lead.”

“Did you have a gun in your hand when the cops showed up?”

“Nope.”

“You never touched a gun that night.”

“That’s right.”

“Well, you have a Second Amendment defense.  Michigan recently held that it’s unconstitutional to arrest an individual for constructive possession of a firearm while intoxicated and in their own home.”

“Constructive what?”

“Constructive possession is a legal fiction that imputes actual physical possession over a firearm due to its close proximity and availability to the individual charged.”

“What?”

“You don’t have to have the gun actually in your hand to be charged with possession if the gun is within reach.”

“That’s crazy!”

“Michigan agrees, at least if you’re in your own home.  The right to possess a handgun in one’s own home as a means of self-defense is a constitutional right.  Court’s aren’t willing to applying the statute in a fashion where constructive possession of a firearm while intoxicated in one’s own home becomes illegal.”

“Not yet, anyway,” he said.

 

Tipsy, Drunk, and Super Drunk

Drunk Driving

Drunk Driving (Photo credit: Steve Rhode)

“I got this ticket recently, Mr. LaBre, and I spent the rest of the night in jail. I want you to fix it.”

“What was the ticket for?”, I asked.

“Here it is.  You tell me. I think it has something to do with alcohol. I was a little tipsy when the officer stopped me.”

I looked at the citation. The citation said “OWI”, and the statute cited was MCL 257.625(1)(c).

“A ‘little tipsy’, eh? Well, did they administer a breath test when you arrived at the Department?”

“Yeah”, he said. “Here’s the paper they gave me. It’s just a bunch of numbers to me. What do they mean?”

I looked at the Breathalyzer results. It said: “Test 1: 0.26 Test 2: 0.25 ”. I whistled. “I’m not sure if ‘a little tipsy’ accurately states it. These numbers would normally indicate ‘dead drunk’. How much did you drink, anyway?”

“Oh, I had a few beers, not too many”, he said.

“How many is a few?”

“I’m not sure”.

“Guess”.

“Maybe ten or so. But I was with the guys for maybe four hours watching the game. So it shouldn’t be that bad. That’s why I said I was just a little tipsy.”

“I think that you and I need to talk about the ‘facts of life’ for a minute.

“I want you to assume that you’re healthy, and there’s no problem with your liver.”

“That’s me, all right.”

“OK. Now, here are the ‘facts of life’ regarding alcohol.

“Every twelve-ounce beer, or every five ounces of wine, or every ounce and one-half of liquor would give you a ‘blood-alcohol content’, commonly called BAC, of 0.035. So, simply multiply your ten beers by 0.035 and you have a BAC of 0.35.”

“Is that bad?”

“With a BAC of 0.35 you should be unconscious. That’s pretty bad.”

“Well, that can’t be right. The paper I gave you said “0.25”.

“Right. Your body metabolizes, gets rid of, alcohol once you start drinking. The rate of metabolizing, getting rid of, alcohol, is 0.015 per hour. Practically, that means that it takes approximately two and one-quarter hours to get rid of one drink.

“You said that you drank those ten beers over four hours. Add an additional two hours from the time of your last beer, to the time of your Breathalyzer test. That’s six hours. So, multiply 0.015 times 6 and you have 0.09. Subtract 0.09 from 0.35 and you have 0.26. Voila!”

“So, what does the ticket mean, anyway?”

“This may help. “OWI” means “Operating While Intoxicated”. The statute means that you are charged with being a ‘super drunk’.

“What’s ‘super drunk’ mean?”

“Let’s put it like this. If you had two beers, or less, then your blood-alcohol content is below 0.08. Let’s call that ‘tipsy’. If you have a BAC of 0.08, or more, you’re drunk. But if you have a BAC of 0.17, or more, then you’re a “super drunk”.

“That’s me, eh?”

“That’s what you’re charged with”.

“So, what does that mean to me?”

“Well, ‘super drunk’ was added in 2008, effective October 31, 2010. The maximum jail sentence for a first offense was increased from 93 to 180 days; fines were increased to not less than $200 nor more than $700, plus court costs; up to 360 hours community service; and driver’s license suspension is for one year, and, if a restricted license to drive to and from work is granted after 45 days, then the car must have an interlock device installed at your expense.”

“Can you get me out of this?”

“No lawyer can promise a client that he can ‘get out of it’. However, let’s talk about what happened in more depth to see if we can find something.”

It’ll take a Miracle

 

wedding rings

wedding rings (Photo credit: Wikipedia)

“You’re kidding,” I said.

“Nope.  Despite my pleading and threats to sue, she wouldn’t budge.  That’s when I decided to come see you,” he said.

“And I suppose you have nothing in writing?”  I said more as an assumption than a question.

“No, why?”

“Because without a writing to the contrary, what you did is considered a gift under the law.”

He recently broke up with his girlfriend, who he’d been living with for the past 12 years.  The property where they lived together is located in Michigan and titled in her name alone.

He works in residential construction, and during the relationship he built a new porch on her home, along with a new addition that included two bedrooms and a full sized bathroom connected to the master bedroom, all of which he paid for out of his pocket.

As he was moving out of the home he demanded payment for his work and the expenses associated therewith.  She refused.

“You mean to tell me that I can’t get a penny for what I put into that home!” He exclaimed.

“That’s correct.  Michigan courts have consistently held that to allow otherwise would have the effect of reintroducing common law marriages, which was statutorily prohibited by the legislature back in the 1950s.  But the law makes an exception if you both entered into a contract stating that you were to be paid for your labor and materials.”

“But we did agree to that!  She said she would repay me!”

“That was an oral agreement though.  Michigan’s statute of frauds requires agreements dealing with land to be in writing, and signed by the person against whom enforcement is sought.  Here, you’re suggesting that the Court should enforce an oral contract that deals with land against your ex-girlfriend –  who you were living with for 12 years – when you name isn’t on the deed and there’s no writing whatsoever.  I’m sorry, but there’s no case here.”

“This is an injustice.  She’s getting a windfall.  Think up a miracle, would ya,” he said in a frustrated, angry tone.

I smiled at him and replied, “That’s easy –  reconcile and put a ring on her finger.”