LaBre on Law

Short Stories on Michigan and Indiana Law

Month: June, 2013

Challenging a Speeding Ticket

TICKET FOR SPEEDING - NARA - 546631

TICKET FOR SPEEDING – NARA – 546631 (Photo credit: Wikipedia)

My wife, Stacy, and I were eating dinner with another married couple on a double date.  This was the first time I was meeting them.

We sat down and ordered some drinks and appetizers.  We did introductions.  What’s your name?  What do you do?  This type of conversation lasted until our drinks and appetizers appeared.  Then the ladies began talking about children.

Mentally, I began to gnaw on a contested hearing I had coming up, while trying to appear attentive at the same time.  As I was playing out the scenarios in my head, I suddenly heard my name.

“Rob,” Stacy said.

“Yes dear,” I said.

“You were just asked a question.”

Oops, caught with my pants below my knees.  Stacy smiled at me and winked.  She knows that the law is a harsh mistress.

“I’m sorry,” I said looking at the husband.

“No problem,” he said.  “I was just saying that a buddy of mine got a speeding ticket in Michigan.”

“Oh, how fast were you clocked at?”

“I said it was my buddy.”

“Yeah, that’s right, how fast was your ‘buddy’ clocked at,” I said with as strait of face as I could muster.

“The ticket has me at 20 mph over.”

“Ouch, that’s at least four points on your driving record, if you’re found responsible.  That’ll certainly increase insurance costs.  Did you get a lawyer?”

“No.  I paid it off last week.  I guess there’s not much I can do now.”

“Actually, you can still request to withdraw your admission, so long as you do it within 14 days of admitting responsibility.  If the court grants your request, however, you’ll be scheduled for either a formal or informal hearing, which you must attend if you want the citation dropped or reduced to a lower civil infraction.”

“Oh, I didn’t know that,” he said.

“That’s why there’s lawyers,” I said.

“What does it matter anyway,” he said.  “It’s not like I can successfully challenge a speeding ticket.  They’ve got that down to a science, don’t they?”

“Not really. Was the police officer sitting along the side of the road waiting for traffic as it passed by, or was he driving on the road with you?”

“He was coming from other direction— driving toward me in the other lane, right behind a semi.”

“Were you in the midst of other traffic or on the road by yourself?”

“There were some cars ahead of me and behind me.”

“What was the weather like outside, and what time of day was it?”

“It was sprinkling rain and about 7:00 p.m.”

“When you were pulled over, did you admit to the officer how fast you were going?”

“He never asked and I never said.”

I smirked.  Silence is golden.

“That means they’ll have to rely on the radar reading and the police officer’s observations to make a case against you, which leaves plenty of room for argument in the scenario you just described.”

“How’s that?”

“A police officer is allowed to testify as to his observations concerning your speed.  If he’s stationary when he clocks your speed, his testimony is more persuasive.  But when he’s driving, his concentration is necessarily more distracted.

“In addition, radar readings are far from scientific fact.  The law imposes certain foundational requirements before its reading is allowed into evidence.

“In your situation, there’s a possibility that the radar wasn’t properly calibrated, or that the weather may have affected the radar’s reading.  It’s possible that the officer wasn’t properly trained to use the radar.  And given that you had traffic both in front of you and behind you, there’s a possibility that the radar clocked someone else.  In essence, yours is a case to play with.”

“Wow.  I had no idea speeding tickets were so involved.”

“That’s why there’s lawyers.”

Contamination and Liability

Skin Deep Promises

Skin Deep Promises (Photo credit: newmy51)

“I’ve been offered a great deal on land”, she said.  “Can you help me with the paperwork on it?”

“Sure”, I replied.  “That’s what we do.  Why don’t we start by you telling me about the land you want to buy, and the discussions which you’ve had with the present owner.”

“The Owner is willing to sell the land to me ‘dirt cheap’, if you’ll excuse the pun.  The land is in the middle of town, and it’s been used as a gas station.  It also has a nice little home on it which I could use as a rental.”

“How much does he want for it?”

“He said he’d sell it to me for $10,000.  We’ve been friends for a long time, and the owner wants to get rid of it quickly so that he can retire and go fishing in the Upper Peninsula.  He said that’s why he’s willing to sell it so cheaply.”

“Have you had an environmental assessment of the land?”

“What’s that?”

“If there’s ever been any use of the land which could have caused a release of contaminants in the soil, and a person buys the land, then the new owner is liable for the cost of cleanup, even if the new owner did not cause the contamination.

“Normally, if there is significant contamination, the cost of cleanup can run to many millions of dollars.”

“That’s nuts!”, she said.  Why should I have to pay for what someone else did?”

“Because Congress and the State Legislature said so,” I replied.  “The politicians decided that if you buy the land, you buy the problems.”

“You’re the lawyer.  Isn’t there some loophole?”

“There’s the ‘innocent purchaser’ defense,” I replied.

“Well that’s me!”, she said.  “I’m as innocent as the new-blown snow.”

“Not so fast”, I responded.  “To be an ‘innocent purchaser’ you have to have made a proper inquiry on whether there’s been a release of contaminants.”

“What’s a ‘proper inquiry’, anyway?”

“Normally, you have to hire a properly qualified company to conduct environmental assessments.  There are three kinds, called ‘Phase One’, ‘Phase Two’, and ‘Phase Three’.

“What are those?”

“The first assessment, Phase One, is an examination of the land records to see if any past owner was engaged in a business which may have caused a release of contaminants.  However, Phase One does not examine the land itself.

“In your case, you know that it was a gas station.  So, you need a Phase Two.  That’s an actual examination of the land itself, both the building, to see if there are substances like asbestos, and soil samples to test the ground.”

“If you pass the Phase Two, you can generally assert an ‘innocent purchaser’ defense if contaminants are discovered later.”

“Then what’s a Phase Three?”

“Phase Three relates to what you can do if contaminants are found in the building or the land.  The Phase Three tells you what you would have to do to remove the contaminants.”

“Would I have to pay for these environmental assessments?

“That’s a matter of contract”, I replied.  “You can put who will pay in your purchase agreement.”

“This is a lot to think about.  I want the land, but I don’t want to risk any costs related to contamination.  Let me think about this.”

“That’s a good idea.  Since these environmental laws were enacted, the danger of contamination needs to always be kept in mind.”

Intersections Between Criminal Law and Immigration Law

English: A dual citizen may bear two passports...

English: A dual citizen may bear two passports. 日本語: 二重国籍者は二つのパスポートを持てる。 (Photo credit: Wikipedia)

I was in an Indiana courthouse for a pretrial conference in a criminal case. My client, a young, foreign man here on a temporary visa to go to school here in the States, was charged with a felony for distribution of cocaine and a misdemeanor for possession of marijuana. He also wants to eventually become an American citizen.

I opened the door to the conference room where I placed my client before talking with the prosecutor, and sat down across from him at the table inside.

“The prosecutor is willing to drop the felony drug charge so long as you plead guilty the to possession of marijuana, which is a misdemeanor,” I said.

“Okay, is that good?”

“Well, you won’t serve jail time since this is your first offence. In addition, you won’t be deported since you’re dodging the felony, and the misdemeanor contemplates marijuana of less than 30 grams, but—”

“That’s great!” he interrupted in an overjoyed tone.

“But you may be prevented from becoming an American citizen,” I finished.

“What!? Why!?”

His tone and demeanor quickly changed to panic. Criminal law has a tendency to bring about all sorts of emotions in people, almost all at once.

“Marijuana is considered a controlled substance. Immigration laws allow the government to exclude individuals from becoming citizens if they’ve ever been convicted of any law or regulation related to controlled substances. That’s not to say you’ll definitely be excluded,  especially since this is a minor charge, but it is to say that you can be excluded.

“In addition, any criminal conviction can be considered a crime involving moral turpitude.”

“What’s that?”

“It’s basically a flexible character and fitness test that considers standards of justice, honesty, and whether you have good morals. Acts of baseness, vileness, or depravity in private and social duties are held against you. This conviction will be held against you, and may prevent citizenship as well.”

“So what are my options?”

“Trial is one, but, like all trials, it’s a coin flip. Your case presents circumstances where I can make decent challenges to the admissibility of the important evidence against you, which is why you’re being offered this plea agreement. But, if we go to trial, ultimately it’s up to the Judge to determine whether to allow that evidence for the jury to see. If the Judge allows that evidence in, then I may need for you to take the stand and testify in your defense—are you willing to go there, if need be?”

Much like our initial interview, there was a long pause after I asked this particular question.

I interrupted his thoughts, and said, “Maybe you should approach this problem by considering the consequences if you lose. If you lose, then, in addition to having a felony on your record, you’ll probably serve jail time. In addition, you’ll definitely be deported, which prevents you from being able to finish school here, and you’ll definitely be prevented from becoming a citizen.”

“What do you recommend?”

“I think you should take the offer. It’s a good deal, and you still have a shot at becoming a citizen, albeit somewhat attenuated.”

“What if I get married to an American citizen? Will that change things down the road?”

“Don’t count on it.”

“Okay, can I think about this?”

“Sure. . . .”

Payday Loans

Hard up for cash?

Hard up for cash? (Photo credit: mrmaccc)

“I’m scared, Mr. LaBre”, she said.

“What’s the matter?” I asked.

“This guy, he said that he would be seeking a felony warrant on me!”

“Why?”

“Well, I went and got a ‘payday’ loan from him.  I had to give him a postdated check for the amount I borrowed, plus his fees.

“Well, when I got paid, I had to buy food for my baby and me, and then my baby got sick and I had to pay the doctor.  There was no money left, and so my post-dated check bounced .  He called me, all mad, and said that he was going to get a felony warrant on me!

“He also said that he’d sue me for three times the amount of the check in addition to putting me in jail.”

“That’s it?” I asked.  “There’s no more to it than that?”

“That’s all there is; isn’t that enough!” she exclaimed.  “If I go to jail, who will take care of my baby?”

“Well, then don’t worry.  Under Section 38(4) of a 2005 Michigan law, called the “Deferred Presentment Service Transactions Act”, he can’t seek any criminal penalty against you if your check is dishonored.”

“Are you sure?  He said that he could do that.  How come he’s saying that he can, and you’re saying that he can’t?”

“Well, let’s look at it.  First of all, do you remember seeing a copy of a Notice in big type posted in his place of business which told you about your rights under Michigan Law?”

“I didn’t see anything.  But, to tell you the truth, I was so nervous about getting a payday loan that I didn’t look, either.”

“OK.  Well, he’s required to post that Notice.  So, did he give you an agreement to sign before giving you the loan?”

“No.  All I signed was the post-dated check.”

“Well, before giving you the loan, he was required by Section 32 of the Act to give you a written agreement.  That agreement had to contain, in addition to your obligations to repay the loan, and a description of the fees which you would be charged, the following notice to you:  ‘State law prohibits us from using any criminal process to collect on this agreement.’ “.

“Like I said, he didn’t give me any agreement to sign.”

“Then all that I can say is that he’s violated the law on the one hand, and that the law prohibits any criminal charge being brought against you on the other hand.”

“How about his threat to sue me for treble damages.  Can he do that?”

“No”, I said.  “In 2010 the Michigan Court of Appeals decided a case which said that, for those firms which give payday loans, treble damages can’t be charged.  All that can be charged back to you is a $25.00 bounced check charge, and the actual amount of the loan.

“However, you may not have to even repay that loan.”

“I borrowed the money, and my check bounced.  How can it be that I may not have to repay the loan?”

“The Act requires those who give payday loans to be licensed.  It also requires them to both post the Notice I told you about, and requires that you sign the Agreement I mentioned.  If the payday lender fails to do all of that, then, under Section 53 of the Act, you can sue him to recover your actual damages and an amount equal to the service fee you paid.  Furthermore, if you win, he would also have to pay your attorney fees.”

“I really don’t want to go to Court.  Courts make me more nervous than dentists.”

“If you don’t want to do to Court, you can still complain to the State.  The State could then, based on its findings, fine him somewhere between $1,000 and $50,000 for each.”

“Do you mean that, instead of going to Court I can just write to the State and make all of that money?  Wow!”

“No, it doesn’t mean that.  If the State fines him, the State keeps the money.  But it certainly would cause the payday lender to reconsider his business practices if he was facing a stiff fine for non-compliance.”