LaBre on Law

Short Stories on Michigan and Indiana Law

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.

 

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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.”

Debt and Taxes

Taxes

Taxes (Photo credit: Tax Credits)

“Mr. LaBre, I’ve got myself into a world of financial trouble.”

“What kind of trouble?”

“Well, I’ve got credit card debt of $50,000. I’ve got a mortgage on my home for $200,000, but the house is only worth $150,000. I’ve got a cabin on aprivate lake up North; that’s got a $100,000 mortgage, but now, after the crash, it’sonly worth $60,000.”

“How much are you earning?”

“About $65,000 a year.”

“How much of your income is going to pay off those debts?”

“By the time I’ve paid on the two mortgages and the credit cards, and paidthe utilities, we hardly have enough money to eat and feed our four kids.”

“How did you get into this mess?”

“Well, like a lot of folks ten years ago, I thought that prices on real estatewould always keep going up. So my wife and I thought that the houses wouldmake good investments. We didn’t worry about the credit cards; we thought we’d sell the lake property for a profit and just pay them off. Then came the crash. After that, the values went down, and, to live, we used the credit cards rather than cash.”

“Have you thought of bankruptcy?”

“Yes.  My wife and I have thought about it. But what we’d really like to do is to see if you can get the banks holding the mortgages and the credit card companies to write down the amount of the debt we owe.”

“You could do that in a Chapter 13 Bankruptcy, or you would probably qualify for a Chapter 7 Bankruptcy and eliminate all of your debts”.

“We really don’t want to file bankruptcy. We want you to get our creditorsto write down and forgive a part of the debt. We want the mortgages to be written down to the current value of the properties, and we want the credit card companies to forgive all of the interest we’ve had to pay.”

“Well, I’m not sure whether your creditors would do that, but, let’s assume that they would. That then causes a lot more problems. Specifically, tax problems.”

“Tax problems? We pay our taxes every year. We even get a small refund. What ‘tax problems’ are you talking about?”

“I’m talking about Section 108 of the Internal Revenue Code. Congress laid down a general rule that forgiveness of debt is income.”

“I don’t understand.”

“Not understanding Congress seems to affect most Americans. So let me explain the tax rule to you.

“Congress decided that, if a person negotiates with a creditor for forgiveness of debt, the amount which was forgiven must be included as income in your income tax return. For example, if the bank wrote off $40,000 on your lake property, then you’d include an additional $40,000 on your income tax return. In your situation, your income would increase from $65,000 to $105,000. Your income tax bracket would rise, and you’d pay taxes on that increased amount.”

“That’s nuts!”

“That’s Congress.”

“Are there any exceptions?”

“There are a few. For example, if the bank would reduce your mortgage balance on your home, then any forgiveness of debt is not included in your income. However, that exception is only valid until December 31, 2013. And, if you file for relief in bankruptcy, then the discharge of the debts is not income.”

“Let me see if I understand this. Except for my principal residence, I have to pay taxes on forgiveness of any part of a debt. But, if I file for bankruptcy, and get rid of all of my debt, then I don’t have to pay any additional taxes when all of the debts are discharged in bankruptcy.”

“You’ve got it. It’s goofy, but it’s the law.”

 

Family Presumptions

Broken bonds, but mended hearts

Broken bonds, but mended hearts (Photo credit: EraPhernalia Vintage . . . (playin’ hook-y ;o))

She sat across my desk, looking both nervous and depressed.  Her daughter’s three children were taken by DHS on an emergency petition, and placed into foster care.

The petition suggested domestic violence in the home, along with substance abuse and financial instability.  It’s a Michigan case, none of the children have Indian heritage, and the father, who also lived in the home, signed an affidavit of paternity.

“What is it you want me to do?”  I asked.

“My grandchildren are in foster care; I want them placed with me instead,” she said.

“Do you live in Michigan?”  I asked.

“Yes,” she said.

“Have you talked with the caseworker about this issue?”  I asked.

“She said that she didn’t think the children would be placed with me.  I don’t understand. I’ve been around those children all their lives, babysitting and caring for them regularly!”

“What did the caseworker say?”

“She told me it’s because I didn’t report the problems,” she said.

“Failure to report known child abuse or neglect to the DHS is a form of neglect in itself.  That suggests the problems in the home were blatantly affecting the children.”

“That’s preposterous!” she exclaimed.  “Those two may have argued, but I never saw any drugs in the house or bruising on my daughter or the children!  Otherwise I would have done something.”

Though she spoke persuasively, her facial expressions and body language were limp; I couldn’t read her veracity with any comfort.

“Look, the law creates a presumption favoring placement of the children with family members who are willing and fit to care for them.  The key word in that statement, however, is ‘fit’.  And the presumption in your favor is easily rebutted, especially in situations like this, where uncertainty looms around every corner.”

“Well, I want to hire you to represent me,” she said.  “I want my grandchildren!”

“I’m sorry, but that’s not possible,” I replied.  “As a relative of the children, not the parent, you have no standing to make an appearance in this case.”

“Are you telling me that there’s nothing I can do!?”  she cried.

“Not exactly.  First, you need to wait for a definite reply from DHS.  Sometimes it takes DHS as long as 30 days before they make a decision regarding placement.  But if they decide to place the children in foster care, then I’m telling you that the only people who can argue to have the children placed with you, or any other relative, are the parents or the guardian ad litem.

“Let me ask you this: Are there any other family members who can take care of the children?”

“Yes, we have a large family,” she said.  “Why?”

“Having the children placed with a family member makes a tremendous impact on the case.  Let’s assume that instead of going to trial your daughter pleads no contest to the allegations against her, and she’s required to undergo services.  If she’s determined to have inadequately complied with the required service plan and the children are in foster care, her parental rights will typically be terminated.

“Termination of parental rights is no small affair.  The parental bond is legally severed, and the children are put up for adoption.  That means you would no longer have the ability to see them as a grandparent.  And if parental rights are terminated with one child, DHS can move to take other children out of the home under the theory of anticipatory neglect.  That means if your daughter gives birth to another child in the future, even after this case is closed, DHS could still come and take that newborn.  In addition, unless the court says otherwise, a parent’s obligation to pay child support isn’t vitiated simply because parental rights have been terminated, support must still be paid.

“But assume the same scenario except the children are placed with a family member at the time DHS moves for termination.  Now, the Court is almost required to set up a guardianship instead, with the family member who has the children as the guardian.  This allows the parents to potentially get their act together at some point in the future.  Visitation is still intact for all parties involved.  DHS would be prevented from bringing an anticipatory neglect theory against your daughter if she has anymore children.  And finally, through my eyes, the children involved will have the benefit of being raised by blood, not water.”

“Let’s start making some phone calls,” she said.

 

Sue ’em Now

Great Coverage Gives You the Same Warm Feeling...

“Here’s the papers, Mr. LaBre. I’ve been sued in Elkhart for $750,000 for my medical expenses from my auto accident ten months ago. What do I do now?”

“That’s a lot of money”, I said. “What happened?”

“Well, I was on the Indiana Toll Road, and a semi out of Indianapolis rearended me. It crushed the car. Two of my ribs and my two legs were broken. One of the ribs pierced a lung. I don’t have health insurance. It’s just now that I’m able to be up and about, and able to go back to work. Then I get hit with this lawsuit. I can’t afford that!”

“Where were you living when the collision happened?”

“In Edwardsburg”.

“Was your car fully insured?”

“Sure”.

“Have you contacted your car insurance company regarding your medical bills?”

“I spoke to my agent about my car being totaled, but that’s all. The insurance company hasn’t even paid for that yet.”

“Well, you made it just in time. You see, under the Michigan “No-Fault” Law, you’re entitled to have all of your medical expenses from the collision paid by your car insurance. That coverage will last for the rest of your life. You’re also entitled to receive up to the first three years in lost wages from work, and other  rehabilitation benefits.

“However, Michigan law has very strict limits on the time for seeking these benefits.

“First, you must file a written claim with your insurance company not later than one year from the date of the accident giving the details of the accident. If that written claim is not filed with the insurance company itself, and not just the insurance agent, then you are forever barred from collecting one dime in no fault benefits. Your agent may have filed that claim for you, but you need to be sure that it’s filed with the insurance company. Get a written verification of that filing.

“Secondly, even if you file a claim regarding the accident, you must file a second claim with the insurance company giving copies of the specific medical bills from the collision which you want paid. Even though you have lifetime benefits if you timely file a claim for the accident itself, you must also file a second claim for those benefits. If the claim is not paid, you must file a lawsuit against the insurance company. From the date when you incur the medical expenses, or lose wages, you only have one year from that date to both file a claim for benefits and file the lawsuit if the benefits are not paid.

“Let me get this straight”, he said. “I have to file two claims, one for the accident itself within the first year, and another claim for the medical bills and lost wages. Is that right?”

“Correct”.

“And if I don’t file the claim about the accident itself within the first year, I get nothing, ever.”

“Right.”

“And, I have to file a second claim, and then sue if not paid, for the medical benefits and lost wages within one year from the time when I incurred the bills.”

“Yes”.

“What if I forget?”

“Oh Well. You lose any benefits which are more than a year old when you file the suit for the benefits.”

“So what do I do with this $750,000 lawsuit?”

“We’ll file both the claim for the accident, and the claim for the medical bills and lost wages, with the insurance company today. Meantime, I’ll call the attorney for the $750,000 lawsuit, explain what’s happening, and see if the case can be put on hold temporarily. If not, we’ll join the insurance company in the suit against you.”

“What about the truck that hit me?”

“You’ve got two years from the date of the accident to file that suit. Don’t worry, that’s next”.

 

No Privileged Parents

PLEASE WAIT HERE

PLEASE WAIT HERE (Photo credit: brentdanley)

It was midmorning and I was in the middle of typing a motion on my computer when our secretary, Terrie, suddenly spoke over the law office’s intercom, “Attorney Robert?”

“Yes Terrie,” I said.

“Your 10:30 appointment is ready,” she said.

“I’ll be right down,” I said.

My office is on the second floor, immediately above the main entrance and Terrie’s office.  I saved my motion, minimized the word processor, and then clicked on the day’s calendar to review the notes regarding my next appointment.

Terrie wrote in the calendar that my client’s name is Zach, that he is eighteen years of age, and that he is seeing me because he was recently charged with larceny of property valued over $1,000.00 in Michigan, which is a felony.

“Oh boy,” I said to myself, and then went downstairs to welcome my new client.

When I turned to enter the waiting room I saw two people sitting together: a young man, who I assumed was my client, Zach, and a middle aged woman, who I assumed to be Zach’s mother.

They both stood up as I entered the room.  I reached out my hand to the young man, and said, “Hi, I’m attorney Robert LaBre, you must be Zach.”

“Yeah,” he said in a quiet, nervous voice as he shook my hand.

“And you are?” I asked the woman as I reached out my hand for her to shake.

“I’m Joanne, Zach’s mother,” she said as she shook my hand.  “Can we begin?”  She said.

“Not quite yet,” I replied.  “Let’s all have a seat for a second.”

We all sat down in the waiting room.

Looking at both Zach and Joanne, I asked, “Have either of you ever heard of the attorney-client privilege?”

Both of them shook their head no.

“This is the first time either myself or my son have ever met a lawyer on a professional basis,” Joanne said.

“Okay,” I said.  “Both of you understand that the attorney-client relationship is built upon trust, right?”

Both of them shook their head yes.

“And both of you understand that what is said between the attorney and the client must be the truth—otherwise we can’t properly assess your case.”

Both of them shook their head yes.

“Well, the law understands that the truth is tough to get at, especially when two people meet for the first time, like us right now,” I said.  “That’s why Michigan has the attorney-client privilege.  Think of it like a protective box surrounding this office.  Nothing that is said within the attorney-client privilege can be discovered by the prosecutor, or anyone else for that matter.”

“What does that mean?”  Zach asked.

“It means that when you and I speak together upstairs, you can tell me everything that happened without worrying that I may repeat it to someone else, or later be required to testify about what is said in court,” I replied.

“That’s cool,” Zach said.

“I think so too,” I said.  “But the privilege has limits:  it doesn’t extend to parents and their children.”

Joanne’s eyes and voice hardened, “What does that mean?”

“It means that if you come upstairs with Zach and I, with Zach’s consent, then Zach will have waived his attorney-client privilege under the law.”  I replied.  “In short, the prosecutor could require both you and I to testify about everything Zach says.”

“But I’m his mother.”  Joanne said.  “I’m the one paying for your representation.  And you’re telling me that I can’t be a part of the interview to help and guide my son through this?”

“Well, you can participate with the interview,”  I said.  “But Zach will be waiving the attorney-client privilege.  I don’t care if he waives his privilege, but I at least want him to do so knowingly—it’s a big risk.”

Turning to Zach, I then said, “And just so we’re clear, I don’t recommend that you allow your mother to come upstairs, especially since you’ve apparently been charged with a felony.”

Joanne then looked at Zach and asked, “What do you want me to do sweetie?”

“I think you should wait down here, Mom.”

Joanne turned to me, “Do I have a say on the decisions that are made during the course of the case?”

“No.  The rules of professional conduct for attorneys restrict the decisions to your son, who will be my client.  That’s true even though you are paying his legal fees.”

“I understand,” Joanne said.  “And thank you for explaining all this to us.”

“No problem.”

Then I stood up, looked down at Zach, and said, “Let’s get to work.”

“Know What You Sign”

0516-lawyers

Over twenty-five years ago I wrote a weekly column entitled “LaBre On Law”. I had been practicing law long enough by then to know that most people did not understand much about the law, and got into trouble due to that ignorance.

Since that time the law has changed. People who read my columns then have grown older. My son, Robert, who then had just started preschool, became a Recon Marine, graduated from college with honors, has published in the Michigan Bar Journal, and is now a lawyer working with me at the LaBre Law Office. Between us, we have decided to resume this weekly column in the hope that all who read it will gain in knowledge and be helped in navigating the rules which govern our society.

– – – – – – –

“Mr. LaBre”, he said, “look at this letter from that lawyer! It says that I owe $50,000.  It says that I have to keep paying on that time share condo, even though I don’t go there anymore. It even says that, if I don’t pay, there’s interest, late charges, assessments and attorney fees. That lawyer wants me to pay $5,000 right now, or he’ll sue me for the whole $50,000, and ask for attorney fees on top of it.

“All I wanted was a vacation spot for my family. I thought, when I signed it, that if I didn’t want to use the time share any more, then I could just quit paying. I didn’t know about all of that other stuff; no one explained it to me. Do I have to pay?”

“Let me see the papers”, I said. “Unless I read the documents, I don’t know what you signed.”

I read through the papers; sure enough, everything that he said was in the documents.

“Well”, I said, “that Lawyer is right. Michigan has a law, called the “Condominium Act”. That law authorizes everything that is in the papers you showed me.”

“But no one explained this to me when I signed. That’s not fair! They should have explained all of this to me.”

“This is one of the ways in which the law has changed”, I replied. “Now, the law says that, unless you’re incompetent, if you sign it, and it’s legal, you’re bound to it.”

“But doesn’t the salesman have to tell me what I’m signing?”

“No, he doesn’t. The salesman can’t lie to you about what’s in the document. But the salesman doesn’t have to explain what’s in it. You have to read what you sign, and, if you don’t understand it, take the document to your lawyer. If you don’t take it to your lawyer, and you sign it anyway, Oh Well. You’re bound to what you sign.”

“Is there anything I can do?”

“Let’s talk about it. First, tell me all about the condo” I said