Archives for February 2008

Kelly Law Office Temporarily (we hope) Evacuated

A few minutes ago I heard my landlord and office mate, attorney Sid Brennan, yell to his secretary “Call 911!” When one hears that of course it tends to get one’s attention. I came out of my office and found everyone in the reception area looking out the front window at an accident scene which was right next door to our building.

A couple of young women in a small economy car had managed to run off Ford Road right square into a tree; but on their way to the tree they seriously clipped a large natural gas pipe which rises out of the ground nearby. Even inside our building we could hear a loud hiss of natural gas, and in moments we were starting to smell it too.

Oddly enough Mr. Brennan was just starting a meeting with a client who had last been to our office on September 11, 2001. This particular client on that day had come in to meet with Sid saying that he had just heard something on the news and we had better turn on our TV. So today the same guy comes along and while he’s there, this happens. What are the odds of that?

About ten minutes went by with no apparent response to the 911 call. The occupants of the vehicle headed across the street toward the General Mills Credit Union, and one of them fell in the snow on the boulevard. To their credit, the fallen woman was quickly attended to by either customers or staff of the Credit Union. I observed one of them run out to her car and get a blanket. Finally we heard sirens. One squad car, then two, then a number of fire trucks which I never did count showed up. By then I was on the phone to Center Point Energy telling them about the gas leak. My call seemed to be the first they heard of it. The person from Center Point suggested that we leave the building, which I have to admit seemed like a good idea at that time.

Leaving wasn’t that easy, since by then the police and the fire department had the street blocked off. I turned off my computer and most of the lights in the building, forwarded my calls to my cell phone, packed up my laptop (which I am using now), and got out of there. In retrospect I do wish I had at least grabbed my portable hard drive where I back up most of my work.

While I was leaving a brave gentleman in a fire department uniform was heading toward our building on foot with some sort of device in his hand. I imagine that item was a gizmo for measuring the presence of natural gas. I certainly wish to say thank you to all those responders from the Minnetonka and/or St. Louis Park Police Department and Minnetonka and/or St. Louis Park Fire Department. Our building practically sits on the border between the two cities, and I will admit that in my haste to get out of there I didn’t bother to read what it said on the sides of the emergency vehicles.

In a few minutes I have a lunch appointment. After that I’ll try driving back to the office and see if I can get near the place. My next appointment is at 4:30 pm. I hope the crisis is over by then.

When people I know first learn that I have a blog they often ask what in the world a boring guy like me would ever have to blog about. I must say that there always seems to be something – such as the events of today.

Senate to Vote Next Week on New Mortgage Relief Bill

I’m sitting here looking at an email I have received from the National Association of Consumer Bankruptcy Lawyers, of which I am a member. The Association has been pushing for legislation which would allow a bankruptcy court to order modifications in mortgage loans, something which would currently be entirely off limits. The bill is S. 2636, and the section of the bill with the mortgage modification provisions is Title IV. There is fear that before the bill is passed that this section will be removed. Now would be a good time to call or write your US Senator if you would like to see them do something about the current mortgage foreclosure crisis.

You can find the text of the bill here. I’m not sure I fully understand all the language, but it looks as if it would give the bankruptcy court authority to lower interest rates and extend the term of the loan to 30 years. I just met today with a gentleman whose mortgage balloons in less than two years. At that time he may have to just walk away from the house. If the term could be extended under the terms of this bill, the effect would be to save this guy’s house. Links to both of Minnesota’s senators can be found here, including info on how to contact them.

What Constitutes "Physical Control" over Vehicle; New MN Decision Shifts Definition

The Minnesota Court of Appeals seems to have moved in the direction of common sense in its January 29th decision in the case of Snyder v. Commissioner of Public Safety. Please understand that in order to be charged with DWI and have your license taken away for that, you don’t have to have been driving. You don’t have to have been anywhere near a road. You only have to have been in “physical control” of a motor vehicle “in the State of Minnesota.”

At one time the “in the State” clause went on to say that you had to be on a roadway or public right of way, but that was deleted years ago. So now you can be in your own driveway, in a field, out on a frozen lake, or stuck in a ditch – it seems to make no difference. But the question of the “where” isn’t what I meant to be blogging about today. I mean here to focus on the “in physical control” part. Previous decisions said that each and every one of the following circumstances counted as being in physical control:

  • Being able to initiate any movement of the vehicle and being in close proximity to the controls.
  • Being drunk and found in a parked vehicle where the car might be started again “without too much difficulty.”
  • Standing at the rear of a car with a flat tire while the motor was running and the key was in the ignition.
  • Driver completely passed out, slumped over the wheel, by side of the road with the keys in the ignition.

So now we have this new case out of Wright County. It started out with a wedding reception where a fight broke out and someone called the police. When the police arrived they found people in the parking lot walking toward a car. One guy took out his keys, unlocked the door on the driver’s side, opened the door and put his foot inside the car. Then he noticed the fact that he was being approached by a police officer, turned toward the officer, started walking toward the officer and tossed the keys to his wife.

Based on the law as it stood prior to last week, if this guy had called me I would have told him he was out of luck. He had his keys in his hand and his foot in the car. If standing behind the car while it’s running is enough, this must be too. The Wright County judge ruled that yes he was in physical control. To my surprise, and probably the surprise of everybody who has been watching this, the Court of Appeals ruled that he was not in physical control.

The Court of Appeals opinion says that to be in physical control you need more than just the fact that this person could start the car “without too much difficulty.” In addition the Court says that they will require that the person “has or is about to take some action that makes the motor vehicle a source of danger to themselves, to tohers, or to property.” Factors that the court considered were:

  • Keys were not in the ignition.
  • Person did not get in the driver’s seat.
  • Did not start engine.
  • Did not touch the steering wheel or the gear shift.

While the Court of Appeals is not admitting that they have made some new law here, it seems fairly clear to me that they have. I’m sitting here thinking about a call I received a few months ago from a gentleman who told me that he received a DWI for standing by the side of the road while a tow truck operator was pulling his car out of the ditch. I told him that yes I thought they could legally do that. If I received a call like that this morning, my answer would be quite different.

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