My Dentist, My Accountant and Me.

This week I have gone to see both my dentist and my accountant. I like both of these guys, but going to see them tends to be a painful experience. I need both of these guys, but I wish I didn’t.

I suspect that the way I feel about seeing my dentist and my accountant may provide some insight into how people feel when they need to come see me for legal advice or representation. I am fairly certain that very few of my clients are glad about being my client – in fact none are glad about it. While I am certainly glad to see them, seeing me or having anything to do with me must certainly be difficult. If my clients had a choice, I’m sure they’d rather be somewhere else.

I mentioned these thoughts to one of my clients, who stated as follows : “I’m glad to have the company, but I’d rather have a different topic.” Credit to him for putting it profoundly and succinctly.

I’ll share one more fact. Between the dentist and the accountant, I’d rather go see the dentist.

I’ll be in the office Monday morning – no jury duty so far.

Tomorrow, Monday December 29, 2008, is supposed to be the first day of my jury duty with Hennepin County. I just checked with the phone line, and they will not be needing me – at least not tomorrow morning. So for those of you who have had an appointment with me in the morning, I’ll be planning on being there.

The next time I have to check to see if they want me will be 12:15 pm tomorrow afternoon. I am supposed to call in and see if they need me for Monday afternoon. This annoying process will continue for the next two weeks or so. This has meant that I have had to be careful to not be scheduling any court appearances for any of my own cases with my own clients over the next two weeks. Over the past three months or so, I have been making an effort to schedule hearings on all of my cases before Christmas, so that I would have an open schedule now. This made for a dramatically busy December. With that rush over, it seems a bit quiet now; except that I am on call to run downtown and report as a juror to hear a trial.

I’ll be reporting more as this unfolds.

The Case for Santa Claus

Twas the day before Christmas, and my phone has finally quit the constant ringing. Yesterday was another story. Even that close to the holiday, there were lots of interruptions. To all who may be reading this, I wish you a Merry Christmas and a Happy Hanukkah. I am going to make an effort for at least the next 48 hours to enjoy these holidays. It’s not that easy after all the sad stories I have been hearing. It is nonetheless my intent to do so.

I think that I still have somewhere within me a little bit of the wonder that was there when I was a small child surrounded by all the holiday hoopla and regalia, expecting a visit from Santa Claus. It’s not that I still believe in Santa Claus; but except for the scene in Miracle on 34th Street, he’s never been accorded his right to a trial by jury. Even in that movie if I recall correctly, the judge dismissed the charges without letting the jury make a decision. It seems to me that Santa Claus should be accorded the presumption of existence until proven to not exist beyond a reasonable doubt. I don’t really believe, but I have to admit that he has not ever been proven to not exist beyond a reasonable doubt. That’s a tough standard, and it has not been met. In fact, any student of logic will tell you that it is impossible to prove a negative. Thus it is a safe bet that Santa’s nonexistence can never and will never be proven – at least not with evidence that’s admissible in court.

I just checked the NORAD web site, where there is a special page for tracking Santa. In fact at the moment I am writing this NORAD says they have Santa on radar over Dhaka, Bangladesh. Looks real to me, or at least I can’t prove it’s not.

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.

The Wisdom of Staying Home during a Blizzard

Well, I’m kind of a “damn the torpedoes, full speed ahead” kind of guy. It’s hard for me to admit limitations. But I just finished a round of phone calls to my children and my Mother-in-Law (age 87, but acts like 57) cancelling tonight’s planned holiday family event.

We’ve had a tradition that some time during the holidays we all get together and head to downtown Minneapolis to go through the display formerly known as the Dayton’s display, now the Macy’s display. Upstairs in the old Dayton’s department store building, since time immemorial going back to at least the 1960s, there has been a wonderful, entertaining and sometimes inspiring display. This year the theme apparently is the Nutcracker.

Earlier in the day during the first round of phone conversations the consensus seemed to be: screw the weather, let’s go anyway. Since then the snow has gotten worse. Then my son reported that his car was covered with snow with ice underneath the snow. When he tried to clear it, he broke off a windshield wiper. After that I found out that one of my daughters is at her boyfriend’s place – which is in Eagan, further away from my place here in Minnetonka than I had figured.

So on with public TV’s version of the weather channel – which at my place is Channel 13. Quite a graphic depiction of the weather radar showed the weather pattern doing a circular thing where there was no sign of it passing by. Looks more like it intends to stick around quite a while.

The storm should be over by Christmas Day. At that time we’ll discuss maybe trying to go to Macy’s another day before the display ends; apparently it runs until New years‘ Eve. I’m disappointed, however, over not being the conquering hero who figured out how to do the event in the face of the nasty adverse conditions. In my business life I have often been that hero, pulling miracle rabbits out of my hat or out of various other places. But upon having given up on the idea of going out in this storm, I am feeling relief.

There’s a whole body of literature on the subject of how if one feels relief after making a decision, that’s a good sign that it was the right decision.

Merry Christmas and Happy Holidays to you all. If you have taken the time to read all this, let me suggest that you turn off the computer now and get face to face with either a family member or a friend. If you can’t get face to face, at least try making use of that quaint and ancient device – the telephone.

Boo!

It’s a quiet day at my office. Lots of people are calling with questions, but nobody wants to actually come see me. Every other day this week, I have lots of appointments. There must be something about Halloween where people think it’s a bad day to see a lawyer.

I certainly know a few lawyers who I felt may have been vampires, and others who seemed at least borderline demonic. It might be also that lawyers as a profession are more nocturnal than those engaged in many lines of work. A few years ago the wags on KS95 were making a point of telling lawyer jokes around 6 am on the theory that the lawyers would not be up yet at that time, which for the most part I believe was true.

I just received a call from a gentleman in the State of Tennessee. He had a bankruptcy question, but I recommended that he find a lawyer from his own state to ask. Bankruptcy law is federal, but the application of it still varies widely from state to state. There are many questions of interpretation of the new law where the individual courts disagree widely. Asset exemptions are set by state law, and that can make a dramatic difference in the outcome concerning what a debtor may be allowed to keep.

Yesterday a gentleman called who had moved within the past two years from Texas to Wisconsin to Minnesota. He wants to file a bankruptcy here. There are provisions of the new law which are intended to discourage shopping for favorable exemptions by moving from state to state. Under those provisions, if this gentleman wanted to file here right now he would probably have to claim the exemptions provided for under Texas law. What a mess! I have never practiced law in Texas, but all of a sudden I may need to know something about their exemption laws. The last time that happened I made a point of consulting with a lawyer from the state in question. Every now and then I get a call from a lawyer in some other state with a similar question about Minnesota exemption laws.

This has been quite a ramble, if you have managed to keep reading to this point. All I meant to say was HAPPY HALLOWEEN.!

Change of Internet Servers in Progress Now

I hope nobody is having trouble getting email through to me today, or having trouble finding my web sites. For the next 24 hours or so there will be new settings propagating across the Internet which will be redirecting traffic for all my stuff to a new server. While this goes on, I might be missing some of your email; and it might appear that one of my sites, or some part of my sites, are down or among the missing.

Having this goes on drives me nuts, and I hope the transfer is completed soon and smoothly. Meanwhile, all I can say is that I apologize for any inconvenience.

While the transition is taking place, please use the following alternative email address to reach me: kellylawoffice@mail.popp.net.

What I tried to explain last night.

Early this morning at about 1:00 am I received a call from a gentleman who had been arrested for DWI. He was not stopped because he was driving poorly, but only because of an equipment violation. One legal right in Minnesota when arrested for DWI is the right to speak with a lawyer by phone, prior to making a decision as to whether to take the breath test.

I explained to this gentleman that one choice was to refuse the test, but this is now a crime, a gross misdemeanor, and would result in a six month suspension of his driver’s license. Thus I advised against refusing the test. So after speaking with me for as long as the police would allow (about 20 minutes), my advice was to take a breath test.

He was surprised that he was being asked to take a breath test, because he had already taken the preliminary breath test that the officers give by the side of the road. In most cases that preliminary test is a screening device only, and cannot be used in court. There’s another test they offer at the police station on a larger machine called the Intoxilizer 5000. The result from that machine is the one that counts and that can be used in court.

I also suggested that if he failed the test on the Intoxilzer 5000, then he should ask the police to let him make a call to arrange an additional blood test. At my First Arrest First Aid page, there is a phone number for an outfit called Additional Testing, Inc. They dispatch medical professionals who will draw a blood sample and bring it back to their lab for testing. There are some experts who claim that the Intoxilizer 5000 has an error rate of plus or minus .02%. This makes it rather important to not have the additional test until one knows for sure that one has failed the breath test, since the breath test is just as likely to be reading low as it is to be reading high. You wouldn’t want the blood test to come in higher than the breath test. Or at least it should not be risked unless you are sure that you have come in above the legal limit on the breath test.

By the time I got through my attempt to explain all these things, the police were insisting that the gentleman get off the phone and take the test. Since then, I have not heard how it came out, and perhaps I never will. My hope is that he came in below the .08% legal limit, that he was released without being charged, and that he therefore has no need for my services.

Would Somebody Please Educate These Kids?

I will admit to finding myself a bit agitated after receiving and answering the following question on Law Guru:

“Subject: how long is a minor on your record?
Body:
i got a minor consumption over 3 years ago is it still on my record?”

My answer is long, but to summarize it’s “probably forever.” I have received similar questions repeatedly, in my office, on the phone and on line. There seems to be a BIG FANTASY among our younger people that criminal offenses will just go away after a period of time. If it’s a non-driving offense for a person who is under 18, that could be true. Otherwise, every criminal violation a person has tends to follow them their entire life.

So if this person was over 18, which I consider very likely, it will still probably be there when he or she is 81. I just don’t get why I have to keep explaining this over and over, and it is almost always some kind of big surprise.

Free Popcorn at the Courthouse – Constitution Day Honored in Shakopee

I had court in Scott County – that’s Shakopee, MN – on Monday September 17th. I headed straight for my courtroom, thinking it strange that someone had set up a theater-size popcorn machine by the entrance to the building and was obviously dishing out free popcorn. I was concentrating on how to get my client’s charge reduced. What was up with that would have to wait.

Later in the morning, after I was finished in the courtroom, I took a look at the table near the popcorn machine, and saw that it was covered with material about the Constitution and Constitution Day. I found out that the woman in charge of the table and the popcorn was one of the librarians from the Scott County Law Library. First she asked me if I wanted some popcorn. I declined. Next she asked if I wanted a free, pocket-sized copy of the U.S. Constitution. I said yes, and could I have two extra for the other two lawyers I office with.

Before I left I had received not only three free pocket-sized Constitutions, but also a tour of the Scott County Law Library. They have two computers set up where the public can access Westlaw, Lexis and Fastcase – three of the leading law research services. They also subscribed to some of the lesser research services as well. I made a mental note: If I can’t find what need the law elsewhere, maybe I should drive down there and try their resources. Before I left I also got one of the librarians to agree to perhaps checking something for me if I asked by phone, provided I was polite and respectful when I called.

I still have not seen or heard of any mention of Constitution Day except that article in the Duluth paper that I mention in my previous posting. I checked Monday’s Star Tribune – there was no mention of it. I want to commend those librarians for their efforts, and suggest that Constitution Day would be something to which we should all give more attention

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