I received an email from a concerned mom a few days ago. Her son had been arrested for “not-a-drop.” It seems that he was 15, had a learner’s permit, and was driving another teenage friend’s vehicle. The only other person in the car was the teenage friend. So for starters, this was a violation of the terms of the learning permit, which requires that a licensed driver over 21 years of age be present.
The officer observed him weaving and pulled him over. The breath test on the scene indicated .03 percent blood alcohol content. That’s way below the legal limit, so the 15 year old was not charged with a DWI. However, driving at that age with any detectable level of alcohol is a violation of the “not-a-drop law.”
I have a detailed discussion of the not-a-drop law on my underage drinking and driving web page. After receiving the email from the driver’s mother, I pulled up my own page to review the law before I responded. It seemed clear to me that under the circumstances described, this 15 year old was going to be denied a driver’s license until age 21, together with whatever criminal penalties the juvenile court decided to give him – since violation of not-a-drop is a misdemeanor.
To make sure I had it right, however, I called the Department of Public Safety. I got one of their Driver Evaluators on the phone and discussed the matter with him. His opinion was that the 15 year old would only receive a 30 day suspension of his privilege to drive. The Evaluator stated further that it would have taken a breath reading of over .08 or a conviction for DWI before they would require this young man to wait until age 21 before he could get a license.
I did a response email and let the mom know what I had learned. It surprised me, however, which is why I bring it up here. From the way the state statute is written, it is fairly clear to me that the legislature intended that young people who do things like this are not to be allowed to drive until they turn 21; but that is not how our Department of Public Safety interprets it.
The Minnesota statute which cuts off driving privileges until age 21 for juvenile drunk drivers is commonly referred to as “Vanessa’s Law.” This law is named after Vanessa Weiss, a Minnesota teenager who was killed when she was a passenger in a vehicle being driven by an intoxicated, unlicensed 15 year old in 2003. It was written quickly and I think poorly, passed quickly by the legislature, and is now obviously subject to various interpretations. It should be reviewed by the legislature to make sure that the way it is being interpreted matches their intent.
I often advise my clients that if they are sure they are going to be filing a Chapter 7 bankruptcy, they should stop trying to make payments on the debts that they expect to have discharged. It is surprising how many people just don’t follow that advice, or think it doesn’t apply to them, or believe it shouldn’t apply to some particular bill that they really want to pay. Often they make such payments only to find that after the bankruptcy is filed, the Trustee is demanding that the creditor who they paid must now give the money back – back to the Trustee of course.
One of the principles of bankruptcy law is that all of the creditors are to take their losses equally. In the event that the debtor has paid an unsecured creditor $600 or more in a consumer case or $5,000 or more in a business case within the 90 day period before the case is filed, the Trustee can go to the creditor and demand that money. The trustee will recover the money and, after perhaps using some to pay administrative costs, distribute it equally on a prorata basis to all the unsecured creditors. The term for such a large payment to a creditor within the 90 days before filing is “preference.” It’s not OK for one creditor to be preferred over another.
Another type of preference is a payment made on a debt owing to an “insider.” Insiders are either close relatives or close business associates. There’s no dollar limit on this type of preference, and under Minnesota law the Trustee may be able to go back as far as six years to recover these payments. This insider thing can get very nasty, and you should be sure to disclose any possible problems in this area to your lawyer. There are some defenses to these insider claims, and your lawyer should be able to tell you if one might apply to your situation.
When the same thing keeps happening over and over again, I feel I should say something. Yesterday I met with a well-dressed, obviously educated and intelligent man. We talked about filing bankruptcy. He brought in and deposited on my desk a stack of documents that I usually request for such meetings. As I looked them over I said something that referred to him as having two mortgages. He seemed surprised and stated that he had only one mortgage.
At this point I had to take a breath and explain that a home equity line of credit is a mortgage, usually a second mortgage – but a mortgage. When you use a line of credit like that, it is like withdrawing money from a bank account – only it’s not money in a bank account, it’s the equity in your home. It always disturbs me to see people doing this because:
- Most don’t seem to realize that a home equity line of credit creates a lien on their home and therefore eats away at their home equity.
- Under Minnesota law the equity in our homes is one of the few things that most creditors cannot take away, except of course for a creditor holding a mortgage.
- Unlike a credit card debt or a medical bill, amounts owing on home equity lines must be paid, even in the event of a bankruptcy filing, unless the debtor is willing to let the home be foreclosed upon.
It seems to me that the loan officers do their best to make sure that consumers don’t understand the true nature of these credit lines. Not only don’t they explain it, but they can be downright deceptive about it. They talk as if it is free money, and encourage that kind of unhealthy thinking. Then they give the consumer an incomprehensible stack of papers that nobody understands, and say “sign here.”
I strongly suggest that if you need to go into debt for any reason, be sure you are doing it in a way that does not diminish the equity in your home. Beware of paperwork that puts a mortgage on your home in exchange for a favorable interest rate. That deal is not as good as it looks.
I attended a dinner last night which was hosted by my friend and former mentor, now retired attorney Alan Stiegler. He had invited me and several others to thank us for the part we had in getting his law review note, Redemption, finally published. Being on the law review is the highest honor that a law student can have. It is a student publication that reviews and comments on the legal issues of the day, but only about the top one percent or higher of the law students get to have anything to do with it. A “note” is an article, which these days can easily run over 100 pages. Mr. Stiegler’s note, Redemption, was supposed to have been published in the 1949 edition of the University of Minnesota Law review, but it never was. It was excellent work, and it is quite clear that the reason it was kept out of the publication was religious and ethnic discrimination.
I have known Mr. Stiegler for decades, but I heard this story for the first time during a visit I had with him in March, 2007. I asked him if he still had a copy of the transcript. He did. I suggested that these days with the Internet there must be dozens of places it could be published, perhaps even my web site. A few days later he dropped off a copy of the transcript at my office. After reading it, I felt even more strongly that it should be published somewhere. I began looking into possible sites where it could be posted; but Mr. Stielger felt so encouraged by the possibilities that he picked up the phone and called the office of the University of Minnesota Law review.
It was not long before a team of law review students was helping Mr. Stiegler check the citations, retype and edit the text, and prepare the “note” for publication in the current pages of the Law Review. The final form of the note can be found by clicking this link: http://www.law.umn.edu/lawreview/v91stiegler.htm. This brings you to a page with a link to a pdf document at the bottom. That pdf document is the “note.”
My part in this was quite small. Others attending the dinner included several of the students who had been staff of the Law Review, the professor who was their faculty advisor, and the librarian who will be adding Mr. Stiegler’s article to the University of Minnesota Law School’s permanent archives. My understanding is that the librarian also had a hand in helping the students find some of the publications, now in the rare book section of the law library, which had been originally cited by Mr. Stiegler.
An injustice which took place in 1949 has been corrected, and Mr. Stiegler – a well-deserving combat veteran or World War II – is happier and more at peace as a result. I want to thank those at the University Law Review, the law library and the faculty advisers, who choose to see that this was completed.
I just got back tonight from a week up north – mostly camping at Grand Marais, right by Lake Superior. It is good for the soul, and I feel refreshed in body and mind.
My wife and I have a 1999 Coleman pop-up camper – the Sun Valley model. In my younger days I was a purist. Camping meant hanging a tiny light-weight tent from my back pack and hiking as far into the woods as I could go. I would spend days out on the trail, and the more isolated it was the better. Now, however, I have gotten used to certain amenities, such as a microwave oven, an air conditioner, a propane heater, cable TV, cell phone service and wireless Internet. I still like to hike, but I don’t think I will ever go back to camping out of a backpack.
Last night after we packed up most of our stuff so we’d be ready to buzz for home this morning, we headed for a restaurant in Grand Marais called “My Sister’s Place.” I highly recommend this place. On our way over there my cell phone rang and it was a good friend, who told me about the collapse of the 35W bridge. Shortly after we got to the restaurant, I noticed that a lot of the people there were receiving cell phone calls. I could overhear a word or two so I knew that most of the calls were about that bridge. A certain subdued mood settled over the place. I imagined that similar scenes might be taking place all over the state, or at least anywhere that people from the Twin Cities might be gathered. Several folks started making calls, obviously to check on family or friends. I made a few of those calls too, but not until after leaving the restaurant.
I have a son in law who works within a few blocks of that bridge, so my daughter – his wife – was the first person I called. He had not yet come home from work, she couldn’t get him one the phone, and she was a bit worried. Eventually he showed up and all was well. Apparently I and the customers of My Sister’s Place were not the only ones making such calls to check on friends and family, and the Twin Cities phone system got really jammed up for a while.
So tomorrow it’s back to the law. I feel that my thinking will be clearer for having taken this trip.
There seems to be a lot of confusion these days about how to put a value on the assets when we list them on a bankruptcy petition. Under the old law it was easier. The value was what you could get for an item if you put it out in the front yard and had to sell it within 24 hours – or at least that was my interpretation of what the law said.
Under the new bankruptcy law the value is what it would cost to replace an item with exactly the same thing, with the same wear and tear and in exactly the same condition. That’s pretty theoretical, since it seems to require that you establish a value by finding the price of an exact duplicate of what you have. When we don’t know what to say for a value, I tell my clients to start looking at Craig’s List or Ebay and see if they can find what they have and at least establish a price range.
One of the most contested areas is the value of cars. It seems that the bankruptcy trustees want to use NADA values, which tend to be aimed at what a dealer should be able to get for a car. If a trustee does use Kelly Blue Book, it’s usually the dealership value. There is nothing in the law, however, that says you have to buy a car from a dealer or use dealership prices. Recently, in the Ramirez case (359 B.R. 794), a bankruptcy judge in Colorado decided that the proper standard for valuing an automobile is the Kelly Blue Book private party value, a number which is always a lot lower than the price that a dealer could get for the same vehicle. I applaud that decision. It seems right to me.
As far as I know, no bankruptcy judge in Minnesota has issued a written decision on the issue. I recently received an email from another attorney, however, stating that two of our judges have stated verbally from the bench that Kelly Blue Book private party value is the one to use.
For about a decade now I have been answering legal questions which I receive from LawGuru.com. I just posted a link to those answers at the right here on the blog. Over the years I have answered hundreds of questions on a great variety of topics. You can view the questions at http://www.lawguru.com/cgi/bbs/mesg.cgi?a=kellydav. From there I’m sure you can find a link for posting your own question should you choose to do so.
I usually put a little disclaimer at the end of each answer. A lot of the questions leave out essential information which if I only knew would change my response substantially. I am quite fond of saying that there is no substitute for a face to face meeting with a competent lawyer.
On my way back from Wisconsin on Sunday, as soon as we crossed the border into Minnesota, we were greeted by an electronic sign over the freeway announcing “Enhanced DWI Enforcement June 29 – July 9.”
This message appeared on all the electronic signs that I saw as I drove on my way home into Minnetonka. I wish I would have had a camera ready so I could ask my wife to get a photo of it to post on my site. We had plenty of cameras with us at the time, being on the way home from my daughter’s wedding, but they were packed away where we couldn’t get at them. If anyone happens to have a photo of that sign that they could email me, I would appreciate it.
It seems these days that the authorities have the enhanced enforcement every time there’s a major holiday. They did the same thing for the New Year’s holiday. Please consider yourself to have been warned. Enhanced enforcement means extra squad cars and officers with an attitude working overtime. They just might be a bit upset that you get to celebrate the holiday and they don’t.
And if the warning happens to have gotten past you or happens to have not been noticed by someone close to you — I’ll be keeping close to my cell phone waiting for your call. The number is 612-735-3797.
After a couple of bankruptcy hearings this morning, I’m heading to Wisconsin for the weekend where I am scheduled to walk my daughter down the aisle at her wedding. I will admit that the prospect of this event is distracting me from my usual preoccupation with solving legal questions. Could it be that there are a few things in life that are more important than my law practice? I guess so, but a lot of days it is hard to keep a healthy perspective.
I just answered a question on LawGuru.com concerning whether two DWIs received in Wisconsin would count toward making a DWI in Minnesota the third offense. The question basically was, “would a DWI in Minnesota now after two in Wisconsin be my first offense or third offense?” I guess I shouldn’t be surprised by the question, but I was. Is it a mystery that law enforcement across the country is hooked up with computers and are trading information about nearly everything?
Not only does an offense from another state count, but about a year ago the Minnesota courts decided that even if the prior offense violates Minnesota standards for advising the defendant of his or her right to a lawyer, it will be considered legal here if it was legal in the state where it happened.
So here is the answer I posted on LawGuru:
“It would be considered your third offense in ten years, and the state would seize your car – or the car you were driving at the time even if it is not
One thing I keep seeing in situations like yours is that the person with two priors always seems to be driving someone else’s car – and that’s the car that gets taken by the state. This is not the way to keep your friends, marriage or girlfriend. It really pisses people off when their car is gone for good and it’s your fault. The state doesn’t care if it’s a beater or a mercedes. It’s gone.
You can view my other answers at LawGuru by following this link: http://www.lawguru.com/cgi/bbs/attyPages/kellydav.html.