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

DWI at Age 15 – Minnesota Not-A-Drop Law

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.

Preferences in Bankruptcy

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.

Lifetime Dream Fulfilled – Helping a Friend

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.

Back from Vacation – 35W Bridge Concerns

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.

Enhanced DWI Enforcement until July 9th

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.