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.

Full Moon Tonight – Likely time to Get in Trouble

If you take a close look around my office, you will see an atomic clock on the wall that not only indicates time, but also shows the phases of the moon. I have that clock for a reason. For years I have been noticing that the phases of the moon seem to influence my business and the behavior of my clients. For example, last night at about 7 pm, just as the full moon was rising (I checked the Naval Observatory and the time was almost exact), one of my bankruptcy clients sent me an email on the subject of how he needs to go further into debt for something. I will be going over the situation with him, but I expect my advice will be that it’s a really bad idea.

I have never read this anywhere. This is strictly my own observation. BUT here’s how it seems to me the moon phases seem to work: people get in various kinds of trouble during the full moon, and then call me asking to get the problem fixed during the new moon. So today I expect my phone to be fairly quiet. If you want to have a long talk with me, today is a good day to call. As October 11th the day of the new moon approaches, I know that my phone will get very busy – email too – and a lot of the communications will be rather breathless. It happens every time.

At the hospital where my wife works as a nurse, the busy time – especially in the emergency room – is the full moon. That’s when they get the most body part donors – lots of people out on their motorcycles without helmets after having a few too many. At my office it’s pretty much the opposite, with the busy time being the time of the new moon. There’s got to be some science behind this. If anyone who happens to read this knows what that is, I would appreciate some feedback on that subject.

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

Constitution Day

I’m taking a couple of days off, and I’ve headed my favorite direction: north. With my wife, my dogs and my camper.

We have the camper set up at the Grand Marais Municipal Campground. This morning was cold and rainy, but now it has cleared and the sun is out. We would usually make coffee – lots of coffee – and sit by the camper first thing in the morning. But this morning, in honor of the misty weather, we headed into town and went to a coffee shop called the Java Moose. The fellowship and the quality coffee resulted in a very rewarding morning. Today’s Duluth News Tribune had already arrived, and I found an interesting article about Constitution Day. It’s this Monday, September 17, 2007.

It seems that on September 17, 1787, the delegates to the Constitutional Convention finished their work on a draft of a Constitution for these United States. It’s not a holiday in the sense that there’s no mail or the courthouses are closed, but it does seem to be observed by several federal agencies – such as the National Archive that has the job of preserving the original document making up the Constitution and the Bill of Rights.

It is often my job to explain to a client who has been arrested for DWI what his or her constitutional rights are. I can run through them pretty fast. In fact, I think I can summarize them sometimes without stopping to take a breath. There’s the right to remain silent – which is why the questioning possible terrorists is such a hot issue. There’s the right to be presumed innocent; and the right to a jury, where all the jurors have to agree or one is considered not guilty.

One of my favorites is the right to confront and cross examine witnesses. When I get to this one I might sometimes stop, because my client has heard it before and it doesn’t sound like that big of a deal. I may take a moment to mention that prior to our constitution, in places like England, is was a rather common practice to hang someone or lob off their head after a trial that was based on written statements. For just a moment, I invite you to think about what that experience would be like.

I found that article in the Duluth paper to be educational and inspiring. Frankly, I had never heard of the observance of Constitution Day before. How could that be I am asking myself, particularly considering the business that I am in. I admit to having no excuse. I did, however, just run a search on the subject at the web site of the paper I usually read, the Star Tribune. So far there’s nothing there. I hope they at least mention it this Monday.

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.

A Home Equity Line of Credit is a Mortgage

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:

  1. 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.
  2. 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.
  3. 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.