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Posts Tagged ‘criminal law’

Texting and Driving: Get the Message

It’s always tempting, isn’t it? You hear the alert of a new text coming in, and even though you are behind the wheel, you feel compelled to take a peek. The trouble is, a peek can turn into a long look or even a reply – and that’s dangerous.

Texting and driving is incredibly common, and not just among the 20-and-under crowd. Recent statistics indicate that 27% of adults have sent or received text messages while driving. Other reports show that texting while driving makes a crash up to 23 times more likely.

The offense has often been compared to drinking and driving, with officials citing similar behaviors in texting drivers such as swerving, erratic behavior, driving too fast or too slow, and more.

The danger is severe enough that the majority of state governments have taken action. The Governor’s Highway Safety Association reports that 39 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands, all currently ban text messaging for all drivers.

 

Startling statistics

Texting and driving might be difficult to identify by sight, but recent polls show offenders fessing up:  

  • A 2011 Harris Polls discovered that 49% of drivers with cellphones under the age of 35 send or read text messages while driving.
  • According to the Pew Research Center (2010), 49% of adults say they have been passengers in a car when the driver was sending or reading text messages on their cell phone.

 These responses point to a sad fact: Annually, about 6,000 deaths and 500,000 injuries are caused by distracted drivers.

 

What the law says

These disturbing numbers have caused many states to take action. In Michigan, texting while driving was banned in July 2010. And now most teenage drivers are forbidden to even use cell phones while driving. Kelsey’s Law, named after Upper Peninsula teenager Kelsey Raffaele, who died at age 17 while talking on her cell phone and driving, brings a fine and possible license suspension to drivers with a level 1 or 2 graduated license found using their cell phone while driving.

 

Top tips

Clearly, it is in your best interest to curtail cell phone use in general while driving. In our ever connected world of busy lives and social media, though, this is easier said than done. Try these tips if you are tempted to check your messages while behind the wheel:

  • Turn off your phone when you drive. “Out of sight, out of mind” is a great policy when it comes to safe driving. Store your phone where you won’t see it, and be sure to turn the sound off.
  • Have someone else text for you. A passenger in your car can handle incoming texts if you need to address a message while driving.
  • Establish ground rules. If you have a teen driver, set the expectations for driving and texting. If you ban it and provide consequences, you will get better results. 
  • Paint a picture for your driver. Many teens and adults won’t drive drunk. But they need to understand that driving distracted is just as dangerous. Talk with all the drivers in your family about the consequences.

No text is worth the price of death or severe injury. Know the facts and set the limits in your family to ensure the safety of those you love.

David Haenel, Esq., of the firm of Finebloom & Haenel, is a criminal defense attorney, author, and lecturer who has been named a “Rising Star” by Super Lawyers magazine. He can be contacted at FightYourCase.com.

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Technology and Search Warrants

April 26, 2013 1 comment

In DUI situations, it is imperative for the State’s case that police obtain timely evidence of the driver’s blood alcohol content. However, before an officer can draw blood from a driver they are required to apply for and obtain a search warrant (or obtain consent); this process can take several hours to complete, depending on the time of day. 

 Police and Law enforcement across the country are now utilizing video conferencing technology and other means to expedite the process of obtaining search warrants for blood draws.

In jurisdictions that utilize electronic warrant procedures, obtaining a warrant can take as little as 30 minutes. For instance, the electronic procedure exercised in Palm Bay, Florida begins with a cellular call made from the officer’s vehicle to a judge in their jurisdiction. After informing the judge of the incident, the officer emails an affidavit with their electronic signature to the judge. Once the judge reviews the affidavit, they can directly deliver their official testimony by video-calling the officer using Skype.

While proponents of the use of this technology argue that implementation of these procedures will save time and money, some critics aren’t sold on the idea.  For instance, in some Michigan jurisdictions, patrol cars aren’t even equipped with dash cams.  This can prove problematic when there is a dispute about the basis for the traffic stop that leads to an OWI arrest.  Often, operating while intoxicated cases in Michigan and other states hinge on the credibility of the officer.  If there is money to be spent, shouldn’t it first be allocated to technology that levels the playing field?  Furthermore, other critics have argued that the ability to instantaneously communicate with the officer on the scene with the accused present should require that the accused have an opportunity to be heard prior to the issuance of a search warrant.

Resources:

http://www.usatoday.com/story/news/nation/2013/04/12/dui-search-warrant-blood-sample/2079419/

http://www.techdirt.com/articles/20110330/02461013692/police-using-skype-to-get-warrants-while-crime-scene.shtml

http://wuisnews.wordpress.com/2013/04/01/proposal-police-could-obtain-warrants-using-video-chat/

http://tech.wiredpig.us/post/12291391474/florida-cops-using-skype-to-expedite-warrants

http://www.ilga.gov/legislation/billstatus.asp?DocNum=2188&GAID=12&GA=98&DocTypeID=SB&LegID=73776&SessionID=85

 

Judge Pleads Guilty Following Improprieties in Handling Drunk Driving Cases

August 1, 2012 2 comments

Judge Pleads Guilty Following Improprieties in Handling Drunk Driving Cases

Former North Carolina Judge Kristin Ruth pleaded guilty to charges stemming from her failure to discharge her judical duties related to her handling of 60 drunk driving cases (also referred to as OWI or operating while intoxicated under Michigan law) over the past 4 years. 

The former judge had signed orders presented to her by defense counsel that were drafted in such a way so as to avoid driver’s license penalties and sanctions for individuals who were convicted of drunk driving. 

As part of her plea agreement, Ruth will not serve any jail time as a result of her misdemeanor conviction, so long as she continues to cooperate with investigators. 

Criminal Law in the Wireless Age: WiFi and Theft

February 16, 2011 3 comments

Last Saturday morning, I went to go get coffee and noticed that my local coffee house and noticed on the door that they provide free Wifi. After I purchased the delicious coffee treats for my wife and I, I went out to my car and pulled out my laptop to see if it worked. I selected the free wireless network that was provided and began searching whether anyone had ever been charged with “stealing” Wifi in Michigan or anywhere else. Don’t ask me why I searched for that – just chalk it up to how a criminal defense attorney’s mind works.

What I found was surprising; yes, someone had been charged with with accessing someone else’s network without authorization, commonly referred to as “piggybacking.” In Michigan, this is a felony punishable by up to 5 years in prison and/or a fine of up to $10,000.00. I was completely shocked when I read this. Is a felony really necessary to punish this conduct? The officer that arrested the Michigan admitted that he didn’t arrest the man after he questioned him because he didn’t know whether or not a crime had been committed and stated that he didn’t believe that the defendant knew he was committing a crime when he accessed the network. The store owner didn’t know that it was a crime. The Kent County Prosecuting Attorney that prosecuted the seemed hesitant to issue the authorize the warrant.

In my opinion, it’s time for a reality check. It is a legal cliche that “ignorance of the law is no defense.” However, as legislatures enact more and more laws, it is ridiculous to assume and expect the public to read all of the laws that are enacted and amended each year. New York has a similar statute, however requires that in order to sustain a conviction for “piggybacking,” the prosecutor is required to prove that the owner of the network put the public on notice that unauthorized use of the network was prohibited.

However, until Michigan’s Legislature amends this statute, individuals can be charged with a felony for unauthorized use of WiFi.

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If you or a loved one is facing criminal charges or is the subject of an investigation regarding larceny, shoplifting, burglary or any other crime, contact Michigan Criminal Lawyer Nicholas A. Leydorf for a free and confidential consultation at (517) 388-6800. We represent clients throughout Michigan, including Grand Rapids, Kalamazoo, Battle Creek and Lansing.

 

In Michigan, “Sexting” Could Land Your Child in Prison and on the Michigan Sex Offender Registry

February 10, 2011 2 comments

As we all know, the cell phone and smartphones have changed our society and the way in which we access and send information. Unfortunately, children who have access to these devices have started the practice of sending sexually explicit messages and images to others. What most people don’t know is that your child may be charged with a felony for each time they send or receive a sexually explicit image.

The Michigan statute that prohibits this conduct, MCL 750.145c, penalizes three specific types of behavior:

  • Producing or Encouragement – persuading, inducing, enticing, coercing, causing or knowingly allowing a child (defined elsewhere as someone under the age of 18) to engage in a child sexually abusive activity (intercourse, erotic nudity, etc.) for the purpose of producing any child sexually abusive material (films, pictures, digital images, etc.) is guilty of a felony punishable by up to 20 years or a fine of not more than $100,000.00, or both.
  • Distributing – a felony punishable by up to 7 years in prison, or a fine of not more than $50,000.00, or both.
  • Knowingly Possessing – a felony punishable by up to 4 years in prison, or a fine of not more than $10,000.00, or both.

In addition, even if your child is given a special status for youthful offenders (HYTA), then they will be required to register as a sex offender for 10 years.

Sound harsh? Well, it does to this writer too. To be fair, this law was originally enacted in a different time and fails to take into consideration the significant technological advancements that are now mainstream.   While I do not condone or encourage the prevalence at which our teenagers are engaging in sexual activity, it would be naive to become ostrichlike and bury our heads in the sand and ignore what is going on with our teenagers.

Taking into consideration that engaging in this type of activity could result with a felony on a teenager’s record, potential prison time and registration as a sex offender, the punishment doesn’t seem to fit the crime. Still not convinced? Let’s consider for a moment a scenario where a teenager texts his girlfriend and encourages her to send a nude photo via text or email. The teenage boy then sends the nude photo to his friend. Under the current statutory scheme, everyone involved in this scenario is guilty of at least one felony and the boyfriend could be charged with the 20 year felony for encouraging his girlfriend to take the nude photo and send it to him. He is also guilty of the 7 year felony for distributing it to his friend and the 4 year felony for possessing the photo. The friend is guilty of the 4 year felony for possessing the photo and finally the girlfriend, like the boyfriend, is guilty of the 20 year felony for producing the photo, the 7 year felony for distributing the photo, and the 4 year felony for possessing the photo.

While other states have considered lesser penalties for this type of offense, Michigan continues to take an outdated approach. Until this law is modified to take into account the changes in technology, parents need to police their children’s use of the internet and texting.