Lawyer Gal's Blog

A Young Lawyer's Perspective

Finally, a law that does not apply to me! Texting while driving (really folks?)

I don’t text…let me just get that out there.  It’s really annoying that I have to tell everyone I meet not to text me because I’ll never get it.  Texting is just not my thing, and I have no intentions of starting anytime soon.

While I am pleased to chalk up a law that doesn’t apply to me, it makes me realize how lame law-making has become.  Lawmakers are at the point of micro-managing citizens with laws that frankly cannot be enforced.  Moreover, the idea of promulgating a law that is utterly OBVIOUS seems like a waste of resources.  Yet, counties continue to push these anti-texting-while-driving agendas.

Lawmakers biggest rationale for these laws is deterring drivers from engaging in dangerous behavior.  Gee, whodathunkit? Texting is dangerous?  So are about 15 other activities that I could rattle off, and I’m sure you could add a few to the list.  How about enforcing an anti-make-up-while-driving agenda.  If you are found with mascara, then you are fined.  At least with mascara, you can only do one thing.

But a phone has so many features that the law doesn’t cover – like answering.  I assume everyone presses a button when answering – isn’t this basically like a mini text?  How will an officer know if someone is actually texting, or just answering?  And confiscating the phone would lead to a whole can of 4th amendment worms.

Call me an obsessive libertarian, but my theory is based on assumption of risk.  When I hit the roads, I assume people will sometimes participate in reckless activities such as texting.  Knowing this makes me a defensive driver.  Even though it would be unfortunate for my parents and student loans companies if I got killed by a texter, well, hey, it’s no different from a burger-popping trucker or a make-up maven.

Therefore, I advise all people to drive a big truck. The gas is kind of pain, but my truck is a helluva lot more painful than a little mini coup driven by an iphone obsessive person.

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June 28, 2010 Posted by | Your legal rights | 3 Comments

Lawyer by day, puppy trainer by…oh wait, pups have small bladders.

When I was growing up, my parents and teachers told me I could be anything!  Their encouragement has always spurred me to do well in school, finish college in 2 years, then head off to law school, and eventually, open my own firm.  If there is one thing about me, it’s that I believe in myself.

Yet, I am amazed that all those people prevaricate, although with the best intentions.

Or perhaps they were linguistically exact, for I could do any thing. Singular!

A puppy named Rogey that looks like a sausage [really short legs as beagles have and fat baby belly] has really brought this point home.

I am “co-mommying” him with my mother – she stays home all day, and I come home after work.  And this little guy is still kicking our parental skills into action. My mom is a grand mother figure…I mean, she was a preschool teacher for 10 years.  She loves baby-like things, be it puppies, kittens or babies.  If it were possible to label, I’d say she is an expert in the baby-raising field.  Interestingly, she stayed home when I was growing up – probably why she knows so much.

I, on the other hand, am a terrible co-mommy.  All I really want to do is come home after work and play with the puppy, feed him people food, and hand him to mom when pooping occurs in the house.  True, I “raised” a cat from the time it was a kitten, but it was mostly my roommate that did all the hard stuff like teaching it to not jump on the table and kill the guinea pig.  But by all accounts, my cat is a heathen that walks around like a panther killing all birds, moles and live things in sight.

So my point being, when all those people said I could do anything, they didn’t really mean I could do everything. For as a professional, I don’t have the time or really the interest to do domestic things that don’t pay.  I LIKE getting paid. And while I’m sure there are some super women who think they can do it all, I am skeptical that they actually do.

After all, a puppy doesn’t stop existing during the work day – certainly not his bladder.  And I’m just not hippy enough to have an office dog.

June 25, 2010 Posted by | Uncategorized | 4 Comments

Planning to fight a divorce? Plan to get a bankruptcy attorney, too.

Many experts agree that there is a link between the 1.2 million people who file for divorce in the United States and the 1.4 million that file for bankruptcy.   VISA corporation did a survey over the past few years and found that divorce is the 4th most common reason people file for bankruptcy.

Attorney fees certainly may lead to a financial strain. However, the structure of property division may also contribute to insolvency.  When a couple splits, they divide both assets and debts.  Sometimes, one spouse hasn’t been in the work force for years and finds her skills rusty.  Keeping up with her debt obligations becomes impossible, and coupled with the financial hit she took for attorney fees, she may find bankruptcy the only alternative.

To add to the mess, all debts incurred during marriage remain intact after marriage.  If one spouse who was assigned a debt in the divorce decree defaults, the other will be liable to creditors.  So, for example, an ex-husband was the breadwinner and he was assigned all the debts in the divorce decree.  The ex-wife moves to a small apartment and slowly re-enters the work force.  She’s barely getting by…Suddenly, she gets a call from a collection agency telling her she owes $5000 on credit card debt.  To her dismay, her ex had lost his job and stopped paying the debts.  In this scenario, bankruptcy would probably be the only option.  I bet she wished she had mediated instead!

June 23, 2010 Posted by | Your legal rights | , | 2 Comments

Ever wonder if you can Nazi salute at city council meetings?

I’m sure plenty of you face this tough question on a daily basis.  I wondered the exact thing when I read an article on law.com this morning about a guy who Nazi saluted the mayor at a city council meeting.

It ends up that his salute was not the most prudent of actions, as he was promptly removed.    Ironically, he was arrested in California.  It was there that the famous free speech case, Cohen v. California, was decided in 1971.  If I can recall from a very sleepy, crossword-filled constitutional law class [again, ironically, I scored perfectly on my con law Bar exam essay], Cohen was a guy who was against the Vietnam war.  He wore a jacket into a courthouse that said “Fuck the Draft” and was arrested for a criminal offense. He was sentenced to 30 days incarceration.  The Supreme Court held, basically, that “one man’s vulgarity is another’s lyric.”  A society with open discourse will hear foul words as a side effect.  The Court noted that although “fighting words” can be regulated, no one could construe Cohen’s jacket as a personal attack.

In the instant case, a man performed the Nazi salute to the mayor despite disagreeing with Nazi viewpoints.  He saluted in response the mayor cutting off a speaker that expressed criticism of council.  Originally, a 3 judge panel for the 9th U.S Circuit Court of Appeals held for the city.  In rare form, a majority of the 26 active judges opted to  rehear the case en banc with an 11 judge panel.  Many people speculate that this case will make it to the Supreme Court, which frequently occurs when a circuit court hears a case en banc.

In my view, his behavior was completely constitution, albeit lacking in taste.  It seems like the reason for his removal was the subject matter of his dissent.  The city argues that he was removed because his behavior was disruptive.  However, it could not have been too disruptive, since the mayor did not notice the salute.  Instead, someone pointed it out to him. Then, he evicted Norse from the meeting.  A video clip of the incident shows that the salute lasted about 5 seconds.

Interestingly, city council rules permit holding up signs. How is a salute anymore disruptive than a sign?

This is the guy…he makes a good image of dissent, does he not?

June 22, 2010 Posted by | Your legal rights | 2 Comments

Seemingly “normal” people are often the biggest freaks of all.

Some of the most seemingly normal people are actually the most dangerous to society.  Interestingly, these people are often the loudest advocates for morality, law and government.

This morning, I read my daily copy of the Daily Legal News.  It’s a wonderful little publication that deals with legal issues around Northeast Ohio.  The main story talked about the captain of Mayfield Heights Fire Department installing a camera in the handicap stall at a local YMCA.  A janitor found it, and staff identified the man installing it as Capt. Daniel Serge, a member of the Mayfield Hts Fire Dept for over 8 years. [He forgot to turn off the rolling tape while installing it.]

Shortly thereafter, police obtained a search warrant for his house, intending to find information related to the YMCA incident.  Instead, they found 60 tapes of about 8 hour total of juvenile boys going to the bathroom in Serge’s home, all intricately linked by 3 wide-angle cameras.  As it ends up, he employs kids to work on his tree farm.  He also ran a program called “Hunt of a Lifetime” for terminally-ill boys to hunt deer raised at the farm.  The program, sadly, entailed filming these ill kids in unknowing situations.

Serge was also the department’s training officer.  As statistics prove, most fire fighters are men.  So I guess he really liked to be involved in the whole “development” of young men.

Even though, as a criminal defense attorney, I generally believe all people deserve due process of the law, my profession doesn’t make me blind to the fact that there are some major freaks out there.  That some of the biggest are involved in positions of public trust and look good on paper is very scary yet pervasive.

This story is certainly full of details.  Yet many criminal defense cases are.  But what really makes it stick out to me is how fake people can be.  Here is a guy, running a charitable program for terminally ill kids, when he’s actually doing something else.   And all his sheep-like co-workers act so shocked that such a “well-respected” guy would be caught up in such allegations.  As much as a try to understand people, I cannot fathom why some play the holier-than-thou role, only to be exposed as complete frauds.

June 21, 2010 Posted by | Uncategorized | Leave a comment

Touchdown Jesus won’t be making any calls.

Anyone that has driven along interstate 75 between Columbus and Cinci knows about touchdown Jesus.  He is a garish statute that looks like a ref about to call entry into the endzone, surrounded by water and lights.  On Monday, he was struck by lightening and went down in the same fashion as he was up – conspicuously.  You can see a video of him in flames here http://www.ohio.com/news/break_news/96364699.html [The church notes that it will cost $300,000 to replace him.  Imagine what wonderful productive uses upon which this money could be spent.]

According to the church pastor, touchdown Jesus is “to lift Him up and draw people to him.”

I’m not sure about you, but this sort of talk is crazy-speak.  Anyone condoning the use of “whatever it costs” to rebuild the structure at a time when Americans are suffering through, in some cases, extreme hardship, undermines the essence of being a Christian.

However, as a libertarian, I fully support the idea of letting people do whatever they want with their money…even if it’s nonsense.  And as an American, touchdown Jesus is an example of the freedoms embodied in our Constitution.

Indeed, these freedoms can translate into vehicles of extremism (although I don’t think touchdown Jesus is extreme, more like, overdone).  Images of the church that holds up signs saying “God hates fags” comes to mind. 

From a constitutional viewpoint, weird statutues are perfectly acceptable, so I suppose I shouldn’t descry the obsurdity of rebuilding such a profligate structure.

On a side note, one of my favorite touchdown Jesus videos is the one of boys jumping into the surrounding lake on Christmas Eve. [I saw this video before he burned.]

http://www.youtube.com/watch#!v=qqni98diqzA&feature=related

June 17, 2010 Posted by | Your legal rights | 1 Comment

Ban on gay & bisexual men giving blood to be reconsidered by FDA

On June 10-11, the Federal Food & Drug Administration will review its 1983 ban on homosexual and bisexual men giving blood.  The ban is a lifetime for any man who has had sex with another man since 1977.

I found the viewpoints on both sides to be very compelling, and have offered tidbits of each.  Comments and feedback would be valuable.

Lifting the Ban Viewpoint

In March, John Kerry and 17 other senators, including Sherrod Brown of Ohio, wrote a letter to the head of the FDA urging reconsideration of the ban.  In 1983, when the ban was implemented, a lot of hemophiliacs were becoming HIV positive through blood transfusions.  The science was not in place to accurately screen HIV blood from entering the donation banks. Since then, science has advanced quite a bit.  All blood goes through 2 rigorous tests.

Other developed states, such as Japan, Australia, Argentina and Sweden permit donations from homosexual and bisexual men after a 1 year deferral period.  The deferral [waiting] period lets gay men in monogamous relationships for a year or more give blood.  There is a risk of 1 HIV positive blood unit for every 11 million units of blood with the 1 year ban.

The Canadian Medical Association Journal advocates the abrogation of the policy, which also exists in Canada.  Deferral policies of a year already exist for people who have had sex with a prostitute, gotten a tattoo, or been in a malarial zone.

The Journal article parallels the growing trend towards abrogation.  The American Red Cross and the American Association of Blood Banks support a change in the FDA rules after a deferral period.

Keeping the Ban Viewpoint

According the the Center for Disease Control and Prevention, more than 50% of new HIV cases in 2009 were among homosexual men, especially in the age bracket of 19-25.  The Center notes that of the 1.1 million people living in the US with HIV/AIDS, 1/5 are unaware of infection.

The FDA notes that gay men have a HIV prevalence 60 times higher than the general population; 800 times higher than first-time blood donors; and 8,000 times higher than repeat donors.  Additionally, homosexuals have an increased risk of other infections that can occur through blood transfusions.  Among the gay population, Hep B is 5-6 times more common; Hep C is 2 times more common.

Although blood is tested twice, screening tests can be falsely negative during a “window period” of up to 11 days.  The window period is the interval between the time an infected individual may transmit the disease and the time when screening becomes positive.

Thoughts

This issue, obviously, is highly sensitive.  The policy is clearly discriminatory, which the FDA admits.  But the discrimination is not invidious and is based upon health concerns.

Certainly, the pool of blood donors would be significantly widened if gay and bisexual men were permitted to donate.  With the constant shortage of blood, the increase in supply could potentially assist very ill people.  Yet, there is still a chance that someone fighting one disease or illness, albeit remote, could be infected with a deadly disease.

The June 10-11 meeting is open to the public.  Expect groups from both sides to vehemently debate.

June 8, 2010 Posted by | Uncategorized | Leave a comment

You are cited for a traffic violation, but have doubts. What to do?

Here is a familiar situation that many motorists find themselves in at one point or another:

-A police officer stops you and cites you for a violation, such as failure to stop, no turn signal, lack of assured clear distance, etc. 

-You firmly believe that you in fact were following all traffic laws and the cop erred.

The threshold question should be: am I merely angry and defensive, or did I legitimately follow the law?  The reality is, any ticket strikes a chord of annoyance.  In most counties, a ticket costs at least $100 – money which feels completely unjustified and wasted.  The majority of us admit the sour a ticket can put on any person’s day.

It is important to remember, however, that traffic violations are strict liability offenses.  This means that even if your citation for failure to stop at a stop sign took place at 9 a.m on a Sunday, with not a soul in sight but the officer, you will still be liable.  No matter your mind set [“I never intended to break the law”] or the seeming unreasonableness  of the citation, if you break a traffic offense, you are most likely guilty.  The goal of traffic laws is to deter unsafe driving, and strict liability ordinances are an avenue by which legislatures try to acheive this objective.  Moreover, courts would expend vast resources if proving a traffic violation required specific intent. 

With this background in mind, to be properly liable for a traffic offense, it must be proven according to the standard of proof that you committed the act.  So if you are confident [as opposed to obfuscatory from resentment] that you did not commit the violation, a few pointers can go a long way.

Images will always speak louder than words. Fortunately, most police departments equip cruisers with dash cameras that typically capture helpful footage.  Depending on the positioning of the cruiser, your assertion could be proven.  If you stopped at that stop sign, then nothing will show it better than a video!

A video is also really helpful in doubtful situations because it might show that you didn’t comply with the law.  This will save you the effort of trying to fruitlessly prove your case.  Performing a pro se [represent yourself] traffic trial only to have the prosecution show the magistrate the dash cam video of you blowing the stop sign would make you feel pretty sheepish!  [Especially since the court will be irked for wasting its time, and will make this annoyance evident through highly unpleasant court costs.]

Sunshine laws make dash camera footage available to the public.  In order to obtain a copy of a dash cam recording, look at your ticket. It will state the time and date of the stop, as well as the officer’s name.  Call the police department of this jurisdiction, and request a copy of the stop.  Some departments will require you to provide a dvd and a self-addressed/stamped envelope.  Others won’t – it just depends on the jurisdiction.

Once you get the copy, pop it in your computer or dvd player and watch it a few times.  If you broke the law, then pay the ticket. If you are not sure, then you may want to take the footage to an attorney.  Or, for the brave, you can try representing yourself [although honestly, it doesn’t usually turn out too well.]  

This is an efficient and cost-effective way for shaping your ultimate decision.

June 7, 2010 Posted by | Your legal rights | , | Leave a comment

Police can now give you a ticket based on visual judgment!

Wanna be Kyle Pettys (or as he pronounces it, “Cow Patty”), beware.

The Ohio Supreme Court ruled yesterday in a 5-1 decision that law enforcement can give you a ticket even without a radar or laser.  The Court based its decision on the training of the officer.  In their training, officers usually get background about visual speed estimation.  An examination of the Ohio Peace Officer’s class catalog reveals that trainees spend 2 days doing field exercises with radars and speed estimation.  If broken down equally, that means all of 1 day is spent on speed estimation.  Is there ANY field, besides law enforcement, where someone can be deemed an expert based on a day of training?

The Highway Patrol did provide some relief by stating officers don’t give tickets based on speed estimation.  Yet a person has to ask themself, over the course of your driving records – tickets included- how many times have you gotten a ticket from HWP versus a municipality?  I’ve been pulled over 5 times for speeding [I have a truck these days, so never speed anymore. She just refuses!], been given a ticket 2 times, one of which was HWP.  But 4 of the stops were city police.

In 2009, according to OSHWP stats, officers made 230,905 enforcement stops.  Interestingly, year to date, [January 1, 2010-today], they’ve made 205, 598.  Maybe revenue is down!

I couldn’t find statistics on the gross amount of people pulled over in Ohio on a yearly basis. 

While this ruling will make it pretty tough to fight a speeding ticket, I think it unlikely that many officers give tickets based on visuals alone.  Whether the ruling will create more cases based on visual estimations will have to be determined.

June 3, 2010 Posted by | Uncategorized | | Leave a comment