My Blog

Driving Related Offenses and Representation

10/22/2012 14:15:00

Drunk Driving

The primary drunk driving charge in Michigan is called OWI, which means,"Operating a Vehicle while Intoxicated." The charge is often referred to as DUI or DWI.If you took a breath test (PBT), you may also have a ticket that refers to UBAC,which means "Unlawful Bodily Alcohol Content." UBAC is one of the waysa prosecutor can try to convict you of OWI. If you have been charged with OWIor any drinking and driving offense, either as a misdemeanor or as a felony,you need representation by an attorney who practices drunk driving defense, OWIdefense, and driving related issues.

Impaired Driving

InMichigan, Impaired Driving or "Operating a vehicle while Visibly Impaireddue to the Consumption of Intoxicants" (OWVI) is a "lesser includedoffense" of drunk driving (OWI). People often assume that a plea toImpaired is the best option for a person charged with drunk driving. All optionsshould be fully explored before a plea is taken. An experienced drunk drivingdefense lawyer can evaluate your case and determine what your options are.

Operating while Intoxicated by a Controlled Substance
Driving while underthe influence of drugs, even prescribed medications, carries the same types ofpenalties as drunk driving, and Impaired by drugs carries the same types ofpenalties as Impaired by alcohol. There are some differences, however. Blood orurine tests are used to try to convict you of such an offense. Different issuescome up in such cases, and an experienced attorney can find errors andinconsistencies in the procedures used to process your arrest. Independenttesting of samples is often advisable.

Under 21 - Zero Tolerance

Ifyou are under 21, and you didn't blow high enough to be charged with Impaired,you will be charged with Zero Tolerance. A conviction for Zero Tolerance is notas bad as OWI or OWVI, but it still affects your driving record, and can countagainst you in the future.

Child Endangerment

If achild under the age of sixteen was in your car when you were stopped for drunkdriving, you can be charged with Child Endangerment. A Child Endangermentcharge after a previous drinking and driving conviction will be charged as afelony. Retaining a lawyer who focuses on drunk driving cases is essential.

PBT Refusal (Preliminary Breath Test Refusal)

PBTRefusal is a Civil Infraction. It is not as serious as a drunk drivingcharge. The PBT is the hand-held breathtester the police use to gage a person’s intoxication after they pull him/herover. Many people confuse the PBT with the breath test in the police station.In Michigan, you get charged with a violation of the law for not taking thePBT, but you do not get charged with a violation of law for not taking the teston the big machine (DataMaster) in the station. Instead, not taking the test inthe station leads to an administrative procedure called the Implied ConsentLaw. A warrant will be sought to drawblood and test the blood for alcohol content and level.

Implied Consent Refusal Suspension Hearings - Driver License Appeal Division

Ifyou did not take a breath test on the machine in the police station (DataMaster)you should have a form that says "Request for Hearing" at the bottom.If you did not receive such a form, you should contact a drunk driving defenseattorney immediately.

Youmust fill out the Request for Hearing and mail it to the address in Lansingprinted on the form within 14 days of the date of the incident. If you do not,you will lose your driver's license for at least one year. An experienceddefense attorney will assist you in properly filling out that form andconducting the hearing for you to try to avoid losing your license for oneyear.

Thereare operator refusals, machine refusals, and actual refusals. There aredefenses that can be raised against all of them.

Driver's License Restoration Hearings
Driver License AppealDivision (DLAD, also called DAAD)

Ifyou have lost your license for multiple drunk driving convictions, your licenseis probably "revoked." A revocation is different from beingsuspended, which is usually just a matter of waiting out the time and thengetting your license back. With a revocation, your license is consideredterminated. You have to go to the Secretary of State Driver License AppealDivision (DLAD) to try to get your license back. You typically get one try peryear so you have to be well prepared for your hearing when you go to DLAD. Anattorney who is well experienced in such hearings is crucial to your success. These hearings are very technical and youshould not go it alone!

License Restoration Appeals to Circuit Court

Invery limited circumstances, a decision of the Driver License Appeal Divisionconcerning an appeal of a revocation can be appealed to the Circuit Court. Afirst Implied Consent Refusal Suspension (in a seven year period) can be appealedto the Circuit Court on the basis of hardship for a restricted license.

Sentencing Issues

Ifyou are ultimately convicted (by trial or plea bargain) of a drinking anddriving offense, you will be standing in front of a judge for sentencing. Judges are in charge of sentencing even ifyou had a jury trial. Getting to know you is a vital part of presenting you inthe best light to the judge at sentencing – and having the chance for a fairand lenient sentence.

Driving while License Suspended or Revoked (other license violations)

Ifyou have lost your license for some reason, and have been pulled over andcharged with driving while suspended or revoked, or for violating the terms ofa restricted license, you still should seek the services of a knowledgeableattorney. There are statutory and constitutional issues that need to beexamined in these cases.

Probation Violations

Ifyou have been placed on probation, and now are being accused of violating yourprobation, you should have an experienced attorney representing you, to try tosmooth out the situation, or, if necessary, to vigorously defend against theallegation.

Traffic Tickets

Ifyou receive a traffic citation, you should have the services of an experiencedtraffic attorney to help you obtain the best result possible. Keeping pointsoff your driving record is often an attainable goal.

Other Criminal Matters

LisaJ. Peterson, P.L.L.C. handles certain other criminal matters. Call for detailsor to set up a free consultation.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Certificate of Trust Existence

02/08/2012 17:52:00

A Certificate of Trust Existence is not always required but a good idea. Here are some reasons why...

As provided in MCL 565.431, et seq., a certificate of trust existence and authority (referred to as a “certificate of trust”) or the entire trust declaration may be filed at a register of deeds office.

Filing either a certificate of trust or the entire trust declaration when real property is placed into trust is beneficial and, in some cases, necessary for the orderly administration of the trust (allowing for smoother transfer of real property held by the trust).

I usually recommend filing a certificate of trust over the entire trust declaration for a few reasons:

1) a certificate of trust is a shorter document and therefore does not cost as much to file with a register of deeds office;

2) a certificate of trust is a much more private option because it basically acknowledges the existence of a trust --- only containing small excerpts of the actual trust and does not include any distribution provisions or other personal information;

3) an updated trust declaration must be filed with a register of deeds office if portions of the trust declaration are modified or revoked. If a certificate of trust is originally filed, a new certificate of trust is only required if the excerpted portions contained in the certificate of trust are changed.

The requirements of a certificate of trust are provided in MCL 565.432 and follow here:

a) The title of the trust,

b) The date of the trust agreement and any amendments to the trust agreement,

c) The name of the settlor or grantor and the settlor’s or grantor’s address,

d) The names and addresses of all of the trustees and successor trustees,

e) The legal description of the affected real property,

f) Verbatim reproductions of provisions of the trust agreement, and any amendments to the trust agreement, regarding all of the following:

i. The powers of the trustee or trustees relating to real property or any interest in real property and restrictions on the powers of the trustee or trustees relating to real property or any interest in real property,

ii. The governing law,

iii. Amendment of the trust relating to the trust provisions described in subdivision (a) to (f)(ii),

g) Certification that the trust agreement remains in full force and effect;

h) A list of names and addresses of all persons who, at the time the certificate of trust is executed, are trustees of the trust.

Pursuant to MCL 565.433:

A certificate of trust existence and authority shall be executed by the settlor or grantor; an attorney for the settlor, grantor, or trustee; or an officer of a banking institution or an attorney if then acting as a trustee. The certificate shall be in the form of an affidavit.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.www.lisajpeterson.com

Stopped By The Police?

02/03/2012 19:50:00

It happens to just about all of us, whether we are driving or walking, we get stopped by the police. The two situations present two very different scenarios to consider.

What if a police officer stops you while you’re walking down the street or sidewalk? The officer may think you are doing something illegal or violating the law. It is also possible a crime was committed in the area and the officer believes you can either help or that you fit the description of the assailant. Whatever the reason, the first best thing you can do is remain calm. Do not run. If you become agitated or confrontational the officer will likely become very suspicious. Try to answer the officer’s questions as truthfully as you can but you are under no obligation to talk to the police officer. You can also ask questions of the officer such as why he or she is interested in talking you. The officer will probably ask for identification. If at any time you are concerned you could be implicated in a crime, tell the officer you are not interested in talking any longer, ask if you are under arrest and/or that you want to call your attorney.

What if a police officer stops you while you are driving? If you are driving a car and a police officer signals you to stop, you must pull over. Pull over safely and put your car in park. Stay in your car. Do not get out of your car unless the officer directs you do so.

After the officer has approached your window, it is best to keep your hands on the steering wheel or where the officer can see them so as not to draw suspicions. The officer will ask for your driver’s license, registration and proof of insurance. Police officers are trained to ask for your license first then provide an explanation for the stop. If the officer does not tell you why you were stopped, you can and should ask why. You will need to provide the requested documents to the officer. If you do not have any or all of the items: license, registration and proof of insurance, you will likely get a citation for not having them.

Some reasons for getting stopped include: a moving violation (such as running a red light, speeding or failing to stay in your lane), expired registration, equipment violation (such as a light out), or your vehicle could match the description of a vehicle that was involved in a crime.

At some point the officer may ask you and any passengers to step out of the car. Courts have upheld the officer’s right to make such a request. Passengers are not required to identify themselves but that can present problems. The officer may want to search you or your vehicle. You do not have to consent to a search. The officer has to be able to articulate a reason for wanting to conduct a search and obtain a warrant – unless you consent but that is not usually advisable.

If you are in this position and believe you could be implicated in a crime, you should not answer any questions or talk to the police. Invoke your right to call your lawyer.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Avoid Probate and More with a Living Trust

02/03/2012 19:49:00

Probate is the legal process that oversees what happens to a person’s estate (e.g. property, money, etc.) after death. Probate courts administer, inventory, tax and distribute a person’s assets, which is usually expensive and time consuming. Many people want to avoid probate for this reason.

While there are a growing number of ways to transfer property outside of probate, a living trust is a great tool, with many advantages.

People typically equate having a trust with wanting to avoid taxes or having a lot of wealth but there is much more to using a trust. Trusts do function like a Will in that it can operate to distribute assets to your heirs upon death. Most importantly trusts allow for ongoing management of assets and controlled distributions of monies to beneficiaries who may be minors, incapacitated, subject to the claims of creditors or otherwise simply not in the best position to receive an inheritance of some kind without come oversight or checks and balances.

A trust is recognized as a separate “legal person”and is governed largely by contract law (though many states now have trust codes). A trust can usually be administered with no need for court-supervision or administration.

Some misconceptions about trusts are that they save or avoid taxes, and they do to some degree, however a trust in and of itself does not necessarily save or avoid taxes, it is how the trust is used, funded and managed that help save or avoid taxes.

A trust is usually funded with assets by the creator of the trust (“Settlor” or “Grantor”), though anyone can contribute to the funding a trust. And you don’t have to hire a third party or professional trustee to manage your trust, you can do it yourself! Probably the most commonly drafted trust is a Grantor-Revocable Living Trust (which means that the grantor of the trust remains and is treated as the owner of the trust assets).

On the death or incapacity of the grantor, a successor trustee can be a spouse, family member or friend. Occasionally it is necessary or a good idea to bring in a professional trustee. Or use a professional trustee as a co-trustee for specialized advice.

A trust is an excellent tool for managing and distributing assets in an orderly, timely and trustworthy manner.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Don't Wait - Draft a Will

02/03/2012 19:21:00

Simple and straightforward estate planning can offer enormous, invaluable protections. Where does one begin? Answer – with the basic estate planning tool that I believe everyone should have—a will.

A will is simply a document that tells the court how you want your estate handled and distributed upon your death. Many people do not think they own enough to justify a will. If you own a home, car, furnishings and/or an insurance policy, you are definitely worth enough to have a will.

Take the estate planning bull by the horns and make sure your property will be passed on to whom you wish and that your family will be taken care of if something happens to you.

If you die without a will the state courts get to decide how your assets and belongings will be distributed. And I can almost guarantee they will decide things a lot differently than you would and probably at great cost to your family. In addition, the state-appointed administrator may not even be properly qualified or give your case proper attention.

Estate planning is actually a very technical area of law. It is strongly advised that you employ a lawyer to customize and execute a will that meets your needs. Otherwise you run the risk of your memorialized words not conforming to the laws of the state and sparking arguments between family members.

Your lawyer can help you decide who would best serve as your personal representative. Your personal representative can be just about anyone: a significant other, a friend, a relative, your attorney or a bank. You must choose carefully. Your personal representative will make all of the crucial decisions for your estate—including overseeing the distribution of your assets.

You want a personal representative who is:

1) Trustworthy. Your personal representative will have complete access to all of your assets after your death– cash, jewelry, safe-deposit box, your household furnishings and other effects. Choose someone you can trust to be fair to your beneficiaries and to carry out your wishes.

2) Competent. The personal representative must assume the duties of investing your assets, reporting to the court and continuing to run any business interests you may have until your estate is discharged—a process which could take some years. Your personal representative can also be held liable for making imprudent decisions or if professionals he or she hires (like an accountant) fail to take timely action.

3) Diplomatic. Your personal representative must be willing and able to resolve any conflicts that arise among your beneficiaries. If one heir wants a particular asset sold, while others want to have it kept, your personal representative will have to consider conflicting viewpoints and decide what should be done – or think outside the box for a creative solution.

4) Organized. Your personal representative will be responsible for identifying and itemizing your estate's assets, collecting any money that was due to you, notifying insurance companies of your death, paying your debts, valuing your assets, filing federal and state estate tax returns and paying estate taxes, filing your final income tax returns, filing the estate's income tax returns, and distributing your estate to the people named in your will.

A personal representative’s duties do not end until your personal representative has accounted to the probate court and to the beneficiaries for receipt and distribution of all property in your estate. That's why I recommend that any potential personal representative be good with details and possess the above attributes.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Basic but Essential Estate Planning

02/03/2012 19:18:00

Nearly everyone over age 18 should consider executing (at least) three basic estate planning documents:

1) will,

2) durable power of attorney for finances, and

3) durable power of attorney for health care.

The older and more complicated your life gets (e.g. job/career, marriage, children, investments, etc.) the more important these documents become - to protect you, your family, your money and property.

This post will focus on Durable Powers of Attorney.

What is a Durable Power of Attorney?

A durable power of attorney is a written document(s) in which you voluntarily choose another person to handle some or all of your property, financial affairs, and/or health care decisions. The person you appoint is known as your "attorney-in-fact" or "agent." You are known as the "principal." The person you appoint should be someone you deeply trust.

A durable power of attorney becomes even more important specifically because it operates if or when you become mentally incapable because of sickness or injury to handle your affairs or make health care decisions for yourself.

If you have a child(ren), you can through a power of attorney can delegate parental responsibility for up to six months at a time; or appoint a guardian for your minor children, in the event you or you and your spouse are incapacitated or die. These particular clauses are important for single, married or divorced parents.

Keep in mind: a durable power of attorney can be as broad or narrow as you choose and the document is flexible to meet your individualistic needs. You can provide specific instructions in the document as to certain property you own and how you want your agent to handle it. You can provide express direction as to how you wish your property managed or invested. For example, you could give your agent authority to pay all utility bills and the upkeep on your home, but not to sell the house or take out an equity loan against it.

Many people prefer durable powers of attorney because it is essentially a private arrangement not requiring court approval. Both you and your agent should have access to the original document. You cannot file an original or a copy with the probate court; the only time a court might be involved is if there were disputes in the future.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Medical Marihuana in Sentencing

02/03/2012 19:14:00

Are you a medical marihuana patient facing criminal charges for a non-drug related crime? If so, and you are convicted (by plea or other determination), you can face severe penalties in sentencing.

Most sentencing terms (that do not include jail time) require random drug testing. If a random drug test is positive or you skip the drug test you can face jail time or the original punishment for the crime (particularly if you entered a plea deal). Failing to successfully complete the terms of your sentencing can have very negative consequences.

I have successfully argued for the removal of drug testing from sentencing terms. The premise of my argument is as follows:

"On November 4, 2008 Michigan voters approved a ballot initiative that decriminalized the use of marihuana for medical purposes known as the Michigan Medical Marihuana Act (“MMMA”). SeeMCL 333.26421-333.26430. The law, enacted by voter referendum, took effect on December 4, 2008 and is administered by the Michigan Department of Community Health (“MDCH”). The purpose of the MMMA is to permit registrants or qualifying patients the ability to medicinally use marihuana without fear of violating certain laws. Defendant properly complied with MDCH procedure.

Defendant’s physician completed a full assessment of his current medical condition and his medical history, including discussion related to family medical history and family member ailments. Defendant's doctor concluded that he had one or more debilitating medical conditions and that by using medicinal marijuana he would likely receive a palliative or therapeutic benefit. The doctor certified his opinion as required by the MDCH. Defendant attested, signed and submitted his petition to the MDCH for approval and registration. Defendant is currently on the MMMA registry."

Courts have not been easy on defendants in this situation. If you or anyone you know is facing a medical marihuana issue, concern or criminal charge, please contact me for a consultation. I will discuss my legal analysis and argument in more detail. I may be able to help you maintain your medical marihuana patient status during the terms of your probation and set you on a track for successful completion of your sentencing terms, including being able to take your medicine.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Effect of Ongoing Disagreements Between Divorced Parents on Children

02/03/2012 19:05:00

Conflict in families is a normal part of life. It is how we learn to deal with conflict outside of our small circle - out in the big world. But conflict in divorcing or divorced families can be more than anyone can or wants to deal with.

The good news is that divorced parents have a lot more control over minimizing the conflict than is typically realized or acknowledged.Parents can learn to work well with each other but they have to stop being influenced by their anger or by others (misery loves company and insecure people thrive on creating conflict). It is possible for divorced parents to unlearn the negative ways they’ve managed conflict and put a stop to negative influences. Children of divorced parents deserve to see and experience positive communication and cooperation between their parents.

Children are very sensitive to conflict between their parents, and are badly affected by conflict which continues after separation or divorce. Research shows quite clearly that conflict, particularly ongoing conflict, between parents is the most critical factor affecting their children's health and wellbeing. Children feel the conflict as if they were the target.

As a result children may become distressed, anxious or depressed. They may have problems at school or with friends. Their emotional development may even be hampered. Children who witness or are exposed to ongoing conflict are at risk of developing long-term emotional problems.Parents should want better.

Some basic things parents can do:

1)Keep children out of parental arguments;

2)Never ask them to be messengers;

3)Be courteous, calm and fair with the other parent;

4)Keep children in contact with grandparents, other relatives and family friends;

5)Introduce a new partner gradually -- parents typically want their children to approve of the new partner which can place pressure on children;

6)New partners should not overreach, try to control the family or expect to integrate in a fast fashion;

7)Parents need to put their child's feelings above their own.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

The Role and Responsibilities of New Partners or Stepparents

02/03/2012 19:02:00

Being a stepparent is probably one of the most difficult roles an adult ever assumes. Going in with few expectations, a lot of flexibility and a commitment to make little to no impact is a good rule of thumb.

Almost without fail problems arise when a stepparent gets into a relationship with a legal or biological parent, someone with children. Blending a family is not an easy undertaking and requires an enormous amount of selflessness and adaptability on the part of the stepparent.

In my view there are three issues that seem to arise more frequently than others with stepparent introductions and/or transitions:

1) the stepparent has unrealistic expectations about their level of closeness or intimacy with the children;

2) the stepparent enters into a relationship with the legal parent quickly resulting in a too fast and furious introduction and integration for the children; or

3) the stepparent is a source of conflict creation between the two actual parents, perhaps as a result of insecurities or jealousies.

At all points in time it is incumbent on the stepparent (not the children) to shoulder the big adjustments, and ensure a slow transition.

Relationships between a stepparent and the children are built over time and through shared experiences. The stepparent must be aware that the children do not know him/her and may be experiencing a fair amount of confusion, regardless of how long the children's actual parents have been separated or divorced.

Children may perceive stepparents as a threat to their relationship with either or both parents. Great care and patience must be taken to allow the child an opportunity to get to know the stepparent and work through those feelings. To that end, a stepparent must temper any unrealistic expectations of intimacy with the children and take a truly significant amount of time transitioning and becoming part of the "family time" between the parent and his/her children. A couple of weeks or months simply won't do.

Short and definite times devoted to activities that include the soon to be stepparent should be the approach for at least several months. Only after the parent and potential stepparent have gotten to know each other on their own time (adult only time, not time that involves the children) and are truly committed to each other (usually occurs over the course of several months or even years) should "family time" extend to more open ended activities. For example moving into activities that span a weekend or involve a sleep over could be fine after 5 or 6 months. But a two week trip to Hawaii with the children is a bad idea just 5 or 6 months into a new relationship.

Stepparents can be a huge source of conflict between the two actual parents. Perhaps the stepparent is insecure or jealous of the other parent (of course he/she would never admit such a thing). Maybe the stepparent is well-meaning --- trying to help by encouraging his or her partner (the parent) to "stand up for herself against her ex" saying things like: "You can't let this happen," or "Don't let her get away with that," or "She's just taking advantage of you." Stepparents are more often than not the instigators of parenting conflict, crusading for what they think is best. This is not acceptable.

Stepparents must enter a blended family situation with an enormous amount of adaptability and selflessness. Stepparents must embody a commitment to no or reduced conflict by being flexible, and encouraging of positive parent communication and cooperation. Stepparents must know and agree that the children will always need their parents to be able to put them first and co-parent together positively for their benefit. Positive communication and parental cooperation is the only way to raise healthy, well adjusted children in a divorce situation.

If a stepparent or potential stepparent is not equipped to take on these responsibilities, he or she should seek professional help that will enable her to promote and embody such necessary and positive attributes, or not become a stepparent.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.

www.lisajpeterson.com

Mediation and the Best Interests of the Child

02/03/2012 02:48:00

In Michigan the law presumes it is in the child's best interests to have a strong relationship with both parents. What does that mean? The language seems firm and clear, likely to lead to good decisions and outcomes. Despite this firm language the presumption rarely seems to successfully translate into a physical custody arrangement that truly mirrors the best interests of the children. Why is that? Well while the presumption is an important one, it is one that actually invites biases rather than helps dispel them. We all know that biases die hard. All too often the custody arrangement outcomes are based on biases and are too easily shielded or justified by the very presumption.

I cited an example in my previous blog of a Jewish parent being awarded Christmas Eve Night and Christmas Day (over the Christian parent) by a parenting coordinator claiming it was in the best interests of the children because that's who the children spent Christmas Eve Night and Christmas Day with the prior couple of years. Well the only reason that occurred was because the Jewish parent (also the bully-parent) refused to alternate or properly share Christmas in the preceding years. In the end, the bully-parent's bad behavior was rewarded by this parenting coordinator. How is rewarding bad parenting behavior in the best interests of the children? It's not.

Before the parents were separated/divorced, the family, specifically the children, spent Christmas Eve and Christmas Day with the Christian parent's extended family, celebrating the holiday as it is intended - recognizing the birth of Jesus Christ, going to church, exchanging Christmas presents and other common traditions.

At a minimum mediators and parenting coordinators must strive to facilitate agreements between the parents using a common or shared interest approach. If this is not easily accomplished, applying a basic method of equality is a good starting point. For instance a shared 50/50 time and alternating holiday split. Then, if other special considerations are needed, looking to principles of equity can help sift through things like religious differences or job demands when determining how to divide and share time and holidays. Under no circumstances, at least none that I have seen or can imagine, is it ever in the best interests of the child to reward a parent for bad behavior, past or present.

Feel free to contact me with any questions on this or other legal topics.

Lisa J. Peterson is an attorney and mediator in Ann Arbor, MI.