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November 2014 Archives

Police Patrols will be Watching for Drunk Drivers on Thanksgiving Holiday

Mark Mandell, Esq.

As another holiday approaches with Thanksgiving, police officers across the state will be keeping a closer eye out for drunk drivers, especially on Michigan’s highways. Between football and the copious amount of food eaten on Thanksgiving, there are also copious amounts of alcohol consumed on this holiday in particular.

As you always hear about tragic accidents happening around this time of year, the message of not drinking and driving is worth repeating. Throw in the worsening road conditions as winter approaches, and alcohol and driving can be a particularly deadly combination.

Not only is drunk driving extremely dangerous, but there are hefty consequences associated with drunk driving. A person is considered “over the limit” if they are operating a vehicle with a BAC of .08 or greater. There are enhanced penalties for “Super Drunk Driving” if an individual’s BAC is 0.17 or higher.

The severity of the penalties depends on what number offense it is and the level of intoxication. The penalties include the following:

  • If BAC is below .17 and it is a first offense the penalties includes up to a $500 fine and Up to 93 days in jail; 
  • If BAC is above .17 and it is a first offense the penalties includes up to a $700 fine and 180 days in jail;
  • If it is a second offense within 7 years the penalties include one or more of the following: a $200 to $1000 fine and/or 5 days to 1 year in jail; 
  • If it is a third offense within a lifetime the offense is considered a felony and the penalties include one or more of the following: a $500 to $5000 fine, 1 to 5 years imprisonment and/or probation with 30 days to 1 year in jail;
  • Additionally, convicted drunk drivers are subject to a $1,000 penalty for two consecutive years under the Driver Responsibility Act, for a total of $2,000 in additional costs.

There are a number of safer alternatives to drunk driving. Safer alternatives include: designating a sober driver; calling a friend; taking a cab; walking or staying over the night at a family or friend’s home.

If you are facing drunk driving charges, or have questions regarding the law, contact experienced criminal defense attorney Mark Mandell at 888-674-1189 or online at www.MichiganFraudLawyer.com.

Veteran Charities – Not All Exist to Benefit Veterans

Matt Worley, Esq.
There are around 1.6 million non-profit organizations in this country.  Of those, upwards of 65,000 include the word “veterans” in their title.  With so many seeking donations, it is more important than ever to be confident that when you give to a veteran charity your donation will actually be used to help our veterans.
Many people assume that if an organization has been granted 501(c)(3) status by the IRS, it went through a stringent application and review process and must therefore be legitimate.  However, the truth is that there is minimal oversight of the process of creating a non-profit organization.  In fact, the IRS recently simplified the application for 501(c)(3) tax exemption from 12 pages (plus schedules) down to only 3 pages.
With almost no ongoing oversight, many of these groups use only a very small portion of donation money to fund products and services for veterans.  Worse still, there are fraudulent organizations that are used only to line the pockets of their creators.
For example, the United States Navy Veterans Association (USNVA) was a registered 501(c)(3) charity.  It had many markings of a legitimate non-profit – a quality website, supposedly in operation since 1927 and dozens of purported chapters across the country with thousands of members nationwide.  In reality, USNVA was run by one man out of his duplex in Florida.  This sham charity bilked donors out of nearly $100 million over a seven-year period.  The ringleader was arrested in 2012 and sentenced to 28 years in prison and $6 million in fines, but sadly most of these donations will never be recovered.
Fortunately, there are resources available to assist potential donors in verifying the legitimacy of a charity before donating.  First off, the charity’s website can provide a first step – most legitimate charities post their financial statements and annual reports on their website so that the public may view them.  Additionally, www.guidestar.org is a non-profit that provides detailed information about 501(c)(3) registered charities.  Further, legitimate charities should be completely transparent.  If an organization is not forthcoming about providing financial/audit statements, copies of their conflict of interest policy, or information about the board of directors and employees, there is cause for concern.
If you have questions about the authenticity of a veteran charity, or believe that you have been taken advantage of by a fraudulent charity, contact the experienced attorneys at Fausone Bohn, LLP.  We can provide you the sound legal advice that you need.  You can reach us at (248) 380-0000 or online at www.fb-firm.com

Michigan Court of Appeals Refuses to Expand Claim of Acquiescence

Matt Worley, Esq.

Acquiescence is a type of adverse possession.  In essence, it allows an individual to gain title to property after treating the property as their own for at least 15 years.  The common scenario involves fences that are placed on what the parties believe is the true property line but, in reality, is not the line.  If the fence is treated by the property owners as the true boundary between the properties for 15 or more years, there may be a claim for acquiescence.

Recently, a Michigan Court of Appeals decision refused to extend the doctrine of acquiescence to property that is within the platted right-of-way (roadway) in the Village of Beulah.  In that case, the Village introduced plans to create new angled parking, a new sidewalk, and a streetscape in the strip of property adjacent to the roadway.

Plaintiffs then filed suit claiming title to the strips of land that were to be developed by the Village.  The Plaintiffs alleged that they gained title to the property through acquiescence because the previous owners of their property had installed a rock wall and railroad ties in the strips of land bordering the road way.  These strips of land were in the platted right-of-way. 

The Court ruled in favor of the Village, holding that under MCL §247.190 no encroachments on a “public highway” give the encroaching persons any title or right to the land.  Plaintiffs argued that this statute did not apply because a village roadway is not a “public highway.”  The court disagreed, however, and held that the platted right-of-way for the village roads do fall under the court’s broad definition of a public highway.  The court ruled that not every part of the right-of-way must be developed into a roadway in order to constitute the public highway.

While this is a victory for the Village of Beulah, it is likely that the plaintiff will seek review by the Michigan Supreme Court. 

If you have questions about acquiescence or other real estate law concerns, contact the attorneys at Fausone Bohn, LLP.  Our experienced team can provide you with the sound legal counsel you need.  You can reach us at 248/380.0000 or online at www.fb-firm.com

World War II Veteran Laid to Rest in Michigan

The Year was 1944.  Robert McConachie was 17 years old and wanted to enlist and defend his country in World War II.  Because of his young age, his father, James McConachie, had to sign a waiver allowing him to join the armed forces.

His father acquiesced and Robert McConachie joined the United States Marine Corps.  He was killed in action in Okinawa on June 14, 1945, in the final months of the war.  He was just 18 years old when he gave his life for his country.  However, Pvt. McConachie’s remains went unidentified for nearly seventy years.

In 1987, Pvt. McConachie’s still unidentified remains were delivered to the Army’s Central Identification Lab in Hawaii.  Recent advancements in DNA testing, however, have helped the Pentagon link them to his brother.  This year, nearly seven decades after his death, Army analysts positively identified Pvt. McConachie’s remains using DNA analysis and dental records.

Pvt. McConachie made his final trip home to Michigan this year.  The Detroit native was buried on November 3 with full military honors at Fort Custer National Cemetery west of Battle Creek.  The fallen soldier’s family now has closure knowing that he has been laid to rest in his home state of Michigan.

On this Veterans Day, it is an important reminder to thank those who serve our country in the armed forces.  It is also a time to reflect on those, like Pvt. McConachie, who made the ultimate sacrifice so that we may continue to live in a free country.

If you are a veteran and need assistance with a disability benefits claim, contact the experts at Legal Help For Veterans.  You can reach us at 800/693.4800 or online at www.legalhelpforveterans.com

To learn more about Pvt. McConachie’s story, please visit: http://patch.com/michigan/wyandotte/world-war-ii-soldier-finally-laid-rest-0

A “Zone of Death” in Yellowstone National Park?

Mark Mandell, Esq.

It’s true: Yellowstone National Park has a 50 square mile parcel of land located in Idaho where someone could get away with murder. This situation has not occurred, but the fact that it’s possible should raise a few eyebrows.

Let’s say two campers – John and Bob – get into a scuffle in the “Zone of Death” area, and John kills Bob. The District Court of Wyoming has jurisdiction over all of Yellowstone National Park, including the Idaho and Montana portions.

So John has committed a crime in the District of Wyoming, the only district court that includes lands in multiple states.  Under the Sixth Amendment, he can invoke the right to a trial by a jury of his peers – in this case, those residing in the Idaho portion of the Wyoming District Court.

Here’s the loophole: nobody lives there. And there’s no constitutional provision for a trial by a jury of buffalo. So a jury cannot be formed and John would walk away a free man.

That is quite a shocking loophole. Perhaps even more troubling is that Congress has known about it and has not fixed it. The issue first received prominence by Michigan State law professor Brian Kalt in his 2005 Georgetown Law Journal article, "The Perfect Crime."

In the years following the article’s publication, Kalt got some traction on persuading Congress to come up with a fix. But it is now nine years since his article was published and nothing has been accomplished yet.

Congress could fix the Zone of Death loophole by simply amending certain sections of title 28 of the United States Code.  What does the Idaho congressional delegation have to say?

Suzanne Wrasse, press secretary for Senator Jim Risch (R-Idaho), said in a report that the Senator was not overly concerned and that the existence of the Zone shouldn’t stop the state (of Idaho) from prosecution, as they have dual jurisdiction in the area. However, professor Kalt takes issue with that analysis.

Kalt notes that the US code states: "The Yellowstone National Park, as its boundaries now are defined, or as they may be hereafter defined or extended, shall be under the sole and exclusive jurisdiction of the United States." And that, today, is the District of Wyoming.

This might sound a little too farfetched to believe. But in 2007, a different, albeit less exciting, case brought up the issue of the Zone of Death loophole.

Michael Belderrain illegally shot an elk in Montana in 2005, and cited Kalt's article as a defense in 2007. Belderrain was standing in Yellowstone when he pulled the trigger, and then dragged the elk to his truck parked in Yellowstone. Belderrain was indicted in the Wyoming District, and objected that he had a right be tried by jurors from Montana – which is actually possible, as the Montana portion of Yellowstone is (sparsely) inhabited by people.

Instead of trying to call such a jury in a loosely populated portion of Montana and make an argument for why the Sixth Amendment did not entitle Belderrain to such a trial, the court dismissed the argument, supposedly because it would imply Yellowstone contained a Zone of Death loophole.

Ultimately, Belderrain took a plea deal and the issue was left unresolved. For now, the loophole remains for Kalt’s imagined “perfect crime,” with the perpetrator potentially walking away freely. 

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