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Michigan’s Super Drunk Driving Law Takes Effect October 31,2010

On January 9, 2009, Governor Granholm signed into law a series of amendments to the Michigan vehicle code dealing with drunk driving and related offenses. Those amendments, referred to by many as Michigan’s “Super Drunk” driving law, take effect on October 31, 2010. In adopting these amendments Michigan joins some 45 other states that have adopted similar laws. Key provisions of the new law include the following:

1. Beginning October 31, 2010, drivers with a blood alcohol content (or, BAC) of .17 percent or greater will face significantly enhanced penalties. First offenders will face fines ranging from $200 to $700 (up from $100 to $500 under current law), up to 6 months in jail (up from 93 days under current law), up to 360 hours of community service and will be required to attend 1 year of substance abuse treatment, Alcoholics Anonymous or other community based support groups (only required for repeat offenders under current law.) The duration, frequency and type of treatment must be based on an assessment from a licensed alcohol assessor, paid for by the offender.
2. The new law and enhanced sanctions apply only to offenders convicted of offenses that occur after October 31, 2010. License and punitive sanctions for second and subsequent offenses remain unchanged regardless of the offender’s BAC.
3. The licenses of offenders convicted under the new law will be suspended for 1 year, and restricted licenses may not be granted for the first 45 days (referred to as a “hard” suspension.) Thereafter, for the next 320 days, the granting of a restricted license is contingent upon an ignition interlock device being installed in the offender’s vehicle, at their expense, including all charges for monthly monitoring of the device. Such devices are designed to prevent a vehicle from being started or driven by anyone with a BAC of .025 or greater (reduced from .04 under current law.) Under current law as applied, the Secretary of State recognizes the potential that these devices may not allow the vehicle to be started for reasons other than a BAC of .025 or greater. As a result, if a “startup” failure is followed by a “clean test” within 15 minutes, the startup failure is not recognized. Under the new law, after the first 2 months that the device is in use, all startup failures will result in sanctions; period.Any tampering or attempted tampering with the device, or, operating or attempting to operate a vehicle equipped with the device with a BAC of .025 or greater, will result in another 1 year suspension, including 45 days of no driving at all. If an offender who has been ordered to have a device installed in his or her vehicle is stopped driving a vehicle that is not equipped with the device, that vehicle may be impounded, the license plate may be confiscated and destroyed and the offender will face additional suspension and criminal sanctions, including up to 6 months in jail and up to a $5,000 fine. The interlock device must remain in the offender’s vehicle until the Secretary of State orders its removal.
4. The vehicle of anyone who is convicted of knowingly allowing an intoxicated person to drive their vehicle must be immobilized for 90 to 180 days, with the option of avoiding the immobilization if a monitoring device is installed.

Currently, the average BAC of a person arrested for drunk driving in Michigan is .16. It is therefore estimated that the new “Super Drunk” driving law is likely to impact almost half of all persons arrested for drunk driving. Will it result in reduced incidents of drunk driving and greater safety? Only time will tell. What is certain is that convictions for drunk driving will be substantially more expensive and more consequential under the new law.

Duane L. Reynolds

Michigan permits husbands and wives to own real estate as “tenants by the entireties.” This special form of joint ownership, recognized only in about half of the states, protects real property from the claims of creditors unless the creditor is the joint creditors of both the husband and the wife. In other words, the creditor of one spouse has always been powerless to force the sale or refinance of entireties property in order to collect a debt.

This was true for all creditors until 2002, when the IRS prevailed in a court battle over whether a federal tax lien may attach to a delinquent taxpayer’s interest in real estate owned as tenants by the entireties. The 2002 ruling essentially gave the IRS “super creditor” status, but there was some comfort for taxpayers in that the IRS could not actually force the sale or refinance of entireties’ property. Instead, it could only wait in the wings until the property was either sold or refinanced, at which time the delinquent tax debt would be paid.

The tax collection landscape changed dramatically this August when the U.S. Court of Appeals expanded the reach of the IRS by ruling that the government could foreclose a husband’s income tax debt by forcing the sale of the Michigan home he owned as tenants by the entireties with his wife. As a practical matter, this ruling means that any transfer of a marital home to one spouse or to that spouse’s living trust must be completed well before any tax dispute arises if the home is to be protected from the collection efforts of the IRS against the other spouse.

Lee Flaherty

The text message scandal that toppled former Detroit Mayor Kwame Kilpatrick highlighted the potential uses and abuses of employer provided cell phones and handheld devices. Notwithstanding Kilpatrick’s fall from grace, legal questions remain about whether an employer can access an employee’s personal text messages — even if those messages were sent or received on an employer provided electronic device. In a case now pending before the United States Supreme Court, Quon v. Arch Wireless, a California police officer successfully sued his municipal employer, as well the municipality’s electronic communications service provider, after supervisors accessed sexually explicit text messages between the officer, his wife, and his mistress. The police officer had failed to reimburse the city for text charges that exceeded the city’s stated monthly character limit. As a result, his supervising lieutenant started to monitor the officer’s text messages to separate personal charges from work-related charges. The supervisor soon learned of the police officer’s steamy love triangle, and, “somehow,” this information was leaked to the public.

The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Reviewing the claims against the employing municipality, the federal appeals court determined that the cop had an “expectation of privacy” in his personal text messages and that, consequently, the employer had violated the Fourth Amendment’s restrictions against unreasonable searches and seizures when it accessed those messages. Even more surprising, perhaps, was the court’s decision to hold the third party service provider liable under the federal Stored Communications Act for disclosing the text messages to the employer in the first place. The Supreme Court has agreed to review the Fourth Amendment claim, but it will not revisit the decision against the service provider under the federal statute.

We’ve used this forum in the past to remind employers of the need for clear, written policies that explain the employer’s expectations regarding computer and electronic media use. The Quon case underscores the problems employers continue to face when handling these issues. Although non-governmental employers do not fall under the Fourth Amendment, they still need to stay clear of employees’ reasonable privacy expectations. Additionally, they need to be aware that — unlike email messages — text messages are typically run through a third party provider, not the employer’s own network server. Consequently, both the provider and the employer face greater risks if they access or disclose those messages without the employee’s explicit permission.

The bottom line? Establish and publish broad policies governing the use of employer provided electronic equipment and media, and consult with corporate counsel before peeking at potentially private emails and text messages.

Dirk A. Beamer