Michigan’s Super Drunk Driving Law
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:
- 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. - 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.
- 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. - 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.
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.
When it comes to lead-based paint, the Environmental Protection Agency has long regulated its use, detection and disclosure. The EPA recently expanded its regulation in the area by requiring contractors who renovate, repair or paint pre-1978 homes, child care facilities and schools to be specially trained and certified in the removal and containment of lead-based paint.
Many common activities can cause dust or chips containing lead-based paint to be released into the air: sanding, scraping, or even something as simple as replacing an old window.
As I prepare for my upcoming wedding, I am increasingly bombarded with vendor contracts asking me to pay this and waive that. And I will tell you that I am often tempted to do exactly that, especially when the vendor appears to be selling what I want. But, as an attorney, I am always asking (sometimes excessively) the “what if” questions and making sure the answers to those questions are in the contract. Initially, this was uncomfortable for me, as it may be for some of you. First of all, we tend to hire people with whom we are comfortable, and with whom we enjoy working. Second, we may be in unfamiliar territory when negotiating contracts, or specific types of contracts. And, finally, we may see asking tough questions as being negative or putting up road blocks to what we want. If you are parents of a groom- or bride-to-be you might run into resistance from vendors and children alike when asking these same questions.
The second step, of course, is making sure that the answers to the “what-ifs” are in the contract. Hand write changes into the contract if you must, but resist the temptation to accept “Just trust me,” or “That has never happened before.”
A few years ago, terms like “short sale,” “upside down,” and “under water,” were not even part of our lexicon. Today, they are common place. Following some 15 years of steady appreciation, peaking in 2006, home values in Michigan have since declined 45% on average. In Oakland County, distressed sales now account for approximately 93% of all home sales. If a short sale becomes your only option, here are some basics to keep in mind.
Whether or not the forgiven debt is taxable depends upon a number of factors, including whether or not the home was the borrower’s principle residence, when the forgiveness took place, and so on.
Still wondering how the federal Patient Protection and Affordable Care Act (”PPACA”) will affect you or your business? Not sure what changes you may need to implement to avoid penalties? You’re not alone. While the nation attempts to navigate the overhaul of the health care system, here are a few key points to help you understand some aspects of this complex law:
If a large employer does not provide any coverage, and for that reason an employee qualifies for a subsidy (or “premium credit”), the employer faces a monthly penalty, calculated as follows:
With a tremendous amount of hoopla, Michigan’s law banning texting while driving took effect this past July 1, 2010. In so doing, Michigan joined somewhere between 14 and 23 states (the reported numbers vary widely) and the District of Columbia, that have taken this approach in an effort to deal with the growing problem of distracted drivers. A summer 2009 study by the Virginia Tech Transportation Institute found that the act of writing a text message while driving substantially increased the chances of becoming involved in an accident. According to figures published by the National Highway Traffic Safety Administration, accidents resulting from some form of distracted driving resulted in 6,000 deaths and 500,000 injuries in 2008. Overall, distracted drivers accounted for almost 80% of all accidents and 65% of near accidents, nation wide. Here in Michigan, some 3,315 accidents were attributed to distracted driving in 2009, with 900 of those specifically linked to some sort of cell phone use.
(a) For a first violation, $100.00.
Is the law working? It’s too early to tell. I do know this. As someone who rides a motorcycle, distracted drivers scare the daylights out of me. On a motorcycle, I am pretty much at eye level with drivers, and can easily see what they are doing. Just this past weekend, on a trip to the west side of the state, I encountered numerous erratic drivers; you know the ones, driving too slow, too fast, drifting in and out of their lanes, and so on. In every instance, the driver was either talking on a cell phone or texting while driving. Very scary stuff.
Until recently, most U.S. nonprofit organizations were not required to file an annual information return with the IRS. Beginning January 2007, all that changed when even the smallest of nonprofits became subject to IRS annual reporting requirements. The only exceptions were state organizations, churches and their affiliated organizations, and certain religious groups. Nearly all others were required to file some version of Form 990, and the failure to do so for three consecutive years would mean automatic loss of the organization’s tax-exempt status.
Welcome relief for small nonprofits only
For charities that receive an IRS revocation letter next year, all is not lost. A nonprofit can regain its tax-exempt status by filing a lengthy application (Form 1023 or Form 1024) with the IRS and paying the applicable user fee. (Unfortunately, this application process applies even to organizations that did not have to apply in order to gain their initial tax-exempt status.) Reinstatement will usually be effective as of the date the application is filed. However, if a nonprofit can demonstrate that it had reasonable cause for failing to file returns for three years, reinstatement will be effective as of the date of revocation.
Previously, we informed you of a Michigan Court of Appeals decision from 2008, which held that a parent’s waiver of liability for a child’s personal injuries is ineffective. On June 18, 2010, the Michigan Supreme Court decided that the Court of Appeals reached the correct conclusion: parental waivers are unenforceable. The Court reasoned that parental waivers are an attempt to contractually prohibit a minor from filing a lawsuit. Since parents cannot legally contract on behalf of their children, such waivers cannot be enforced.
In fact, a bill is currently pending in the Michigan House of Representatives that would allow a parent or guardian of a minor who participates in a recreational activity to sign a written waiver releasing a person (the sponsor or organizer of the activity, or the owner or lessee of the property) from liability for resulting injuries. The bill would authorize parents or guardians to sign the waivers in advance of the activity. It is unknown at this time, however, if and when the bill will become law.
Also, some establishments may want to investigate the suitability of contracts that provide for the parents themselves to “indemnify” (or reimburse) the establishment for any losses that arise from the injuries that a child suffers while participating in the activity at the establishment. While parents cannot contract for their children, they can enter contractual commitments of their own. An indemnification agreement would essentially have a parent agreeing that, “If my child is injured while participating in your activity – and if that injury leads to a claim against you – I will reimburse you for the cost of that claim.” While not nearly as clean or as risk free as a release, such an agreement would at least provide one additional tool to use in defense of an injury claim.
These days it’s hard to listen to the radio, watch television or go on-line without being inundated by ads pitching the latest and greatest do-it-yourself, on-line, estate plan documents: who needs those money grubbing lawyers anyway? One thing all of these pitches have in common is the assurance that the forms are legally valid and binding. Truth be told, “legally valid” is not a tough threshold to meet. If the person signing the Will (or trust, or, you name it) has the requisite mental capacity under the laws of the state where the document is being signed, and the document is signed, witnessed, or notarized in accordance with the laws of the state, it is legally valid. Legal validity, however, is only part of the story. Imagine the shock years down the road when it is discovered that an estate plan put in place by well meaning parents, intending to provide for each other and their children upon their disability and eventual deaths, does nothing of the sort.
Second, the document was premised upon property law concepts that are not followed in Michigan. Admittedly, this is where the explanation can get technical and complicated, so I’ll convey only the basics. Insofar as property ownership between a husband and wife is concerned, 40 states follow concepts derived from, and based upon, English common law. There are 10 states, however, that characterize property owned by a husband and wife pursuant to concepts that can be traced to French and Spanish civil law. Those states are said to be “community property” states. And, even within these groupings of common law and community property law jurisdictions, there are many variations. The salient fact remains, however, that property owned by a husband and wife is treated differently in community property and common law jurisdictions. Michigan is not a community property state. Yet, this document, although touted to be a Michigan specific document, employed community property terminology and concepts.