Legal Reference Blog by Renee C. Walsh, Esq.

30. June 2007: Michigan Runaways

Can a 16 year old leave home without permission? No. If the individual is under age 18, they are a “minor”. MCL 722.1. The age of majority in Michigan is 18. MCL 722.52. A child can leave home with permission, however, it is still the parents obligation to support their minor children unless the court modifies or terminates the obligation via a petition for emancipation, or the minor is emancipated by operation of law. MCL 722.3.

“Emancipation” means ...More

27. June 2007: Medical Malpractice Statute of Limitations - Fraudulent Concealment

Under MCL 600.5838a, a claim based on the medical malpractice of a person or entity who is or who holds himself or herself out to be a licensed health care professional, a licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, accrues at ...More

25. June 2007: Eviction for Controlled Substance Violation

Attorneys do well to advise their criminal defendant clients that their controlled substance violation could get them evicted. If the client is renting property under a lease containing a provision that they can be evicted for a controlled substance violation on the property, and the landlord files a police report regarding the violation, the landlord can then evict the tenant with only 24 hours notice. According to MCL 600.5714(1)(b), ...More

23. June 2007: A Valid Michigan Will

In order to make a valid will in Michigan, an individual has to be at least age 18 and of sound mind. The will has to be in writing and signed by the testator (will maker) or in their name by some other individual in the testator's conscious presence and by their direction. In other words, as to a person creating the will who cannot physically sign the document for example, he could direct another individual to sign for him in his presence. The will also has to be ...More

21. June 2007: Penalty for Carrying Concealed Weapons

The penalty for carrying a concealed weapon is defined in MCL 750.227 Concealed weapons; carrying; penalty. Violation is a 5-year felony.

Sec. 227.

(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.

(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.

21. June 2007: Possession Marijuana

This falls under MCL 333.7403(1)(2)(d) and is a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or both. Under MCL 333.7408a, there are also licensing sanctions for conviction. If no priors then the operator's license is suspended for six months with restricted license possible after 30 days. If priors, then suspended for 1 year with restricted license possible after 60 days. The license is surrendered at the sentencing hearing.

In order to prove this crime, the prosecution bears the burden of proving beyond a reasonable doubt that the person knowingly or intentionally possessed the substance which has been tested positive for marijuana.

21. June 2007: Prostitution Solicitation

Whether the punishment for prostitution / solicitation is a misdemeanor or felony depends on prior convictions. According to MCL 750.448 soliciting, accosting, or inviting to commit prostitution or immoral act; crime, a person 16 years of age or older who accosts, solicits, or invites another person in a public place or in or from a building or vehicle, by word, gesture, or any other means, to commit prostitution or to do any other lewd or immoral act, is guilty of a crime punishable as provided in section MCL 750.451. MCL 750.451 violation of §§ 750.448, 750.449, 750.449a, 750.450, or 750.462; prior convictions; penalty; definition, provides: ...More

21. June 2007: Possession Narcotics < 25 Grams

In Michigan, If you are charged with possession of narcotics < 25 grams, MCL 333.7403(2)(v), for example, this is a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000, or both. Depending on your criminal background, the prosecutor may dismiss this charge in exchange for an agreement to plead guilty to a lesser charge of possession which is a ...More

20. June 2007: Search and Seizure - Evidence

To search and seize evidence, reasonableness is again the mainstay requirement. In order to meet this requirement, a warrant is required unless one of the six exceptions applies. Consider however, that in order to get to the point of requiring a warrant, one must first have a reasonable expectation of privacy in the place searched or item seized, because without this, there is no Fourth Amendment right to protect. There is no expectation of privacy in objects held out to the public such as handwriting, smells, sounds, etc.; or in areas "held out to the public".

A valid warrant is one that is issued by a neutral and detached magistrate, based upon probable cause and particularly describing the place to be searched and items to be seized. The six exceptions to the warrant requirement are: ...More

20. June 2007: Search and Seizure - Arrests

The Fourth Amendment to the United States Constitution provides that: 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. Translation: No unreasonable search and seizures and no warrant unless there is probable cause, an oath, and a particular description.

A foundational element for this right is that the individual has a reasonable and justifiable expectation of privacy because if not, then the government can intrude. Government intrusion into an are that is reasonably and justifiably private is a search, whereas, a seizure is the exercise of control over a person or a thing.

Michigan v Chestnut, 486 US 567 (1988) helps define what is a seizure. When a reasonable individual would assume that they are not free to leave, they are seized, and a police pursuit of a suspect is not such a seizure. There must be a physical application of force or a submission to a show of force. California v Hodari D., 499 US 621 (1991). One must consider ...More

14. June 2007: Michigan Ticket Scalping

In Michigan, selling tickets for more than their face value a.k.a. scalping, is a misdemeanor (90-days / $100 fine). See MCL 750.465(6). If people / entities are getting away with scalping tickets then it is because either the law just isn't being enforced in that particular county, or they have found the loophole and are exercising ...More

13. June 2007: Some Bankruptcy Considerations

Only file for bankruptcy if your credit card and other dischargeable debt exceeds the value of your nonexempt assets (e.g., cash, bank accounts, tax refunds, etc.) by at least two thousand dollars, because with a bit of attorney help, a settlement could be worked out with the credit card companies. Chapter 7 is the best option if you want to discharge debt whereas Chapter 13 is to be considered if you are considering working out payment plans. The Chapter 7 filing fee is ...More

12. June 2007: Michigan Law Regarding Dog Bites

When your dog personally injures / bites a solicitor who is on your property which has a sign warning of your dog, but not prohibiting solicitation, you can still be sued. The salesman will argue that he was was lawfully on your property because you did not have a "no solicitation" sign, and your dog bit him without provocation. Your response should be to argue that he was a trespasser, unlawfully on the property because you did not invite him and your dog warning sign is evidence that he was to keep away, and that he either intentionally or unintentionally provoked your dog.

MCL 287.351 applies. If a dog bites a person, without provocation while the person is lawfully on the property of the owner of the dog, the owner shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. The salesman must prove ...More

11. June 2007: Copyright Protection of "Databases"

Copyright law is covered by the Copyright Act of 1976, codified at 17 USC s 101 et seq. Some pertinent sections include, Sections 101, 102 and 103. Section 101 defines "compilation" as: "A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship". Section 102(b) provides: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Section 103 limits the protection of a compilation to the author's original contributions and not the facts or information conveyed.

Databases are collections of facts. Facts themselves are not granted copyright protection, but if they are compiled in an original manner, the compilation is protected. A minimal degree of creativity in putting together the facts in the compilation, is required. This creativity can be represented by ...More

10. June 2007: Medical Treatment by Boarding School Infirmiry

Facts: Highschool boy gets injured in a basketball game at his boarding school. He is treated by the school infirmary in consultation with a physician. The physician diagnoses muscle strain, and orders pain medicine and physical therapy. After some time, the boy returns home to a foreign country and is treated by a physician who diagnoses via x-rays and MRI that his back bone was misaligned and he had torn cartilage in his lower vertebrae; and that even with surgery, he could have permanent, life-long nerve damage and debilitating injury. Surgery is performed with the question pending on the life-long damage.

Issue: What should the boy do? He wants to return to school. His parents are in a foreign country and they do not speak English. Should he consider a medical malpractice complaint? ...More

08. June 2007: Homeowner Associations - Thankful not to have to answer to one.

Homeowner associations are governed by Michigan Public Act 162 of 1982 The Nonprofit Corporation Act. Long story short, if its in the bylaws and it is not an illegal provision of the bylaws, the homeowner association (HOA) can do it. HOAs are advised by lawyers to strictly enforce the provisions of the bylaws because if they do not, order will turn to chaos. Therefore, if you are in violation of a gardening rule for example, you can be fined and if you don't pay your fine, a lien can be filed, and then later, a notice of foreclosure if you don't pay. Furthermore, the HOA can enforce the provisions ...More

06. June 2007: About Renee C. Walsh

Renee C. Walsh is a Michigan attorney who has been practicing law for six years, over three in medical malpractice defense, and over two in the general practice of law. She is presently focusing on two websites, http://www.walshlawpllc.com and http://www.lawrefs.com, both of which aim to provide helpful information and assistance to those in need. Renee's aims are virtuous as she is one of those rare non-jerk, non-arrogant attorneys, who has since elementary school days, been helping those in need. If you have legal questions email Renee at lawref@lawrefs.com and she will provide the response in her blog.

05. June 2007: Death Penalty - Mentally Retarded

The death penalty issue is almost too vast to narrow to a single sub-issue, but in this forum, it seems appropriate, and thus, the question of whether the death penalty should be used against the insane and mentally retarded.

In Ford v. Wainwright, 477 US 399 (1986), the Unites States Supreme Court considered the death penalty as to an insane person. It found that consideration must be given to "objective evidence of contemporary values", as well as "the kinds of punishments that were considered cruel and unusual at the time that the Bill of Rights was adopted in 1789". The Court recognized that ...More

05. June 2007: Dealing with Prosecutors in the 30TH Circuit Hallway

I was so surprised years ago when I started a private practice and learned quickly the way the prosecutor and defense attorney communicate about cases right out in the open in the hallway where everyone can listen and hear the private information about defendants and their families.

I went to a pretrial hearing in defense of a 10-year-old black boy who was charged with a felony (breaking and entering or something along those lines). I could still count the number of cases I had at that time. The boy was from Lansing, Michigan and had no prior criminal history. (You're thinking of course, he was only ten, right?) He had been in the wrong place at the wrong time - with his older brother and his friends. The boys were invited over to a girl's house when her parents were out. She had other girlfriends over and the group was doing what 13 and 14-year-old kids do. My client was seen in the driveway looking out down the street. He was checking to see if the parents were coming home as they were expected any minute. The boys left along with my 10-year-old defendant. Later, the boys allegedly went back, entered through a window and stole various items. The prosecutor argued ...More

04. June 2007: To Spank or Not To Spank - Michigan Spanking

The question: Is spanking child abuse?
The answer: It depends on your state.

I live in Michigan and here, Michigan Compiled Law ( MCL ) 750.136b of the Michigan Penal Code defines child abuse. In MCL 750.136b(7) specifically exempts from criminal punishment a parent or guardian (or someone authorized by them) who takes steps to reasonably discipline a child, including the use of reasonable force. In other words, if you spank with reasonable force, you are in the clear.

The debate is clearly a personal one. As to myself, I have two children, ages five and two and never expect to and never would spank them. I prefer a firm voice and demeanor along with explanation over corporal punishment. This serves the higher purpose of maintaining my children's autonomy and dignity. Furthermore, it works! My children are happy, respectful, and well-disciplined both at home and in public. I have family and friends who spank their children and the children do not seem to be scarred. Yet, I wonder, what was it about their verbal communication that it was not effective enough to get the job done alone. It seems that getting anyone, including your child, to do or refrain from doing something is ...More

03. June 2007: Hospital Physician Relationship in Medical Malpractice Defense

The hospital physician dynamic is something that an individual will never learn unless he experiences it first hand. Most of the time, if a patient is injured while at a hospital and begins a lawsuit for medical malpractice, he will sue not only the physician but also the hospital and any other practitioner who was involved in his negligent care and treatment. It is rare that he will sue only the physician because the hospital has the deep pockets. Most physicians are not employees of the hospital, but rather merely have privileges to treat their patients at the hospital. Most physicians are employees of their own corporation including a group of physicians practicing together.

A huge factor in the defense will be the amount of insurance available. If the physician has $500,000 worth of insurance coverage and the case can be settled within those limits, the hospital will work towards a stipulation to dismiss the case against them, especially if they were only the site of the negligence and did not have a negligent nurse or other staff member involved. A good plaintiff attorney will keep the hospital in to the end of the case or until it is settled to his satisfaction. A good attorney will argue that the hospital failed to have proper procedures and policies in place and find an argument for negligence. You can bet the physician wants ...More

03. June 2007: How to Prepare for a Deposition

Prepare for a deposition by knowing the facts and arguments of your case, as much as you can about the witness, the court rules relevant to depositions and evidence, and if the witness is a proponent of your position, prepare him well. Whether the witness is a fact witness or an expert witness will determine the level of preparation required. If the witness is an expert witness, not only is knowing the facts required, but also knowing the subject matter of expertise.

One of the first matters to address is the subpoena and its form and requirements. If there is an objection to the form or requirements of the subpoena, put that on the record at the time the deposition begins. If the requirements are valid, do what is necessary to procure the records or other items subpoenaed along with the witness. This is something that often times must be taken care of well in advance so that the client or witness can assist you in obtaining the requested information. For example, if the subpoenaed material is the original medical chart, contact the hospital or office risk manager well in advance. Odds are that unless it is the risk manager subpoenaed, he will need advanced notice to schedule the deposition so that he can bring the original medical chart. Hospitals do not ordinarily allow the original medical chart out of the possession of the hospital, even if ...More

02. June 2007: How to Choose an Expert Witness

Hiring an expert witness is a tedious process but well worth the chagrin when it comes to a deposition that breaks the case, or credible trial testimony that impresses the jury.

There are some preliminary criteria that need to be satisfied. The expert must of course be qualified to testify about the subject matter at issue. For example, in the medical malpractice field, an expert testifying about the standard of care must specialize in the same field as the defendant and be board certified in the relevant field if the defendant is. The expert must also have devoted a majority of professional time in the year preceding the time complained of to practicing or teaching an accredited program in the same specialty as the defendant. MCL 600.2169(1)(a-b).

In order to determine whether the expert is a qualified expert, a curriculum vite is necessary. Furthermore, rather than taking the expert's word for it, their qualifications can be confirmed and this probably a good idea. For example, if the expert asserts that they are certified by a particular board and it is a relevant board, the certification can be confirmed by contact with that board or with the American Medical Association or the American Board of Medical Specialties.

An expert who will positively impress the jury and the opposition is another important criteria. Therefore, not only is a qualified expert needed, but an expert who is ...More

01. June 2007: Guardian / Conservator - Will you need one?

Guardianship / conservatorship lies in the realm of probate law, an area of law that each one of us who intends to grow old needs to look at because we could be in a situation where a guardian and conservator is appointed and we are placed in a nursing home with no hope of discharge. This happened to someone close to me and I took over as guardian and conservator to get her out of the home, but I met with roadblock after roadblock and ultimately did not prevail.

The person I am speaking of is a 90-year-old alcoholic. Her daughter, who resided across the state, wrote a letter to the probate judge where the 90-year-old lived and told the judge of her alcoholism. The letter was not notarized or official in any form. Based on that letter along with a non-specific petition completed by a local attorney and requesting a guardian / conservator for her protection, the judge ordered temporary guardianship / conservatorship. After 90 days, the temporary guardianship / conservatorship became permanent with additional proof in the form of a letter, though again without jurat (oath) or notarization, from the elderly woman's physician.

The elderly woman wanted to be released and to go home and so contacted me, an attorney friend. I assessed the situation, and made a plan of action and became her guardian / conservator. Next, I ...More