Implied Consent: Know the Rights You Don’t Have Behind the Wheel

Mark Mandell, Esq.

While the New England Patriots are wrapped up in “Deflategate” leading up to this year’s Super Bowl, you don’t want to find yourself in trouble on Super Bowl Sunday for drinking and driving. If you are the driver of a vehicle in Michigan, you are considered to have consented to BAC test.

Before heading to a friend’s party or out to the bar to have drinks and watch the game, there are some important points everyone should keep in mind if you’re thinking of getting behind the wheel, in addition to having a designated driver.

Under Michigan’s Implied Consent Law, all drivers are considered to have given their consent to chemical tests to determine their Blood Alcohol Content (BAC). It does no good to refuse a BAC test, as there are significant penalties.

First of all, if you refuse the test, six points will be added to your driver’s record and your license will be automatically suspended for one year. This is a separate penalty from any subsequent convictions resulting from the traffic stop. Secondly, there is always a judge on-call for the police to get a warrant for a blood-draw.

Further, if you refuse a test, or if the test shows your BAC is 0.08 or more, your driver's license will be destroyed by the officer and you will be issued a paper permit to drive until your case is resolved in court.

If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be added to your driver record and your license will be suspended for two years. 

The suspension may be appealed to the Traffic Safety Division, but the request for a hearing must be submitted within 14 days – if you do not submit a request for a hearing, your license will be automatically suspended.

Implied consent hearings place a huge burden on the accused, but there are ways to soften damages in the process.

The implied consent hearings are conducted by attorneys from the Department of State. You must show that the refusal to take the test was not unreasonable – and this is extremely difficult to prove. However, the Michigan Supreme Court has ruled that you may request a call to your attorney before submitting to a breath test (Hall v. Secretary of State, 1975): if you are not allowed this opportunity, you may reasonably refuse a breath test.

You should also be informed about the “One Hour Rule,” whereby you generally have one hour to change your mind about submitting to a test. For example, if you refuse at first, but change your mind 15 minutes later, then you have not unreasonably refused the test.

Although the burden of proof is incredibly difficult to overcome, first-time offenders can petition the circuit court for a restricted driver’s license. You can also appeal any legal defects in the implied consent procedure to the circuit court. Having an experienced and knowledgeable attorney at your side to fight for your rights can make a huge difference.

If you have been charged with drinking and driving or refusing to take a breath test, contact defense attorney Mark Mandell at (248) 380-0000 or online at www.FB-Firm.com.   

“The Grand Bargain” Earns Spot as Michigan’s #1 Law of 2014

Jim Fausone, Esq.

The Michigan Capitol reporting service Gongwer released its Top Ten Laws of 2014 list, and The Grand Bargain earned top marks. The legislation was crucial to Detroit’s exit from bankruptcy, and it was spearheaded by Fausone Bohn’s own John Walsh.

Mr. Walsh was serving as a State Representative at the time and chaired the “Committee on Detroit’s Recovery and Michigan’s Future,” which was tasked with brokering a deal that ultimately provided $195 million in state funding to Detroit.

The funding was part of a more than $800 million package of money to protect Detroit city worker pensions from devastating cuts. The legislation also included strict oversight measures. 

Once all the money was in line, US Bankruptcy Judge Steven Rhodes approved the city's plan of adjustment to exit bankruptcy. Elected city officials once again are in control of the city, although an oversight board will keep a watchful eye on Detroit’s budget and finances for years to come.

Walsh now serves as Governor’s Snyder’s Director of Strategy and remains of-counsel at Fausone Bohn, LLP. 

Veterans who suffer from Military Sexual Trauma Now Eligible for VA Health Care

The Department of Veterans Affairs (VA) announced in early December that it would expand eligibility for veterans in need of mental health care due to sexual assault or sexual harassment that occurred during their military service. This expansion comes under the authority from the recent VACAA legislation (Veterans Access, Choice, and Accountability Act of 2014).

This sexual assault trauma, commonly known as Military Sexual Trauma (MST), is specifically defined as: psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty or active duty for training.

This expansion, which also pertains to Reservists and National Guard members participating in weekend drill, gives the authority to offer veterans the appropriate care and services needed to treat conditions resulting from MST that occurred during a period of inactive duty training.

The expansion is rather timely, especially in light of recent reports of the continued increase in military sexual assault cases, which we at LHFV have discussed frequently on our blog.

Every VA health care facility will have a MST Coordinator who serves as the point person for MST cases. And every VA medical center and community based outpatient clinic offers some MST-related outpatient counseling.

Currently, veterans can receive health care for mental and physical conditions related to MST free of charge. Veterans do not need to have a service-connected disability or seek disability compensation to be eligible for MST-related care.

And, as many who experience sexual harassment or assault have not reported the incidents in the past, it is important to note that veterans do not need to have reported such incidents to the Department of Defense or have documentation or records to support their claims of having experienced such trauma. The responsible VA mental health provider makes a clinical determination as to whether a veteran’s condition is MST-related.

Finally, veterans do not need to enroll in the VA’s health care system to qualify for MST-related treatment, as it is independent of VA’s general treatment authority.

Veterans can learn more about VA’s MST-related services online at:

www.mentalhealth.va.gov/msthome.asp 

And you can see video clips with the recovery stories of veterans who have experienced MST at, and learn more at: http://maketheconnection.net/conditions/military-sexual-trauma.

If you have questions about service connected MST and disability compensation, contact us at Legal Help for Veterans.

Fracking Debate Percolates in Michigan on Heel of New York Ban

Paul Bohn, Esq.

On the heels of the State of New York’s banning of hydraulic fracturing, debate on the practice is now percolating in Michigan. New York, which has had a moratorium on the practice since 2008, now joins Vermont as the only states to completely ban hydraulic fracturing, commonly known as “fracking.”

The Michigan Department of Environmental Quality (MDEQ) is set to draft rules in April to regulate the industry. These new rules will reportedly include provisions to limit a local government’s ability to pass zoning ordinances to prevent fracking.

In 2014, MDEQ also introduced a new draft of proposed Hydraulic Fracturing Rules. Interested readers can find that draft at: http://www7.dleg.state.mi.us/orr/Files/ORR/1298_2013-101EQ_orr-draft.pdf

The move by New York to ban fracking is sure to embolden anti-fracking activists, while at the same time signal the pro-fracking lobby to dig in their heels in other states – including Michigan. New York Governor Andrew Cuomo said the issue was “probably the most emotionally charged issue I have experienced…”

The oil and gas industry in New York had their hopes shot down by the decision, as New York sits atop one of the largest natural gas deposits in the United States. Some energy companies have leased land in those areas and have been waiting for years to tap into those thousands of acres of land. And the wait will go on.

Michigan, too, has a sizeable natural gas supply. In-state natural gas represents about 20% of the total gas consumed in Michigan. And MDEQ notes in a one page briefing document on their website that fracking has been in regular use in Michigan since 1952, with no adverse effects to the state’s environment from the process. You can check out MDEQ’s “Five facts about Hydraulic Fracturing” here:

http://www.michigan.gov/documents/deq/Five_facts_about_HF_1_page_455379_7.pdf

However, a group in Michigan, known as The Committee to Ban Fracking in Michigan, begs to differ. They hailed the decision out of New York. Also, with the abysmal turnout in this past election, the bar for getting a ballot proposal put on the 2016 ticket is far lower. For 2016, only 252,522 signatures are required to send a question to the Michigan voters, and the anti-fracking group is eyeing to do just that.

The group alleges that the industry has indeed been harmful to the Michigan environment, including wasting fresh water resources, putting aquifers in danger, and the introduction of harmful fracking wastes and radioactive materials. The group’s campaign, LetsBanFracking.org, hopes that the New York decision emboldens potential donors and volunteers.

So stay tuned for 2015 – fracking has been on the top of many an insider’s list of hot-button issues to watch. And if New York is any indication, it seems that will come to fruition.

Paul Bohn, partner at Fausone Bohn, LLP, has established a strong reputation in Michigan as a leading practitioner in the areas of environmental law, real estate, municipal regulations and construction law. 

Veteran Mistreated by Airline Sheds Light on the Importance of Service Dogs

In a holiday season supposed to be filled with charity and good-will, people’s experience at the airport terminals at this time of year is the exact opposite of comfort and joy. And recently, US Airways had to apologize to a veteran for the way its flight attendants treated his service dog.

Eric Calley, a Marine veteran who spent two tours in Iraq and now advocates for other returning veterans, was on a trip from Florida to Detroit when flight attendants began unnecessarily taking issue with his service dog during some turbulence. The conduct of the attendants sparked complaints from a fellow veteran on the flight, as well as others.

Calley – who is the brother of Michigan Lt. Governor Brian Calley – was sent an apology from US Airways because, “it appears our airport personnel didn't handle the situation with the quality customer care we expect.”

Calley’s first service dog, sadly, passed away last year. His new service dog, Sun, was made possible by a fundraiser.

"She helps me just leave the house," he said. "She helps me deal with people. Dogs are 10 times more intuitive than humans. They pick up things way more than we do. If you have a flashback, and say you're dreaming you're overseas and you wake up, you still think you're over there for a while. She helps you get out of that. She brings you back to real time."

Calley also wants people to know that there is a two-year waiting list for veterans who need service dogs, and the list is growing ever longer. But you can help.

Eric Calley works with a program called Liberty's Legacy in honor of Calley's first dog to provide more service dogs for Michigan veterans. Calley said his goal for 2015 is to bring "as many dogs as possible" to Michigan.

Liberty's Legacy works with schools to set up penny drives to raise money for veterans who are waiting for dogs. Literally, Calley says, every penny counts.

If you're interested in setting up a penny drive at your local school to sponsor a Michigan veteran, contact Lansing State Journal columnist Louise Knott Ahern, who wrote the story on Calley and his service dog, at lkahern@lsj.com. She will put you in touch with Eric Calley.

You can read the full article on the Detroit Free Press website, here:

http://www.freep.com/story/news/local/michigan/2014/12/22/eric-calley-veteran-service-dog-sun-us-airways/20762173/

Legal Help for Veterans members Paul Bohn and Kristina Derro have been big supporters of service dogs for veterans.  Paul is on the board of Stiggy’s Dogs in Howell, Michigan.

Veterans Can Find Help Applying to Upgrade Discharge for PTSD at New Website

Veterans looking for an upgrade to their punitive discharges related to behavior problems caused by post-traumatic stress disorder (PTSD) can find assistance at a new website: http://arba.army.pentagon.mil/adrb-ptsd.cfm

This initiative follows a recent directive to the Army’s Review Board Agency (ARBA) to help those veterans whose discharges were under “other than honorable” conditions, and who assert that they suffered from PTSD or related conditions that might have facilitated the misconduct that led to their discharge.

While this directive is focused on those veterans who served before PTSD was a recognized as a debilitating medical condition, it applies to all veterans (who have “other than honorable” discharges). This comes as welcome news for the thousands of Vietnam-era veterans who may have been given punitive discharges as a result of their conduct caused by PTSD.

The ARBA is the Army's highest level of administrative review for actions taken by lower level organizations, and it includes several boards that hear claims of soldiers and veterans who appeal unfavorable information in their personnel records – which include discharge statuses for veterans.

Upgrading one’s discharge can be crucial for veterans seeking benefits offered by Veterans Affairs. Less than honorable and other than honorable discharges are very often a disqualifying factor from benefits.

Veterans’ organizations, like the Vietnam Veterans of America, estimate that one third of the 250,000 other than honorable discharges issued to Vietnam-era veterans may have been PTSD-related. Three veterans organizations, along with five Vietnam-era combat veterans, recently filed a lawsuit in federal court seeking relief for those tens of thousands of veterans who fall into that category.

Under the new directive, veterans who were previously denied upgrades can re-apply and the ARBA will consider the case on a blank slate. However, this only applies to veterans with other than honorable discharges, and not those who were discharged under “less than honorable” conditions due to serious infractions.

While we do not work on discharge upgrades, if you have a VA disability claim you can contact attorney Kristina Derro at (800) 693-4800.