You Have The Right to Remain… Sugary

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Walter White knows his stuff. The Florida police, not so much.

We all have our vices, and some carry a higher price tag than others. Perhaps you imbibe; maybe you smoke. For Daniel Rushing of Orlando Florida, a weekly doughnut habit landed him 10 hours in jail – and now a $37,500 judgment.

In December 2015, Rushing – who just dropped a friend off for chemotherapy, and was then giving another friend a ride – was pulled over for speeding and failing to come to complete stop. After producing his license, the arresting officer, Cpl. Shelby Riggs-Hopkins, noticed a concealed weapons permit. Rushing acknowledged he had a gun, and was asked to step out of the vehicle. That’s when things get interesting.

In her report, Riggs-Hopkins stated she saw “a rock like substance on the floor board” which she recognized through her “eleven years of training and experience as a law enforcement officer…to be some sort of narcotic.” According to Rushing, however, that substance was in fact “sugar from a Krispie Kreme Donut that he ate.”

The check is in the mail! My phone was turned off! Stop sign? What stop sign?

One can only imagine the array of excuses out there. What’s harder to imagine is the truth of Rushing’s excuse when field testing results indicate methamphetamine – twice.

After being arrested and spending 10 hours in jail, Orlandopolice’s crime lab confirmed the ‘white crystals’ were not a controlled substance. Three days later, the State Attorney’s office dropped the case. Rushing hired William Ruffier to file suit. And, fast forward to 2017… you can piece together the rest.

In a troubling report by ProPublica and The New York Times, it has been found that  thousands of people are arrested every year based on false hits from these field kits. The kit manufacturer, The Safariland Group, has remarked the issue is with proper training on their use. And the Orlando police have since responded by stating additional training was issued. However, the issue persists around the country.

So, what’s the lesson?

Don’t eat while you drive.

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You Don’t Owwwwwwn Me!

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Selfies. Everywhere. They’re your friends’ updates; proof of travels and adventures; they even come on sticks. For one photographer, selfies also imply a giant mess of legal battles.

Although many of us consider our pets to be members of the family, the law unfortunately sees things differently. Animals, in general, are not of equal footing with respect to legal rights. Stemming from the notion that legal relationships ‘exist between persons’ and not between ‘persons and things’ or between ‘things and things,’ animal rights activists have long-fought an uphill battle to extend certain rights and protections to our furry friends. If you were to ask PETA (People for the Ethical Treatment of Animals), this recognition extends even to ownership of copyrights.

In 2011, photographer and conservationist David Slater sought to increase awareness of endangered macaque monkeys in Indonesia. After slowly earning the animals’ trust, he was able to get the shot of a lifetime – or rather, Naruto the monkey did… And that’s where things start to get tricky. Wikimedia used the image without crediting Slater, arguing Naruto, not Slater, took the picture; and, because monkeys can’t own copyrights, the image is therefore within the public domain. When Slater later published a book with this image, PETA – piggy-backing off of Wikimedia’s argument – sued Slater on the grounds that “while the claim of authorship by species other than homo sapiens may be novel, ‘authorship’ under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.”

The case was dismissed, finding that monkeys cant own copyrights. PETA appealed, raging the battle forward, while nearly bankrupting Slater. Finally, however, a settlement agreement has been reached. By the parties’ terms, Slater will donate a fifth of future revenue from the images to charities dedicated to protecting crested macaques in Indonesia.

So, what did we really learn here?

I have no idea. But, at least for now, that bone you gave your dog is still technically yours.

Tiger’s Still Not Out of the Woods

CaptureUnless you’ve been living in a sand trap, by now you’ve heard the news – Tiger Woods is again making headlines and not for his golf game.

On May 29, 2017, an officer found Woods asleep at the wheel, with the engine running, and the blinker signal on. Both tire rims on the driver’s side showed damage, both tires were flat, and white scuff marks were found on the bumper. The report states he was awoken with slurred speech and didn’t know where he was.

Classic drunk driving scenario, right?

Wrong.

Thinking Woods was [clearly] drunk, the officer on the scene performed a Breathalyzer test. The result? .000. Twice. No alcohol was found in his system. And yet, he was still arrested for a DUI.

That’s where this story loses most people.

DUI, or “Driving Under the Influence,” is commonly thought of as requiring drunken intoxication. While alcohol is the most prevalent cause, like most states, Florida’s law targets “impairment.” Specifically, it includes driving “under the influence of alcoholic beverages, any chemical substance … or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired.”

And, despite the name, actually “driving” is not required. Rather, the statute incorporates intoxication when “in actual physical control of a vehicle.” Different jurisdictions will interpret this in various ways and to different extents, but most will consider your vehicle’s location, where within the vehicle you were located, where the keys were, and the vehicle’s operability.

According to the arrest report, Woods was “seated in the driver’s seat,” his car was running and “stopped in the roadway in the right lane” with the brake lights on and “the right blinker flashing.” Woods claims he had “an unexpected reaction to prescribed medications.”

Woods’ court appearance is scheduled for July 5, 2017.

Comma, comma, and comma!

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Did you eat eggs, toast, and milk this morning? What about eggs, toast and milk? Don’t see the difference? Well, unless you enjoy soggy bread, you might want to give that some further thought.

The Oxford Comma – also known as the Harvard or serial comma, this “optional” form of punctuation has become a popular subject for grammatical discourse. But aside from confused breakfasts, what’s the big deal? For a group of Maine dairy drivers, that little piece of punctuation just spelled out victory in court.

The labor dispute arose over alleged unpaid wages, with plaintiffs’ employer arguing the drivers were exempt under Maine’s overtime law which provides the following activities do not merit overtime pay:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:  (1) Agricultural produce;  (2) Meat and fish products; and  (3) Perishable foods.

Did you pick up on the difference there? The Court did. Specifically, the statute is ambiguous as to whether “packing for shipment” and “distribution” are separate activities.

According to the drivers, they distribute food but they don’t pack it. Had there been an Oxford Comma – isolating distribution as its own activity – plaintiffs would have been clearly exempt from overtime wage. However, without that separation, the phrase may equally be read as “packing for shipment” or “packing for distribution”. And because labor laws are designed to protect employees, when an ambiguity exists it should be construed in their favor. The Court upheld that notion here in a victory for grammar purists everywhere.

How does your toast and milk sound now?

Car Idling is No Idle Threat

the-shining-frozen-guy5min-54d39b6156653It’s winter. It’s cold; the mornings even more so. The wind chills your bones as you trudge out to the car. Your breath smokes inside the cabin. The ignition starts up; you hit the defrost. But, why sit in the frigid car when your home is nice and toasty? So, you leave the car idling to warm up while you wait comfortably inside.

WRONG! A lesson learned by one Michigan man this month – idling your car unattended may be illegal in your state.

Nick Taylor of Roseville, MI did what many of us do; he left the car running, in his driveway, while he waited inside for it to warm up. When he came back out what he found was a $125 ticket on his windshield. Although this sounds unusual, Michigan isn’t the only state to have such a law. Joining the ranks are:

  • Maryland
  • Washington, D.C
  • Virginia
  • Michigan
  • Pennsylvania
  • Ohio
  • Colorado
  • Texas
  • Wisconsin
  • South Carolina

Why?

Well, as cited by Roseville Police Chief James Berlin, it’s a public safety issue. Specifically, a running, unattended car makes easy bait for car theft. And the problem with that, Berlin notes, is car thieves “typically flee the area at a high rate of speed, [cops] have to chase, and that puts motorists and pedestrians at risk.”

Like most laws, awareness is usually a matter of enforcement (or lack thereof). And, maybe you just lucked out with a safe, private property. To the rest of us in ticketable areas, while this may seem preposterous, perhaps you can take solace in the fact that you’re also cutting emissions.

… Then again, I hear climate change is a Chinese hoax. So, maybe you should just buy gloves.

Mimosas Find Their Bottom in TX

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Brunch – it’s a serious subject. From loaded omelettes to stacked sandwiches, and even breakfast nachos, there’s something for every foodie. And for many around the nation, that menu also includes drinks – specifically, mimosas and bloody marys. Unfortunately for the Texas in-crowd, those drinks have a cap.

The idea of bottomless mimosas – all you can drink champagne and orange juice – is a very real thing. According to the Texas Alcoholic Beverage Commission (TABC), however, that offer is a direct violation of their rule against selling “an undetermined quantity of alcoholic beverages for a fixed price or ‘all you can drink’ basis.” Though this is not by any means a new administrative rule, many officials have seemingly been confused about its application – often misstating that it’s just  an establishment’s responsibility not to over-serve. No more.

On June 1, 2016, The San Antonio Current published an article in its ‘Brunch Issue’ on local restaurants offering this bottomless deal. The TABC decided to use this ‘hit list’ to distribute warnings and citations. Though that article has since been deleted, the message was made clear to Texas establishments – cap those drink options immediately.

If you think this law is restricted to the Lone Star State, think again. In New York, for example, the “selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price” is illegal. The same can be said for 21 other states: Alabama, Alaska, Arizona, Connecticut, Delaware, Illinois, Kansas, Louisiana, Maine, Massachusetts, Michigan, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, and Virginia.

Luckily for those in Washington, D.C., this is not the case. As Jessie Cornelius, a spokesperson with the Alcoholic Beverage Regulation Administration (ABRA), recently stated: “there is no law in the District that outright bans bottomless drink specials.” There is, however, a law which prohibits the sale of alcohol to a drunk person, as well as a law stating that a person can’t be served another drink if an unfinished drink remains in front of them.

As with many laws, what’s on the books is not always what’s enforced. But, as was just seen in Texas, application may only be a matter of time for your state. So, enjoy it while you can, because it may not be forever.

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Arem Law does not condone drinking in excess. Drink responsibly.
If you think you may have a drinking problem, please seek help.

http://www.aa.org/pages/en_US/find-local-aa

https://www.ncadd.org/

http://www.narconon.org/drug-rehab/alcoholic-family.html

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UPDATE: September 24, 2017

New York may soon be making the list thanks to a concerned Manhattan attorney, Robert Halpern, who filed suit on September 19, 2017 against the State Liquor Authority (SLA) to ban bottomless brunches.

“Bottomless brunches lead to more drinking in the neighborhood, which leads to more noise, more crowds and more uncivil behavior,” Halpern states in his papers, criticizing excessive partying in his once-quiet East Village neighborhood.

Currently, the SLA permits bottomless brunches (endless mimosas and Bloody Mary’s) thanks to an exemption for when “service of alcohol is incidental to the event.” While establishments still cannot ‘over serve’ patrons (see above), the rules are relaxed and generally not enforced. According to Halpern, however, brunches are not special events, comparing them against New Years Eve packages and weddings.

You can read the complaint here.

Bitcoins are NOT money?

 d6b179aecb76ff5af20a0314ced0de0e3036ca623fba316662d040285b98685cUnless you’ve been living under a rock the last few years (or maybe a ‘bricked’ phone, as it were), you’ve surely heard of Bitcoin by now – the digital currency… or… commodity… or, wait, what is it?

Exactly.

Bitcoin first gained significant attention when the Silk Road was exposed – an anonymous online market for the trade and sale of everything illegal, dangerous, illicit, and corrupt. From buying drugs, to hiring hitmen and prostitutes, the untraceable “currency” provided users with the ability to exchange ‘value’ for products and services without ever being tied to a government regulated or monitored transaction (i.e. credit cards, PayPal, etc). Although the FBI took care of the website, Bitcoin itself continued on. And, since then, its popularity has only surged as an online payment alternative. It even has its own exchange market, the BTC-E! However, it remains just an online exchange and not “real money” … right?

For one lucky Florida criminal, that questionable discrepancy just landed him a win.

In 2013, the Miami Beach Police, in conjunction with the U.S Secret Service’s Miami Electronic Crimes Task Force, set up a sting operation to weed out illegal activity via the Bitcoin market. They found Michell Espinoza, aka Michellhack, who it turned out was using Bitcoins to purchase stolen credit cards from the Russians. Fast forward through the operation to 2015 when Mr. Espinoza was arrested and charged with one count of “engaging in business as a money services business, to wit, a money transmitter” and one count of money laundering.

Sounds about as guilty as it gets, right? Then just how was the Defendant’s Motion to Dismiss granted? According to Florida State Court Judge Teresa Mary Pooler, Bitcoin is not money and therefore not within the purview of the criminal statutes charged.

In Judge Pooler’s Opinion, she articulates numerous reasons as to why Bitcoin cannot be considered money. For starters, “virtual currency” is treated by the Federal government as property for tax purposes (see IRS Notice 2014-21). To continue, however, Bitcoin is not commonly accepted by merchants; it has a highly volatile fluctuating market (at one time valued 18x greater than the U.S. dollar), with insufficient liquidity and an uncertain future value; and it is decentralized without a reserve, failing to be backed by anything. Oh, yea, and it “cannot be hidden under a mattress like cash and gold bars”.

… Uncertain future value, not backed by anything… If you ask me, that sounds a lot like the U.S. dollar

Regardless, I often write about how our legal system is playing catch-up with an increasing transition to digital ‘everything’. Passing new legislation can be an arduous, lengthy process of research, commentary, and amendment, which by the time is done could already be replaced by the next new thing. But when the topic at hand is currency – very much ‘the thing that makes the world go round’ – it’s not at all surprising to see added backlash by the judicial system; setting precedent which may only further weaken the dollar and/or encourage a shift away from Federally-issued currency is not a favorable position to take.

Eventually, this is an issue which the United States Supreme Court will have to weigh in on. In the meantime, Bitcoin will continue to be traded, exchanged, used and valued, as all things are in a free market.

Finding Location… Giving Location

60962456Think your cell phone location is private? Think again…

Privacy advocates took a major blow this week with a 4th Circuit Court of Appeals 12-3 ruling on cell phone location data. The decision out of Virginia upheld that consumers have “no reasonable expectation of privacy” because the information is ‘willingly given’. In other words, because you ‘agree’ to use your location in cell phone services and apps, that information can be collected and used without a warrant.

The Fourth Amendment to the U.S. Constitution protects personal privacy and the right to be free from ‘unreasonable government intrusion’ into their persons, homes, businesses, and property. The “search and seizure” protections require law enforcement agencies to obtain a warrant from the court to so intrude, with an exception – the “third-party doctrine”.

Under this legal theory, consumers who knowingly and willingly surrender information to third-parties have “no reasonable expectation of privacy” in the information provided – regardless of how much information there is, or how revealing it may be. Research clearly shows that cell-site location data collected over time can reveal significant personal information — including where you live, where you work, when you travel, who you meet with, and who you sleep with. So when do you willingly surrender that data? … More often than you think.

Unfortunately, technological growth outpaces the law. As our society becomes more and more dependent on the technology we use, and we grow more numb and complacent to the services required for that use, an increasing burden is placed on our legal system to keep up and evolve. In the meantime, consumers must remain vigilant in understanding what rights and protections they sign away for the conveniences provided.

The Not-Church of the Flying Spaghetti Monster

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Omniscient, omnipresent, and… al dente ?

From Constitutional interpretation, to workplace accommodation, the courts have been cautious when determining one’s religious rights under the law. Apparently, however, they are far less cautious when it comes to the “Church” of the Flying Spaghetti Monster (FSM) – also known as Pastafarianism.

The issue just boiled over when a Nebraska State Penitentiary inmate was denied religious accommodation for his FSM beliefs.

Steven Cavanaugh, 24, was incarcerated for “assault and weapons charges” according to the Lincoln Journal Star, and is expected to be released this July. In the meantime, he had sought protections and accommodations in prison under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) – – including the right to meet for worship, communion, and to wear religious clothing. The RLUIPA provides that any substantial burden placed on an inmate’s right to exercise religion be justified by a compelling governmental purpose. So, what exactly would the exercise of these rights entail?

According to the Church’s Gospel, FSM “religious clothing” means a pirate costume and “communion” is a large portion of spaghetti and meatballs… Aside from seeking the rights to these practices, Cavanaugh also sought $5 million in damages for “deep emotional, psychological and spiritual pain” caused by being barred from religious practice and the staff’s mocking of him.

If you’re scratching your noodle over this one, you’re not alone. U.S. District Judge John Gerrard dismissed these claims, finding that FSM-ism is not a religion per federal statutes and constitutional jurisprudence. Rather, he wrote, it’s “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education”.

Does this look like a parody to you?!

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Ok… so, maybe it is. Actually, it definitely is (you can read more about the belief system and its legal impacts here). But, really, what is a religion? And is he really hurting anyone?

… ok, bad example.

 

You can learn more about the Church and FSM through this instructional video, “Spaghetti, Wenches & Metaphysics,” by Matt Tillman here.

 

Distracted Walking Pays Out Big

blog_texting_while_walking_fort_leePay attention, people… Or, don’t, get injured, and sue for outrageous damages.

Sounds silly, right? Well, for a Georgia jury, that scenario just landed a $161,000 pay day.

DeToya Moody of DeKalb County just won what could be a landmark precedent for jury damages in cases of texting negligence. While walking down the sidewalk and texting, Ms. Moody hit her head on the ladder of a bucket truck – – a stationary ladder, surrounded by orange cones, which she had passed three times before. Having suffered a concussion and post-traumatic headaches, she sued… and won… big.

You can read the full story here. The important take-away though is that juries can do some funny things.

At the outset, the truck company had offered $5,000. Ms. Moody’s attorney countered with $75,000. When settlement failed, the matter went to trial seeking $155,000 in damages. The jury felt even this amount was too low and awarded $161,000 (reduced from $175,000 for Ms. Moody’s 8% negligence in the injury). To appeal this award the truck company would have to show the judge to have ‘abused his or her discretion’ in allowing the jury’s award to stand (a difficult standard to win).

We certainly live in a litigious society, but there are reasons so few cases actually go to trial. Despite the facts and the law, one never truly knows how things will play out. In retrospect, and particularly after the costs and time of proceeding through trial, a $75,000 settlement might not have been so bad.