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Thursday, May 6, 2021

How much hash makes you smashed?

Everyone knows the basic concept of whether or not a person is illegally drinking and driving – he or she is over the “limit.”  Their bodily alcohol content, or BAC, is higher than what is legally allowed, and consequently, their driving is considered to be a danger to others based on their impaired state.  In Michigan, when a person’s BAC is 0.08 or higher, it is illegal to drive.

Representative Pamela Hornberger wants to create a similar law for marijuana – essentially, how much is too much weed to get behind the wheel.  While it is illegal to drive while intoxicated with drugs or alcohol, there is no clear definition of the limit of marijuana one can have in his system.  And let’s not forget you can drive like a looney toon but be completely sober and still face legal consequences (you don’t need to be intoxicated to be a lousy driver).

Fueled by the 2020 death of a girl who was hit and killed by an individual who driving with THC in her system, Hornberger is sponsoring HB 4727 in an effort to prevent more senseless deaths.  Michigan’s self-proclaimed “nerd” governor Rick Snyder formed the Impaired Driving Safety Commission to study the possibility of determining levels of intoxication as it related to THC.  In 2019, the Commission issued its report, which determined that “there is no scientifically supported threshold of…THC bodily content that would be indicative of impaired driving.”

The report referenced the difficulty in accurately determining impairment based on an individual’s blood concentrations of THC.  To just pick a number would ignore the impact of frequent users who must ingest more marijuana to achieve the same effect as a person who just started using.  THC levels can vary significantly from the time of blood collection versus the levels when the individual was actually driving.  It concluded that a roadside sobriety test was the best way to determined impairment.

The bill would create a limit of 5 nanograms per milliliter of blood when determining if an individual is intoxicated from the use of marijuana.  The 2019 report noted that Colorado, Montana, Nevada, Ohio, Pennsylvania and Washington all had impaired driving levels for THC.  Colorado, Montana and Washington share what HB 4727 proposes at 5 nanograms per milliliter.  Nevada and Ohio have a 2 nanogram per milliliter limit, and Pennsylvania is the lowest at 1 nanogram per milliliter.  Colorado adds a twist in that its limit is “a reasonable inference….[which] allows a jury to infer that a driver was impaired if his or her blood test result is 5 more ng/ml…but that inference can be rebutted by the defendant in legal proceedings with evidence to the contrary.”

As a definite number was not recommended in 2019, it will be interesting to see if the bill has any success given that it has only been two years since the commission’s report. While driving under the influence of any drug or alcohol can be illegal, it must be accurately quantified before the law should interfere.

Friday, April 2, 2021

Parents Lose Lewd Lawsuit

When my kids fail to pick up their toys or papers after repeated reminders to do so, I warn them that they may end up in the trash.  This generally prompts them to scurry around and throw everything into a dark corner in their closets, negating the threat for the time being.

Some parents have more backbone than I and follow through on their promises.  David Werking, a forty-something Michigan man, sued his parents for throwing out his – ahem- adult magazines, videos and toys – and won. When he moved into their Grand Haven home in 2016 following his divorce, his belongings came with him, including his special collection.  With a “my house, my rules” mentality, his parents warned him to not bring these items into their home.

David responded with a “you’re not the boss of me” attitude and moved in, provocative products and all.  When he moved out the following year, his parents shipped his things to his new digs.  Much to David’s surprise, his boudoir belongings were missing.

Determined to have the last scintillating word, David did what any rational son would do and sued his parents, alleging that the mature materials were worth a whopping $25,000.  His parents admitted to tossing what they apparently considered trash, and told the court that they had warned their son that they would throw the items out if he brought them into their home.  The judge dismissed their defense and ruled in favor of David, giving parents and son time to determine the damages.

A surprise twist in this already bizarre case is the fact that his parents kept some of the most offensive (in their opinion) items and placed them in a safe deposit box, fearing that they were illegal.  I don’t know if they did this to protect their son from legal trouble, or if they were keeping evidence to turn him in.  Either way, the police determined nothing was amiss and David was not charged.

Emails between father and son are quite entertaining, with David suggesting sites in the event his father was inspired by his son’s arousing assets.  His father’s response definitely points in the opposite direction.  The saying “like father, like son,” meets an exception in this family.

Thursday, March 4, 2021

Virtual Burnout

By nature, most humans want and need personal interaction with other humans.  Some might say that we have a herd mentality at our core, with a more refined ability to decide things for ourselves instead of following everyone else.  The pandemic has significantly restricted our ability to be physically present with others, and alternative methods of interaction and communication have increased dramatically. 

With the exception of some courts that are holding hearings in person, most are utilizing an online virtual platform like Zoom.  Many hearings are live streamed on You Tube channels as well.  In addition to conducting business virtually, parents may also have to assist their children with virtual school and appointments.  Burnout has always been an issue in the employment arena, and in 2019, the World Health Organization included it in a revision of the International Classification of Diseases, specifically listing it as an occupational phenomenon.  It is defined as “…a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed.  It is characterized by three dimensions:  feelings of energy depletion or exhaustion; increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and reduced professional efficacy.”

I have noticed increased frustration with the use of virtual meetings and hearings.  The internet connection is unstable, audio isn’t working, a party has to call in instead of using video, which means he or she can’t see the screen sharing.  Going back and forth into breakout rooms, especially when swapping back between the main session and the rooms, can be tricky.  Everyone, including me, wants a big, blinking red button that screams “CLICK HERE!” to make transfers easy.  When the technology becomes confusing or difficult, it raises tensions in the room, which can lead to breakdowns in productive communication.  As the stress and frustration build, burnout can take over.

When hearings are held in person, there are few distractions.  You are relatively isolated from the rest of your life when you are in a courtroom, minus what business you can conduct on your phone.  Focus is improved, and it is easier to realize there is one task in front of you.  You can give your full attention to that task, and I believe people are more mindful of others when they are physically present. It’s hard to effectively express emotions over a computer – somehow even the best attempts often fall short.

While meeting virtually is more convenient (who hasn’t enjoyed the decrease in traffic and gas costs), it can be taken less seriously.  When you attend court in person, you have to get dressed, drive, pass through security, and sit in an imposing courtroom.  There is a sense of decorum that a courtroom possesses, and people tend to respect that.  Virtual courtrooms do not foster that same atmosphere.  People literally appear undressed for hearings and lay in bed yawning throughout the proceeding.  It’s a complete unknown as to what a viewer might see in the background during a call, and that can be on both sides.  Children run in and out of the room and dogs incessantly bark at all the wrong times.  These things don’t happen when court is held in person.

Sometimes everyone can laugh about the ridiculous things that occur.  But after a while, many are simply “over it.”  Jobs are hard enough, and a pandemic that changed how almost everything worked has been extremely stressful.  We must adjust our routines to accommodate the hiccups that occur virtually.  Taking breaks more frequently or making them 15 or 20 minutes instead of 10, allows participants the chance to take a walk outside or eat a snack without suffering from heartburn an hour later.  Knowing when the distractions are too much and continuing a different day is sometimes necessary.  It does no one any good to continuously stop and ask someone to repeat themselves because their connection is going in and out.

I think it’s most important to recognize that we are tired.  We are all tired of the pandemic and the chaos that it brought to the world.  It’s normal to feel this way and simply recognizing that when hearings become troublesome is helpful.  Acknowledging virtual burnout can ease stress, diffuse anger, and open perspectives, drawing people back to the present task at hand.  While we may be sitting on different sides of the table, we are all human.


Monday, February 1, 2021

Employment doesn't define your parental role

In the to be published case of Bofysil v Bofysil, the Michigan Court of Appeals provides a great reminder that we should not assume a diminished relationship between working parents and their children.  It also sets forth in great detail almost any legal definition and case law an attorney could need relative to established custodial environment and burdens of proof.

The case hails from my old stomping grounds of Jackson County, and involved a relatively short-term marriage between Bridget and Sarah Bofysil.  They had one minor child, who was born in 2016.  Like most marriages, each parent had different duties, with Sarah being a stay-at-home mom, and Bridget working full-time.  The lower court spent considerable time detailing the tumultuous relationship between the parties, which included substantial arguing, calling their text messages “as vile as any communications the Court has seen between two parents.”

The lower court awarded sole legal and physical custody to Sarah, noting that while the court preferred joint legal, it appeared impossible for the parties to effectively make decisions together.  It focused on Bridget’s “harsh and abusive communications…[which] demonstrated that she is incapable of co-parenting.”  The Best Interest Factors were considered by the trial court, finding almost exclusively in favor of Sarah.  Her role as the stay-at-home parent was greatly highlighted, downplaying the parental role performed by Bridget.

The Court of Appeals called out specific testimony which showed that while working full-time, Bridget carried her own weight as a parent, even mentioning Sarah’s corroborating testimony.  While the lower court found that the established custodial environment existed solely with Sarah, the Court of Appeals’ examination determined that the evidence did not support this, and that Bridget’s full-time employment resulted in her being treated by the lower court “as less than a full parent.”

The appellate court called out inconsistencies in the findings – Bridget had began a new relationship since the parties separated, and this was used as a strike against her – however, Sarah was married when she and Bridget began their relationship, which did not appear to be taken negatively.  Similarly, no credit was given to Bridget for providing income and health insurance for the minor child, but Sarah was found able to meet the child’s financial needs with child support.

Relative to legal custody, there were indications that the parents had agreed on major decisions regarding the child in the past, and the Court of Appeals noted that the use of computer programs, or the more simplistic notebook exchange, can temper parties’ communications amd reduce  hostility while co-parenting.  The case was remanded for reconsideration on legal custody, requiring the lower court to consider “alternative communication methods.”

I’d recommend family law attorneys bookmark this case, if only for the fantastic case law contained within it.  Additionally, it reminds us that employment both inside and outside of the home does not define your worth as a parent.

Tuesday, January 5, 2021

Imputation Factors Get a Facelift

Along with the new year comes the new 2021 Michigan Child Support Formula Manual.  One of the more substantial changes to the formula manual, which should remain in effect for the next four years, is the modification to the imputation factors, which can be found in section 2.01(G).  The formula refers to it as “potential income,” which is when “a parent is voluntarily unemployed or underemployed, or has an unexercised ability to earn…, subject to that parent’s actual ability.”  I like to call it “pretend money.”


The formula continues to maintain that potential income should not exceed 40 hours a week, nor include potential overtime or shift premiums.  If an individual is employed full-time, which is 35 hours or more per week, imputation is not appropriate.


There are 11 factors that need to be considered when assigning an individual potential income, and include things such as education, job experience and physical health.  The 2021 formula clarifies these to provide for a more detailed picture of the person’s actual ability to earn a living.  It adds earnings history as necessary information, which makes sense since the court will be assigning an actual number as the person’s “income” and using that in the child support calculation.


The formula also focuses on more socio-economic factors, adding considerations for literacy, residence, age and health.  For obvious reasons, an individual who struggles with literacy will have less job opportunities available to him, and many do not freely admit to these types of difficulties.  Now that the court will have to inquire, hopefully more people will feel comfortable sharing their literacy level so it can be taken into consideration.


The 2017 formula manual looked at an individual’s ability to drive and access transportation, and the 2021 manual retains those questions, as well as adding an inquiry into that parent’s residence.  Recognizing that homelessness, or an unstable residence, impacts one’s ability to work is an important step in evening the playing field when calculating child support.


If a person is imputed income, the court can also consider potential daycare costs (for the children in the case).  Some parents specifically choose not to work because daycare costs would exceed their paycheck, and it is important to factor in the costs they would incur if they were employed.


As the manual reminds its readers, failure to articulate how each factor applies to the imputed income, or state that it is inapplicable, is a violation of case law.  While the modifications to the factors were not large in number, they will make a substantial difference in recognizing the inequities that exist in society.


Thursday, December 3, 2020

Insanity Defenses are left up to the States

In mid-March of this year, the Supreme Court made a significant ruling regarding the use of insanity as a defense to a crime.  In the case of James Kahler v Kansas, No. 18-6135, the SCOTUS ruled that the Due Process Clause of the Constitution does not require a state to acquit a defendant who was found to be insane at the time of the crime.

Kahler was convicted of murdering his family and was sentenced to death in Kansas.  His wife had left him, taking their children, causing Kahler great distress.  While Kansas provides for mental disease or defect as a defense to a prosecution, it only allows for an acquittal if the defendant could not form the necessary mens rea.  Kahler attempted to use his depression as proof he was unable to form the requisite intent to kill.  He also introduced evidence in an attempt to reduce his sentence due to mental illness, but was unsuccessful.

Kahler appealed, challenging the fact that Kansas does not allow “an insanity defense that acquits a defendant who could not ‘distinguish right from wrong’ when committing his crime.” Kansas instead provides for cognitive incapacity, not moral incapacity, as a defense. The SCOTUS explained that in order for Kansas’ law to violate due process, it has to “‘[offend] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” The opinion provided a fascinating look at the insanity defense throughout legal history.

The Court reiterated that it is paramount to allow individual states to determine what can be used as a defense to a criminal act, due to ever changing social policies, morals and ethics.  It is not the duty of the Supreme Court to dictate how the states choose to apply the insanity defense, and the Court noted that opinions on mental illness and criminal behavior vary so widely that it would be unwise for the law to require one rigid standard. Since the research and knowledge on mental conditions change over time, a firm standard for the law would not adapt to the fluidity of the psychiatric field.

The SCOTUS affirmed the lower court in ruling that Kansas and all states have the power to choose how they handle insanity defenses.  I find it particularly fitting that this ruling was issued at the beginning of the pandemic – if there was ever going to be a year in which to claim insanity, 2020 would be it.

Monday, November 2, 2020

The votes are in

On October 16, 2020, the Michigan Court of Appeals ruled that all Michigan absentee ballots must arrive by election day, November 3, to be counted.  Anticipating issues due to the COVID-19 pandemic, citizens sued the Secretary of State and Attorney General to challenge the constitutionality of laws which require absentee ballots be received before the polls close on election day, the requirement for postage to be placed on the ballot in order for it to be successfully mailed, and who exactly can turn in the ballot for the voter.  Specifically, the plaintiffs sought an exception to the enforcement of these three laws for the 2020 election.

They were mostly successful in the Court of Claims, which ruled that absentee ballots could be counted up to 14 days after the polls closed if the ballot was postmarked prior to November 3. A non-relative, non-household resident third party could deliver another voter’s ballot if they had permission to do so, and it was between “5:01 p.m. on the Friday before the 2020 general election until polls close.”  Not surprisingly, the plaintiffs lost the postage argument.

An interesting twist happened when the Senate and House of Representatives successfully intervened in the lawsuit and appealed the Court of Claims’ ruling, with the Appeals Court noting that the Legislature had the right to defend its own statutes.  Without boring you with details, the Appeals Court basically determined that the Court of Claims used the wrong analysis when making its ruling.

The Court of Appeals leaned on a previously decided case which found the 8:00 p.m. ballot deadline to be constitutional under a “facial” challenge (looking only at the plain language of the law).  It held that the ballot delivery person law survived the plaintiff’s facial challenge as well.  The Court found that Michigan had made drastic changes to allow absentee voters to deliver their ballot without the use of mail, and complete the entire voting process, including registration, at one location.  Ultimately, it held that the restrictions imposed failed to place “an unconstitutional burden on the right to vote.”

To be thorough, the Court went through a brief analysis of whether the plaintiffs would be successful under the “as-applied challenge” analysis of the laws, determining that their claims would still fail.

Due to the pandemic, many voters will be casting absentee ballots this year, in Michigan and throughout the country.  Depending on the various rules of when counting can begin, Americans may not know the official results for days after November 3.  Regardless of the outcome, I am still proud that I live in a country where I have the right to vote.