Articles tagged with: Missouri law

The Last Word on Red Light Cameras in Missouri

http://www.dreamstime.com/royalty-free-stock-photography-red-color-traffic-light-image16973177      We previously wrote blogs on various red-light traffic ticket ordinances in Missouri and the fact that the Missouri Court of Appeals has ruled that various ordinances are in conflict with Missouri state law.  One such ordinance that was ruled invalid was the City of Ellisville, Missouri’s ordinance.  The Ellisville City Council just decided to end the use of its red-light cameras and will remove their red-light cameras and terminate their contract with American Traffic Solutions.

     Also, based on the rulings by the Missouri Court of Appeals, various other cities whose ordinances have been determined improper and the company that owns and operates the cameras on the traffic lights appealed the decisions of the Missouri Court of Appeals to the Supreme Court of Missouri.  The City of Kansas City and American Traffic Solutions, Inc. sought transfer to the Missouri Supreme Court, but this was denied.  (SC93907).  The City of Creve Coeur also sought to transfer a case to the Missouri Supreme Court, but that also was denied.  (SC93947).  What is interesting is that in September 2013, the Missouri Court of Appeals ruled that the City of Florissant, Missouri’s red-light camera ordinance was valid, and the plaintiffs who were ticketed appealed to the Supreme Court of Missouri; that request for transfer was denied as well.  What this suggests is that the Supreme Court of Missouri does not wish to hear issues related to red-light traffic tickets, although they could decide to review a case that was decided by the Court of Appeals if the case was decided on constitutional issues.

     It should be also noted that the City of St. Louis has always claimed that their ordinance on red-light traffic tickets was valid since it did not claim that “no points were assessed” but left that decision to the Department of Motor Vehicles.  However, St. Louis City Judge Steven Ohmer, recently ruled that the city ordinance was invalid.  See Sarah Tupper, et al. v. City of St. Louis, et al., 1322-CC10008. The order granted a preliminary and permanent injunction prohibiting the city from enforcing the red-light camera ordinance, sending out any notices of violation, processing payments on tickets, or sending collection letters relating to the tickets.  The St. Louis City announced that it would appeal Judge Ohmer’s decision.    We will continue to watch this matter and update our blog as events develop.

#redlightcamera   #missourilaw

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The choice of a lawyer is an important decision and should not be based solely upon advertisements

Is There Really a Loophole in Missouri’s DWI Law?

A recent front-page article in the Post-Dispatch reported on a potential loophole in Missouri’s DWI law.  By way of background, a driver who is ticketed for suspicion of DWI and has a Blood Alcohol Content (“BAC”) of at least 0.08% (more precisely stated as 0.80 grams of alcohol per 210 liters of breath) faces two independent proceedings.  One is the standard DWI criminal prosecution by the prosecuting attorney of the jurisdiction issuing the ticket.  The other falls to the Missouri Department of Revenue (“DOR”) and is a civil administrative proceeding under which one’s driver’s license may be suspended for up to ninety (90) days for driving with an excessive BAC.  [Not addressed in this blog is the outright refusal of a driver to submit to a BAC test which might result in the loss of one’s driving privileges for an entire year.]

http://www.dreamstime.com/royalty-free-stock-images-keys-cuffs-alcohol-image28780349How do you prove that a driver was actually under the influence of alcohol?  There are several ways available to the standard prosecution – erratic driving, field sobriety tests (reciting the alphabet backwards, slurred speech, smell of alcohol, bloodshot eyes, etc.), admissions or statements of the driver or witnesses, and the BAC test.  But the DOR administrative procedure relies exclusively on the BAC test.

 In order to use the BAC test result in either a criminal or administrative hearing, , the prosecutor and the DOR must prove that the test result was “reliable”, and make that showing by proof that it was administered in strict compliance with the standards adopted by the Missouri Division of Health and Senior Services (“DHSS”).  The DHSS has promulgated a 141 page BAC operator manual.  One of those standards is that the BAC machine must be calibrated at least every 35 days.  In the past, the State only had to show that the machine had been calibrated to either 0.10%, 0.08% or 0.04%.  But on November 30, 2012 the DHSS published a new rule (apparently by mistake or simply not having thought through the consequences discussed here) that provided the machine should be calibrated to the 0.10%, 0.08% and 0.04% levels.

 Now DWI defense attorneys are having a field day challenging the admissibility of BAC test results unless the machine was tested at all three levels.  Consequently, most judges across the state are throwing out the BAC tests.  The result of this is that the DOR is losing most of its administrative revocation cases. 

 The ultimate impact, if any, on criminal prosecutions is yet to unfold.  As noted, in a criminal prosecution the State will elicit testimony from the arresting officer who can be relied upon to testify that the driver drove carelessly, smelled of alcohol, stumbled, mumbled and could not recite the alphabet.  This testimony is usually supplemented with videos from the patrol car’s dash camera showing the field sobriety testing and from the booking process at the police station.  The defendant’s actions and conduct are often enough to show a jury that he should not have been behind the wheel.  So, even without the BAC results a jury can usually find that there is sufficient other evidence to convince them that the defendant was guilty of DWI.  But some jurors may wonder why the State has not introduced the BAC results and conclude that, perhaps, the test results were not above the legal limit and acquit the defendant.

 The DHSS purports to have corrected this rule on January 29, 2014, so now the rule clearly requires that the BAC machine only be tested at one of the three levels – just like the former rule was written.  See 19 CSR 25-30.051.  However, the new (old) rule may also be subject to challenge because the DHSS adopted the change as an emergency rule, and that process may not have been appropriate.  [That is well beyond the topic of this blog.]

A large number of questions still exist.  For instance, is the BAC test thrown out if the arrest occurred during the “and” period but the trial is held when the “or” rule is in effect?  What if the arrest occurred during the former “or” period, e.g. October 30, 2012, and the trial was held during the “and” period, e.g. October 30, 2013?  Maybe these questions will never be answered by the courts, but they underscore the importance of attention to detail when a state agency is drafting rules that control the admissibility of important evidence.

 We will continue to monitor this development and update our blog when we have more information.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements

#DWI  #missourilaw   #DWIlaw   #BAC

To Shovel or Not to Shovel, that is the Question

As you head out into the frigid temperatures to shovel the snow or throw salt on your driveway or sidewalk, you might consider your options.  According to Missouri law, homeowners do not have an automatic duty to remove the snow and ice. But before you throw away your snow shovel, you should know that there are at least three exceptions or situations by which you may have the responsibility to remove snow and ice.

http://www.dreamstime.com/stock-photography-accidents-icy-roads-image290640321. If the snow or ice is unnatural or something not found in the community generally, then you may have a duty to remove it. For example, if a pipe bursts and ice accumulates on your sidewalk, more than likely you are responsible for removing or correcting the hazard. If on the other hand, the snow or ice was formed by the forces of nature you may have no particular responsibility to do anything.

2. If a contractual obligation of some type exists, then you may have a duty to clear ice or snow. For example, some contracts or agreements, like a lease or subdivision restrictions, require you to maintain your sidewalk, driveway, etc., and often include the removal of snow or ice. Therefore, you should carefully review these documents to see if you have any defined responsibility to clear the wintery debris.  In some instances, homeowners may have a duty to their local municipality to clear their sidewalks.  However, the obligation to the municipality is often related to fallen tree limbs, trash, or other obstacles on walkways.  Local ordinances will articulate any such obligation, and you should make sure you are aware of the law in your area.

3. The most common situation that leads to responsibility to adequately clear snow and ice is when the homeowner voluntarily accepts the duty by removing snow and ice. Once you undertake the task of removing heaps of snow or throw salt around, you then establish a duty to exercise “reasonable” care in doing so. What is reasonable? Good question. Some case law suggests that if you clear off one small area of your sidewalk or steps, you may now be responsible for all of the snow or ice covered areas on your property. Even worse, you may be required to shovel more snow and/or throw more salt if, after you clear the walkway, more snow or ice accumulates. The idea is that if a walkway is in its “natural” condition, pedestrians will know to be careful. But, if the walkway appears to be cleared of the icy accumulation, the pedestrians will let their guard down and have a reasonable expectation that the area should be free of a dangerous condition.

So when you have braved the elements to clear your driveway or walkway, but then the pizza guy or overnight delivery driver slips and falls, you may still find yourself responsible for his or her injuries. There are various issues involved. Did you completely clear a reasonable pathway for pedestrians? Did the pedestrian use the pathway you cleared? Despite your efforts, did more snow or ice accumulate since you last shoveled and threw the salt? If there was more accumulation or you missed a spot, should any pedestrians have seen the slippery spot and therefore have used more caution themselves while walking in the wintery elements? There are too many variables to give a precise answer that applies to each case regarding whether you as the homeowner will be found liable for the delivery person’s injuries. Needless to say, winter weather provides not only a slippery surface upon which to walk, but a slippery slope of legal issues.

For a discussion about whether a commercial property owner or lessee has a responsibility to clear snow or throw salt on the sidewalk and parking lot in front of their business, see our next blog.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

#snow  #homeowners insurance  #liability #Missouri Law

KANSAS CITY IS THE LATEST CITY TO SEE THEIR RED-LIGHT CAMERA ORDINANCE VOIDED

     In our most recent article, we commented upon Missouri’s inconsistent red-light camera rulings.  In Edwards, et al. v. City of Ellisville and American Traffic Solutions, Inc., ED99389 (2013), the Missouri Court of Appeals for the Eastern District handed down a ruling invalidating the “red-light camera” ordinance of the municipality of Ellisville, Missouri.  More recently, the Missouri Court of Appeals for the Western District has held that a similar Kansas City ordinance is likewise void and unenforceable because it “permits what state law prohibits – the classification of running a red light as a non-moving violation free from the assessment of points.”  The case is Damon, et al. v. City of Kansas City and American Traffic Solutions, Inc., WD75363 (2013). Red-Light Camera Ordinance Voided            Kansas City’s municipal government had been planning to amend its ordinance after the Ellisville ruling, but now those plans are on hold.  For the time being, Kansas City will not issue any “red-light camera” tickets, pending a clarification of the applicable law.  The City hopes the Supreme Court of Missouri will clear up the confusion.  Interestingly, however, Kansas City is still taking pictures of vehicles that run red lights in the hope their ordinance will ultimately be reinstated, after which they may try to go back and issue tickets to individuals who ran a red light.  If the Kansas City ordinance is found to be valid as written, then perhaps they can legitimately issue tickets later (a ticket is essentially a criminal “charge”, for which there are applicable statutes of limitations by which such a charge must be issued, and do not require them to necessarily be issued at the exact time of the offense). However, we believe that if the ordinance is held to be invalid (as decided under the Western District’s appellate ruling) but is subsequently “corrected” to comply with whatever guidance the Missouri Supreme Court may offer, drivers could not be ticketed for any violations occurring in the interim.  

            The Kansas City case is more interesting because of an issue not present in the Ellisville case – the plaintiffs in the Damon case claimed that American Traffic Solutions (“ATS”) had actually received a legal opinion, in advance, that the ticketing plan was “illegal” under Missouri law.  Consequently, the appeals court left standing a request for reimbursement of fines that had already been paid (plus a “convenience fee” charged by ATS) by prior-ticketed motorists (or, at least, the vehicles’ owners).  The claim is the City and ATS were unjustly enriched by participating in a scheme they had reason to believe was illegal.  This fits nicely with other claims by the plaintiffs that the City had adopted the red light camera ordinance only to raise money and that red-light cameras are proven to cause, not prevent, accidents.  It is also interesting to note that the law firm which had earlier opined that the plan was “illegal” continued to represent ATS throughout the ensuing litigation.

            We are aware of only one situation in the country where drivers who had paid red-light camera tickets actually received refunds.  The City of Minneapolis, Minnesota adopted a red-light camera ordinance and collected fines for about two years before the ordinance was found to be invalid by the Minnesota Supreme Court in State v. Kuhlman, 729 NW2d 577 (Minn. 2007).  A class action lawsuit was pursued in federal court for refunds, and a settlement was reached that ended up costing Minneapolis approximately $2.6 million paid to more than 14,000 drivers.  See, Shapira, et al. v. The City of Minneapolis, Case No. 06-CV-02190- MJD-SRN, United States District Court, District of Minnesota.  

            It remains to be seen how red-light camera ordinances and applications will be evaluated by not only the Missouri Supreme Court but the judiciary in other states. We think that red-light cameras are probably here to stay, whether for security, surveillance, the claim of “safety” or just to generate local revenue…but not without a fight in most instances.

#redlighttickets  #trafficviolations   #redlightcamera    #Americantrafficsolutions

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Business-Friendly Missouri Allows the Creation of “Series Limited Liabilty Companies”

    

Business-Friendly Missouri Allows the Creation of “Series Limited Liability Companies”On July 1, 2013, Missouri’s Governor Jay Nixon signed into law legislation allowing the creation of “series limited liability companies”. (SLLC).  Missouri is now one of very few states that allow business owners to create SLLCs.  In order to understand how an SLLC company generally operates, you should first understand the benefits of a standard limited liability company (LLC). 

     Generally, an LLC member’s personal assets are protected if the LLC is sued.  In other words, only those assets held by the LLC can be attached if a judgment is awarded against the LLC.  For example, if the assets owned by the LLC consist of rental property, then only those assets can be attached; not those of the individual LLC member. But in this example, the LLC’s assets can be attached, regardless of whether those assets consist of one parcel or twenty separate parcels of rental property.  However, if each separate parcel of rental property is owned by a separate LLC, then only the rental property of the individual LLC that has been sued can be attached.  Thus, not only are the LLC member’s personal assets protected, but so are the company assets in each of the other nineteen separate LLCs.  This technique of providing asset protection for each LLC, however, requires filing individual articles of organization for each one, accompanied by individual filing fees, and incurring the expenses attributable to the multiple and repetitive tasks associated with managing each LLC. 

     The SLLC, on the other hand, obviates the necessity of multiple filing fees and, to some extent, repetitive management tasks.  An SLLC consists of a parent LLC with two or more sub-LLCs, often call cells, under one umbrella.  The SLLC will have one name with each cell have the same name but distinguishing itself from the other cells.  For example, the cells under a parent-SLLC named Acme, LLC will be named Acme, LLC (Cell A), Acme, LLC (Cell B), and so forth.  Whereas a separate operating agreement is needed for each separate LLC, only one global operating agreement is needed for an SLLC provided, pursuant to Missouri’s new law, that each cell is identified therein.  Each cell has the power to conduct business as if it were a separate LLC, which includes conducting business with another cell under the same SLLC.

     Missouri’s new SLLC law emphasizes that while one or more cells may have separate business purposes or investment objectives from the other cells, those must be specified in the operating agreement.  The new law also sets out various other requirements that must be met and included in the operating agreement in order for a company to be part of an SLLC.  While the formation of a single LLC does not mandate the need for an operating agreement, the new law thus seemingly requires an operating agreement when forming an SLLC.  This means that the operating agreement for an SLLC must contain technical provisions not otherwise contained in a operating agreement designed for a single LLC.  Because of this, and the SLLC’s infancy in Missouri, legal advice should be sought when considering the formation of an SLLC. However, this new legislation provides reason for hope that Missouri is becoming more “business-friendly”.        

#LLC         #serieslimitedliabilitycompanies          #MissouriHB510

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

“We’re Sending You a Free Gift!”

More and more Americans use only their cell phones as their sole telephone number, both to avoid the expense of an unnecessary land line and to try to avoid the relentless robocalls and telemarketers who interrupt many an evening meal.   Since 2009 most robocalls have been prohibited by Federal law (15 U.S.C. 6101-6108We Are Going To Send You a Gift!), regardless of whether the phone number is listed on the ‘Do Not Call Registry’, unless the consumer has previously stated, in writing, that he or she wants to receive automated calls from the company in question. However, some robocalls remain legal, such as those from political organizations or charitable groups, which are considered “informational” and are not trying to sell you something (Federal law regulating telemarketing and robocalls also has a loop-hole for some prerecorded healthcare messages made by or on behalf of a covered entity, like the Social Security Administration, or their business associates).

Unfortunately, our cell phones are the next target of the telephone scammers, and at this point, the ‘Do Not Call Registry’ is not strong enough. Likewise, internet voice technology makes it easier for the crooks to beat the system to get around the ‘Do Not Call Registry’ and hide their identity. The harsh reality is that as technology advances, so do the scammers. 

For some consumers, the robocalls are more than a mere interruption or annoyance.  There has been a recent increase in robocalls specifically aimed at senior citizens.  Some calls even promise a free personal medical alert device that can be sent to them in the mail.  Typically, the robocall claims that the free device is gift from a loved one, physician, or provided under the Affordable Care Act. Once the consumer presses “1” to receive more information, they are connected to a sales representative to lure their personal information and sometimes con the senior into paying for the device and services.  Then the victim’s credit card is charged thousands for the service for the “free” medical alert device. Others have reported never receiving a phone call, but instead receive a “free” device in the mail.  Afterwards the victim receives threatening phone calls and invoices to pay for the device.

Both local and federal law enforcement agencies are scrambling to keep up with the technology and the scammers.  One by one, the illegal robocallers are shut down, but new ones pop up every day.  In 2012, the Federal Trade Commission held a summit to address the issue of rising illegal robocalls and to develop a solution to stop the rapid increase.  For now the best advice is to simply hang up.  No matter what the robocaller tells you, do not give your name, personal information, or press any buttons. Many robocalls purportedly offer a “opt out” feature, suggesting that calls will cease if you “press 2 to be removed from our list”, but the reality is that by doing so you simply confirm that the robocaller has reached a working number that will listen to messages.  Often consumers find that the number of robocalls actually increase after pressing a button to “opt out” of future calls.

Finally, if you do receive unordered merchandise or a “free gift” addressed to your home, you are under no legal obligation to return it or pay for it. If you are harassed for payment or return of the merchandise, call the police. 

To file a complaint, visit www.ftc.gov or call 1-877-FTC- HELP (1-877-382-4357).

Nothing posted on Evidentiary  Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.