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U.S. Supreme Court Holds That More Than Just Dissipating Alcohol Level Needed Before Warrant-Less Search

Last week the United States Supreme Court answered a question lingering around for 47 years.  The Court held that just because alcohol dissipates in the blood stream, it is not automatic grounds to allow for a warrant-less search of blood specimen.  McNeely had been stopped by a police officer after the police officer witnessed him crossing the center-line and speeding.  McNeely refused a breathalyzer and the officer took him to a hospital.  When McNeely refused to provide a blood sample, the officer ordered the technician to take it anyway.  McNeely was determined to be intoxicated.  However, the officer never applied for a search warrant to take the sample.   The Supreme Court was direct and to the point.  The State, in this case Missouri, is not entitled to a per se rule that permits for a warrant-less search absent exigent circumstances.  Dissipating blood-alcohol concentration alone is not an exigent circumstance the Court holds.  See Entire Opinion at:  Missouri v. McNeely

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By Paul Sullivan
— April 22, 2013 at 8:59 am

Boston

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ondolences to all the Victims, Families and Friends of the Boston Marathon tragedies from the Sullivan Whitehead & DeLuca family

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By Paul Sullivan
— April 16, 2013 at 8:07 am

Rhode Island Divorce Law – Child Custody, Placement & Visitation

In Rhode Island, when the Family Court looks to determine child custody, child placement, and visitation rights of the parent,  the 'paramount consideration' is the best interests of the child.  The Rhode Island Supreme Court has set out a non-exclusive list of factors for the Rhode Island Family Court judge to weigh in determining where the best interests of the child lie in a particular case.  The following are the factors that the court considers when determining the best interest of the child for awarding custody, placement and visitation rights:

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1. The wishes of the child’s parent or parents regarding the child’s custody.

2. The reasonable preference of the child’s, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.

4. The child’s adjustment to the child’s home, school, and community.

5. The mental and physical health of all individuals involved.

6. The stability of the child’s home environment.

7. The moral fitness of the child’s parents.
 
8. The willingness and ability of each parent to facilitate a close and continuous parent- child relationship between the child and the other parent.

The Rhode Island Supreme Court has further advised that the best interests of a child in a particular case should not be determined by focusing exclusively on any one of these factors; instead, the hearing justice should “consider a combination of and an interaction among all the relevant factors that affect the child’s best interest.”  These factors are called the Pettinato factors.    See Parker v. Williams, 896 A.2d 44  (R.I. 2006); Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990).

If you need help with a family law issue, including divorce, child custody, child support, or relocation, call us at (401) 861-9900. We can help.

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By Paul Sullivan
— March 5, 2013 at 8:42 am

Aldo, the Drug Sniffing Dog Gets Passing Grade by U.S. Supreme Court

Aldo, the drug sniffing drug used in a Florida stop alerted on a vehicle.  The police officer had asked for consent and the driver declined.  Based on the officer’s observation of an open beer can and the defendant’s nervousness, the office used his dog Aldo to do a sniff around the vehicle.  Aldo alerted and the officer proceeded to check the vehicle.  The officer found contraband but none which Aldo had been trained to detect.  In a subsequent stop of the defendant, Aldo again alerted on his vehicle.  This time the search revealed nothing.  While the Florida Supreme Court found for the Defendant on appeal based on requiring that there be some documentation available as to the dog’s hit and misses, the United States Supreme Court reversed.  So Aldo can continue to have false positives and the search will be upheld based on the facts found with Florida v. Harris.  See full opinion at: Florida v. Harris

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By Paul Sullivan
— February 27, 2013 at 3:12 pm

Foreclosure, Mortgage and Promissory Notes

In traditional Selya style, the Circuit Judge walks us through the distinction in law and equity as he positions to answer the Plaintiff’s challenge in foreclosure proceedings.  The Plaintiff defaulted on her home loan.  Upon the default, the note holder foreclosed on her property by sale.  The Plaintiff challenged the foreclosure  which started in the Land Court, but eventually the matter wound up in the United States District Court for the District of Massachusetts.  Judge Selya delivers an observed and pointed opinion on beneficial interest of the loan and bare legal title of mortgage.  The ruling is limited to Massachusetts at it is premised on the state statutes and interpertations thereof.  The Plaintiff failed in her appeal as Judge Selya delivered that “the MERS framework is faithful to the age-old tenets of mortgage law in Massachusetts and that, therefore, the foreclosure here was not unlawful.”  Full opinion: Culhane v. Aurora Loan Services of Nebraska

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By Paul Sullivan
— February 19, 2013 at 9:51 am

Allstate, Exclusion Clause and Regular Use of Insured Person

The Rhode Island Supreme Court recently upheld a decision in favor of Allstate agreeing with the lower court that the policy was unambiguous and therefore appellant was not covered.  The facts were pretty straight-forward.  The plaintiff was injured in a serious accident.  The defendant or offending vehicle was covered by an Allstate issued policy.  The defendant an Allstate insured was driving a vehicle his father had leased for him for his regular use.  The plaintiff sued for her injuries and the full policy was tendered.  However, she sought additional coverage from a second policy also from Allstate.  The defendant's mother had a policy of her own that included resident-relative.  The defendant lived with the mother.  The policy provided a section that excluded any additional insured drivers that had a vehicle that they used regularly.  There was a also a provision in the policy that when checked indicated that certain “Drivers Excluded” from the policy.  There were none listed.  The plaintiff argued that the policy was ambiguous among other issues because defendant should be covered since he was not excluded.  The Superior Court disagreed and the Rhode Island Supreme Court affirmed.  Allstate prevailed that the policy as written is not ambiguous and that the party could not overcome any of the other issues.  See full decision: Allstate v. Ahlquist

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Categories: Auto Accident, Civil, News, Recent Decisions.

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By Paul Sullivan
— February 4, 2013 at 4:52 pm

Judge Smith Rules that Out-of-State Counsel Subject to Lawsuit in Rhode Island

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ttorneys from Texas advertised on their website that they could represent in all 50 states.  Rhode Island plaintiff sought out and retained the firm.  After the Texa firm settled plaintiff's claim and plaintiff becoming dissatisfied with the settlement, plaintiff sought out counsel to file claim against the Texa firm.  Judge Smith from the United States District Court for the District of Rhode Island sided with the plaintiff that Texa firm had enough connection to Rhode Island during the handling of the case and found that Texa attorneys were subject to lawsuit in Rhode Island.  See Judge Smith's opinion at:  Dennett v. Archuletazp8497586rq

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By Paul Sullivan
— January 24, 2013 at 9:42 am

Clear Right to Attorney on Post-Conviction Relief Application-Court Rules

The Rhode Island Supreme Court has made it clear that a first time applicant for Post-Conviction Relief shall have a right to an attorney.  The Court, interperting RI Gen. Laws Section 10-9.1-5, found that a first time applicant should be referred to the Public Defender’s office and should that office not be available for representation, then the court shall appoint a a private attorney.  The Court’s reasoning was straight-forward and explained its prior holding in Shatney v. State [755 A.2d 130 (R.I. 2000)].  Specifically, the Court held:

‘…that an indigent, first-time applicant for postconviction relief is entitled to be represented in the first instance by the Public Defender, who shall meet with the applicant for a preliminary inquiry into the claim or claims which may form the basis of the requested relief.  In cases in which the Public Defender “is excused from representing the applicant because of a confilct of interest or is otherwise unable to provide representation, the court shall assign counsel to represent the applicant.’

The Court further expressed that in cases where the attorney cannot find grounds to continue, the attorney may seek to withdraw from the case.  See, Campbell v. State

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By Paul Sullivan
— December 26, 2012 at 4:42 pm

When is a Tip Not a Tip?

The First Circuit Court of Appeals has made it absolutely clear that Supervisory Managers are not deserving of the tip pool as defined under the Tips Act, Mass. Gen. Laws ch. 149, § 152A.  Starbuck had created a policy of pooling gratuities that were later shared with wait staff which included shift supervisors.  However, the District Court determined and the First Circuit Court affirmed that the shift supervisors’ managerial requirement excluded them from the statute’s provisions and, therefore, should not have shared in the tip pool.  A tip is not a tip if your job description includes managerial duties anywhere within it.  The Court upheld the $14,000,000 judgment against Starbuck.  See the entire decision at: Matamoros v. Starbuck

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By Paul Sullivan
— November 20, 2012 at 1:11 pm

Challenge That Drug Use Affects Memory Falls Short

As I read this opinion, I am reminded about the old commercial with the egg in the frying pan that ended “This is your brain on drugs!” as the egg fries in the pan.  And then I fall back to the idea of how often people indicate that they cannot remember an incident because of how much alchohol or drugs they have been using.  As I try and compare the value of the opinion, I am forced to look at the lower court's ruling and the Supreme Court's findngs.   While it may seem obvious that drugs may have an affect on users, the lower court seemed to make it clear that this is not a given and that there should be a concerted effort to prove the point with such use as an expert witness.  Here Ricci did not.  The Rhode Island Supreme Court actually found that the lower court's own instruction adequately addressed any such issue within its jury instruction language.  Furthermore, the Court recited previous rulings that it is well settled that “a trial justice should avoid reciting instructions that might be construed as commentary on the quality or credibility of particular evidence.”  That said, the Rhode Island Supreme Court went on and decided on this and additional issues against defendant Luigi Ricci.  See, State v. Ricci.

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By Paul Sullivan
— November 14, 2012 at 11:37 am