Staying Above Water: What You Need To Know About Drinking While Boating

Mark Mandell, Esq.

As we approach summertime and holidays like the Fourth of July, Michiganders will soon flock to their cottages and their boats. Michigan actually has one of the highest rates of boat ownership per capita in the nation.¹

And have you ever stopped to think, “Is it really legal to drink while driving a boat?” If you’ve been a spectator at Jobbie Nooner on Lake St. Clair, MI, surely this thought might have crossed your mind at some point.

The short answer is, yes. It is lawful to drive a boat with an open container or two of alcohol. But you have to be careful not to cross the line.

Indeed, the rules for drinking and boating differ in some important ways from drinking while driving. The laws for drinking while boating are governed by the Marine Safety section of Michigan’s Environmental Protection Act

Many Michigan boaters will be surprised to find out that the legal limit for Blood Alcohol Content (BAC) on the water is .10, as opposed to .08 on the roads.

Further, Zero Tolerance laws do not apply on the water as they do on the road. That means you cannot be charged for boating while intoxicated (BUI) if you have taken a prescription medication, and boaters under 21 are held to the same standards as adults.

All this might sound great and more lenient, but boaters should also take caution. When you’re out in the sun all day, just a few drinks could get you to that .10 threshold quickly if you don’t hydrate with water. And just like on the roads, there’s implied consent on the water. (Check out our Fraud Blog’s latest post on Implied Consent in Michigan: click here)

Under implied consent on the water, when you get behind the wheel of a boat you are considered to have consented to a BAC test. Even if you don’t take a breathalyzer test, you can still be detained and taken back to shore if you appear to be disorientated, confused, smell of alcohol, or were driving recklessly.

It’s also important to note that these laws not only apply to boats. Jet skis, kayaks, canoes, and any other type of water craft that can be used for transportation fall within the reach of these laws.

It is also unlawful for the owner of a vessel to allow anyone else to operate their vessel if that person is under the influence of alcohol or drugs.

The penalties for a BUI?

• For a first conviction, up to 93 days in jail, 45 days of community service, a fine of up to $500, or any combination of those penalties.
• Another offense within seven years may lead to jail time up to one year, with a minimum of 48 hours of consecutive jail time, fines ranging from $200-$1,000, and up to 90 days of community service.
• Upon a third conviction within 10 years, a person will be guilty of a felony, saddling you with a punishment of no less than one year and up to five years of jail time, a fine of $500 to $5,000, or both.
• Enhanced penalties for causing death or disfigurement for another are sentences of up to 15 years and 5 years respectively.

It’s important to note that a prior drunk-driving offense cannot be used to enhance a drunk-boating offense, and vice-versa. And while drunk driving offenses have a lifetime “look back” period for felonies, the drunk-boating look back period cuts off at 10 years.

So if you and your family head out on the water this summer, as many Michigan families do, boat safely and drink responsibly. A few Corona and limes on a nice summer day could get you into more trouble than you think if you’re not careful, even with a BAC limit of .10 on the water.

¹ Keeping Your Head Above Water in Drunk Boating Cases, Patrick Barone. https://www.michbar.org/journal/pdf/pdf4article1300.pdf

Implied Consent: Know the Rights You Don’t Have

Mark Mandell, Esq.

Did you know that each time you get into the driver’s seat in Michigan, you are considered to have consented to a BAC test? Before heading out for a few drinks with friends, 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 625g 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's 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 refusing to take a breath test, contact attorney Mark Mandell at (248) 380-0000 or online at www.MichiganFraudLawyer.com. 

Medicare Fraud: Who’s in on it and how they’re getting away with it

Mark Mandell, Esq.

Imagine a single mom with five kids with no income on record and struggling to make ends meet – sounds like an eligible candidate for government subsidy programs. She signs up for the SNAP (Supplemental Nutrition Assistance Program) and Medicaid for herself and her children and gets government assistance to help cover her rent.

But in reality, she’s married, her husband has an all-cash business, which allows her to rake in thousands of dollars a month via welfare programs and remain undetected by the government.

This situation is all too common throughout the US. Savvy individuals are able to game the healthcare system through tricks such as getting married under religious law but not state law. These individuals scam taxpayers time and time again.

The amount of taxpayer money down the drain from fraud and spent on curbing fraud are jaw-dropping.

The federal government is projected to lose $19.6 billion in “improper payments” under the Medicaid program. Accurate fraud figures can be hard to calculate since improper payments aren’t necessarily fraudulent--they could be due to an error either by the government or recipient. Fraud estimates for fiscal year 2014 are up from last year’s $17.4 billion, but down from 2010’s $22.5 billion estimation of improper payments.

Federal Medicaid Spending is projected to be $298 billion in 2014, and Medicare is projected to be $603 billion. The SNAP program cost $79.9 billion in 2013. The White House requested $389 million to fund the Department of Health and Human Services’ Office of the Inspector General in an attempt to better curb waste in the 2104 budget.

In February of this year, the D.C. U.S. attorney’s office announced the largest health-care fraud takedown in the history of the District. The multi-year effort led to more than 20 arrests and schemes involving millions of dollars in fraud, kickbacks and false billings in the home health-care services field throughout the nation’s capital.

Ron Machen was the U.S. attorney for Washington, D.C. on the case. He said his office was tipped off to the scheme when certain agencies were requesting 300% more than other Medicaid beneficiaries over the past several years.

“We were wondering what the reason was for such a skyrocket in growth,” Machen says in a recent Fox News report. “We used wires, cover agents and beneficiaries to uncover them.”

What they uncovered was eye opening. The investigation busted personal care assistants misrepresenting the amount of time they spent with beneficiaries. These beneficiaries would fill out inaccurate time sheets and submit them to home care agencies. While the sheets listed them as being seen by assistants for up to eight hours, in reality the personal care assistants never saw the patients.

The beneficiaries were elderly, disabled and low-income, said Machen, and recruiters would offer them kickbacks of $200 a week and coach the patients on what to say if someone asked about their work.

Healthcare fraud is also an increasing concern with the Obamacare overhaul.

If you have questions about health care fraud, or are afraid that you may have been the victim of a fraud, contact the experienced attorneys at Fausone Bohn, LLP, by calling (248) 380-0000 or online at www.MichiganFraudLawyer.com. 

To read the Fox News story on this fraud bust, click here: http://www.foxbusiness.com/personal-finance/2014/02/28/medicaid-fraud-whos-in-on-act-and-how-theyre-getting-away-with-it/

Heroin Addiction: The Personal and Legal Costs

Mark Mandell, Esq.

With the death of the famous actor Phillip Seymour Hoffman, discussion on the recent spike in heroin-related deaths has been catching headlines. Heroin use is becoming more prevalent across Michigan suburbs especially, and heroin use has increased by 79% nationally from 2007-2012, according to the National Survey on Drug Use and Health.

There were 158 heroin-related deaths in Michigan from 2007-11, according to the most up-to-date figures from the Michigan Department of Community Health. For youth in particular, the rising costs of prescription drugs have steered them toward heroin, a much cheaper drug that delivers the high many crave.

Aside from the personal toll such drug use can cause for families and young people, there are serious legal ramifications if you are caught using or dealing heroin. As a Schedule I drug, the typical penalties in Michigan are:

Heroin use is a misdemeanor drug crime with jail time up to one year, a fine of up to $2,000, or both.

Heroin possession is a felony drug crime and penalties vary depending on the amount:

·         Less than 50 grams, prison time up to four years, a fine of up to $25,000, or both.

·         50-499 grams, prison time up to 20 years, a fine of up to $250,000, or both.

·         450-999 grams, prison time up to 30 years, a fine of up to $500,000, or both.

·         1,000 grams or more, prison time up to a life sentence, a fine of $1,000,000, or both.

Heroin manufacture and creation is also a felony in Michigan, and penalties vary:

·         Less than 50-499 grams, prison time up to 20 years, a fine of up to $25,000, or both.

·         450-999 grams, prison time up to 30 years, a fine of up to $500,000, or both.

·         1,000 grams or more, prison time up to a life sentence, a fine of up to $1,000,000, or both.

Many families have the “this could never happen to us” mentality. But if you suspect a loved-one of drug use, be sure to speak up and intervene. If you are caught in an unfortunate situation of being accused of heroin use, possession, or creation, be sure to contact an experienced defense attorney.

Mark Mandell provides invaluable legal counsel to individuals caught in such situations; you can contact Mr. Mandell at (248) 380-0000 or online at www.MichiganFraudLawyer.com. 

To read more on the recent spike in heroin use, check out The Detroit News’ recent article: http://www.detroitnews.com/article/20140205/METRO08/302040127/Heroin-addiction-hits-hard-across-Michigan

For more information on the additional federal penalties involved with various drugs, follow this link: http://www.justice.gov/dea/druginfo/ftp3.shtml

“Return Fraud/Return Abuse” Up from Last Year, Costs Retailers Billions

Mark Mandell, Esq.

I write frequently on the penalties and costs involved with committing retail fraud. During harsh economic times, such as now as we emerge from the Great Recession, retail fraud may be a particularly tempting option. However, “return fraud,” a form of retail fraud, may be even more so, especially in the post-holiday season.

Return abuse, sometimes called “friendly fraud,” occurs when a person purchases merchandise without intending to keep it. “Returnaholics” are those who buy and return items excessively either with fraudulent or dishonest intent, or they have an inability to control their shopping habits.

A recent report shows that 5.8% of holiday returns this year were fraudulent, up from 4.6% last year, costing the retail industry $3.39 billion. Return fraud, or return abuse, costs retailers approximately $8.76 billion per year.

Those returnaholics who have fraudulent intent often deceive the retailer into giving a cash refund or credit which is illegal; or, they may not be breaking the law, but abuse retailers’ return policies and buy merchandise with the intent to return it later.

To give a typical example of return fraud, consider the Super Bowl played earlier this month. There have been reports in the past of consumers purchasing big screen TVs specifically for the game, with no intent on keeping their 50-inch flat-screens. Upon the game’s final buzzer, some fraudulent fans don’t pick up the remote again and return their purchase within days.

No matter what form it takes, this practice costs the industry billions per year, and likely contributes to rising prices each year as more and more return fraud is committed. With worsening economic times, the chance of general retail fraud and theft increase, thus compounding the problem for all consumers. The fact is, harsh economic times and increasing prices always increase the chance of theft for retailers, and in the long-run this hurts employees and consumers alike.

Retail fraud is governed by statute - MCL §750.356. MCL §750.356c provides that any person who commits retail fraud in the first degree is punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine. MCL §750.356d provides that any person who commits retail fraud in the second degree is punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine. MCL §750.356d provides that any person who commits retail fraud in the third degree is punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine.

The harsh penalties of retail fraud make having experienced and knowledgeable legal counsel invaluable.  If you have been charged with retail fraud, contact attorney Mark Mandell at (248) 380-0000 or online at www.MichiganFraudLawyer.com. 

Mortgage Fraud: The Scams That Hit You Where You Live

Mark Mandell, Esq.

Mortgage fraud is one of the hardest-hitting scams in the US, and it threatens the dream of homeownership for all too many people. Michigan is among the top states for known or suspected mortgage fraud activity, based on recent law enforcement and industry data.

These scams are especially tricky to combat, as they readily adapt to economic changes and adjustments in lending practices. Mortgage fraud comes in a few forms, primarily: predatory lending, criminal mortgage fraud, and foreclosure rescue scams.

Predatory lending is essentially unfair and deceptive practices on the part of lenders during the loan application process. This can included misleading marketing tactics and incentives for selling risky loans. Recently in Michigan, Countrywide Financial and Ameriquest Mortgage Company settled cases with the state’s Attorney General’s Office worth over $130 million and $13.8 million respectively, providing restitution to consumers.

Criminal mortgage fraud involves the use of artificially inflated appraisals and straw buyers to gain mortgages greater than the property value. The criminals take the extra money from the mortgage and leave the straw buyer out to dry with a mortgage they cannot afford and property worth far less than the mortgage amount.

Lastly, foreclosure rescue scams exploit consumers at times when they are most vulnerable – when they and their families may be forced out of their homes. These “foreclosure rescue companies” take up-front payments to “work with your lender,” and most never deliver on their promise. In Michigan, the Credit Services Protection Act made it illegal, in most cases, to take money up front in exchange for negotiating with your lender. The CSPA is enforced by the Attorney General’s Office, and you can watch out for their consumer alerts on foreclosure scams here: http://www.michigan.gov/ag/0,4534,7-164-17337_20942-215058--,00.html

So how do you avoid mortgage fraud as a consumer? Some steps may require more work at the outset, but they will save you future aggravation and distress from potential fraud. First, seek out referrals for real estate and mortgage professionals when you want to buy or sell a home – and once you are referred, do your homework on them. Also, do your homework on what other homes in the area have sold for.

If it sounds too good to be true, it probably is: Beware of “no money down” loans. These loans are meant to trick people into buying homes they really can’t afford. Therefore, also know your own price range and have an idea going in of what you truly can afford both up front and in the medium and long-run. And finally, don’t let the realtor or mortgage broker force you to make false statements or sign your name to blank documents or documents with empty lines – these are sure signs of potential scams.

For more information on how to protect yourself as a consumer from mortgage fraud, check out the FBI’s website, here: http://www.fbi.gov/news/stories/2008/august/mortgagefraud_081408; and the Michigan AG’s consumer alert website: http://www.michigan.gov/ag/0,4534,7-164-17337_20942-215058--,00.html.

You can read the entire article at:

https://www.michigan.gov/documents/ag/Attorney_Generals_Office_Fights_Predatory_Lending_346680_7.pdf

If you have questions about mortgage fraud or other legal issues, please contact Mark Mandell or Tariq Hafeez at 248.380.0000 or online at www.MichiganFraudLawyer.com.

Increased Police Patrolling During the Holidays

Mark Mandell, Esq.

According to the Michigan State Police, law enforcement officers in 26 counties will be conducting extra patrols through the New Year to ensure motorists are driving safe and sober this holiday season. According to the Michigan State Police website, 11 people were killed in crashes on Michigan roadways; four of those crashes involved alcohol.

The holidays are a very busy time for travel and officers will be making sure that everyone gets to their family gatherings safely. According to OHSP Director Michael L. Prince, "Extra officers will be out strictly enforcing drunk driving laws. Motorists need to designate a sober driver before drinking or take a cab or bus home."

Not only is drunk driving extremely dangerous, but there are hefty consequences associated with drunk driving. A person is considered “over the limit” if they are operating a vehicle with a BAC of .08 or greater. There are enhanced penalties if an individual’s BAC is 0.17 or higher. The severity of the penalties depends on what number offense it is and the level of intoxication. The penalties include the following:

·         If BAC is below .17 and it is a first offense the penalties includes up to a $500 fine and Up to 93 days in jail;

·         If BAC is above .17 and it is a first offense the penalties includes up to a $700 fine and 180 days in jail;

·         If  it is a second offense within 7 years the penalties include one or more of the following: a $200 to $1000 fine and/or 5 days to 1 year in jail;

·         If it is a third offense within a lifetime the offense is considered a felony and the penalties include one or more of the following: a $500 to $5000 fine, 1 to 5 years imprisonment and/or probation with 30 days to 1 year in jail;

·         Additionally, convicted drunk drivers are subject to a $1,000 penalty for two consecutive years under the Driver Responsibility Act, for a total of $2,000 in additional costs.

There are a number of safer alternatives to drunk driving. Safer alternatives include: designating a sober driver; calling a friend; taking a cab; walking or staying over the night at a family or friend’s home. If you are facing drunk driving charges, or have questions regarding the law, contact experienced criminal defense attorney Mark Mandell at 888-674-1189 or online at www.MichiganFraudLawyer.com.