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Scams to watch out for

Apr 04

People often come into the office with notices regarding lotteries they have won, or money that is reportedly being held for them from an unknown rich deceased relative’s estate. Much to their disappointment, these people find out that these are scams. This week and next, I will list some of the more common scams to watch out for, all of which are geared to either steal your money or identity.

Sweepstakes, lottery, and “money holding” scams. These scams come in all shapes and sizes, but the bottom line is almost always this: You’ve won, inherited, or are being asked to hold a whole lot of money, but in order to claim it you have to send a smaller amount of money back to the people from which you received the notice. These kinds of scams often use foreign royalty, celebrities or other famous names to make their offer seem more genuine. If it’s a sweepstakes or lottery notice, and you aren’t sure, don’t click on the link but instead go directly to the homepage of the company mentioned. If they are really giving away $1 million, there will be some kind of announcement on their website. If the notice is from a person from another country asking you to hold money for them, just ignore it.

The “secret shopper” scam. There are a lot of “secret shopper” scams, work-from-home scams, and other phony job offers out there.  Emails, websites and online applications all look very professional, and the candidate is even interviewed for the job (usually over the phone) and then receives an offer. In order to start the job, however, the candidate has to fill out a “credit report” or provide bank information for direct deposit of their “paychecks.” These forms are nothing more than a way to capture sensitive personal data – Social Security number, bank accounts, etc. – that can easily be used for identity theft. And, of course, there is no job.

Check cashing scams. Legitimate companies like Craig’s List and Western Union are used for an inordinate amount of scamming these days — especially check cashing scams. Here’s how it works: Someone contacts you via a Craig’s List posting, maybe for a legitimate reason like buying your old couch or perhaps through a scam like hiring you as a secret shopper. Either way, they send you a check for more than the amount they owe you, and they ask you to deposit it into your bank account and then send them the difference via Western Union. A deposited check takes a couple of days to clear, whereas wired money is gone instantly. When the original check bounces, you are out whatever money you wired…and you’re still stuck with the old couch.

“Debt relief service” scams. In challenging economic times, many people are looking for help getting out of debt or staying out of foreclosure. Unfortunately, almost as many scammers appear to take advantage of these desperate situations. Because the federal government announced or expanded several mortgage relief programs recently, all kinds of sound-alike websites have popped up to try to fool consumers into parting with their money. Some sound like a government agency, or even part of the Better Business Bureau or other nonprofit consumer organization. Most ask for an upfront fee to help you deal with your mortgage company or the government (services you could easily do yourself for free), and almost all leave you in more debt than when you started.

“Phone cramming.” This is a relatively new scam that has arisen out of the nation’s expanding use of texting. The phone cramming scammer sends a strange, sometimes nonsensical, text through an undisclosed number. A second text then arrives with instruction that if you would like for these type texts to stop, all you have to do is reply “STOP.” What you are really doing when you reply is authorizing bogus charges on your phone bill that go straight to the scam artist. If you receive a strange text from an undisclosed number, or someone you don’t know, and the ask you to reply — don’t.

Last week we discussed several scams to be wary of. Here are a few more internet based scams to look out for.

“I need your sensitive information” scams. There are a million ways to steal someone’s identity. Usually, someone will call or email you saying there is some huge mix-up that requires you to immediately give out some sort of sensitive, personal information. Many times these scammers represent to be your bank. A new variation of this scam has become so prevalent that many hotels are posting warnings in their lobby. Here’s how it works: You get a call in your hotel room in the middle of the night. It’s the front desk clerk, very apologetic, saying their computer has crashed and they need to get your credit card number again, or they must have gotten the number wrong because the transaction won’t go through, and could you please read the number back so they can fix the problem? Scammers are counting on you being too sleepy to catch on that the call isn’t from the hotel at all, but from someone outside who knows the direct-dial numbers for the guest rooms. By the time morning rolls around and you are clear-headed, your credit card has been on a major shopping spree. Bottom line – never give out information about yourself unless you are absolutely sure who you are giving it to.

Social network scams. On the Internet, it’s easy to pretend to be someone you are not. Most likely we are not really friends with all 897 of our “friends” on Facebook. With so much information about us online, a scammer can sound like they know you. The most recent version of this scam appeals to our natural curiosity by appearing to be a message from a friend. Viral videos claiming to show everything from footage of Osama bin Laden’s death to the latest celebrity hijinks to even videos of you doing unspeakable things have shown up on social media sites often looking as if they have been shared by a friend. When you click on the link, you are prompted to “upgrade your Flash player,” but the file you end up downloading contains a worm that logs into your social media account, sends similar messages to your friends, and searches for your personal data. The next time you see a sensational headline for the latest viral video, resist the urge to open it.

Penny auction scams. Sales scams are as old as humanity, but the Internet has introduced a whole new way to rip people off. Penny auctions are very popular because it seems like you can get something useful – cameras, computers, etc. – for way below retail. But you pay a small fee for each bid (usually .50 to $1.00) and if you aren’t the winner, you lose that bid money. Winners often are not even the top bidder, just the last bidder when time runs out. Although not all penny auction sites are scams, some are being investigated as online gambling. If you engage in penny auctions, treat them the same way you would legal gambling in a casino – know exactly how the bidding works, set a limit for yourself, and be prepared to walk away before you go over that limit.

“Phishing” scams. Hundreds of thousands, perhaps millions, of people have gotten emails that very much look like an official notice from a legitimate business like the Better Business Bureau. The subject line says something like “Complaint Against Your Business,” and the instructions tell you to either click on a link or open an attachment to get the details. If you do either, a malicious virus is launched on your computer that can steal banking information, passwords and other critical pieces of information needed for cyber-theft. Anyone who has opened such an attachment should run a complete system scan using reputable anti-virus software. If your computer is networked with others, all machines on the network should be scanned, as well.

Proposed Sewage Disposal Ordinance

Mar 21

The Cherokee County Commission is reviewing and potentially voting on a sewage disposal ordinance today that would affect those who own property on and around Weiss Lake. Following is a summary of what the new ordinance proposes.

The purpose of the ordinance is to “protect the public’s health by protecting the water quality of Weiss Lake, the primary water source for citizen’s of Cherokee County and to minimize the adverse health effects of the improper illegal disposal of sewage.” In order to protect the public’s interest, the ordinance proposes to “adopt and implement rules and regulations regarding the abatement of improper or illegal disposal of sewage in the Alabama Power flood easements around Weiss Lake.”

The ordinance establishes that treating or disposing of sewage by a means that is not approved of [permitted by the Cherokee County Health Department is a “public nuisance.” The ordinance basically sets up an alliance between the County Commission and the County Health Department, where the Health department will designate one or more employees as “Enforcement Officers.” These enforcements officers will have the authority to patrol the Alabama Power flood easement in an effort to identify “noncompliant properties.” Citizens can also make reports regarding noncompliant properties to the enforcement officer(s).

The enforcement officer is allowed to enter onto any premises where sewage is generated or discharged as necessary to investigate potential violations of the ordinance or to issue notices and/or citations for any violations. If the officer determines that sewage if being treated or disposed in an unlawful manner, he or she is required to post notice of the alleged violation on the property and send notice via certified mail to the owner of the property.

The notice warns the owner that if the property is not brought into compliance or approved by the Health Department within 30 days, a citation will be issued. The notice also warns that the owner of the property “shall be subject to fines and to the administrative fees equal to any costs incurred by Cherokee County in the event the county takes action to abate the sewage nuisance.”

If the owner has not come into compliance within 30 days of the posting of the notice, the officer can issue a citation that will note the violation, the fine and costs, the time period and method of paying the fines and costs, and information regarding how the owner may appeal issuance of the citation to the Cherokee County Commission.

A fine of $150 for each day the violation continues will be assessed for anyone failing to comply with the citation; however the total fine cannot exceed $5,000.00. All fines and fees collected shall be applied to the administration o the ordinance. Additionally, the commission may assess administrative fees equal to the cost of abating the nuisance if the problem is not corrected by the owner.

If the owner comes into compliance within 30 days, he or she is not liable for any costs of fines; however, upon a second citation within 12 months, the owner shall not be granted the opportunity to avoid payment of the fines and administrative fees.

What is a “Guest Statute?”

Feb 22

A friend of mine called me one day last week and said that his daughter had been in an automobile accident. It seems that his daughter was riding as a passenger in a car with her friend. The driver lost control of the vehicle, running off the road and into a tree. My friend’s daughter suffered some severe injuries from the accident and the driver’s insurance company was giving him trouble about paying, even though the driver was clearly at fault. He asked me why the driver’s insurance company was reluctant to pay his daughter’s medical bills. The answer probably lies in Alabama’s “Guest Statute.”

A guest statute is law that makes it more difficult for a passenger in an automobile to recover damages from the driver for injuries received in an accident resulting from ordinary negligence on the part of the driver. Under the guest statute, passengers are generally limited to suits against drivers based on gross negligence, recklessness, or intentional misconduct. In other words, in an automobile accident case, the person who caused the accident is usually legally “negligent” and therefore responsible for the injured party’s damages. Under Alabama law, however, a passenger must prove the driver was not only negligent, but that he or she was grossly, or extremely, negligent or reckless in some way. Gross negligence is a much more difficult level of conduct to prove.

For example, a decision released recently by the Alabama Supreme Court, Phillips v. United Services Automobile Assoc., held there was no evidence of gross negligence in a single-vehicle accident where the driver took her eyes off the road in order to wave to friends in another vehicle, and then lost control, injuring a passenger. The driver may have been negligent, but not grossly negligent or reckless.

Arguably, the purpose of the guest statute is both to protect drivers from frivolous litigation and to protect insurance companies from collusive and fraudulent suits (where the passenger sues the driver in order to collect from the driver’s insurer). However, if my research is correct, all states in the United States have abolished their guest statute laws except for Alabama.

As with most other laws, there are some exceptions to Alabama’s guest statute law. For example, the Guest Statute does not apply to passengers who are on a business venture with the driver. Also, the Guest Statute does not apply to young children or incompetents due to their inability to consent to their status as a “guest” in the vehicle. Finally, the Guest Statute does not apply to guests who are paying their way or contributing to gas or maintenance of the vehicle.

Therefore, just because you or someone you know was a passenger in a vehicle and injured in an accident does not automatically mean that Alabama’s guest statute prevents recovery for damages. You should always, always speak with a lawyer when you have been in an accident. It is usually extremely important that a lawyer do a thorough investigation as quickly as possible after an accident in order to document and preserve information and evidence about the actions of the party at fault, especially when the guest statute law may apply.

The Different Grounds for Divorce

Feb 15

Recently, a potential client came into my office to talk about a potential divorce action. Among the different things we discussed were the various “grounds” for divorce under Alabama law. She eventually questioned if it really mattered why she wanted a divorce. Actually, it does.

Under Alabama, a court cannot grant you a divorce unless you have stated a proper “ground” or legal reason why you are wanting a divorce. The various grounds for divorce accepted by Alabama courts are located in Alabama Code Section 30-2-1. Most people know the more common grounds for divorce like adultery, incompatibility, and/or an irretrievable breakdown of the marriage. However, under Alabama law there are several other grounds of which many people are not aware. Specifically, the circuit court has power to divorce persons from the bonds of matrimony, upon a complaint filed by one of the parties, for one or more of the following causes:

“When the other party was, at the time of the marriage physically and incurably incapacitated from entering into marriage.” The party claiming this ground must show that the other party was physically (usually mentally) unable to legally agree to get married in the first place.

“Voluntary abandonment from bed and board for one year next preceding the filing of the complaint.” This is the divorce ground that most people are talking about when they claim their spouse has abandoned them. However, what most people don’t know is that in order to prove this ground, the claiming party has to show the abandonment has been for a full year before the filing of a divorce complaint.

“Imprisonment in the penitentiary of this or any other state for two years, the sentence being for seven years or longer.” This ground is pretty self-explanatory. The imprisonment must be for two actual years and the actual sentence must be for more than seven years.

“The commission of a crime against nature, whether with mankind or beast, either before or after marriage.” This one doesn’t get used a lot, but “crimes against nature with mankind” in Alabama means homosexuality. “Crimes against nature with a beast” means just what you think.

“For becoming addicted after marriage to habitual drunkenness or to habitual use of opium, morphine, cocaine or other like drug.” This ground covers all addiction to drugs and/or alcohol. I don’t know why the legislature specifically points out opium, morphine, and cocaine.

“When one party, after marriage, shall have been confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint.”

“In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge.”

“In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable apprehension of such violence.” This ground covers instances of actual physical abuse.

What is a Subpoena?

Feb 08

Recently, I met someone in town who reads my article (to Scott Wright’s surprise, there is at least one). The gentleman told me he had recently been served with a subpoena to testify in court and asked if it were really mandatory that he appear. My answer was simply, “Yes.”

If you receive a subpoena from a process server, it is important that you know what this paper is and what it means to you. A subpoena is an order issued by the court requiring you to appear in person at a certain place, date and time to testify as a witness about a particular case. In a criminal case, you can be subpoenaed only to testify in court. In a civil case, you may be subpoenaed for out-of-court testimony as well. In either kind of case, a subpoena may require you to provide documents.

Subpoenas may be delivered in person by a deputy sheriff or by any other person at least 18 years old who is not a party to the lawsuit and is not an employee of, or attorney for, any party to the case. Read the subpoena carefully. The subpoena will tell you: the names of the parties; the date, time and place you will need to appear; the name of the lawyer who issued the subpoena; and the location and type of court in which the lawsuit is taking place. If the subpoena requires you to bring certain documents or other objects, they should be described in the subpoena or in a separate paper given to you along with the subpoena.

You may object in writing to any subpoena, listing all the reasons you think it is unfair or unjust for you to appear or to produce such documents or objects. Objections should be filed with the court immediately, not on the date you are required to appear or provide the documents. You may want to consult with a lawyer to make sure that your objections are filed correctly and on time.

If you do not appear as the subpoena orders, you may be found in contempt of court. Contempt of court may result in a fine or even a jail term. The court may also require you to pay compensation fees to the parties who may have been damaged by your failure to appear. The court may also issue a warrant for your arrest and ask the sheriff to take you into custody and bring you to the place at which your testimony is required.

If it is impossible or extremely difficult for you to appear at the time required by the subpoena, call the lawyer for the party who issued the subpoena. Usually, the lawyer’s name, address and phone number will appear on the subpoena. He or she might be able to postpone your testimony so you could testify at another time. You should keep in mind, however, that the lawyer may not be able to change the date and time of your requested appearance if a court date is already established and cannot be moved. If it is absolutely impossible for you to appear, or if it would be seriously harmful to your health or business, you should seek the advice of your own lawyer to decide if there may be legal grounds for you to be excused.

Where Can I put my Campaign Signs?

Feb 02

During election years, you can always expect to see hundreds of campaign signs placed on the side of the road. It seems that during these times, someone always asks me “isn’t there a law that says you can’t put campaign signs in the right-of way?” Actually, there is such a law, although it seems not often enforced in this area.

Under Alabama Code Section 23-1-6,  signs, markers and advertising on the rights-of-way of state controlled highways are prohibited except those official signs or markers placed in the right of way by the State Department of Transportation or under its authority. In other words, Alabama state law allows only authorized regulatory signs or signs that the Alabama Department of Transportation (DOT) gives special permission for to be placed in road’s right of way. Any object placed in the right of way that does not have special permission from the DOT is illegally placed. This includes political candidate signs as well as crosses at the scene of a fatal wreck, “For Sale” signs, signs informing others of yard sales, etc.

In fact, the DOT has procedures in place to remove obstructions or encroachments of this mature found in the right of way. If alerted to the problem, the DOT will either ask the sign owner to remove it or issue an “encroachment notice” to the owner. If the owner will not remove the obstruction, the DOT can choose to go through a legal process which includes warning letters from a DOT attorney, and in some cases, an actual court appearance and hearing. If a sign interferes with motorists’ sight distance or creates a safety hazard, however, the DOT has the option to simply remove the sign or obstruction immediately.

There are criminal penalties for those who place signs or other obstructions in the right of way, although I believe that this type of remedy is rarely used by the DOT. Alabama Code Section 23-1-288 notes that whoever erects or maintains a sign in violation of the provisions of this division or in violation of rules and regulations promulgated by the director under the provisions of this division shall be guilty of a class C misdemeanor and shall upon conviction be punished accordingly.

So, be careful where you place your campaign signs, making sure they are out of the right of way of any road or highway and do not obstruct a drivers’ view of the road. Otherwise, you may get a call from the DOT.

On a final note, I would like to announce the addition of Summer McWhorter to the law office.  Summer is a graduate of the Cumberland School of Law at Samford University and has been practicing here in Centre for several months. Summer is from Cedar Bluff originally and many of you know her parents Paul and Betty McWhorter. Before moving back home, she spent some time working with her cousin Bill McWhorter in Pell City, Alabama. She is also cousin to Bob McWhorter, who practiced in Centre for many years. I am very glad to have Summer join what I guess I can know call the “firm.”

Alabama’s “Graduated Driver License” Laws

Jan 22

I have recently been asked to summarize Alabama’s Graduated Driver License (GDL) laws which concern teen drivers. This Alabama law went into effect July 2010 and reorganized driver license laws for teen drivers.

The GDL laws place a teens driving status into three “Stages,” each of which have different restrictions and meanings. These laws do not apply to teens 18 or older; teens who are 17 or older who have had a valid driver license for six months or longer; or teens who are 16 or older who are married and considered head of the household.

A Stage I driver license is commonly known as a “Learner’s Permit.” Under Stage I, the potential teen driver must be 15 or older, and must pass a written driver’s examination based on information in the Alabama Driver Manual. This manual is available at the local Probate Office or for download at www.dps.alabama.gov. A Stage I license authorizes teens to drive when accompanied by a parent, legal guardian or licensed driver who is age 21 or older and occupying the front seat beside the licensee. Teens may also drive when accompanied by a licensed or certified driving instructor occupying the front seat beside the licensee. The Stage I exam fee is $5.00 and the license fee is $23.50.

A Stage II driver license is a commonly called a “Restricted License.” To obtain a Stage II license, the teen must be 16 or older. The teen must also have permission from parent or legal guardian to receive a Stage II license and drive without supervision. Stage II applicants must complete a road skills examination with a passing grade, again based on the Alabama Driver Manual. Stage II drivers cannot drive during the hours of midnight to 6 a.m. unless: 1) accompanied by a parent or legal guardian; 2) accompanied by a licensed driver who is age 21 or older with the driver’s parent or legal guardian’s consent; 3) going to or from an event sponsored by school or a religious organization; 4) going to or from the driver’s place of employment or 5) driving for the purpose of a medical, fire or law-enforcement related emergency. A Stage II teen driver cannot have more than one passenger in the vehicle other than parents, legal guardians or family members and cannot use any handheld communication devices while driving. The Stage II license fee is $23.50.

A Stage III license is an unrestricted or regular license. To obtain a Stage III license, the teen must be 17 or older and have a Stage II license for at least six months before applying for the Stage III license. Teens 18 and older may apply immediately for a Stage III license without having had a Stage II license as long as they pass the road skills examination. The Stage III license fee is $18.50 for those who present a Stage II license and receive a restriction-free duplicate. The fee is $23.50 for those who did not obtain a Stage II license prior to turning age 18.

Violations of any of the graduated driver license law restrictions will result in the restrictive period being extended by six months or until the licensee reaches age 18. Violations of the above conditions are considered traffic violations, but the licensees will not be subject to any criminal penalties or court costs. No citation will be issued unless the licensee is stopped for a separate violation of the law and issued a citation or warrant for the separate violation. No points will be assessed for violation of the above restrictions.

If a licensee is convicted of a second moving traffic violation or is convicted of failure to give information, render aid, racing, fleeing or attempting to elude a law enforcement officer, reckless driving, illegal passing, driving on the wrong side of the road or any other offense where four or more points are assessed, his or her license will automatically be suspended for 60 days.

Additionally, any child 12 years or older is subject to a “disciplinary point system” that may restrict a teen’s ability to obtain a driver license. Under this law, each student over the age of 12 who is enrolled in a public or private secondary school shall be subjected to a disciplinary point system to determine the age at which the student shall be allowed to apply for a driver license of any kind. Each point adds one week to the age at which the student is eligible to apply for a driver license, including a Stage I learner’s permit.

Under this point system, one day of in-school suspension is 1 point, one day out-of-school suspension is 2 points, alternative school placement is 6 points, and expulsion is 20 points. The points accumulate on a yearly basis, beginning with the school year in which the student turns 13, and accumulate each year until the student is eligible to apply for a driver license or learner’s permit.

The age at which a student may apply for a license or permit, however, shall not be extended beyond one year from the date the student initially applies for a driver license or learner’s permit.
Further, points may not accrue for the first three days of in-school suspension in any school year; however, beginning with the fourth day of suspension in any school year, all days, including the first three, of in-school suspension shall be counted in determining the points. Points may not accrue for an initial out-of-school suspension of two days or less in any school year; however, the days of the initial suspension shall be used to determine the points after a second out-of-school suspension in any school year or all days will be used to determine points if the initial suspension exceeds 2 days. Finally, any accumulated points shall be reduced by one-half if the student has not received additional accumulated points for one school year. If no additional points are received for two years, all records of the accumulated points shall be removed from the student’s records at the school.

The different terms for “lawyer”

Jan 11

From time to time when people see me out of the office they will greet me with “Hello, lawyer Givens” or “Good morning Solicitor” or “How are you Councilor?” etc.  I have often been asked what the distinction is between these and other names given to a “lawyer.” 

In the United States, a lawyer is simply a person who is authorized or licensed to practice law. Working as a lawyer involves the practical application of legal theories and knowledge to solve specific problems, or to advance the interests of those who retain (or hire) lawyers to perform legal services. Most other common names given to a lawyer come from our legal system’s English heritage. Unlike here in the United States, in England the legal profession and the duties of different types of lawyers are quite complicated. Historically, the different English classifications for a lawyer were broken down into “Counselors” “Barristers” “Attorneys” and “Solicitors.”

The main division between legal responsibilities in England was between Barristers and Solicitors. Essentially, Barristers represent clients as their advocate before the court. They speak in court and present the case before a judge or jury. In some jurisdictions they undertake additional training in order to hone their skills with evidence law, ethics, and court practice and procedure. In contrast, Solicitors generally engage in preparatory work and advice, such as drafting and reviewing legal documents, dealing with and receiving instructions from the client, preparing evidence, and managing the day-to-day administration of a matter. A Solicitor has more direct access with clients. In fact, Barristers are rarely hired by clients directly but instead are retained (or instructed) by Solicitors to act on behalf of clients. The confusion between these two divisions is probably why this distinction was dropped by our fore-fathers.

The word “attorney” by itself means someone who is legally appointed or empowered to act for another person. An attorney does not have to be a lawyer. For example when you give someone “power of attorney” they become your “attorney in fact” and can perform certain designated tasks on your behalf. In English legal history, the term “attorney-at-law” was closely associated with a Solicitor, because only a Solicitor could legally act on a clients behalf in that legal system.

Contrary to popular belief, the term “Counselor” does not refer to a lawyer’s common practice of counseling his or her client, but again is a legal distinction made in the English system of law. In English history a Counselor was a type of Barrister. “Barrister” is a professional title awarded by one of the four “Inns of Court” of England and could be used as an every-day title. “Counsel” or “Counselor” was used to refer to a Barrister currently involved in an ongoing case. In England, it was customary to use the third person when addressing a Barrister during a case. For example, the court would say “Counsel is asked to advise the court” rather than “You are asked to advise the court.” So, the court would refer to a Barrister as a Counselor or Counsel only during an ongoing case, never “on the street” so to speak.

Other common terms for “lawyer” such as “shark” and “shyster” are usually only used locally by Johnny Roberts and really have no historical legal significance.

Changing Grandparent’s Visitation Rights

Jan 04

Several months ago, I wrote an series of articles on “Grandparent’s Visitation Laws.” To recap, the Alabama legislature has, in the past, attempted to create laws which allow grandparents the right to file a petition requesting court-ordered visitation of their grandchildren in certain circumstances.  Although the legislature has always seemed to be in favor of grandparent’s visitation laws, the Alabama Supreme Court has not. In fact, in the past, the Alabama Supreme Court has declared Alabama’s Grandparent’s visitation rights law unconstitutional, and therefore refused to uphold rulings where courts have granted grandparents visitation.  The latest few versions of the law attempted to fix the Supreme Court’s constitutional concerns, and was actually in force for some time.  A recent case, however, has thrown question on the constitutionality of Grandparents visitation rights once again.   

On June 10, 2011, the Alabama Supreme Court issued a ruling in the case Ex parte E.R.G. v. D.W.G. declaring Alabama’s Grandparent’s rights laws unconstitutional and, therefore, unenforceable.  According to the Alabama Supreme Court, the right of parents to direct the upbringing of their children has long been recognized as fundamental by the United States Supreme Court and, therefore, as a right protected by the United States Constitution.   The Court noted that the United States Constitution provides heightened protection against government interference with certain fundamental rights and liberty interests like the rights of parents to control the care and custody of their children. This Constitutional liberty includes the right of parents to establish a home and bring up children and to control all aspects of their life, including visitation with grandparents.

The court explained that the State of Alabama’s interest in matters of visitation and custody is limited to overruling the decisions of unfit parents. It is only after the State has established a parent unfit that the court may assume a role in deciding non-parental custody and visitation rights.  The court stressed again that the core principal of parental rights is the right of a parent, not the State or courts, to make decisions about the upbringing of his or her child.

As the court explained, grandparents have no “inherent” rights to visitation with their grandchildren.  Their rights, the court stated, exist only as created by the Alabama Grandparent Visitation Act (Ala. Code § 30-3-4.1). In order for a grandparent visitation law to be constitutional, it must recognize the fundamental presumption in favor of the rights of the parents. The Alabama Grandparent Visitation Act, the court noted, makes no mention of the fundamental right of parents. Instead, it instructs the court to determine if visitation by the grandparent is in the “best interests” of the child. According to the law, the wishes of any parent who is living are merely among a long list of factors the court should consider. The court finally stated that, because a fit parent’s decision is protected by the U.S. Constitution, the wishes of the parent are always superior, not just a factor to be given consideration, making Alabama Grandparents Visitation Law unconstitutional.

It would seem, then, that according the Alabama Supreme Court, grandparents do not currently have any rights to court-ordered visitation of their grandchildren.  If history repeats itself, however, the legislature will amend the current law in an attempt to make Grandparent Visitation Laws constitutional.

Criminal Statutes of Limitation

Dec 28

Recently, I have received numerous questions regarding the statutes of limitation on criminal cases. A statute of limitation in the criminal sense is a law which places a time limit on pursuing a criminal conviction. After the expiration of the statutory period, unless a legal exception applies, the state loses the right to bring charges against a potential criminal defendant.

For a misdemeanor offense, Alabama Code Section 15-3-2 dictates that prosecution must commence within twelve months after the commission of the offense. In other words, the state cannot properly bring charges against you 1 year and 1 day after the alleged criminal conduct occurred. This does not mean, however, that a trial must be held within twelve months.

 Under Alabama Code Section 15-3-1, generally, all felony offenses must be commenced within three years after the commission of the offense. Just like misdemeanors, the state has three years from the alleged commission of the offense to formally charge the potential defendant. However, again, this does not mean that a trial must be held within three years.  

 There are several exceptions to the general three year limitation period for felony offenses. For example, under Section 15-3-3, prosecution for conversion (i.e. theft) of state or county revenue must be commenced within six years after the conversion. Most of these exceptions, however, are listed in section 15-3-5 and include more serious felony offenses. The main exception to the three year rule involves capital offenses. Under section 15-3-5, there is no limitation of time for prosecution of a capital offense, meaning that the state may prosecute at any time after the alleged commission.

 Capital offenses include murder during commission or attempted commission any of the following: kidnapping first degree; robbery first degree; rape/sodomy first or second degree; burglary first or second degree; murder of a law enforcement officer or official; murder done for economic gain or pursuant to a contract or for hire; sexual abuse first or second degree, arson in the first or second degree; where two or more people are murdered by the defendant by one act; by fully assuming control of any aircraft with intent to obtain any valuable consideration for the release of the aircraft or passengers or to direct the route or movement of the aircraft; by a defendant who has been convicted of any other murder within 20 years; murder of a victim or someone testifying in a criminal trial when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness; when the victim is less than fourteen years of age; committed through the use of a deadly weapon fired from outside a house while the victim is in a house, or through the use of a deadly weapon while the victim is in a vehicle or the weapon is fired from a vehicle.

 The state may also prosecute the following crimes at any time after their commission: any felony involving the use, attempted use, or threat of, violence to a person; any felony involving serious physical injury or death of a person; any sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death; any felony involving arson of any type; any felony involving forgery of any type; any felony involving counterfeiting; and any felony involving drug trafficking.