Ask Our Lawyer January 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ALL BIKERS SHOULD BE “ROADS” SCHOLARS

ROADS SCHOLAR LESSON NO. 1 – It was bikers that returned glory to the Old National Road that cuts across the country, also known as U.S. 40. Its heyday was 1840, but by the middle of that century, the railroads had put it out of business. The traffic/business was so bad that the Feds turned the highway back to the counties to maintain their portion. That is until some unknown designed and built a new form of transportation – the safety bicycle. And it was Harley Davidson that made a myriad of those, before they figured out how to put a motor on that cycle and become part of transportation history and lore.

ROADS SCHOLAR LESSON N0. 2 –   The outcry of cyclists (without motors) in 1891 gave rise to better roads. Cycling clubs sprang up all over the U.S. resulting in the creation of state highway departments in the 1890’s.

ROADS SCHOLAR LESSON N0. 3 – Roads started simply – with ditches on the side and with varying sizes of gravel laid down with a “high” portion in the middle. The new style road was called a “high-way”. When concrete and asphalt came along, there also came a new road name, “the hard road”.

ROADS SCHOLAR LESSON NO. 4 – Farmers joined “cyclists” with a get the farmer out of the mud mantra”. Organizations such as the “Good Roads” movement joined with the legislators responsible for the U.S. Post Office. Post Roads were created, and so on it goes, but let’s never forget that it was us “two wheel” riders that started it all. So if you are ever asked “if you motorcyclists think you own the roads,” you might “think” to yourself, yeah, as a matter of fact.

SO YOU GOT A JUDGMENT IN SMALL CLAIMS COURT AGAINST THE BIKE SHOP THAT RIPPED YOU OFF – NOW WHAT?

Q.   Rod, I took your advice and filed suit on my case where the bike shop failed to fix my bike properly, leaving me with a big repair bill at another shop. I got a judgment, but have been getting the runaround on collecting the amount I am owed. What do I do now? ABATE OF INDIANA member.

A.   As lawyers are known to say, “ A judgment is only a piece of paper”. And they are right. So you now have a judgment, but that is only half the battle. Now you need to collect it. Generally, you can seize money from bank accounts, but in order to do that you need the court to order the debtor to answer questions about his assets including his bank accounts. By far the easiest way to collect your judgment is a wage garnishment – if the debtor has a job. Typically you can collect 25% of his wages until your judgment is paid. There are limitations on garnishments especially if another garnishment has been ordered. Remember to be nice to the court’s clerk. That person can make your collection life so much easier, and they usually know more than the lawyers.

Another way to collect your money is to talk with the debtor and try to work out a payment schedule. You might even consider compromising your judgment to save time and expense. And it may be that the debtor has some stuff you could trade for satisfaction in whole or part for your judgment. Let us know how this turns out for you and the lessons that you can share with us. If you take all or part of your judgment in trade, get the debtor to sign off on the deal or at least have him send you a confirming email/text and save it.

U.S. 66 – THE MOTHER ROAD FOR BIKERS AND PROBABLY FOR THE OTHERS TOO

After the advent of cycles in the 1890’s and the “motorized” Harleys in 1904, we had to get out and ride (after all the Model T’s did not come around until 1908). Where better than to follow the Old Santa Fe Trail, Jedediah Smith’s footsteps across California, and Beale’s wagon road across the South West? Later we poured concrete on it and called it Route 66, and now some of us call it the “Mother Road”. You can hear me say that no one should be allowed to die until they have ridden this road from Chicago to California – every mile of it. Nothing gives you motorcycle road fever more than being at the corner of Jackson Blvd. and Michigan Ave. in Chicago (the beginning of Route 66) for your start to California. And nothing feels better than to arrive at the Santa Monica Pier (the end of Route 66) after a whole bunch of wonderful riding miles. A celebratory option is to take a leak off the Santa Monica Pier in celebration of the best road trip ever. That celebration should be a defense to any charges under California law, especially if you are discrete. Tell them I said so. In future articles, I will write about portions of the road and why that road is so important to us bikers.

ROADHAZARD.ORG GOES MOBILE

ABATE Legal is developing a mobile app for reporting road hazards.

This app will allow you to take pictures, use your GPS location, and report needed information. With the availability of reporting dangerous roads at your fingertips, we hope to make our roadways smoother, safer, and hazard-free.

FROM BRIAN SHADIOW – ABATE LEGAL.

COMING SUMMER of 2013!

EXPUNGING UNCLE FRED’S CRIMINAL RECORD IN OH., IN. AND IL. – CAN YOU?

Q.   My uncle had a criminal conviction prior to being drafted into the U.S. Army back in the late 60’s. He was only 18 at the time of conviction. Since returning from the service, he has raised a wonderful family and led a good life and wants to get rid of this stain on his record. What can we help him do to get this straightened out? ABATE OF OHIO member.

A.   Most criminal records of arrest will never be expunged. However there are some instances where the law allows a unique and harmless criminal arrest experience to be silenced – forever. That process is called sealing of records. In other words, sealing is hiding the records from the public and expungement is permanent destruction of arrest records. That is the general difference between expungement and sealing. Why is this allowed, you ask? Because the stain of the alleged offense is often more painful than punishment for the offense and that is thought to be unfair to a good citizen that had a youthful moment. Adding to the confusion, it seems that each state has a unique rule regarding this process.

Let’s start with Illinois.   Here the legislature allows a process for erasure of some arrests so the accused can go about life as if the arrest never occurred. But no convictions in Illinois can be expunged – only non-conviction records like arrests. Even then any prior convictions for just about anything other than traffic offenses are show stoppers. So what can be erased in Illinois?

1. Arrests with no formal charges; 2. Cases that were dismissed or for which you were acquitted; 3. Cases in which you were convicted, but the conviction was later reversed; 3. Cases of successful court supervision and first offender programs and the like. With expungement, the records are destroyed or returned to the arrested person. In Illinois sealing is a different deal. In that case the records are not destroyed but merely hidden from the public, the cops can still see those records and use them against you in later sentencing hearings. The differences in sealing are that records of convictions can be sealed so long as those crimes were non-violent. As in most states, the last hope for serious convictions ia a pardon from the governor, who can order expungement of the records (destruction). The expungement process usually involves filing a petition in the circuit court where the case started.

In Ohio there is no such thing as expungement. The best you can do is to get your records “sealed”, and that will occur if you did not have any prior convictions. This means that most employers, landlords, and the general public will usually not be able to see your arrest and conviction records. The exceptions are law enforcement personnel and professional licensing boards. Usually no records of first or second degree felonies, offenses with a prison sentence or any violent offense can be sealed. Interestingly, no traffic offense can be sealed – thanks to the insurance industry.

In Indiana, there are only two ways (short of the governor’s help) to get an expungement of an arrest record. 1. You were busted but no charges were ever filed against you (this protects you from the cop whose ex-wife your were dating and who took exception). 2. You were busted and charges were filed, but all charges were dropped because; you were the wrong guy; no offense was committed; or there was no probable cause. This means that even if you were found not guilty, you are not eligible for expungement of your arrest/trial record because you do not fit into 1. or 2. above. Then what can you do? After 15 years, you can petition for limitation of access of your records to criminal justice agencies. For more, you are going to need a pardon from the governor, and for that, you better have done some very good things for your state, and have been a model citizen before and after your conviction. Indiana also allows restricted disclosure of arrest records usually where no prosecution occurs or a conviction is vacated/found innocent. The restricted disclosure rules are more lax than the harsh rules of expungement (destruction) of arrest records.

In most states there are specific rules for juveniles that have had a delinquent/criminal history. I will address this complicated area of the law in a later article.

THE END OF THE RIDE – WILL IT HAPPEN TO US?

This is about Dave Pedersen, a riding budding of mine for over a quarter of a century and a retired bank tycoon. He has given new joy to the concept of motorcycling . I wanted to write this piece for a while now, but I didn’t; read on and you will understand why. Dave has owned and ridden Harley Davidson motorcycles most of his life, and now he doesn’t. I will get into that later. He is/was not just a rider; he is/was hard core. With over 400,000 miles on a series of cycles, few people can best him in the iron butte category, and he has never had so much as a scratch. In his words, nothing but heavenly pleasure. His riding marked him. It was nothing for him to ride out to a HOG event in Washington state and then ride across the county to New Hampshire, within two weeks. In essence, his life was motorcycling and how. We have ridden lots of miles together and through everything. Rain, sun, more rain, lightning, lots of lightning, more sun – and in the middle of nowhere. Not even a tree to get electrocuted under. His son is still hard core into the passion of his father. So what is with the quitting thing? David is 68 years old and has decided that all good/wonderful things come to an end. He has concerns about his age and ability to keep it perpendicular. Maybe it doesn’t help that last spring he and his buddy were riding the mountains near Flagstaff when an errant individual decided to race down the mountain, lost control and hit/crashed with Dave and his buddy. The buddy died at the scene and Dave was lifelined to a hospital in Flagstaff. When Dave called to tell me of his bad luck, I was stunned to learn that he had sold everyone of his motorcycles and had retired from riding. I did not know what to say then and do not understand now. I know that posttraumatic stress disorder gets a lot of us, but not Dave, so I wonder if that is causing his exit from one of life’s pure joys. He is a rub dirt on it – norwegian type of guy. Stuff like that does not get in his way. As long as I can hold one leg up, I cannot ever see me doing what Dave has done – ever. But Dave did say in our closing conversation, “your time will come”. I didn’t respond as I am saving that for another time and my thoughts as to posttraumatic stress. If anybody has it, Dave does, but that outwardly tough guy is not buying it; and enough of that from me – Dr. Taylor.   But I wonder how many of us have experienced this problem? I will write about that another time.

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegalcom. © 2013.

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