Law Vibe » Weird Laws

Froot Loops Not Made of Real Fruit: The Cereal Lawsuits

C. C. — Sat, 01 May 2010 14:00:32 +0000

There are days every now and then when my actual legal work directly intersects with my blog work. This was one of those days.

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased “Cap’n Crunch with Crunch Berries” because she believed it contained real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said “berries” were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit. She sued, on behalf of herself and all similarly situated consumers, some of whom may believe that there are fields somewhere in our land thronged by crunchberry bushes.

According to the complaint, Sugawara and other consumers were misled not only by the use of the word “berries” in the name, but also by the front of the box, which features the product’s namesake, Cap’n Crunch, aggressively “thrusting a spoonful of ‘Crunchberries’ at the prospective buyer.” Plaintiff claimed that this message was reinforced by other marketing representing the product as a “combination of Crunch biscuits and colorful red, purple, teal and green berries.” Yet in actuality, the product contained “no berries of any kind.” Plaintiff brought claims for fraud, breach of warranty, and our notorious and ever-popular California Unfair Competition Law and Consumer Legal Remedies Act.

Under the UCL, courts have held that a plaintiff must show that a representation was “likely to deceive a reasonable consumer.” [As a disclaimer, I should tell you that my firm represents defendants in UCL cases (among others).] Actual fraud claims, and warranty claims, are harder to prove, so if Sugawara didn’t win on the UCL claims, she would probably not win anything at all. And she did not:

In this case . . . while the challenged packaging contains the word “berries” it does so only in conjunction with the descriptive term “crunch.” This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a “crunchberry.” Furthermore, the “Crunchberries” depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains “sweetened corn & oat cereal” and that the cereal is “enlarged to show texture.” Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.

The court, Judge Morrison England, Jr., also pointed out that the plaintiff acknowledged in her opposition to the motion to dismiss that “[c]lose inspection [of the box] reveals that Crunchberries . . . are not really berries.” Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.

Finally, the court held that while a first-time loser on a motion to dismiss would typically get a chance to amend the complaint, this one wouldn’t:

In this case, . . . it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen.

Case dismissed.

Judge England also noted another federal court had “previously rejected substantially similar claims directed against the packaging of Fruit [sic] Loops cereal, and brought by these same Plaintiff attorneys.” He found that their attack on “Crunchberries” should fare no better than their prior claims that “Froot Loops” did not contain real froot.

UPDATE 1: Janine Sugawara’s Lawyer Chimes In

The tale of Janine Sugawara, the woman who sued the manufacturer of “Cap’n Crunch with Crunch Berries” for allegedly misleading her about the “berries,” has turned out to be extremely popular, bringing literally tens of thousands of people to this site over the past few days.

Unfortunately, one of them was her lawyer.

He thought I had been unfair to his client and asked me to clarify that she had not alleged that she personally believed “crunchberries” to be an actual kind of fruit. This was a little puzzling to me, especially since the judge who dismissed her case seemed to have interpreted her claims the way I had (and I had quoted his opinion at length in my post). The lawyer ultimately seemed to accept that this was understandable, but asked me to look at the pleadings and the motion for reconsideration they have filed (that’s the “update” – they are asking the judge to reconsider), in order to get a better sense of what the plaintiff was really arguing. So I did that.

If you read her complaint(s) very closely, Ms. Sugawara may not have clearly said that she thought crunchberries were an actual fruit that exist in nature. But she did claim (and still does) that she was misled by the Crunchberries packaging, specifically (1) the word “berry” in the name of the product, (2) the picture of “pieces of cereal in bright fruit colors, shaped to resemble berries,” and (3) “the product’s namesake, ‘Cap’n Crunch,’ thrusting a spoonful of ‘Crunchberries’ at the prospective buyer.” See Motion for Reconsideration at p. 2. In the motion, she then says this: “There can be no other reason for the emphasis on berries than to lead consumers to believe the Product is made with real fruit content.” Id.

So if I understand correctly, she wasn’t saying she thought the cereal was actually made with a fruit called “crunchberries,” but rather that the word “berries” and the colorful berry-like objects on the box led her to believe that the “crunchberries” being thrust at her by the Cap’n contained some kind of real berries or real berry parts, when in fact they did not. (Actually, they did – at least “a touch of strawberry fruit concentrate” – though not very much. But let’s set that aside for now.)

There is a distinction there, but I’m not sure it’s one that makes much of a difference. Here’s where I think the problem is: how can a reasonable consumer claim to be misled by the word “berries” immediately following the word “crunch,” if that person does in fact know whether or not “crunchberries” really exist? Shouldn’t the use of a term that the person supposedly knows is not real be considered a reasonable signal that what’s inside the box might not be real, either?

I mean, if you read “The Hobbit,” I’m not sure you can complain later that you thought it was going to be a true story.

What is really through the looking glass here is that the woman’s lawyer does have a point. The allegations in this case were not too different from those in some other cases that have survived a motion to dismiss under California consumer protection laws. But it is fair to say that this may be because those laws encourage weak lawsuits, not because Janine Sugawara had a compelling case. I can understand that she probably didn’t like the implication that she isn’t bright enough to know there are no “crunchberries.” But the risk of that implication is probably inherent in putting your name on this kind of a complaint.

Remember, though, that a low-IQ plaintiff is not necessarily the inference that should be drawn. Another possibility is that she is an entirely normal person who knew perfectly well that there are no “crunchberries,” and probably knew that “Cap’n Crunch” is not a fruit-laden cereal. Certainly, based on the Internet reaction, it does seem like most conscious human beings know both these things. But if there is a law out there like California’s UCL, which is so broad that it has permitted lawsuits to go forward on even dumber facts than these (and trust me, it has), then it might be a rational and intelligent decision to try to get some money out of it. But obviously, the more rational and intelligent a plaintiff is portrayed to be, the less plausible it is that he or she was really deceived by, let’s say, an aggressive spoon-wielding cartoon sailor. So there is an inherent tension here, of which UCL plaintiffs in borderline cases should be aware.

As for the motion for reconsideration, the argument there is basically that a judge should never, or almost never, grant a motion to dismiss by just looking at the case and deciding that no reasonable consumer would bring it. Plaintiff argues that whether a practice is “deceptive” is “largely a question of fact that should be determined only after the parties have had the opportunity to complete discovery and present evidence.” Id. at p. 8. But the reality is that most cases settle if they get that far, because discovery and presentation of evidence are expensive. If a judge can’t toss a weak case early on, then plaintiffs in some really lame cases will get paid, and more lame cases will be filed.

That’s okay with me, because it gives me (and others) plenty to write about. But it does have costs. Anyway, I hope I’ve now clarified matters in the Crunchberry case, and also provided fair warning that those who file lawsuits with comedy potential should not be surprised if they end up on the Internet.

UPDATE 2: Roy Werbel Files Case Against Crunch Berries & Froot Loops

As I wrote, a number of lawsuits have been filed in California over the past couple of years by people who say they were deceived by certain representations on cereal boxes. Specifically, plaintiffs including Janine Sugawara, Mark McKinniss and Keith Videtto have alleged they were led to believe that “Crunch Berries” and/or “Froot Loops” are made with real fruit even though the “froot” mentioned in the products’ names is obviously fictional.

I still think this is like claiming emotional distress because you just learned “The Hobbit” isn’t a true story.

When Sugawara and Videtto were dismissed in May 2009, I thought the Cap’n might have gotten away with his heinous crimes (which according to Ms. Sugawara included lurking on grocery-store shelves and aggressively thrusting his Crunch Berries at unsuspecting consumers) but recently yet another person has surfaced, this time in San Francisco, who is willing to swear under oath that he was outsmarted by a cereal box. Or boxes, actually, because Roy Werbel filed cases against the makers of Crunch Berries and Froot Loops, apparently having been baffled by both.

Although he is represented by a different attorney, Werbel’s complaints are nearly identical to those in the earlier cases. For example: “[Plaintiff] was misled by the packaging and marketing, which by design and intent convey the message that the Product contains real, nutritious fruit,” alleges Werbel about a product named “Froot Loops.” The complaint continues, “[h]ad he known that ‘Froot Loops’ contained no fruit, he would not have purchased it.” This, of course, is pleaded as a class action, and Werbel alleges that the manufacturer’s practices with regard to Froot Loops “present a threat to members of the general public . . . .” Oh, the humanity.

By my count, these are the sixth and seventh lawsuits in California against the manufacturers of these two fictitiously named cereals. But hey – just because you are 0-5 and your arguments have been openly mocked by judges as well as a large percentage of the nation’s bloggers does not mean you shouldn’t give it one or two more tries. It does mean that, presumably, PepsiCo and Kellogg’s are highly unlikely to settle, and that in two or three months plaintiffs should be 0-7.

Attention, San Diego — these guys have now tried the Northern, Eastern and Central Districts of California, so I would expect cereal suits eight and nine to be filed in your neck of the woods sometime early next year.

UPDATE 3: Roy Werbel Sues Kellogg USA Again

Roy Werbel and his counsel are back with yet another attempt to call out Kellogg USA for its dastardly marketing of “Froot Loops” cereal. As you may recall, Werbel sued Kellogg in state court in San Francisco last October, alleging that the “Froot Loops” name had misled him by causing him to believe that “the product contains real, nutritious fruit.” That case was dismissed without prejudice in February, on the grounds that Werbel had not successfully served Kellogg. But Werbel sued Kellogg again on April 19, despite the fact that he faces much bigger problems with this lawsuit than just trying to get the defendant served correctly.

As at least two federal judges have previously held, use of the word “Froot” cannot reasonably be interpreted as suggesting the presence of real “fruit,” not least because “froot” is not real, and real fruit does not come in “loops.” See, e.g., Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal. 2009) (noting that the ring-shaped cereal “does not resemble any known fruit”); McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. 2007) (making a similar observation).

Yes, you are reading correctly — there has been more than one similar “Froot Loops” case, and in fact there have been at least four such filings (counting Werbel’s twice). And for what may be obvious reasons, if this claim is being made there is quite likely to be a similar claim about “Crunch Berries” (emphasis added) somewhere nearby, as there was last summer (Sugawara v. PepsiCo) and again in the fall when Roy Werbel showed up in San Francisco alleging that both cereals had confused him. This new lawsuit would therefore be the eighth (to my knowledge) alleging some sort of deception stemming from fictional fruit.

[thanks to kevin underhill and zanastardust via cc]

Related Posts:

Markus Prostidude: Male Prostitution at the Shady Lady Ranch

Michael — Sun, 28 Mar 2010 14:00:10 +0000

A brothel club in Nevada has broken the ground for males who want to work as prostitutes. The Shady Lady Ranch hired Nevada’s first-ever legal male prostate in the person of “Markus,” a fit and trim college dropout who briefly worked for porn movies in Los Angeles. He now holds the distinction of being the US’ first legal gigolo.

This is a result of the successful lobbying of the Shady Lady Ranch with the state and the entire US to legalize “prostidudes,” the term for Nevada’s breakthrough sex workers. Markus had a slow first week in his new job. But his first weekend is looking busy already as he rose to become the star of Nevada’s brothel industry.

Markus has also received criticism from female prostitutes for his unwillingness to service male customers. He also caused a ruckus when, in an interview with Details Magazine, he compared his role as the first prostidude to the role of civil rights activist Rosa Parks. Parks made history when she obstinately refused to give up her seat in the bus and move to a seat at the back. Markus has since been advised not to give interviews following this.

In addition to this, competitors of the Shady Lady Ranch have also expressed their disapproval of the hiring, arguing that this will open the industry to unwanted attention and scrutiny from state agencies and officials, and could potentially influence them into making prostitution illegal. There are also concerns about spreading sexually transmitted diseases, and the fact that it may not be possible to inspect female customers as thoroughly as males prior to sex.

At 25, Markus claims he is well-read college dropout from Alabama. He also said he had a stint with the U.S. Marines, before he drove to Los Angeles to make a career out of porn acting but ended up leaving after only two scenes. He failed to find another job, and found himself in a homeless shelter in Santa Monica, California.

Markus was handpicked by Shady Lady madam Bobbi Davis from 10 applicants shortlisted from hundreds of wannabes. Part of the reason why Markus was picked was because he was comfortable with heavy publicity.

In his Details interview, Markus added, “Whichever woman may walk through that door, she’s appreciated. A surrogate lover will love that woman for a whole hour, or however much we charge here, and she’ll leave feeling much more empowered and much more confident in herself.”

Jim Davis, wife of Bobbi Davis, related to The Associated Press that he and his wife realized that granting interviews with Markus could hurt the business. Bobbi himself had to beg off for an interview with the AP. The couple also declined to disclose Markus’ real name, which is typical protection for Nevada’s sex workers.

According to Davis, the Shady Lady Ranch has been getting favorable e-mails from female customers. He is positive that the male prostitute business will pick up after at least a month, considering that it took years for the 17-year-old brothel to stabilize its market for truckers, salesmen and other travelers.

He said, “This is a business—if Bobby didn’t thing she could make money she wouldn’t have done it. Why else would she start something like this? And if she knew what she was getting into, she probably wouldn’t have.”

The Shady Lady Ranch is housed in a compound painted in yellow in a 40-acre land that the Davises originally purchased for $11,000. It lies over 30 miles north of Beatty, a township along the road from Las Vegas to Reno, with a population of less than 1,200. The small brothel features a foyer that attempts to look French, with a pricing menu obviously displayed. The brothel charges $200 for 40 minutes and $300 for an hour.

Inside, there are three connected bedrooms, each decorated differently. One of the bedrooms features a heart-shaped bathtub while the other is Asian-inspired. A new addition in the compound is the detached cottage. It is more like a spacious studio, complete with a small kitchen, a bedroom with a wooden bathtub. The Davises spent $50,000 on the cottage.

This is the same cottage that Markus intends to use.

Competition can’t help but be pessimistic. Arie Mack Moore, owner of the Angel’s Ladies Brothel, located two miles north of Beatty, has augured that the move will not be successful, noting that it is impossible to have both male and female prostitutes housed in one building, or near each other.

Moore hastened to add that his business rose after Markus was hired. Feedback from customers has it that they are deliberately avoiding the Shady Lady Ranch because of Markus.

“Cuddles,” a 22-year-old female prostitute who works for Angel’s Ladies even remarked that Markus’ rejection of gay males has given the Shady Lady Ranch a sexist and discriminatory image. Angel’s Ladies’ female prostitutes also service women.

Cuddles said, “How can you just turn down services because of someone’s preferences? It comes with the territory. It comes with the business.”

To this reaction, the Davises response is that they are not looking at building a strong market among gay males. Markus has previously told Davis that he would not perform for gay males, but they are leaving him to decide if he wants to accept gay males as his customers later.

Davis also expressed his concern about gay homophobic sentiments that seem to run across the country. He calls it “horrible” that everybody is concerned about the possibility of two men having sex. “It’s happening every day in Las Vegas. Not going to happen here, but that’s all the big fear, is gay people.”

George Flint, a pioneer lobbyist working for the Nevada Brothel Owners Association, stated that legalizing male prostitution could give rise to real health concerns. In Nevada’s brothels, male clients are subjected to rigorous inspections and sanitation requirements before sexual intercourse. He can’t see how female customers can be subjected to the same standards.

In addition, there have also been concerns about the impact of the Shady Lady Range to the 24 other brothels in Nevada, six of which are in Nye County.

According to Flint, the brothel industry in Nevada currently amounts to $50 million to $75 million in terms of investment. The Davises’ move, procedures, demands and goals could potentially harm the multimillion dollar industry.

Flint added that the non-member Shady Lady Ranch could enjoy an initial influx of curious female customers, but he doesn’t see this succeeding for the long term.

Flint said Bobby Davis probably had a genuine belief that the idea could fly. “I’m wondering after four or five days and there haven’t been any takers, if she’s beginning to wonder if maybe she was wrong.” He added the move is always open to debate, but if it doesn’t bring any customers to the front door, the Davises would still not have proved anything at the end of the day.

The FBI Database: How the Government is Spying on You

Michael — Tue, 13 Nov 2007 02:00:13 +0000

The FBI is watching you.

Well, maybe not you in particular, but thereâ€™s a new technique theyâ€™re using that may have you concerned.

A brief description of the FBI

The FBI (Federal Bureau of Investigation (FBI) is the primary investigative arm of the United States Department of Justice (DOJ). Â In basic terms, they are the lead agency in charge of law enforcement in the United States. Their motto is “Fidelity, Bravery, Integrity”.

The controversial government spying technique

There is a new Internet surveillance technique that the FBI is using to collect data on Americans. You might think theyâ€™re using this data collection in order to find out what a particular criminal suspect is doing and they are recording this for investigative and evidence purposes. The problem here is that FBI agents are collected data on the activities of thousands of users on the internet at one time. They are then placing these web histories of unsuspecting innocent people in huge government databases. These allegations have been collaborated by current and former government officials.

Types of data collected on citizens

The information they may have on you may include your name, email address and keywords you are searching for.

The FBI used to use the Carnivore surveillance system (renamed to DCS1000) but this new method of internet data collection is broader and more controversial than even that system.

This approach by the FBI is called the vacuum-cleaner approach by some. It is used when thereâ€™s a court order given to police to gather information on a suspect. However, if an ISP (Internet Service Provider, like AOL) canâ€™t isolate that person due to technical issues, they use this type of shotgun-scanning system.

The FBI can then record this information, which will include all Internet traffic, at the ISP side. They can then set it up to collect data on web browsing habits, emails, or instant messaging.

The law school symposium that started the scandal

Stanford University law school had a symposium called â€œBeyond a Physical Conception of the 4th Amendment: Search & Seizure in the Digital Ageâ€. Paul Ohm, a University of Colorado law professor who was a commenter at the symposium said that federal agents use this kind of â€œfull-pipe recordingâ€ as a default method for surveillance. Â “You collect wherever you can on the (network) segment,” Ohm said. “If it happens to be the segment that has a lot of IP addresses (Internet Protocol addresses; a computer’s unique numerical address), you don’t throw away the other IP addresses. You do that after the fact. You intercept first and you use whatever filtering, data mining to get at the information about the person you’re trying to monitor. The question that’s interesting…is whether this is illegal, whether it’s constitutional. Is Congress even aware they’re doing this?â€

“What they’re doing is even worse than Carnivore,” said Kevin Bankston, a Electronic Frontier Foundation staff attorney. “What they’re doing is intercepting everyone and then choosing their targets.”

Carnivore version two

The federal bureau dropped the Carnivore project two years ago. The bureau then basically outsourced this by having the Internet Service Providers do the surveillance and then reimburse the companies for the costs of such an operation.

Federal law versus the FBI

Federal law states that the FBI must perform â€œminimizationâ€. Minimization decrees that federal agents must “minimize the interception of communications not otherwise subject to interception” and keep the supervising judge informed. This gives some privacy by intending to limit eavesdropping on innocent conversations. The current rules allow FBI agents to listen to a phone call up to two minutes, with one minute in between the sessions. An interesting observation with this federal law is that it mentions real-time interception â€“ meaning agents actively listening to calls at the moment they occur. The law does not authorize the collection of huge information databases on thousands of innocent people. The closest the law comes to mentioning such a practice is: “In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.”

Some government officials feel the language authorizes the database collection. “Take a look at the legislative history from the mid ’90s,” says DOJ assistant deputy chief Richard Downing. “It’s pretty clear from that that Congress very much intended it to apply to electronic types of wiretapping.”

The Electronic Frontier Foundation staff attorney disagrees with that assessment. Kevin Bankston feels the FBI is “collecting and apparently storing indefinitely the communications of thousands–if not hundreds of thousands – of innocent Americans in violation of the Wiretap Act and the 4th Amendment to the Constitution.”

There might be a middle ground in this debate. The director of the Electronic Privacy Information Center in Washington, D.C., Marc Rotenberg, Â feels that a balanced way of conducting this is to require FBI agents to only come in contact with the information that is permitted by court order. “The obligation should be on both the (Internet provider) and the government to make sure that only the information responsive to the warrant is disclosed to the government,” says Rotenberg.

Related Posts:

Britney Spears Billboard Deemed Too Nuts

Michael — Thu, 01 Nov 2007 13:00:50 +0000

From Schimmer Legal:

A Florida radio station ran billboards showing Britney Spears and one of the station’s DJs, suggesting that she and DJ were ‘nuts.’ Ms. Spears contested the use. The radio station is pulling the billboards. Unfortunately, the Smoking Gun has printed only one of Britney’s lawyers letters, not the one that contains ‘many legal authorities.’ However this letter does site Florida statutes and law. Interestingly, the two cases cited do not apply to media defendants.

There is some precedent for media defendants to utilize someone’s name or likeness if the person was the subject of the media’s product. In Velez v. VV Pub. Corp., the Village Voice used an unflattering photo of local politico Ramon Velez (a subject of Voice exposes), in an advertisement for the Voice. The use of the photo fairly represented the Voice’s news coverage. 135 A.D.2d 47, 50, 524 N.Y.S.2d 186, 187 (1st Dept. 1988) (“[T]he incidental use in an advertisement by a news disseminator of a person’s name or identity does not violate the statutory proscription, if it had previously published the item exhibited as a matter of public interest.”

In Montana v San Jose Mercury News, the newspaper sold posters of Joe Montana following a Super Bowl victory, which posters were held to have news value due to their ‘relatively contemporaneous’ publication. Because the use was in connection with merchandise rather than a mere advertisement for the newspaper, this ruling seems like a bit of an outlier. 34 Cal.App.4th 790 (1995).

See more discussion by Stanford University Library here.

If you’re aware of Florida caselaw that would suggest how a media defendant using a name or likeness in advertisement for its services might fare, send it on in.

Related Posts:

No Sex Offenders with Candy on Halloween

Michael — Wed, 31 Oct 2007 18:00:47 +0000

Trick or treat, give me something good to eat.

Unless you’re a sex offender, in which case you’re going to jail.

There’s a law in New Jersey that forbids sex offenders from giving out candy on Halloween. That means Lester down the street won’t giving out chocolate yum-yums this year.

Don’t think this law is only going to affect a small number of people. Did you know there are 2,200 sexual crime offenders registered in the state of New Jersey?

It makes you think though, how many of these sex offenders used candy to lure children? Did any of them poison food or candy and then give it to them? Did they somehow put some sort of date rape drug in candy or food?

It seems the main goal is to prevent the contact between children and sex crime offenders. It’s a very reasonable concern. Most parents are already wary of their children coming into close contact with strangers, now add the fact that these strangers are convicted sex offenders and that concern raises to another level. People nowadays are scared to let their children out alone and if they know a convicted sex offender is out there then they’re even more scared.

Do sex crime offenders commit their crimes again? If they’ve paid their dues to society shouldn’t they have the same rights as everyone else?

Let’s get some facts. The term for repeat offenders is recidivism and the rate of repeating the crime is recidivism rate. The problem with getting accurate numbers here is that the rate for actual reporting sex crimes is very low. Victims of sex crimes are twice as likely to tell friends and family than they are to go to authorities, like the police. And then we look at the actual sex offenders. A study performed lie detector tests (polygraph) on sex offenders in prison who had committed their crimes on less than two known victims. The researchers discovered that these offenders actually averaged 110 victims and 318 offenses. So there is a major problem with under-reporting sex crime offenses.

How are they going to keep tabs on these sex crime offenders to make sure they aren’t giving out candy?

There will be at least sixty parole officers and members of the 12 district officers patrolling and checking on the offenders. Sixty officers versus 2,200 sex offenders? Hmm, seems like there’s a number disparity here. But with police departments already stretched so thin, it’s a tough situation for police departments. Officers have to be patrolling other areas where public safety may be at risk also.

Classic Public Service Announcement Video:

Related Posts:

You Can Get a DUI Even If You’re Not Driving

Michael — Mon, 29 Oct 2007 23:59:38 +0000

An appellate court ruled that a conviction for driving under the influence of alcohol can be imposed on someone who isn’t driving but is behind the wheel.

Say what?

Well, David Montalvo, 36, was sleeping in his GMC pickup truck in the parking lot of a Market Place Deli, apparently sleeping off the effects of his drinking from the night before. A police officer from the Hamburg Police Department knocked on his pickup truck window at 5am in the morning. When Montalvo awoke, the officer instructed him to take a Breathalyzer test due to suspicion of drinking, but Montalvo refused to take the test.

Montalvo was arrested and entered a forced conditional guilty plea. His lawyer, Evan M. Levow, argued that the officer had no reasonable grounds to suspect a criminal activity on a guy sleeping in his truck. One key piece that may have affected the situation is that his car was running, although it was parked. The temperature was 25 degrees Fahrenheit so he apparently had the heater running.

The appellate court disagreed with Montalvo and Levow.

“From the perspective of the officer on the scene, I don’t find at all that what he was doing was unreasonable. In fact, I find it would have been unreasonable to have stopped his inquiries at any point short of what he did,” said Superior Court Judge Thomas Critchley Jr. “The officer wanted to make sure the driver was ‘okay,’ nothing was wrong with the businesses and that the truck was operating properly. We are convinced that under the facts as observed by Officer Aaronson defendant was lawfully subject to limited inquiry based upon an objectively reasonable exercise of the officer’s community caretaking function.”

Now the sleeping motorist has a DUI on his record, a “driver responsibility” tax of $3000, miscellaneous fines and fees of around $1000 and legal bills to take care of.

Doesn’t seem right to me. Wasn’t he doing the right thing sleeping off his drunkenness in a parking lot?

I can see both sides of it.

On one hand, the police officer has a duty to keep drunk drivers off the street. How can he be assured that half an hour later he’d wake up and still being intoxicated drive around and smash into something or someone?

On the other hand, it’s much better to have a drunk driver sleeping it off in a parking lot than trying to get home drunk. Do you think maybe this ruling may cause more people to drive home drunk because they’ll be scared a cop will give them a DUI for stopping somewhere to sober up? It’s a tough situation for sure.

Legal Filing: A-1303-06T5 STATE OF NEW JERSEY VS. DAVID MONTALVO
(SUSSEX COUNTY AND STATEWIDE)

Related Posts:

When Years Can Equal Anuses in a Court of Law

Michael — Thu, 25 Oct 2007 02:29:20 +0000

Do you have 21 anuses?

How would you feel if a police officer asked you that?

Well that’s what happened to a super drunk Spanish speaking driver.

A man gets pulled over because the cops on the case find him suspicious of driving under the influence (DUI). When they pull him over, they find out that he can only speak Spanish. So they call over another officer that speaks Spanish. He shows up and reads the driver his Miranda rights and they give him a breathalyzer.

The dude is completely blasted off his mind drunk.

So the cops think, ok this is a done deal, he’s going to jail for DUI. We have our case sealed and this guy is going down with a definite conviction. But a twist in the case comes in. The driver’s attorney submits a motion to void the results of the breathalyzer. His lawyer says that the drunk driver of the car didn’t really understand his rights before he was administered the breathalyzer test. The police officers are dumbfounded because they even read everything off a card to make sure they got everything right in Spanish.

The defense lawyer then displays the card that’s in Spanish which the officers used. In the card, there’s a section in which the officer is supposed to ask the suspected drunk driver if he is 21 years old, which is translated to, “Tienes veinteuno aÃ±os?”.

However, there was a small problem with that.

There was no tilde over the n, resulting in, “Tienes veinteuno anos?”

Big difference.

In Spanish, aÃ±os means years. But anos translates to anus.

Yes, the driver thought they asked him, “Do you have 21 anuses?”

The weirdest part of it all? The defendant answered, “Si.” (Yes.)

To top it all off, once they’re all in court, the defense attorney won’t even use the word “anus”. He instead calls it “the back region”.

So remember, if you’re ever in danger of DUI, use the Anus Defenseâ„¢. In fact, we are trademarking the phrase. All royalties must be directed to me. Paypal accepted. Rates are negotiable.

Related Posts:

Scream at Your Toilet and Get Fined or Put in Jail

Michael — Sun, 21 Oct 2007 04:25:07 +0000

Apparently it’s illegal to scream at an overflowing toilet.

Dawn Herb, a woman in Scranton, Pennsylvania, was cited for disorderly conduct and could face up to 90 days in jail and a fine up to $300.

“It doesn’t make any sense. I was in my house. It’s not like I was outside or drunk,” said Ms. Herb. “The toilet was overflowing and leaking down into the kitchen and I was yelling (for my daughter) to get the mop.”

She admitted to using some profanity near an open bathroom window.

The big problem for Dawn is that her next door neighboor was a police officer. He asked her to keep it down, she didn’t, so he call the cops on her.

“You can’t prosecute somebody for swearing at a cop or a toilet,” said Mary Catherine Roper, an attorney with the American Civil Liberties Union in Philadelphia.

The thought now comes up: is this really against the law? Is getting pissed off at your toilet a crime? Is toilet-screaming now illegal?

The quick answer to this bathroom brawl? No.

This is the text of 18 Pa.C.S. Â§ 5503(a), which is Pennsylvania’s prohibition on disorderly conduct:

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

Â Â Â (1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

Was Dawn engaging in fighting or threatening, or in violent or tumultuous behavior? Not unless you count toilet-warfare as violent, no.Â Was she making unreasonable noise? Let’s remember the statute says “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”. She definitely didn’t do that. Did she use obscene language? Well yes she did but, again, keep in mind she didn’t do it “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”. And we can pretty much throw out the “creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Our main point that we should take from this is not to let others dissuade you from having a good time under the guise of “disorderly conduct”. I can’t tell you the amount of times people have tried to use that excuse to prevent people from doing a fun, non-violent, legal activity that may produce some noise. Remember, disorderly conduct goes hand-in-hand with public unruliness which may lead to disorder and tumult. Just noise does not break the public peace! Yes it can piss off people that may want to go to sleep. Yes, 91 year old people who like their “peace and quiet” may throw their walker at you.Â But noise in-and-of itself does not cause the crime of disorderly conduct! It is not meant as a catch-all condition for any little thing that can disturb or annoy someone.

In this case, Dawn was in her home and her neighbor seems to be the only person that was disturbed by this. Her neighbor may have a right to be pissed off. He may have the right to not talk to her again. He may have the right to not bring fruitcake to her house in the Holidays. But disorderly conduct? You sir, are the one out of order.

Related Posts:

Get Caught Stealing and Face Public Humiliation

Michael — Mon, 15 Oct 2007 16:00:59 +0000

Imagine carrying a sign in front of the local courthouse that reads: “I stole from a local store.”

Imagine doing that at 12pm. Under the hot beating sun. With sweat dripping down your forehead. For two hours.

If you get caught stealing and you end up in Putnam County Judge Peter Miller’s courtroom, that just might be your punishment.

”It is better than going to jail, but it’s not fair,” said Rashane Lewis, who was arrested for being the lookout in a Wal-Mart while a friend of hers took some children clothes.

Over the past twelve years, Judge Miller has sentenced over 600 people to these unusual punishments either outside the courthouse or at the store where the incident took place. Walking around with an embrassing sign is his preferred method to deal with shoplifters.

According to the administration of the Putnam Count probation system has said only three of Judge Miller’s sign carriers has repeated their offense. He, along with other judges around the United States believe that public penitence, involving some sort of public humiliation works to rehabilitate convicted offenders.

‘If you see someone marching up and down in front of a store, you may think twice before stealing. I’m not going to say it is going to prevent it, but it will stop the one who did it from doing it again,” said Judge Miller.

He gives the offenders an option. Take a 30-60 day jail sentence or endure two hours of public embarassment. Along with their choice, they must perform 25 hours of community service, they have six months of probation and they are fined $294.

Like I mentioned earlier, Judge Miller isn’t the only judge in the U.S. to have these unusual and creative sentencing ideas.

Take Ohio Municipal Court Judge Michael A. Cicconetti in Painesville for example. Teens had yelled “Pigs” to some local police officers. He had the teens stand on a busy street corner with a pig and a sign reading, “This is not a police officer.” He had three men who were arrested for soliciting prostitution wear chicken suits and carry a sign with them that read, “There is no chicken ranch in Painesville.” He also sentenced a couple who stole a baby Jesus statue from a manger to dress up as the Virgin Mary and Joseph and walk around Painesville with a donkey at their side.

In Harris County, Texas Judge Larry Standley had a man who hit his wife take yoga classes as a form of anger management.

In San Francisco, a man convicted of mail fraud was sentence by a judge to walk outside of a post office with a sign reading, “I stole mail. This is my punishment.”

“We don’t like it, but what he does is legal,” says Assistant Public Defender Mack Brunton. “It doesn’t take a rocket scientist to know that this is his way to encourage them not to do it again. It seems to work fairly well.” When defendents are given the option of either jail or carrying a sign, most people “cringe.”

“They hate it. They would rather jump off a cliff than carry the sign. They would pay more money. They would swim the English Channel,” says Mr. Brunton.

There is precedent for these public humiliation sentences in history, so don’t think this is anything new. Back in colonial times, those that broke the law were made to sit in stocks, which consisted of a frame in which the culprit’s hands and/or feet were confined while the offender remained seated. Villagers would taunt these people and throw rotten fruits and vegetables. And yes, they would sometimes even throw excrement. That’s when you know your neighbors really don’t like you.

A Connecticut professor at the Quinnipiac University School of Law named Quilliam V. Dunlap has researched cases that end in an usual sentence. He hasn’t come across any studies that reveal anything about whether jail time or public humiliation is a better crime deterrent.

”They don’t amount to cruel and unusual punishment. They are unusual, but most of them as not as cruel as sending someone to jail or prison,” said Mr. Dunlap.

Even though it may be preferable to jail time, those that have to undergo the humiliation don’t seem to like it. “This is just a humiliating stunt,” said Wal-Mart shoplifter Rashane Lewis.

Related Posts:

Principal Demands Leprechaun Students To Wash Out Their Hair

Michael — Thu, 02 Aug 2007 03:17:49 +0000

From May It Please the Court:

Self-expression is one of the keys to individuality.Â Consider leprechauns, for example.Â Two of them, Jaclyn Timmering and Kurisa Suhr,Â put on some Irish outfits (what else?), dyed their hair green and went toÂ John H.Â Eader ElementaryÂ school in Huntington Beach yesterday.Â The two, eight-year-old third graders had planned their St. Patrick’s Day celebration for weeks, wearin’ plenty o’ green and evenÂ T-shirts that read: Â ”Be Lucky” and “Good Luck Girl.”

Unfortunately, the St. Patrick’s Day celebration turned into a dud.

Their Principal, Cynthia Guerrero,Â was none too happy with their temporarily-sprayed green hair, applied willingly byÂ Jaclyn’s mother.Â Â When theÂ green-clad and green-maned girlsÂ arrived at school, the PrincipalÂ gave the girls three choices:Â wash the dye out, spend the day in the Principal’s office or go home.Â The girls were crestfallen.Â What had planned to be “the best day” of their lives turned into the worst.Â The girls’ school district in Huntington Beach has a policy that discourages dyed hair.

The problem with the policy, however, is that it can only be unevenly applied.Â Many Irish folks that I know, including their children, have red hair.Â As a Welshman, I have brown hair (yes, I know it’s got more grey in it, but stay with me here).Â In the summertime, my hair starts to turn red from the sun.Â When I was younger, say for example eight years old, my hair could easily go from brown to substantially red, pretty much on its own.Â My daughter’s hair is blonde, and she can turn it more blonde overnight.Â Perhaps surprising to us all, many blondes are not true blondes, and many other hair colors may not be completely natural.

If you’re a Principal who likes purpleÂ - not a hairdresser – how do you know for sure?

Green hair, and perhaps a few others like blue or magenta are easy to spot and punish.Â But I’m willing to go out on a limb here and bet that the Huntington Beach School District does not evenly enforce this policy among its students, and especially among its high school students.

Beyond the unequal treatment (we lawyers would call it arbitrary and capricious), it’s a celebration for God’s sake.Â Let the kids have some fun for a day.

What Â should we expectÂ from a Principal whose choice of a “historical figure to have dinner with” is Oprah Winfrey (see her response to Question #9 in the “purple” link above)?Â MIPTC suggests we send the Principal to a day of sensitivity training, and let the littleÂ leprechauns dress up and have a good time.

Related Posts: