'Flaming Bartenders' Avoid Conviction

Interesting reprint from VLW:

A Fairfax County judge dismissed misdemeanor charges against two bartenders who once faced felony counts for their “fire breathing” trick at a Herndon tavern.

The Fairfax County fire marshall arrested the pair in July after witnessing them perform the “flaming bartender” trick, reports the Fairfax Times. The feat involved spitting high-proof alcohol onto a flame.

They were originally charged with the felonies of manufacturing and using an explosive device; setting a fire capable of spreading; and burning or destroying a meeting house. Commonwealth’s Attorney Ray Morrogh dismissed these charges in August.

The remaining charges were dismissed Wednesday in General District Court.  Both bartenders have vowed never to perform the trick again.


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Daughter was abused at school, lawsuit claims

Reprint of interesting VLW article:

Parents of disabled child file $1 million lawsuit against Lee County teacher, principal

By Wes Bunch

JONESVILLE — An elementary school special education teacher and a principal in Lee County are facing a $1 million lawsuit from parents who claim the pair abused and neglected their disabled child.

The lawsuit was filed in Lee County Circuit Court last week by the 12-year-old girl’s parents, Brenda and Charles Sprinkle Sr. It names the child’s former teacher at Elk Knob Elementary School, Connie Burchett, and Principal Lisa Stewart as defendants.

The suit claims that Burchett, who currently teaches at St. Charles Elementary School, was “grossly negligent” in her duties as a special education instructor and physically and emotionally abused the child over a period of time that stretched from October 2009 to March or April of this year.

The Sprinkles are seeking $1 million in damages and the payment of all of their daughter’s past, present and future medical and therapy bills as a result of the “physical and emotional harm” they allege she suffered.

The allegations levied against Burchett include claims that she mocked the girl’s disabilities and allowed her to remain in soiled clothing “for hours at a time.” The suit continues with allegations that Burchett subjected the child to “physical and emotional intimidation, shock and trauma, assault and battery,” and “shame and humiliation.”

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FDA: Chelators Not Acceptable Treatment for Autism

Reprint of interesting article form VTLA Eclips. The U.S. Food and Drug Administration (FDA) Thursday began cracking down on "dangerous and illegal" over-the-counter chemicals that are touted as treatment for autism and other conditions. The products, called chelators, can cause kidney damage, dehydration and even death and have not been approved by the FDA. The agency sent warning letters to a group of companies that are selling the products against federal law. Trine Tsouderos, LA Times  10/14/2010

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Lender's mistake leads to homeowner horror

Reprint of interesting article from Virginia Lawyers Weekly:

Couple unable to stop auction; bank purchases home to remedy situation

By James Heffernan-jheffernan@nvdaily.com

 

MIDDLETOWN -- A local couple will have to trust that the bank whose mistake nearly cost them their home will make good on a promise to restore them as its rightful owners.

Roy and Stephanie Mitchell were notified last Friday that the house they purchased this past summer was to be sold at auction Tuesday, despite the fact that they hadn't missed a payment.

Mrs. Mitchell said the former owners defaulted on the property, which the couple purchased in July. They have a copy of the deed, she said, as well as a report showing that the bank received its money from the sale.
"We can't understand it," she said. "We thought we did everything we were supposed to do."

The property, at 8049 Main St., is the Mitchell's first home.

"We wanted to live in this area," said Mrs. Mitchell, a former Northern Virginia resident who moved to Winchester nine years ago. "We waited for the right opportunity, and we were in a bidding war for the house. There were a lot of hoops we had to jump through."

The Mitchells and their real estate agent, Barbara Bailey of Holler Realty in Woodstock, believe the dispute over the title dates to when the bank foreclosed on the property.

They say the lender, Deutsche Bank Group, either lost or never filed the second of two required mailings involved in the transaction.

"We were told that because the trustee's notice they filed was in question, our deed was in question," Mrs. Mitchell said. "The bank didn't see our deed in their records, so they went forward with the auction."

Prior to the proceedings Tuesday outside the Winchester-Frederick County Joint Judicial Center, auctioneer Todd Fisher informed the Mitchells that the sale could not be stopped, and that the only way to remedy the situation was for the bank to buy back the property and issue a confirmatory deed.

The bank did in fact reacquire the property and has promised to make things right, according to Bailey, though it may take two to three months for the couple to receive the corrected title.

"They have said, 'Trust us. This will not hurt you. We will give you a deed, and everything will be the same,'" Mrs. Mitchell said.

For first-time homebuyers like the Mitchells, that's a leap of faith, according to Bailey.

"Until you have that deed in hand, there will always be that fear," she said.

The negligence that led to the Mitchells' nightmare is becoming more common as banks across the nation deal with a glut of foreclosures. State attorneys general are calling for an investigation into whether the mortgage industry has been rubber-stamping foreclosure paperwork to boost business.

Last week, Bank of America became the first bank to stop seizing foreclosed homes in all 50 states while the claims are sorted out. PNC Financial Services, GMAC Mortgage and JPMorgan Chase have announced similar moves in at least some states.

"These big banks are running roughshod," Mrs. Mitchell said. "What if we hadn't been notified [about the auction]? Someone would have bought our house, shown up on the doorstep and said we need to move out.

"This could happen to anyone," she added.

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Virginia to join foreclosure investigation

Article is an interesting reprint from the Virginia Lawyers Weekly:

Virginia to join foreclosure investigation

By Virginia Lawyers Weekly
Published: October 12, 2010

 
Virginia Attorney General Ken Cuccinelli has joined 48 other state attorneys general in a multi-jurisdiction investigation of bank paperwork errors that have led banks and processing firms to suspend foreclosures across the country. 

At issue is whether employees at banks and foreclosure processing firms signed court documents that had unverified or false information in an attempt to speed up the process. Cuccinelli said the joint investigation will review the practice of so-called “robo-signing” within the mortgage service industry.

“Obviously this issue affects people’s homes as well as the economy,” Cuccinelli said in a news release Wednesday. “This probe will be thorough, expeditious, and fair to both homeowners and lenders.”

Confirming Virginia’s planned participation in the investigation in Roanoke Tuesday, Cuccinelli suggested his was not a targeted investigation. “There are no accusations, no nothing yet,” he said. It’s just an investigation.”
Iowa Attorney General Tom Miller is heading up the bipartisan multistate group that will undertake a coordinated probe of potentially flawed foreclosures nationwide. Geoff Greenwood, a spokesman for Miller, said Bank of America’s decision last week to temporarily halt foreclosures nationwide showed that the industry needed to slow down.

Alabama is the only state not to join the investigation group.

Richmond lawyer Henry McLaughlin III, whose practice is devoted to foreclosure prevention, was happy to turn away some potential clients on Oct. 8 after BOA announced it was halting foreclosure sales in all 50 states.

“I have talked to a number of very happy clients who had called me about pending foreclosures” by BOA, he said. McLaughlin told several people who had consulted him that they might not need him just yet, or maybe ever, if they were facing a BOA foreclosure. His own pending cases against BOA are claims for damages, not efforts to halt foreclosures.

“I don’t think this is overall a good thing. I do think there are problems” with paperwork, and not just with BOA. McLaughlin applauds the Virginia attorney general’s interest in joining the multi-state investigation. “There’s more to be discerned about this,” he said.

JPMorgan Chase and GMAC also have halted foreclosures in the 23 states where courts review foreclosure cases. According to news reports, PNC Financial Services Group Inc. said it would halt sales of foreclosed homes for a month as it reviewed documents. On Friday, Houston-based Litton Loan Servicing LP, owned by Goldman Sachs, agreed to also halt some foreclosures.

“The mortgage industry is getting the message that this is serious, it’s wrong, and we will stop it,” Miller said in a prepared statement. 

Miller said the group’s scope could expand. He said submitting foreclosure documents without verification, or with false representation, as well as signing some legal documents without notarization might violate state laws and court rules. 

“These are starting points, and it’s possible this group may limit, expand or change its objectives,” Miller said. “What’s important here is this is a cooperative and coordinated effort by states to address a serious problem. This is not simply about a glitch in paperwork. It’s also about some companies violating the law and many people losing their homes.”

In some states, including Virginia, lenders can foreclose quickly on mortgage borrowers who are delinquent. No judicial action is required. Other states — including Ohio, Connecticut, New York, New Jersey and Illinois — use a lengthy court process for foreclosures. They require documents to verify the accuracy of the loan information including who owns the mortgage.

In what has become known as “robo-signing,” some employees have admitted under oath to signing thousands of affidavits and documents without fully reading or understanding them. The affidavits verify the accuracy of the loan information, including who owns the mortgage. The practice has sparked action from officials who are concerned people have lost their homes to sloppy paperwork.

Raquel Guillory, spokeswoman for Maryland Attorney General Douglas F. Gansler, said Maryland would be part of the multi-state group to make sure the state’s residents have not been affected by the practice.
“We don’t know if there is robo-signing going on in Maryland, but there might be,” Guillory said. “Halting these foreclosures will give the banks time to figure it out.”

North Carolina Attorney General Roy Cooper launched an inquiry and sent letters to 14 lenders, including Charlotte-based Bank of America, asking the companies to suspend foreclosures in North Carolina until they can show that their affidavit procedures have been reviewed and are in compliance with the law.

“If mortgage companies are using potentially unlawful practices to push through foreclosures in North Carolina, that needs to stop,” Cooper said in a prepared statement. “Foreclosures have to happen when people don’t pay, but homeowners deserve a fair shot at keeping their homes when possible.”

Some though are concerned a widespread moratorium could have a negative impact on the economy.

White House adviser David Axelrod said Sunday the administration is pressing lenders to accelerate their reviews of foreclosures to determine which ones have flawed documentation. Axelrod said flawed paperwork was hurting the nation’s housing market as well as lending institutions, but said there are valid foreclosures that probably should go forward because there were not problems with the documents.

Rick Sharga, a senior vice president at foreclosure listing service RealtyTrac Inc., agreed that it was easy to see where the public outcry against the banks and processing firms came from. But, he said a blanket moratorium could hinder a housing market trying to recover.

“Clearly the kinds of shortcuts they were taking were inexcusable, especially five years into this mess,” Sharga said. “It’s easy to understand the outrage, but you have to be a little careful of overreacting that could have some serious unintended consequences for the economy.

“The last thing this economy needs is a moratorium of any sort,” Sharga added. “It would be disastrous for the housing market.”

- By Ben Mook with additional reporting by Peter Vieth and Deborah Elkins

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New Breath Machine, New DUI Defenses?

The following article is an interesting reprint from Virginia Lawyers Weekly:

New breath machine, new DUI defenses?

By Alan Cooper
Published: October 8, 2010
Tags: DUI

WILLIAMSBURG – Meet Virginia’s new breathalyzer, same as the old breathalyzer.

“Both instruments are equally accurate and precise,” says Alka Lohmann, the woman responsible for calibrating the state’s breath alcohol machines and training their operators.


She’s talking about the Intoxylizer 5000 and the Intox EC/IR II, the machine that replaced the Intoxylizer 5000 by April 2009.


That certitude, and Lohmann’s insistence that medical conditions don’t affect the machines’ readings, drive defense attorneys crazy when they represent accused drunken drivers.


Defense lawyers acknowledge the newer machine is generally accurate. But they are exploring possible technical defenses that can nibble around the edges of the prosecutor’s case and give a client leverage. An Oct. 1 program in Williamsburg highlighted some of these challenges to use of the new EC/IR II.

0.08 and beyond


When it comes to filing charges and finding defenses, the magic number for both prosecutors and defense attorneys is 0.08 percent. That is the level at which a judge or jury is allowed to infer the driver was under the influence of alcohol. At 0.15 percent, mandatory penalties kick in.


If the reading is 0.08 percent or higher, the officer takes the suspect’s driver’s license for seven days – 60 days for a second offense or until the trial date for a third offense.


A DUI conviction for a reading of 0.08 to 0.15 percent usually results in a fine and a restricted license for a year that typically allows only driving to work and a few other essential trips, according to Michael C. Tillotson, the Newport News attorney who organized the Williamsburg program.


The stakes go up at 0.15 percent, Tillotson said. There’s mandatory jail time of five days, and, if the defendant is lucky enough to get a restricted permit, he can drive only if his vehicle is equipped with an ignition interlock system that he has to pay for. The device detects whether he has alcohol in his breath, and the car won’t start if he does.


For a defendant facing enhanced penalties, a lawyer needs to look closely at the particular defendant and at the particular machine used to determine BAC.


Medical conditions, such gastroesophageal reflux disease (GERD), diabetes, a fever – even belching – can result in inaccurate readings.


The argument involving GERD, for example, is that alcohol from the stomach, in addition to the alcohol from the lungs the machine is supposed to measure, can elevate the blood alcohol reading from the machine.
Lohmann maintains the EC/IR is designed to differentiate alcohol in the mouth caused by acid reflux from alcohol in the lungs. When operators follow correct procedures, it minimizes the likelihood of a false reading because of a health condition, she said.


A breath test cannot be conducted for at least 20 minutes if a suspect has belched because the belching can mix stomach alcohol with breath alcohol and give a false reading.


The training protocol also requires two tests at least two minutes apart. Test readings must be within 0.02 of each other for the test to be valid, and the suspect gets the benefit of the lower reading.


Some machine data available


Those procedures are recorded in a detailed database, from the steps involved in the test of an individual suspect, to when the machine was calibrated or had its software upgraded.


If an attorney submits a request to the Department of Forensic Science under the Freedom of Information Act for details about a client’s interaction with the machine, the department routinely provides a computer-generated log of every event involving the machine within five days before and after the test of the suspect. Lohmann said the department gets about 100 such requests a week.


Corinne Magee, a Northern Virginia attorney who attended the program, said she routinely files such requests and analyzes the responses for anything that might suggest an irregularity in the machine or in the way an operator conducted the test.


She said EC/IRs typically report a “deficient sample” in at least a quarter of the tests.


Lohmann counters that she regards that reading as an indication of the type of sample the suspect must provide. A proper reading can be produced only by a slow, steady breath, unlike the huffing and puffing that produced the best result in the Intoxilyzer.


One thing the attorneys don’t get is details about the programming of the software for the machine.
The manufacturer and the department should be willing to explain the reasons for routine software upgrades that are reflected in the maintenance records for the machines, said Thomas E. Workman Jr., a Massachusetts lawyer with an electrical engineering background, who spoke at the Williamsburg program. “If it’s important enough to tell you that a change was needed, it’s important enough to know why,” he said.


Workman is among a number of lawyers across the country pressing for the source code on the EC/IR’s software, information the manufacturer says is proprietary.


Magee said acquiring the code is important because “it’s the only way we can figure out whether the machine is doing what it’s supposed to be doing.”


DUI defense lawyers also have problems with how precisely the machine does what it is supposed to be doing. It translates measurements it takes into BAC, but that translation is based on two assumptions: the temperature of the air exhaled into the machine is 93.2 degrees Fahrenheit, and the so-called “partition ratio” for converting a breath sample reading to BAC is 2,100 to 1. Variations in the actual temperature and in the metabolism of individual suspects make those assumptions unwarranted, lawyers say.


The variations can mean that a breath alcohol reading of 0.08 or 0.09 percent actually represents a BAC of 0.06 or 0.07 percent, they argue.


“I just wish [the manufacturer and DFS] would be fair and acknowledge that there are problems,” Tillotson said.


They operate from the premise that “any ideas of variability undermine the whole system,” he said.

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