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Bad Cop Blotter

I first started following Lucy Steigerwald’s writing when she wrote for Reason Magazine.  She is now writing for Vice.com in  a weekly piece called the Bad Cop Blotter.  The Bad Cop Blotter collects stories of police misconduct from around the country and makes an article of it all.  Since I take a special interest in civil rights issues and police misconduct in particular, I will try to share this article with you each week.  I hope you enjoy. 

If you are facing an asset forfeiture for a criminal act you have committed, don’t look to Bankruptcy Court 1bankruptcy to take care of your problems.  Under the well-established relation-back doctrine, the Government’s interest in forfeitable property vests at the time of the offense giving rise to the forfeiture, and the property subject to forfeiture is not estate property subject to the automatic stay. 

Although the automatic stay in bankruptcy can eliminate one’s obligation on a host of financial responsibilities, any asset forfeiture related to a criminal case is not affected by the filing of bankruptcy.  11 U.S.C. 362(a)(1) says that the automatic stay does not affect “the commencement or continuation of a criminal action or proceeding against the debtor.”  Further, because criminal asset forfeitures are brought by the government, the automatic stay also is inapplicable to them.  A stay does not affect “the commencement or continuation of an action or proceeding by a governmental unit… to enforce such governmental unit’s… police and regulatory power.”  11 U.S.C. 362(b)(4). 

In a criminal asset forfeiture case, the government’s interest in forfeitable property vests at the time of the offense that gave rise to the forfeiture, and the property subject to forfeiture is not estate property subject to the automatic stay.  “All right, title, and interest in [forfeitable] property… vests in the United States upon the commission of the act giving rise to forfeiture under this section.”  United States v. United States Currency, 895 F. 2d 908, 916 (2d Cir. 1990)  Because “the forfeiture occurs when the crime is committed,” a defendant has no interest in forfeited property “as of that moment.”  Therefore, the automatic stay of bankruptcy does not affect criminal forfeiture proceedings, which may continue unabated during the course of a bankruptcy. 

Unfortunately, one of the tools state and federal legislatures are adopting is to create civil penalties for criminal behavior.  One civil penalty used frequently in the war on drugs has become the Civil Asset Forfeiture which is commonly used to seize private property that has been used to facilitate violations of various drug laws.

One of many harsh outcomes of America’s over-enthusiastic war on drugs is that the protection of bankruptcy afforded Americans in the Constitution cannot protect property and assets from seizure when it has been involved in a drug forfeiture case. 

Safety Board Recommends Blood Alcohol Level be Reduced to .05

drunk-driving-signThe National Transportation Safety Board has recommended that states reduce the legal limit for driving under the influence of alcohol from .08 to .05.  The Board, which has no authority to implement changes, which are left to states and the Department of Transportation to adopt, says lowering the limit will reduce the 10,000 fatalities per year due to drunk driving.  According to the board, one person dies in a car crash that involves a drunk driver each hour, and 20 more people are injured, including three who develop debilitating injuries.

The last reduction in legal blood alcohol limits from .10 to .08 took 21 years for all states to implement.  However, if the Department of Transportation decides to implement a .05 BAC level it would likely force states to comply by denying highway funding to states that do not make the change.

There will likely be a significant backlash against any reduction in blood alcohol limit for driving.  “This recommendation is ludicrous,” Sarah Longwell, the managing director of American Beverage Institute told NBC News. ”Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior.”

The Board, aware of the potential backlash, has recommended harsher penalties for for offenders and better use of emerging technologies to detect alcohol. They are also pushing for more research into developing technologies — such as breathalyzers linked to the ignition — that could be placed in cars to identify at-risk drinkers and prevent intoxicated people from getting on the road.

The Law Office of Zachary Bushatz, LLC is dedicated to fighting for the rights of accused drunk drivers.  Even under the current OVI/DUI laws, accused drunk drivers face penalties and repercussions for crimes they haven’t even been convicted of yet.  Typically, a driver arrested for suspicion of OVI have the driver’s license suspended before they are even convicted of the crime.  Reducing the legal limit from .08 to .05 would just exasperate current problems associated with OVI laws.  Instead of lowering the legal limit, I believe a focus should be made to improve current laws and protect both innocent drivers and those who have been accused of a crime they have not yet been convicted of.

If you have been arrested for an OVI you need an attorney to protect your rights and help you navigate the difficult and complicated legal process.  Contact the Law Office of Zachary Bushatz, LLC at 937-331-8061 today and see how he can help you with your legal problems.

Divorce and Bankruptcy

Many times bankruptcy and family law go together.  Sometimes it is because one person can no longer afford the expenses that two people used to contribute to.  Other times it is that one spouse has taken on a significant amount of debt in the divorce settlement.  Bankruptcy offers a solution to these problems.

When a person files couple struggling with billsbankruptcy after a divorce is finalized, they can discharge most of the debt they have accumulated in the divorce.  Barring an agreement between the parties in a divorce decree that one party will not discharge their debts in bankruptcy, a person can file for bankruptcy and eliminate all dischargeable debts.  These debts typically include credit card bills that the couple shared that one spouse took in the divorce.  If one spouse took possession of real estate but can no longer afford the payments with just one income, they can file for bankruptcy protection to avoid liability of any deficiency owed.

One kind of debt that is not dischargeable that comes up in family law situations is alimony or spousal support.  Both alimony and spousal support are specifically listed as non-dischargeable by the bankruptcy code, so declaring bankruptcy on these debts will not discharge them.  However, many times bankruptcy is the best option for someone who has accumulated a massive amount of debt after going through a divorce.

If you are facing increased financial pressure because of a divorce or reducing income from two earners to one, contact the Law Office of Zachary Bushatz, LLC at 937-331-8061 and set up a free consultation today.

Student Loans – A New Debt Crisis for the Nation

According to a new federal report, more than 1 in 4 borrowers are likely delinquent in repaying their student loans, a number much higher than the 14.6% delinquency rate suggested by previous calculations.

Student Loan Debt on the Thinker      The Federal Reserve Bank of New York calculated delinquency rate of 14.6% by comparing the total number of people with student loans (about 37 million) to the number of people with at least one past-due student loan account (about 5.4 million).

But the Los Angeles Times reports that this undercounts the actual rate of student loan delinquency.  The calculation used by the Federal Reserve fails to consider that federally guaranteed loans don’t have to be repaid until six months after a student graduates.  According to the Times report, adding borrowers with outstanding federally guaranteed loans, the rate of past-due student loan balances jumps to 27%.

Not only is the amount of delinquent student loan borrowers soaring, the amount owed is also astronomical.  According to the Federal Reserve, Americans owe about $870 billion in outstanding student loans – more than what Americans owe for credit card debt ($693 billion) and car loans $730 billion).  On average, student loan balance stands at $23,300 per borrower.  But there are about 167,000 student loans borrowers – about 0.5% of the total – who owe more than $200,000.

If you have student loans that are to burdensome to manage other debt, contact The Law Office of Zachary Bushatz, LLC at 937-331-8061 to see how I can help you with debt relief or visit my website www.bushatzlaw.com

Study finds cancer diagnosis results in higher rates of bankruptcy

Stethescope and moneyA new study finds that cancer patients are 2.65 times more likely to file for bankruptcy than people without cancer.  The problem is even more dramatic for younger individuals who contract cancer.  Younger cancer patients were two to five times more likely to file for bankruptcy than cancer patients 65 years or older.

Researchers looked at a variety of factors in their study, including looking at medical, personal, legal and bankruptcy statistics in the Western District of Washington State from 1995-2009.

If you are experiencing financial difficulty because of unexpected health issues bankruptcy may be an option to help eliminate your debt.  Contact the Law Office of Zachary Bushatz, LLC at 937-331-8061 for a free consultation today.