On June 1, 2010, the Court issued an opinion in Berghuis v. Thompkins.   New York Times article.

This case did not alter the Miranda requirement that a suspect be told he or she has the right to remain silent.   However, the Court held that statements made by a defendant who received such warning and who did not expressly waive or invoke his or her rights, but who only spoke after remaining silent through hours of interrogations, may be admissible.

In this case, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.   He then remained silent through three hours of questioning.   Then, Mr. Thompkins did eventually give a one word answer “yes” to a crucial question:  “Do you pray to God to forgive you for shooting that boy down?”   His affirmative answer to this question was used against him at trial and he appealed.  The U.S. Supreme Court held that the statement was admissible and that the burden would be placed on the suspect to invoke his rights.   Essentially, the Court ruled that a suspect who received the Miranda warnings waives the right to remain silent by making an uncoerced statement to the police.   New U.S. Supreme Court Justice Sotomayor dissented and pointed out the paradox of requiring a suspect to expressly invoke their Miranda right to remain silent by speaking their desire to do so in order to cut off questioning.

The Thompkins case follows two additional decisions in February of 2010 narrowing Miranda protections, Maryland v. Shatzer and Florida v. Powell.   New York Times article.

In the Shatzer case, the Court held that police can take a second run at questioning a suspect who has invoked his Miranda rights, but they must wait until 14 days after the suspect has been released from custody.   In the Powell case, the Court ruled that police may vary the language of the the Miranda warnings and that a warning that a suspect has the right to remain silent and the right to”talk to a lawyer before answering any of our questions” was sufficient (as opposed to the standard: “You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to speak to an attorney.  If you cannot afford an attorney, one will be appointed to you.  Do you understand these rights as they have been read to you.”)  Each of these opinions may be found in their entirety at the U.S. Supreme Court website.

It is important for a suspect to be aware that they still have the right to remain silent and to consult with an attorney at all times.   But a suspect should expressly state their desire to invoke such rights, not vary from such express statement or behavior, and consult with an attorney as soon as possible.

More information about the modified law is contained here.

A purchase-money borrower (when the deed of trust secures the purchase-money loan, as opposed to a refinance) in particular should consider these different options because in California, generally, if the borrower defaults, the lender’s sole recourse will be to foreclose on the property.

The first option to consider is obtaining a loan modification or a refinancing of the loan on more favorable terms.  A modification alters the terms of the existing loan.  However, a borrower should not lightly re-finance a purchase-money loan, since the new loan may not be considered a purchase-money loan, and the borrower may become exposed to personal liability for any “deficiency” owed under the refinanced loan.

Another option, is to surrender the deed in lieu of foreclosure (i.e., turn over title to the lender, sparing the necessity of foreclosure proceedings).  This requires negotiations with the lender, or perhaps simultaneous negotiations with more than one lender.  The success and terms of the endeavor may depend on whether the loan or loans are purchase-money loans.

Another option is to “walk-away” or simply allow the foreclosure process to proceed.

Still another option is to attempt to negotiate a short-sale.  A short-sale is the sale of the property for less than is owed on the loan, done with the lender’s approval, so that the lender removes its lien against the property upon the sale and releases the borrower from further liability.   Short-sales require that the lender or lenders to agree in advance to the arrangement and will require some negotiation to protect the seller.

Each of these options may have legal, credit and tax consequences.  For example, any forgiveness of debt may be treated as gross income by the IRS.   Therefore, if a lender forgives a certain amount of debt to a borrower, the amount may become an unanticipated tax liability.  Federal law gives taxpayers some relief for forgiven debt on a primary residence discharged after January 1, 2007 and prior to January 1, 2013.   California law also allows some tax debt relief under similar circumstances but currently applies to property sold after January 1, 2007 and prior to January 1, 2009.  A current bill to conform California law to Federal law was pending in the legislature but has not yet been signed into law.   San Francisco Chronicle article.

Further, a foreclosure, short sale, or deed-in-lieu of foreclosure will each have some effect on the borrower’s credit report.  For example, information from Fannie Mae is contained here.    (Scroll down to review:  Ann. 08-16, June 25, 2008, “Bankruptcy, Foreclosure, and Conversion of Principal Residence Policy Changes; and Revised Property Value Representation and Warranty Requirements.”)

Before deciding which alternative to pursue, it is always necessary to consider the possibility of a deficiency judgment.   “Walking away”, or allowing a foreclosure to occur, might be a poor option if the loan is not a purchase-money loan.   Where the loan is not a purchase-money loan, the lender can seek a “deficiency judgment” against the borrower for the difference between the foreclosure proceeds and the final arrears owed under the loan.

The Obama Administration has also put into place programs under which distressed borrowers can qualify for loan modifications and refinancing of their existing loans.   A loan can be modified by one or more of the following means: (1) a lowering of the interest rate; (2) a reduction in the amount of loan principal; and/or (3) an extension of the term of loan, possibly with periods of forbearance on collecting the loan.    Moreover, California law now requires lenders to satisfy additional procedures before proceeding with a foreclosure.

Always be sure to consult your tax advisor and/or attorney.

By all accounts, while the quake did cause damage to Humboldt County, the North Coast was generally lucky to avoid major damage or serious injuries.  The court and attorneys in Eureka reported only relatively minor interruptions of business due to damage and loss of electricity.  As many government agencies have noted, all residents and businesses should take this opportunity to review their earthquake preparedness and emergency planning.  Humboldt State University, Department of Geology, provides a useful link to earthquake and tsunami preparedness information.

From a legal standpoint, it is recommended that you compile important documents — such as deeds, insurance policies, legal documents — in a safe place that will be protected in the event of a natural disaster.   It is always recommended that you have multiple copies of these documents, as well as a list of important documents and where the originals of those documents are maintained.

Further, you may also wish to evaluate your insurance needs at this time.  A recent Eureka Times-Standard report stated that only a small percentage of homeowners carry earthquake insurance — in order to protect yourself from a major loss in the event of an earthquake, you may wish to investigate the cost and coverage of earthquake insurance by calling the California State Department of Insurance at (800) 927-4357 or your homeowner’s insurance provider.

If you have received a citation for DUI in Humboldt County, it is important to contact a DUI lawyer as soon as possible.

DUI Probation License Suspension.

A change in the driving under the influence (DUI) law creates a new authority for DMV to administratively suspend the driver’s license for one year under a zero tolerance standard.  The new law authorizes law enforcement to issue a notice of suspension and impound the vehicle of a person who is driving with a blood-alcohol concentration (BAC) of 0.01 percent or greater while on court-ordered post-DUI probation.

Ignition Interlock Devices (IID)

This new law reduces the BAC from .20 percent to .15 percent or more at the time of arrest to trigger a requirement for the court to give heightened consideration for the installation of an IID for a first-time offender convicted of DUI of an alcoholic beverage.

Effective July 2009, this new law transfers authority for the administration of mandatory IID programs from the state courts to the Department of Motor Vehicles (DMV).   This law also authorizes the DMV to require any driver convicted of driving with a suspended license due to a prior conviction for DUI to install an IID in any vehicle that the offender owns or operates.

Text Messaging

New law makes it an infraction to write, send, or read text-based communication on an electronic wireless communication device, such as a cell phone, while driving.