In its ruling, the Court stopped short of outlawing life without parole sentences. Instead, it directed the courts to engage in a defendant specific analysis of whether the punishment is warranted. The courts may still impose a mandatory life sentence, but the court cautioned it should be rare.

What remains to be seen is how the ruling will be interpreted. The first major question is whether a juvenile defendant may be charged with capital murder in Alabama. The law as it is currently written only provides for death or mandatory life without parole. This creates a situation where the only there is possibly no valid sentence for a juvenile. Since there is no legal sentence available, should the charges be thrown out in favor of murder charges? Perhaps.

Another looming question is what happens to those who are already serving life without? It would seem they are at a minimum due a new sentencing. At the sentencing, the defendant should be allowed to put on mitigation evidence that demonstrates why leniency is appropriate. This can and should involve the use of experts and psychological testing rather than just testimony from the defendant’s family. One thing is for sure; we have not seen the last of the Miller case.

Kira Fonteneau is a landlord tenant attorney primarily representing landlords. She will teach a course about Landlord/Tenant Law at Solo Practice University™.

Ms. Fonteneau is Licensed to practice law in Alabama, Georgia and Virginia, but focuses her practice in Alabama running The Fonteneau Firm, LLC. As part of her practice, Kira routinely and successfully represents clients from across the country with legal issues in Alabama in unlawful detainer, ejectment, premises liability and other disputes arising out of the landlord and tenant relationship. Ms. Fonteneau also advises her clients concerning landlord best practices to avoid tenant claims and protracted litigation.

She holds a Bachelor of Arts from The University of Virginia and a Juris Doctor from the University of Georgia School of Law.  Kira is also an accomplished speaker focusing her presentations on employment topics like the Family and Medical Leave Act, the Americans with Disabilities Act, Racial and Sexual Harassment, Proper Discharge Procedures and Leadership.

I will be teaching all about landlord and tenant law. In the class, I will discuss the benefits of adding landlord tenant to your practice, ways to attract landlord tenant clients and the nuts and bolts of the substantive law.  So if you are a lawyer or will be one soon,  I encourage you to become active in Solo Practice University.  I will see you there!

• Jewelry and household metal with greater than normal tarnishing;
• Sulfur or rotten egg smell upon entering the house;
• Corrosion on copper pipes;
• Corrosion on copper electrical wiring;
• Drywall board with the name Knauf  or “made in China” stamped on it.

The effects of this drywall can be catastrophic in terms of damage to your home.  In severe cases all wiring, drywall and plumbing will need to be replaced.  Your home may also need to be thoroughly cleaned to remove the contaminants left behind even after the drywall has been removed.  If you believe that your home may have been constructed with Chinese drywall, it is important that you get in touch with a competent attorney in your area as soon as possible.  The Fonteneau Firm is investigating Chinese drywall cases.  Please feel free to contact us if we can be of assistance.

In the past, some states had allowed the prosecution to introduce a certified affidavit indicating the results of forensic analysis into evidence without calling the technician to testify.  This meant that the defendant could not question the technician about the process by which the analysis was conducted or the accuracy of the results.  Now, defendants who have been notified that the state intends to introduce forensic analysis may then notify the State of his/her desire to confront the witness.  The Court also made clear that althought the state must produce the witnesses for trial, it may also impose procedural rules concerning the testimony.  As such, it is likely that the states will adopt rules that require the defendant to make the election to require testimony within reasonable time frames or lose the right.

Today’s Question? My tenant’s utilities have been turned off. Can I re-take possession of the unit?

Retaking possession of a property can be a tricky situation.  Landlords who wish to  take possession when it is not clear that the tenant has vacated must weigh the risk of  a lawsuit for unlawful eviction with the lost time and income that can result from delay.  If you are considering retaking possession of your property because of abandonment of the premises, you should look at all the circumstances before taking any steps to remove your tenant’s belongings. The safest way to protect yourself from being sued for an unlawful eviction is to use the court system to retake possession, but sometimes landlords want to avoid using the courts because it can be time consuming.

If you are faced with the decision of whether to retake possession of your property it is probably a good idea to document your reasoning. Ordinarily, a landlord has no right to retake possession of the property just because a tenant has failed to maintain the utilities.  However,  disconnected utilities can be evidence that the tenant has abandoned the residence.  If you find that the utilities in your property have been disconnected, it may make sense to visit the property and talk to your tenant.  If your tenant is still actively living there, you probably do not have grounds to retake possession.  But, if you find that all of the utilities are shut off and the furniture has been removed, it may be appropriate to retake possession without resort to litigation.

If you decide to retake the possession because of abandonment, it is a good idea to document your reasoning. One way to do that would be to send your tenant a dated letter that explains that you have noticed that the property appears to be vacant and that any possessions left in the property will be discarded after 14 days.  The letter might also explain the reasons you have come to those conclusions and give the tenant a way to contact you to collect leftover possessions if you have changed the locks.

Remember, if you decide to retake possession without filing an eviction there is no way to ensure that your tenant will not sue you for unlawful eviction, but an ounce of prevention is always worth a pound of cure.

Today’s Topic:  Can the police search my vehicle if they pull me over?

If you have been pulled over for a minor traffic violation, ordinarily the police may not search your vehicle for other contraband even if you are arrested for the ticket. The important question to ask when determining if the officer may search a vehicle is whether the original citation encounter has ended.  If the citation encounter has ended the police typically have no right to search your vehicle.  Once the citation has been issued the police officer must have probable cause to search your vehicle.

Probable Cause

Probable cause is usually defined as a reasonable suspicion that a crime has been committed.  That means that given the facts and circumstances available to the police officer at the time, a reasonable person would be satisfied that a crime had been committed.

If the police officer has probable cause to believe that a crime other than the traffic citation has occurred, then that police officer may generally search the vehicle.  However, police officers may not search vehicles simply because the occupants were arrested or cited for a traffic violation.  The search must bear some relationship to the citation given.

It is also important to note that the police may search a vehicle if they are given permission.  As such, it is important for individuals who are pulled over to understand that they may politely refuse an officer’s request to search a vehicle and do not have to give the officer a reason for that refusal.

In the ruling, the Court did not completely prohibit warrantless searches of vehicles.  It did, however, give law enforcement a clearer test to determine whether a particular search will be proper.  After the ruling  an officer may search a vehicle without a warrant “when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”  The test the Court established now prevents the police from searching a vehicle after the defendant has been safely taken into custody and there is no risk of danger to the officer, but does allow a search for evidence of the particular crime the defendant is being arrested for.  As such, the days of a routine traffic stop leading to a full-scale search of a vehicle when no other criminal activity is found may now be over.

Today’s Topic: When Should I See a Lawyer?

If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. A lawyer will have a better sense of what you should and should not say to law enforcement officers in order to avoid being misinterpreted or misunderstood. The lawyer also can advise you, your family, and/or friends on the bond process.

If the court determines that you cannot afford an attorney and you are charged with an offense that could result in a jail or prison sentence, you will more than likely be appointed an attorney to represent you.  If you are unable to pay for an attorney, it is your responsibility to ask for an appointed lawyer.

If you can afford an attorney, it is important that you engage a lawyer as soon as possible.  A lawyer who has more time will be better able to conduct an investigation on your behalf.  As time goes by witnesses often forget crucial details or disappear.  That is why it is very important that any person who is accused of a crime find a competent legal representation.