In Mississippi, the definition of “motor vehicle” under the statute for drunk driving includes but is not limited to cars, four wheelers, golf carts and even lawn mowers.  Basically any vehicle which is motorized qualifies as a vehicle for DUI purposes.

However, the motor vehicle must have been operated on a public highway, street, or sidewalk to be in violation of Mississippi drunk driving laws.    

Its beautiful Saturday afternoon, you’re mowing your lawn and having a few beers.   There’s no way you could be arrested for Driving Under Influence right?  Wrong.  Mississippi drunk driving statute   you think your’e okay having a few beers while operating that lawnmower, think again.

In family law practice, the non-custodial parent of a child may petition the court for a change of custody.  To accomplish this, the non-custodial parent must file a Petition for Custody Modification in the court that granted the custody agreement.  In Mississippi, a parent demandng a change in custody must prove that there “has been a material change in circumstances adverse to the best interest of the child”.  Often in these matters, the allegation involves a claim of abuse and neglect perpetrated by the custodial parent against the child.  Thus, the appointment of a Guardian Ad Litem, or GAL is mandated.

Mississippi Code § 93-5-23 provides that: The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121 , who shall be an attorney.

Mississippi courts have interpreted the “shall” language to insure an appointment in a case where a charge of neglect/abuse is raised. Sanford v. Arinder, 800 So.2d 1267 (Miss.App. 2001);  Foster v. Foster, 788 So.2d 779 (Miss.App. 2000).

The Guardian Ad Litem serves an important function by investigating the claims and defenses of the parties and then making a recommendation to the court.  The Guardian conducts interviews with the minor children, the parents, witnesses, and visits the respective homes of the parents.  Upon completion of their report, the GAL then makes a recommendation to the Judge as to whether custody modification is warranted.  However, the judge is not bound by the recommendation and is under no obligation to accept it.

Regardless of whether the court accepts the recommendation, a GAL report is an important finding that can be used in latter proceedings or an appeal.

I have defended clients charged with the crime of shoplifting who had no real appreciation for the seriousness of the offense.  While the punishment may seem extreme to some, shoplifting laws can have long term consequences.  In Mississippi the punishment for shoplifting is as follows:

(a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00), or punished by imprisonment not to exceed six (6) months, or by both such fine and imprisonment.

(b) Upon a second shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00) or punished by imprisonment not to exceed six (6) months, or by both such fine and imprisonment.

(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than Five Thousand Dollars ($5,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment.

MS Code Ann. SEC. 97-23-93

Whether the defendant will receive the maximum punishment available depends on the county or municipality where the offense occurred.

There are many instances in which two parties enter a verbal agreement to perform a service in exchange for compensation.  When one party performs and the other refuses to pay, the absence of a written contract does not preclude a remedy. While there is no substitute for a written contract between parties, Mississippi law can provide an equitable remedy through an “implied contract” theory.

To establish an implied contract one must show that there was an unambiguous offer, unambiguous acceptance, a mutual intent to be bound by the terms, and consideration.  These elements may be established by the conduct of the parties rather than through express written or oral agreements.   For instance, if you entered an agreement with someone to paint their house, you would need to present evidence of the discussion between the parties and that you actually performed the agreed upon service.  The courts will gauge the testimony of the parties for credibility.  Much weight is given to the fact that the service was rendered.  As most individuals do not perform a service without some expectation of being compensated.

But again the preferred agreement should be writing.    

“a contract implied in law created by the actions of the parties and for which no terms had been written”.  HeartSouth, PLLC v. Boyd, 865 So.2d 1095 (Miss. 2003).  It is well established that contracts implied in law are recognized in Mississippi.  However, in order for a contract to be binding, there must be a meeting of the minds of the contracting parties. Brooks v. Brooks, 145 Miss. 845, 111 So. 376, 376-77 (1927).

Beginning October 1, 2014, an individual who has been convicted of a first offense DUI may petition the sentencing court to have the conviction expunged.  The restrictions to having the conviction expunged are as follows:

1. You cannot have held a commercial driving license or permit.

2.  Five years must have passed since the conviction

3. You must have successfully completed all terms and conditions of the sentence imposed for the conviction;

4.   Did not refuse to submit to a test of his blood or breath;

5.  Your blood alcohol concentration tested below sixteen one-hundredths percent (.16%) if test results were available;

6. You do not have pending any other offense of driving under the influence; and

7.  And can provide the court with justification as to why the conviction should be expunged.

It remains to be seen what interpretation the courts will employ in determining “justification”.  The most likely scenario will involve a person’s attempt to gain employment and/or admittance to an educational institution.

There are only six felonies that are eligible for expungement in Mississippi.  Five (5) years after the successful completion of all terms and conditions of the sentence for the conviction the following felonies may be expunged:

1.Bad check offense under Section 97-19-55 ;

2.Possession of a controlled substance or paraphernalia under Section 41-29-139(c) or (d);

3.False pretense under Section 97-19-39;

4.Larceny under Section 97-17-41;

5.Malicious mischief under Section 97-17-67;

6.Shoplifting under Section 97-23-93 .

When an individual is arrested for a felony or misdemeanor, he or she is entitled to what is known as a preliminary hearing. Mississippi Uniform Criminal Rules Circuit Court Practice, Rule 1.04, provides that every person arrested shall be taken before a judicial officer without unnecessary delay and that the judicial officer shall set a date for a preliminary hearing “within a reasonable time”.  At the preliminary hearing, counsel for the accused is afforded an opportunity to cross-examine witnesses for the prosecution including the investigating officer.  The hearing serves as a pre-trial deposition of the witnesses that can assist counsel in preparing a defense.

While a preliminary hearing isn’t necessary for many charges, it is very useful in a felony case where bond was denied at the initial appearance.  The judge in the preliminary hearing will listen to the evidence and decide if, and at what amount, a bond should be set.

The increased use of social media has raised many issues with regards to defamatory statements.  There are two main types of defamation: libel, which is written defamation, and slander, which is verbal defamation. When a potentially defamatory statement is made online or through social media — such as via Facebook or Linkedin — that involves the written (or “posted”) word, and so it is considered libel.

As in most states, Mississippi law recognizes the truth as an absolute defense to libel. For instance, if a Facebook user or blogger posted comments that you were convicted of embezzlement and you actually were, that post would not be considered libel.  However, if you were arrested but not convicted then that post could be considered libelous.  Such a post could be considered libelous per se because it involves a serious crime.  This type of litigation does not require a showing of actual harm to your reputation.

If a defamation lawsuit were brought in the example above the court would look to the crime itself to determine whether the post was libelous per se.  In Mississippi, the crime must be serious enough to include “infamous punishment”.  In other words, the punishment for the crime must consist of actual or potential incarceration.  The Court would also consider whether the crime involved “moral turpitude”.  This means that the court would consider whether the crime was dishonest in nature.  Not all crimes are viewed as involving “moral turpitude” but embezzlement is.  Therefore, a lawsuit against the poster would not require the showing of harm or “special harm” (i.e. emotional distress) to be awarded damages.

Of special concern to many of my clients are slanderous/libelous statements made against them as business owners or professionals.  In Mississippi, the courts consider statements which “impute a want of integrity or capacity in the conduct of a profession, trade or business” to be libelous per se.  Put differently, false statements that accuse someone of wrongdoing in the course of their business or professional capacity may be actionable.  An action against the poster would be for libel per se, which would obviate the requirement to prove damages, only the falsity of the statement.

If someone posts a blog or Facebook statement that a certain physician is a “quack” or a “substandard doctor”, the poster cannot be held liable because such statements are a matter of opinion and not of fact.  However, if the post contains a specific statement that the doctor performed a harmful, unnecessary surgery on a patient, such a statement is factual and, if untrue, could be libelous per se.  A post of that nature directly imputes that doctor’s capacity to perform his duties as a surgeon.

It is important to remember that lawsuits for slander and libel can be very difficult to litigate. What may appear to be clearly defamatory statements to you may not always be actionable.  For instance, name calling and many false statements will not rise to the level of being defamatory.  However, some statements and name calling can rise to the level of other causes of action or crimes such as cyber-stalking or cyber-bullying.  Those types of actions will be addressed in future blogs.

The bottom line is this: If you are blogging or writing on your Facebook page, or submitting comments on someone else’s blog or Facebook page, make sure that you have all of your facts absolutely straight before posting your statement to the internet.