Articles 17 December 2014
If you think your divorce will be a fight, prepare to take the steps prior to the start of your divorce. Part of the divorce process is figuring out how you will pay for things until your divorce settlement is finalized.
Despite significant gains by women, in many marriages it is still the husband who earns the larger (or the only) income and controls family finances. I will have clients who are unaware of their spouse’s exact income, how it is invested, how much is accessible, and how many and what type of accounts they own.
During your marriage, you and your spouse likely had a joint account(s) from which household bills were paid. Once one of you files for divorce, withdrawals from these accounts may be legally restricted through an Automatic Temporary Restraining Order (ATRO). This is a court order prohibiting either spouse from making certain financial changes once a divorce action begins.
Articles 15 December 2014
A new client just called me about being arrested for a DUI from a checkpoint. Yes, as we know the holidays mean festivities and parties more likely than not include alcoholic beverages. So again, checkpoints are legal but the police are required to insure that state and federal laws are followed before they institute a checkpoint.
In California and in many states, police conducting checkpoints must comply with a strict guideline that is laid out by case laws. In California, the landmark case is Ingersoll v. Palmer. Why are these case laws and statutes critical? If the police do not follow the protocol described in Ingersoll, the checkpoint is not lawful, and any evidence gathered during a driving under the influence (“drunk driving”) arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The court established 8 factors to minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
Articles 08 December 2014
DUI cases constitute the largest group of misdemeanor violations in many counties. Notable legal enactments: the lowering of the unlawful blood alcohol level, the addition of a statute prohibiting DUI while driving a commercial vehicle, enhanced penalties for DUI with a minor in the vehicle or the requirement that ignition interlock devices be installed in offender’s vehicles are some examples of both the public and legislative demands for stricter penalties.
Depending on the gravity, i.e. death or serious bodily injuries, property damage or criminal history of an offender, the chargeable statutes under the Vehicle Code (“VC”) 23152 (misdemeanor, no-injury) and 23153 (felony-misdemeanor injury offense), the prosecuting agency has discretion to file a DUI either as a misdemeanor with maximum county jail incarceration of 1 year, penalties and fees in the thousands, court approved DUI treatment programs, restitution to the victims, work release programs (“Caltrans’) and/or community service. Felony charges could invoke a sentence of state prison. Both mandate probation which could either be summary (simply obey all laws) or formal (mandatory meetings with an assigned probation/parole officer).
VC 23152 (a) focuses on the driver’s impairment. A person is under the influence of an alcoholic beverage or drug or under the combined influence of both when as a result of drinking an alcoholic beverage or using the drug, the person’s physical or mental abilities are IMPAIRED to such a degree that the person no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances.
Articles 01 December 2014
Most of us, at one time or another, need to seek legal advice. Whether you want to litigate an issue, draft a contract, or is in trouble with the police, it is a good idea to speak with a lawyer. An attorney should be able to identify important legal consequences that may affect you, provide you with options, and give you advice about your next course of action. In many situations, even a brief meeting with an attorney can set your mind at ease and guide you towards a positive resolution. Choosing an attorney may seem like a daunting task, but this brief outline will make the process more manageable.
First, it is to your benefit to contact an attorney as soon as possible. I have had clients that call me immediately after they have been arrested and I was able to prevent or at least circumvent detectives from speaking to them. This is important since it stops my clients from saying the “wrong” things and possibly incriminating themselves. Unfortunately, I have also had clients that will call me after they went to the police station after being “invited” to visit the detective so they can hear his/her side of the story. But then surprisingly (or not), soon thereafter, they are served with a criminal complaint and/or arrested for a crime they thought they had “fixed” by talking to the police.
Next, develop a clear understanding about what you hope to accomplish by meeting with the attorney. Many of my clients who are in trouble, either by allegedly committing a crime or in removal/deportation proceedings due to a prior criminal conviction come to me frightened and mostly unaware of what to expect. This is understandable. Dealing with either the criminal courts, the police, the prosecutors or the Department of Homeland Security are extremely confusing and complex. An effective and experienced attorney should be able to immediately steer you in the right direction. If not, be wary of this person’s lack of abilities.