Monday, October 31, 2011

To Blow or Not To Blow - That is the Question - Boise Criminal Lawyers - DUI and Brathalyzer Considerations

As a Boise Criminal Lawyer I repeatedly hear from clients who have been charged with a DUI that they didn't blow (on the breathalyzer) because they thought without a breathalyzer reading the police wouldn't be able to prove they were intoxicated.

Unfortunately, this is not the case.  While it is true that you cannot be charged with a DUI without the proper evidence to prove you were intoxicated, people don't often realize that the police can acquire that proof via a blood test.  This isn't forced or without consent because when you get your Idaho driver's license you agree to allow the police to check for the presence of alcohol or drugs in your blood if you are suspected of driving under the influence.

So, to blow or not to blow?  What's at stake?  If you know you have been drinking and you know you probably have more than .08% BAC, it often makes more sense to go ahead and blow.  While refusing may buy you time, until you get to the police station and have your blood drawn, you stand to get an automatic one year license suspension if your BAC comes back greater than a .08%.  Compare this with the actual first time DUI maximum license suspension of 180 days (with the first 30 days being absolute).

So, does it ever make sense not to blow?  This is a risky gamble because you don't know exactly what your BAC is.  If at the time you were pulled over your BAC was just barely over .08 not blowing might mean the difference between reckless or inattentive driving and a DUI.   Or, if your BAC is just barely over a .2 (excessive DUI), waiting and allowing your BAC to go down while you are waiting for a blood draw, might mean the difference between an excessive DUI and a regular DUI.

Because you will not know your actual BAC and because you stand to lose so much, it probably makes more sense to blow.  Not blowing can lead to even greater and more serious consequences than taking your punches upfront.  Being without a driver's license for 1 year can seriously impede your life.

If you have found yourself in this situation and you need to speak to a Boise Criminal Lawyer, give us a call and see what we can do for you.  (208) 472-2383

Friday, October 21, 2011

Boise Idaho Bankruptcy Attorneys - Chapter 7 Lawyers

Chapter 7 Bankruptcy

As Boise Bankruptcy Attorneys, we often get calls form people wondering what all the Chapters of Bankruptcy are and what chapter they might qualify for.  There are many forms of bankruptcy ranging from simple to complex.  Basic bankruptcy is often refered to Chapter 7.  Federal law has codified the various chapters of bankruptcy and the code section refering to "discharge" is Chapter 7.  There are other forms as well, such as business bankruptcy, often called reorganization, farm bankruptcy and Chapter 13 or repayment bankruptcy.

To qualify for Chapter 7 bankruptcy you first must meet a means test.  This looks at your income and determines whether or not you can repay your debts.  If your income falls below the codified level for the number of people in your family you can proceed with Chapter 7.  If your income exceeds the codified level you do not qualify and your only recourse is Chapter 13.

Once it has been determined that you qualify for Chapter 7, you must make an accounting of all your property.  Certain property is exempt, or at least partially exempt.  For example, you have what is known as a homestead exemption which exempts $100,000 of value from your home.  The exempt property is protected from collection by your creditors. 

Most debts are dischargeable including medical bills and credit card bills.  Some debts however, such as student loans, are not dischargeable.  Once you have made an accounting of your debts you will go before the bankruptcy trustee for a debtors examination.  The trustee will question you about your debts and determine if you have given them a complete list of your debts.  The trustee is paid a minimal statutory fee for the examination.  If, however, they are able to uncover debts which you have omitted, they receive a percentage of the value of the revealed debt.  This gives them incentive to look long and hard at what you have reported.  You can also be penalized for omitting debts.  The bankruptcy judge can deny your petition for bankruptcy so it is in your best interest to be thorough in your accounting.

Chapter 7 bankrutpcy is known as a discharge because once you have gone through the steps all your non-exempt debts are absolved.  Basically, a Chapter 7 bankruptcy means that after you qualify for your various exemptions, your income and available property are not enough to cover your debts.

Chapter 7 has a significant impact upon your credit for many years, but if you have found yourself deep in debt and you have no where to turn, a bankruptcy may be what you need to start getting your financial future back on track.  It offers you a clean slate from which you can begin to build your credit again.

If you have found yourself in this situation and you need to talk to a Boise Bankrutpcy Attorney, give us a call, (208) 472-2383 and see what can do for you.

Tuesday, October 18, 2011

Boise Family Law Lawyers - Guardianships


Practicing family law in Idaho entails more than providing legal services for divorce, custody and modification.  One area of family law which deserves attention is guardianships.

Why would a guardianship be necessary and who might need or want one?  A guardianship may be created for a child or for a person who is unable to tend to their affairs on their own.  A guardian may be appointed for a child when their parent is unable to act in the capacity of their parent.  A guardian may be appointed for an adult who has become incapacitated and is unable to make important financial, legal and day to day decisions.

For a child, a guardian may be appointed when the day to day care of the child by the parent has been interrupted.  Thinking about today's economy, it is becoming more common for a child to be placed in the care of their grandparents while the parents move to a different state to find employment.  A guardianship does not have to be created in this situation, however, doing so enables the grandparents to easily take care of legal, educational, medical and day to day needs of the child.  A guardianship can also be created for a child when a parent fails to take proper care of a child.  The guardian is appointed to ensure the child's needs are taken care of.  The guardian can be a grandparent but it can also be an unrelated party.

Can a guardianship be terminated?  Yes it can.  It can end on its own when a child reaches the age of majority or if the child dies.  A guardianship can be terminated by a court if a judge determines it is no longer necessary or the purpose for which it was created (such as to manage a financial account).

For an adult, a guardianship is often created when a person is incapacited because of something like an accident or an illness which renders the individual incapable of taking care of their affairs.  A guardianship can also be created for a mentally handicapped person who is unable to tend to their own affairs.  These types of guardianships can also be terminated.  If the incapacity ceases to exists, a judge can determine that the guardianship is no longer necessary.

Being appointed a guardian carries with it very important duties.  For example, the guardian of the child must provide for the child in a fashion that a parent would provide for a child.  They have an obligation to feed and clothe the child and tend to his or her education.  Likewise, for an adult, a guardian has a duty to care for the person's fianancial, medical and day to day affairs in a responsible manner and to exercise the care approriate for the situation.

If you have a family law issue and need to speak to a Boise Family Law Attorney, please call us at (208) 472-2383 and see what we can do for you.

Tuesday, October 11, 2011

Boise Business Attorneys - Small Business Lawyers - Non-Compete Clauses in Idaho

Are non-compete clauses allowed in Idaho and can you get around them?  This is a common questions I am asked as a Boise Business Attorney.

Non-compete clauses are generally an agreement entered into at the termination of employment or business venture.  The parties generally agree that in exchange for a termination of a contract or business venture, a money settlement or other benefit will be given to the employee or leaving partner.  In exchange for the benefit, the leaving party agrees to a contract term limiting where they can conduct the same kind of business, how long they must refrain from conducting the same kind of business and where they can or cannot conduct the same kind of business.

Non-compete clauses are generally enforceable so long as they are not over-limiting resulting in the inability of  the party bound by the agreement from making a living.  Idaho law takes into account three separate terms of non-compete clauses to determine if it is valid or over reaching. These are the scope of work, the duration of the non-compete and the geographic scope.  Until recently, Idaho was fairly consistent about nullifying a non-compete clause in its entirety if any one of the three items was too limiting.  So, for example, if your non-compete clause stated that you could not work or do business in the same line of business for 3 years, throughout the U.S., Canada and Mexico, you could have the entire non-compete invalidated because the geographic scope was too excessive and even though the other two terms were reasonable.  Recently, however, Idaho has begun to consider only striking the violating term and upholding the remainder of the non-compete.  So, what this means is an Idaho court might say it is reasonable to have a 3 year non-compete for the same line of business.  It then might say if the original business is only conducted in the northwest, the leaving party can conduct that type of business outside of the northwest.

If you need the help of a Boise Business Attorney, please give us a call at (208) 472-2383 and see what we can do for you.

Wednesday, October 5, 2011

Boise Idaho Divorce Attorneys - Family Law Lawyers - Vexatious Modification

What can you do when you have gone through a divorce and custody trial and now your ex-spouse regularly brings modification proceedings against you?  As a Boise Divorce Attorney I see this happen now and then.  In general, a custody decree can be modified when there has been a substantial and material change of circumstance.  This means that you would not have known about it at the time of the original proceeding or a prior modification.  A substantial and material change means that your circumstances have changed to a degree that it makes sense to modify the original decree.  For example, if you were originally given primary physical custody of your child with supervised visitation for the other parent because the other parent was unemployed, perhaps engaging in unhealthy or unsafe behavior and not "stable" enough to provide a physical residence for the child, if that party has gotten their act together and can prove that to the court, the court may very well modify the decree to allow unsupervised visitation.

When does modification become vexatious?  To vex someone is to annoy or harass them.  Modification becomes vexatious when it is brought without sufficient grounds.  As a Boise Divorce Attorney I see this occasionally and it is usually done by a party representing themselves without the help of a divorce lawyer.  In part it is done because they don't know that it is not allowed in Idaho.  It is often also partly done with the intent to harass or annoy the other party.

What can you do if you are the victim of vexatious modification?  The Idaho Code allows sanctions against the other party in the form of attorneys fees.  If an Idaho court finds that one party or the other is bringing modification actions without merit and those have risen to the degree of vexatious, it will order the other party's attorneys fees to be paid by the offending party.  Not all judges, but some Idaho judges will go to the degree of disallowing the party against whom sanctions have been imposed from even coming back to court to hear a valid modification argument, if they have failed to pay those sanctions.

If you are seeking a divorce or a modification of a custody decree and need to speak to a Boise Divorce Attorney, give us a call, (208) 472-2383 and see what we can do for you.