Saturday, December 31, 2011

Boise Bankruptcy Lawyers (208) 472-2383 - Chapter 13 Banrkuptcy

Chapter 13 Bankruptcy

Our Boise Bankrutcy Lawyers regularly field calls about individual Chapter 7 Bankruptcy.  This is probably the area of bankruptcy most recognized by the general public.  However, you have undoubtedly seen the title Chapter 13 as a type of debt relief action.

So what is Chapter 13 Bankruptcy?  As always, the "Chapter" referred to in Bankruptcy Law has to do with the location of the Code Section in the Federal Bankruptcy Law.  Chapter 13 is a form of individual bankruptcy (not for businesses or legal entities such as corporations).  Whereas Chapter 7 allows an individual to discharge their debt, Chapter 13 essentially allows an individual to create a new payment plan.  If, for example, you have a secured loan on a boat or your home and you are behind on these payments, instead of loosing the property and discharging the debt Chapter 13 bankruptcy allows you to cure any default, reamortize and set up a new payment plan.

Why would an individual choose Chapter 13 Bankruptcy over Chapter 7?  To qualify for Chapter 7 you must meet an income test.  If you have income that exceeds the income threshold (basically you have money left over and that can be imputed to you after considering your income exemptions and after paying your monthly bills) you will not qualify for Chapter 7.  Chapter 13 lets individuals struggling with debt, despite having adequate income, to get back on their feet by creating a payment plan that works for them.

If you are considering Bankruptcy and need a Boise Bankruptcy Attorney who can help you get out of debt quick, give us a call (208) 472-2383, and see what we can do for you.

Monday, December 26, 2011

Possession of Marijuana - Boise Criminal Lawyers (208) 472-2382

Are There Exemptions to the Crime of Possession of Marijuana In Idaho?

In 2007 a Boise man, Cary White, was arrested for possession of marijuana. With the aid of a public defender as his criminal attorney, he plead not guilty, took his case to trial, lost and subsequently appealed his case.  He recently lost his appeal but vows to take his case to the Idaho Supreme Court.

Upon what grounds did he contest the illegality his marijuana possession?  It wasn't upon the recently popularized medical marijuana grounds, rather it was upon the grounds of free exercise of religion. The First Amendment of the United States Constitution, the Idaho Constitution and the Idaho Free Exercise of Religion Act (FERPA), Idaho Code section 72-401, and the Religious Freedom Restoration Act (the federal counterpart to the Idaho FERPA) protect individual rights to practice religion without unreasonable or justifiable interference.

How would a Boise Criminal Lawyer go about showing that practice of religion was unreasonable or unjustifiably impeded?  The Idaho Court has held that it is the burden of the defendant to show that Idaho's controlled substance statute substantially burdens his or her exercise of religion.  The defendant must show, firstly, that it is an actual "exercise of religion" that is being burdened.  Secondly, the criminal defendant must show the burden is a "substantial burden".

In the case of Cary White, he did not claim to be a member of any recognized religious community.  There are recognized religious organizations whose use of marijuana or other ordinarily illicit drugs are recognized as "sacramental" use and therefore protected.  For example, the use of marijuana or peyote as a sacramental drug by members of the Rastafarian Movement, members of the Church of Cognitive Therapy or members of Native American Medicine is considered a free exercise of religion.  White's criminal defense attorney didn't claim he was a member of any organized religion, rather he supported exercise of his freedoms including choosing not to belong to a religious organization.  In effect, White's criminal lawyer failed to meet the first requirement of the Restoration of Religious Freedom Act and in failing to do so, he failed to meet his prima facia case.  As a result, his argument was not considered beyond that.

Could White have made an argument that would exempt his marijuana from being illegal?  Yes, but for his argument to have been fully considered he would have actually been a member or a recognized religious community which uses marijuana as a religious sacrament.  In addition, he would have to show that criminalizing his use of that marijuana would substantially burden his practice of religion.  Without that, there is no violation of his civil rights, at least according to the law as it now stands.

Framing the issue for an Idaho Court is critical to the success of your case.  This is what it means to be an aggressive Boise Criminal Lawyer.  Cary White's criminal defense attorney failed to frame the issue in a way that would benefit White and afford him the protections he needed to be found not guilty of possession of marijuana.  If you have been arrested for possession of marijuana and need an aggressive Boise Criminal Attorney who can defend your rights, give us a call and see what we can do for you. Call today, (208) 472-2383, you will be glad you did.

Friday, December 16, 2011

Boise Divorce Attorney - (208) 472-2383 - Boise Family Law Lawyers

Idaho Child Support Issues

As a Boise Divorce Attorney I often get calls concerning child support. There are many issues surrounding child support. They can revolve around  a divorce or a custody proceeding or any other variety of scenarios. A frequent situation that I am involved in as a family law lawyer is in regard to Medicaid or other state assistance.  Where child support monies go when a person receives State assistance is always an issue or a concern for the person receiving child support or paying it.

When a parent is receiving state funds or insurance through TAFI, or aid to needy families, there are certain rules that apply to child support. If you are receiving aid you are required to assign your right to child support payments to the state. Any monies you are owed pursuant to a divorce, custody or paternity order must be paid to the state in exchange for the support they are providing you in relation to TAFI.

This is an important point because as a Boise Divorce Attorney I often hear disparaging comments from people insinuating that a party is receiving child support from them and Medicaid or food stamps or the like. This simply is not the case.  That would be double dipping and you can bet the State of Idaho will not allow that.

If you have a child support issue and would like to speak to a Boise Family Law Attorney, please give us a call at (208) 472-2383 and see what we can do for you.

Monday, December 12, 2011

Common Law Marriage in Idaho - (208) 472-2383 - Boise Divorce Attorneys

Common Law Marriage in Idaho

As a Boise Divorce Attorney I work frequently within the world of the Idaho Family Law Statute. Idaho Code Chapter 32 deals with Domestic Relations. It covers everything from marriage, illegal marriage, divorce and the grounds for divorce to the parent child relationship in terms of custody and visitation as well as community property.

The Family Law Statute has changed over time. One specific example of this change has to do with common law marriage. At one point in Idaho history, the state recognized common law marriage. As of January 1, 1996 Idaho no longer does. If you were common law married before that date, meaning you put yourself out as a married couple a court would still consider you married and you can file for divorce in Idaho and have your property and debt which were acquired during marriage be treated as community property.

What does it mean to put yourself out there as being married? A Boise Divorce Lawyer would present evidence to the court that showed you treated your relationship as one of a marriage, not just co-habitation. Examples of evidence an attorney might use to prove this might be filing joint tax returns, being claimed as a spouse on health insurance, purchasing a home together or telling people that you were married. However, having children together and co-habitating do not necessarily reach the level of evidence needed to prove marriage.

Why would your divorce lawyer want to prove that you were married? That family law statute that I mentioned above provides protection for married couples called community property. If you were living together, but were not married and one party worked and the other stayed home and the one that worked used their money to pay for the house and to pay for the car and all the other goodies, if they ever split up the person who paid for everything would get it all. Now that may be fine for the person who worked but the person who stayed home and took care of the house and the kids would get nothing.

Community property recognizes that it is a community effort to build the community and therefore it rewards each individual equally in terms of value.

If there were children to the common law marriage how custody and visitation would be determined for those children would be the same whether it was ultimately decided that a common law marriage did or did not exist. The parties would be ordered to mediation and if they could not agree on a custody arrangement both divorce lawyers would present evidence to show why their client is the party best suited to be the custodial parent or why it would be in the best interest of the child to have primary physical custody with one parent or the other. Ultimately, using requirements outlined in that family law statutes I spoke about above, an Idaho judge would determine what is in the best interest of the child.

Ultimately, if you are married and are going through divorce in Idaho or you are going through divorce in Idaho and have children or simply have children together in Idaho and are splitting up, you too will enter the world of the family law statute.

If you need to speak to a Boise Divorce Attorney or a Custody Lawyer, please give us a call at (208) 472-2383 and see what we can do for you.

Thursday, December 1, 2011

Boise Criminal Attorneys - Criminal Defense Lawyers (208) 472-2383

Criminal Law:  Procedural Law v. Substantive Law
What is the difference and does it matter?

Undoubtedly, you have heard the statement "it was a travesty of justice!"  These are stories of people, who were clearly guilty of a crime, but who got off scot-free.  These stories are not urban myths.  These are true stories which illustrate the impact of criminal procedural and the importance of having a criminal defense attorney who knows criminal procedure.  Everyone charged with committing a crime would love to get off on a technicality and it is because of procedural law that this is even a possibility.

The substantive law tells you what acts constitute a crime and what the punishment for that particular crime is.  For example, you would find driving under the influence or DUI in the Idaho Code.  Here it would tell you that if you have a blood alcohol level of .08 or greater and you operate a motor vehicle or are in actual physical control of a vehicle you will be charged with a DUI and it will go on to tell you what the punishment is for a first time DUI, a second time DUI, a third time DUI, an excessive DUI and so on. 

Procedural law, however, tells you what is a violation of your constitutional rights.  It tells the police when they can pull you over, when they can search you, what evidence they can take, which witnesses can be investigated and the like.  Procedural law includes your Miranda rights; "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, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you".

When procedural law is violated, you can exclude the evidence obtained by the violation and by excluding it you may, in effect, remove that evidence leaving the prosecuting attorney with no evidence to convict you.  That's what it means to get off on a technicality.

Does it ever happen?  You bet it does.  It happens everyday.  If the police pull you over because you are driving a 1970's Duster and they think that you look like a criminal and they later discover evidence of drugs in your car, that evidence can be excluded on the basis that there was no probable cause to pull you over in the first place.  If the police have pulled you over because they suspect you have been drinking and they search your car without your permission or a warrant and they find counterfeit money in you glove box, that evidence can be excluded on the basis of an illegal search.

There are many scenarios like these.  Whether they are a travesty of justice, however, is a matter of opinion.  What kind of country would it be if someone was convicted of a crime and evidence was secured, but in the process their constitutional rights are violated? 

If you have been charged with a crime and need to speak to a Boise Criminal Lawyer, give us a call at (208) 472-2383 and see what we can do for you.