Tuesday, December 25, 2012

Boise Criminal Attorneys - Idaho DUI Lawyers (208) 472-2383

DUI During the Holidays
As a Boise Criminal Attorney, the Holidays often bring a flurry of calls from individuals charged with DUI. While it may sound obvious, there are many things that can lead to a DUI this time of year. Christmas parties, family celebrations and New Year revelry are all leading factors resulting in driving under the influence of alcohol. These aren't the only instigators, however.  As a Boise Divorce Attorney I see the toll that divorce and custody issues take on individuals during the holidays.  The stress associated with breaking up, coordinating visitation schedules and being alone during the holidays all effect the probability of ending up with a DUI.

Who Gets a DUI?
It is important to remember that law enforcement is aware of the increased use and abuse of alcohol this time of year.  They are on watch for individuals imbibing and driving.  Evidence of this is the recent DUI charge against Idaho Senator Mike Crapo.  Mr. Crapo is not unique in this holiday criminal charge.  Every day of every year I get calls into my criminal law office from individuals that have been charged with DUI and many many of those people say that they thought that they could drive and that they hadn't had that much to drink.  It is very likely that Senator Mike Crapo thought that same thing when he got behind the wheel and ended up blowing a .11 this week in Washington D.C.

Don't Let a Criminal Charge Ruin Your Fun
The Holidays are generally a happy time, but don't let a DUI ruin your celebration.  We should all be able to enjoy this time of year but make sure you have a designated driver, take a taxi or even walk.  Walking is great exercise and helps burn off the alcohol in your system, not to mention the extra calories consumed drinking.  Now that the Boise taxi companies have the ability to take debit and credit cards, there really is no excuse for not taking advantage of a sober driver.  If your holiday season is sad and lonely and if you are down in the dumps because of a divorce or custody battle and you are alone during this season, don't let yourself be taken down further by being charged with driving under the influence.  Instead of turning to alcohol, it is better to find someone to talk to.  It could be a family member, a member of the clergy, your divorce attorney or a counselor.  No one should suffer alone and those people are there to help you.  Don't let a DUI ruin the holidays for you or your family.

If you have been charged with a DUI or you have a family law issue and you need speak to a Boise Criminal Attorney or a Boise Divorce Attorney, please give us a call, (208) 472-2383.  You will be glad you did.

Wednesday, December 12, 2012

Boise Divorce Attorneys - Idaho Family Law Lawyers (208) 472-2383 Changes During a Pending Case

I have often spoken about modification in my divorce and family law blogs.  Many of you may remember that in order to modify an existing order you must show a substantial and material change of circumstance that did not exist at the time of agreement.

When speaking of modification this way, it seems that post divorce or custody is the only time changes occur.  That, however, is slightly misleading.  As a Boise Divorce Attorney, I often see the need to modify an agreement within an existing active case.

For example, Magistrate Judges in Ada County order issues of custody to be mediated.  The idea behind this is that the parties, themselves, can work out what will work best for them, rather than having a judge tell them what to do.  They are ordered to choose from a set of court appointed mediators within a certain time period and are asked to attend mediation to work out an agreement.  If they agree they then sign the agreement and that is incorporated into the divorce and custody order.

Changes that Occur Prior to Final Divorce Order
As a Boise Divorce Attorney I have seen situations where the parties agree and then before a final order in entered there is a change in circumstances that possibly makes the agreement less than ideal when taking into account the best interest of the child.  For example, if one party begins using drugs or is charge with aggravated assault, you would not want to keep a parenting agreement that allowed the child to be alone with that parent. 

Whether the parent is committing a crime, engaged in ongoing criminal activity or is acting in a way that shows a disregard for parental responsibility, can you change your parenting agreement without filing for a modification?  As a family law lawyer I would suggest that the court be notified of the change and motion the court disregard the signed mediation agreement based upon the material change in circumstance.  It can easily be argued that the set of facts which the mediation is based on have change to a new set of facts considering the criminal or unfit behavior of one parent.  Simply because an agreement is in place does not mean that it should stand if one parent is acting in a way that is not suitable to the best interest of a child.

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

Thursday, November 15, 2012

Boise Family Law Lawyers - Idaho Divorce Attorneys (208) 472-2383

Holiday Visitation
With the holidays approaching quickly many people are scrambling to make certain their visitation schedules are in order and they know who has the kids and when.  As a Boise Divorce Attorney I receive numerous calls concerning visitation this time of year.

Changing Visitation
When you go through a divorce or a custody case the final order will include a visitation schedule.  This schedule is not just the weekly schedule rather it will include holiday visitation for every year until the child turns 18 years.

As a Boise Family Law Attorney I receive several last minute phone calls from individuals wanting to change their holiday visitation.  Sometimes they want to change the dates, sometimes they want to make the visit longer and sometimes they want to flip-flop holidays.  While change is not out of the question, it can be difficult to get on short notice.

The best way to get your visitation changed is by mutual agreement between the parties.  This ensures that there is a smooth change and everyone is in agreement.  If you have an unforeseen incident and the other party does not want to give you their permission for a change you can ask the court for its help.  However, it can be difficult to get into court quick enough to fix the problem.  When this happens and you go ahead with your plans, it is a great possibility that you will be brought up on contempt charges for violating the custody order.

Emergency Change in Visitation
Part of the reason the court does not want people running to it constantly to change a visitation schedule is that you have very advance notice of when and where your visitation will be.  It expects you to plan accordingly.  There are those situations, however, where you have not control over the situation.  For example, say you are out of town with your child and are scheduled to return in time for a Sunday night custody swap and there is a snow storm and you can't get back for three days.  Now while this is a true emergency situation, it is unlikely that your Boise Divorce Attorney can even get in front of a judge to get an order allowing the change.  In these situations, if the other side persists in bringing contempt charges against you the judge will look at your violation of the order in a different light than had you acted intentionally without the other party's permission.

My best advice as a Boise Family Law Lawyer is to plan ahead of time and stick to your schedule as best as you can.  If you need to make a change and you and the other party cannot agree contact your attorney several months in advance to ensure you get the best possible outcome.

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

Thursday, November 8, 2012

Boise DUI Attorneys - Idaho Criminal Law Lawyers (208) 472-2383

DUI and Drugs in Idaho
I have spoken before in this blog about how a charge for DUI can relate to alcohol consumption or, alternatively,  may have nothing to do with it.  Today, I want to discuss the anatomy of a DUI related to driving under the influence of drugs. 

As a Boise DUI Attorney I often see cases involving DUI due to operating a motor vehicle under the influence of drugs.  People have a lot of questions when it comes to this type of case.  First, how does the arresting officer know you are under the influence of drugs and how do they test you?  This is a very good question.   The process is almost identical to a stop and arrest for driving under the influence of alcohol.  As you may know from previous DUI blogs I have written, in order to be pulled over the police must have probable cause.  This can be anything that gives them a good suspicion that something is happening in your vehicle that is impairing your driving or a blatant violation of driving laws.  If you have taken drugs and are impaired your driving may be sketchy.  You may weave in and out of your lane, you may run a red light, you may drive the wrong way on a one way street and the list goes on.  Once you are pulled over, the police will look for signs of alcohol or drug consumption.  They will perform field sobriety tests, they may ask to search your car (always say no - you do not have to consent to a search) and they may take a breathalyzer test. If you haven't consumed alcohol the breathalyzer will obviously be negative but this doesn't prevent the police from arresting you if you are obviously impaired.  At this point they will order a blood test to determine the presence of drugs in your system.

Does the presence, no matter how slight, of drugs in your system mean that you will be convicted of a DUI?
As a Boise DUI Lawyer, this is the net biggest question people are curious about in these types of cases. Unlike alcohol, there is no legal limit for drugs in your system.  The blood test will simply reveal a positive or a negative result. 

Illegal Drugs vs. Over the Counter and Prescription Medication 
There isn't a simple answer to this question but there are certain considerations which need to be examined.  The first question is, "are the drugs in your system illegal drugs?"  If it is the case you are under the influence of marijuana, meth, cocaine or any other controlled substance, it does not matter how much there is in your system.  You will be charged with a DUI and if pursuant to the traffic stop, any illegal drugs were found, you will also be charged with possession and potential trafficking, depending upon how much was found.  The reason for this is simple; it is illegal to be in possession and to consume illegal drugs.

The more difficult question to answer for DUI attorneys is, "what if the drugs in your system were over the counter drugs or drugs prescribed by a physician?"  It is not illegal to drive with these types of drugs in your system, but it can become illegal and an issue of intoxication if the amount you have in your system impairs your driving.  In fact, if you are under the influence of these types of drugs when you are pulled over, it is likely that you will volunteer the information that you are taking certain medications to the police officer.  But, will you be charged with a DUI? 

These cases turn on the specifics of each case.  For example, if you were prescribed hydrocodone and you were taking it according to your physician's directions and had been taking it for a few weeks and were used to how it effected you, you might have your charged reduced to reckless or inattentive driving or even failure to use a traffic signal, depending upon the under lying cause for the traffic stop.  If, however, you consumed excessive amounts of the hydrocodone, meaning way more than you were prescribed, and you were pulled over because you were speeding while going the wrong way on the freeway the chances that you will get a DUI are high.

If you have been charged with a driving under the influence and you need to speak to a Boise DUI Attorney, please give us a call at 208-472-2383 and see what we can do for you.

Friday, October 19, 2012

Boise Divorce Attorney 208-472-2383 Idaho Family Law Lawyers

Divorce and Community Property
As a Boise Divorce Attorney I have the honor of outlining and explaining community property law to many clients.  One very difficult thing for many people to understand is that community property law in Idaho doesn't necessarily mean equal division of property and debts. Rather, it requires an equitable division.

The scenario where this generally arises is in long term relationships.  Often, an individual, usually a woman (I don't say this in any way derogatorily.  I mean it statistically because women are generally the ones who give up their careers to stay at home and raise their children), will be offered a settlement agreement by her spouse indicating that the agreement contains an equal split of all the property and the debt and is therefore "fair".  Often these settlement agreements will contain a provision for child support and even an equal division of the retirement fund.

Thankfully, many women will call for a free consultation to discuss whether or not this equal division is fair.  I say thankfully not because it means more work for Boise Divorce Attorneys, but because, as I indicated above, equal does not mean equitable.  If a woman has given up her career or the option of having a career to raise a family, her contribution to the community should not be figured at zero.  All too often people think that if they are the ones who went out and supported the community, provided the home and the livelihood for the family, that they are the only ones who provided value to the community.  This simply is not true and Idaho community property law recognizes this.

Sadly, however,  in order to keep the peace, a spouse will misguidedly accept a settlement agreement that purports to be equal.  My advice as an experienced Boise Divorce Attorney is STOP! Don't accept such an agreement.  It will leave you struggling to pay your bills during the pendancy of your divorce, it may leave you with inadequate child support and you won't be compensated for the value that you have added to the community.  So what can you do?

Community Income During the Divorce
Most judges won't order child support or spousal support while a divorce is actively being pursued.  Instead what they will do is issue temporary orders.  In these orders, your divorce attorney will ask that the discretionary income of the community be divided equally.  How this works is this:  You and your spouse will be asked to make an accounting of your regularly occurring bills.  Your two incomes will be added up, the bills deducted and anything that remains is considered discretionary and will be split between the parties.  What this means for you is that if you make 1/4 of what your spouse does, you will not be left hanging until the divorce is finalized.  You will maintain an equal share of the community income. 

Child Support and Spousal Support
Your divorce attorney will compute the child support owing and may ask (in appropriate situations) for spousal support.  These two sources of monies will begin to be owing upon the finalization of the divorce.  Properly computed child support insures that the children are being provided for financially and spousal support financially acknowledges that a spouse who has stayed home with the children.

If you need to discuss divorce or any other family law issue with an Idaho lawyer, please call 208-472-2383 and see what we can do for you. 

Friday, October 12, 2012

Boise Bankruptcy Attorney 208-472-2383 Idaho Bankruptcy Lawyers

Bankruptcy: What Not to Do

In my Boise Bankruptcy practice I get several calls per month from people looking to file Bankruptcy.  I always offer a free consultation to go over Chapter 7 or Chapter 13 issues with them.  Inevitably people want to know what they need to claim and what they don't have to claim in their bankruptcy.  The conversation between me and the prospective client generally goes like this:

Prospective Client: "I don't want to lose my house so I won't want to tell the Bankruptcy Court that I own a house or tell my mortgage company that I am filing for Bankruptcy"

Boise Bankruptcy Attorney:  "You are required to divulge all your real property and any debt owing on it."

Prospective Client:  "I don't want to lose my car so I don't think I will included this in my bankruptcy petition."

Boise Bankruptcy Attorney:  "Again, you must include all your debt and property in the bankrutpcy petition."

Prospective Client: "Why, it's my property?  I own it."

And so goes the conversation.  I always try to explain to these people that I am not trying to mean insisting that they include everything, but that I am trying to make certain their bankruptcy is not denied because the committed fraud upon the court.  That's right.  The bankruptcy court can deny your petition if you intentionally lie about your assets.  While it is your property you have a certain obligation to pay debt owing on outstanding debts.

The bankruptcy court needs to know what assets you have that might be available, after exemptions, to cover some of your secured debt.  Bankruptcy is not just a simple way to get out of debt.  You are allowed certain exemptions, which your Boise Bankruptcy Attorney can explain to you, to allow you some ability to retain what property you have.  However, you are not allowed to hide your debt and property or pick and chose which creditors you will include in your bankruptcy.

Other Things Not to do in Bankruptcy
You should never leave out of your bankruptcy petition any income that you receive.  This includes your kid's part time income or income paid in cash.  All income of the household must be included no matter how small.

If you own a piece of property outright, you still must include it in the petition.  Some people are under the mistaken impression that if they don't have a debt obligation on a piece of property they are not required to list it.  That simply is not the case.  It is very easy for the bankruptcy trustee to do a search for title.  You will be serious straights if you don't include the property or you try to sell it right before you file bankruptcy.

A big no no in bankruptcy is transferring or selling property within 12 months of filing.  The bankruptcy court and the trustee will look at these very hard to see if you are trying to commit fraud on the court.  An example of this is when you owe a family member money.  If you pay them off and then turn around a file for bankruptcy the court will look at this as a fraudulent transaction.  Likewise, as mentioned above, if you own a car outright and you transfer title within 12 months of your bankruptcy the court will look at that as you trying to hide your ownership of the vehicle.

A word of advice from a Boise Bankruptcy Lawyer:  Don't go it alone.  There are so many ins and outs of bankruptcy law that if you don't know what you are doing you can end up getting yourself in trouble.  If you need to file for Bankruptcy and you want to speak to a Boise Bankruptcy Lawyer, give us a call, (208) 472-2383 and see what we can do for you.

Friday, October 5, 2012

Boise Probate Attorneys (208) 472-2383 Idaho Estate Planning Lawyers

Tips About Probate and What to do After the Death of a Loved One
As a Boise Probate Attorney I often counsel people about estate planning and probate.  One thing I always remind clients about is preparing for their death.  I don't do this to be morbid, I mean it in a practical way.  When I see people in probate, I am always amazed at the difficulty loved ones have finding the will or getting access to it.  People often aren't sure what to do next.  Today I am going to give you tips about what to do after a loved one dies.  The aim of this list is to help you remember all the things you should do as a family member or personal representative.  It is by no means exhaustive but it is a practical list of steps to take.

Notification tends to be the first step. While it may be an obvious statement you should first notify all family members and close friends.  Other people that need to be notified are the social security administration if the deceased person is receiving any benefits, as well as any other government office providing benefits.  This could be Medicaid, Medicare or the Veterans' Administration.  Additionally, you should notify the deceased employer, bank, landlord and creditors.  In general, any one that the decedent has fiduciary, business, religious or personal contact should be notified.

Death Certificate
Creditors will often require that you provide them with a death certificate.  These can be obtained by calling the Department of Vital Statistics and paying for certified copies to be sent to you.  The certified death certificates operate as proof to the creditors of the decadent's death.  You will also need the death certificate to have insurance funds released to you.  It is important to remember that while any life insurance is technically outside of probate and the estate, you, or the personal representative may need to the proceeds to pay creditors so it is wise to hold onto the money until the estate has been closed.

Also, remember that deaths are reported in local papers.  Anyone preying on this sort of thing has access to the knowledge that the home is now vacant.  You should remember to stop mail and newspaper delivery and ensure that the home is secure.  In addition, you should notify the utility companies of the death.  You may want to keep the electricity as well as the other utilities on but you will most likely need to change the name on the bill.  Depending upon the company, they may only require the bill to be changed to "The Estate of  John B. Decedent" or "C/O the Estate of John B. Decedent".

Location of the Will
You will need to locate the most recent copy of the will.  As a Boise Estate Planning Attorney I always remind my clients not to store their will in a locked safety deposit box.  Without the will it can be difficult to have the personal representative identified correctly and letters testamentary created in the name of the representative appointed by the decedent.  It is very difficult and often not possible to do anything for the estate without letters testamentary.  While some creditors or individuals will deal with a person who identifies themselves as the personal representative without the letters, the majority will not.  An example where this happens is the transfer of property.  It is important to remember that a power of attorney expires upon death.  If you held the power prior to death and dealt with the finances of the decedent, upon their death you will need to replace the power of attorney with the letters testamentary.  You will not be able to transfer property without them.

Boise Probate Attorney
While you may not be required to go through probate it is always important to contact a Boise Probate Attorney.  These trained professionals can explain to you what further steps you must take.  In the administration of an estate, the person who has been appointed personal representative has many duties and obligations.  A Probate Lawyer can help you get started on the right foot.  The last thing you want to do is to compromise the estate, transfer of property or waste funds intended for beneficiaries.

If you need to speak with a Boise Probate Attorney or an Idaho Estate Planning Attorney, please give us a call, (208) 472-2383 and see what we can do for you.

Friday, September 28, 2012

Boise Bankruptcy Attorneys (208) 472-2383

Bankruptcy Relief
As a Boise Bankruptcy Attorney I know that for most people who file for bankruptcy, the initial moment of relief is when the creditors stop calling and harassing them for payments on past due accounts.  During my initial consultation, individuals often want to know when creditors have to stop calling and what can be done if they don't.

When Will Collection Efforts Stop?
As soon as they are notified of your bankruptcy, creditors must stop all collection efforts.  The bankruptcy court will send out a notice to all the creditors you have listed on your petition (one more reason you want to make certain you have listed everyone).  Although the right to have creditors stop harassing you begins immediately upon your filing bankruptcy, it can actually take a couple of weeks for those notices to reach and go through all the proper channels.  In the meantime, if you get a call from a creditor you can inform them that you have filed bankruptcy.  It is important to notify them of the case number so they know that your claim is legitimate.  While it isn't always necessary sometimes it might take a telephone call from your Boise Bankruptcy Lawyer to get them to stop before they have received the actual notice from the Federal Bankruptcy Court.

One important word of caution.  If you have been sued and have a pending collections case against you, you should have your Boise Bankruptcy Attorney give the attorney for the creditor a call.  This will prevent any action against you from being taken before they receive the notice from the Bankruptcy Court.

What Happens if the Creditor Won't Stop Calling?
If you have filed your bankruptcy petition, notified your creditors and/or your creditors have receive notice of your bankruptcy from the Court, and a creditor is still harassing you, you have legal recourse against them.  Your bankruptcy lawyer can file a complaint against them with the bankruptcy court.  The malicious creditor can have sanctions placed against them and they may be required to pay your attorneys' fees.

Whether you need to file for Chapter 7 or Chapter 13 Bankruptcy and you want to speak to a Boise Bankruptcy Attorney, give us a call, (208) 472-2383 and see what we can do for you.

Friday, September 21, 2012

Child Support Attorneys Boise (208) 472-2383 Divorce, Family Law, Custody

Child Support FAQs
As a Boise Family Law Attorney I deal with child support very frequently.  Although child support is fairly straight forward, there are many questions people have in regard to their rights and obligations.  In today's blog I am going to focus on some frequently asked questions in regard to child support.

Where Do You Pay Child Support and How Much Does it Cost?
All child support must be paid through the Department of Health and Welfare.  The Department keeps a thorough record of all payments made, amounts owing and arrears.  In 2005 Congress passed the Federal Budget Deficit Reduction Act.  As part of that Act, Congress ordered every state to pay a $25 fee on every active child support case over $500.  In 2007 Child Support Services began passing on that fee to parents owing child support.

Child Support Services sends out a monthly bill which can be used to send your payment in.  If you do not wish to receive a bill, you can opt out by calling the Department.

What Happens if I Don't Pay My Child Support?
Child support is established by a court order.  Either you were ordered to pay support pursuant to a divorce or a custody proceeding.  Your divorce attorney or custody lawyer, or the attorneys on the other side would have filled out a child support worksheet and calculated your obligation based upon the Idaho Child Support Guidelines.  Once you have a child support order it is sent to Child Support Services.  As noted above, this department keeps a thorough record of your payments.  If you fail to pay and are behind $2,000 or the equivalent of three months of child support, Child Support Services can take action.

The first thing they will do is to suspend your driver's license, any Fish and Game licenses you hold as well as any occupational license you have.  This can wreck havoc on you and your ability to drive, to work and to recreate and that is exactly why this law is in effect.  In order to get your licenses in good standing, you must contact Child Support Services and make financial arrangements to pay the outstanding child support.  Once you have committed to a monthly repayment plan you can get your licenses back.  If, at any time during the repayment, you fail to make your payments, the department will once again begin the process of suspending your licenses.

The next thing that can be done to you for failing to pay child support is that the department will put a lien on any real property you own in Idaho.  This will be done when you are $2,000 or the equivalent of three months of child support behind.  Liens are only removed when you have paid your outstanding arrears in full.

What Happens When One Child Turns 18 (or 19) and You Still Owe Support for Younger Children?
If your child support order specifies what is to be done, the department will simply follow the order.  However, there are times you may have to notify the department or even have your Boise Divorce Attorney go in and modify the original order.

In Idaho, Child Support can continue until a child is 19 if that child is still in school.  Child Support Services will not know that child support should continue if they are not notified that the child is still in school.  Likewise, if your child support order does not give a dollar amount to which child support should be reduced once one child is over 18 (or 19) and most likely it won't, you will have to ask the court to modify the original order so that the proper amount is being paid for the children remaining.  Your divorce attorney or custody lawyer will know the exact procedure to follow to have the order modified.

If you need to speak to a Boise Divorce Attorney or a Boise Child Support Attorney about child support, custody, modification or any other family law issue, give us a call (208) 472-2383 and see what we can do for you.

Friday, September 14, 2012

Boise Criminal Defense Attorney (208) 472-2383 Idaho Criminal Lawyers

DWP  and Notice of License Suspension
I mentioned in last week's blog that as a Boise Criminal Defense Attorney one of the most common questions I get has to do with DWP and license suspension.  In today's legal analysis I will discuss how you get notice of your suspended license and what happens if you don't get it or you disregard it.

Very frequently people will call my office and say that they were pulled over for some reason or another only to find out that they were driving without privileges and they had no idea that their license was suspended.  The usual question to criminal attorneys is, "Can I be guilty if I never had notice of the suspension?"  The answer to this is yes.

Upon hearing this answer from a Boise Criminal Attorney, people often cry, "Unfair!"  We have all heard that ignorance of the law is no excuse and that is applicable here.  The Idaho Code says that you are presumed to have notice of a suspended license if, you have actual knowledge, you have received oral or written notice by qualified personnel, if the notice was mailed to your home or a reasonable person would have knowledge that their license is suspended.

Actual Notice
The two situations I want to discuss here are the last two.  Recently, I had an individual call my office.  She was very unhappy because she had been pulled over for a traffic infraction.  It was then that she discovered that she was driving without privileges.  She said that she had moved and had forwarded her mail.  For all intents and purposes, she appears to have done everything right, right?  Wrong.

When the Idaho Code talks about notice going to your home, it means the address on file at the Department of Motor Vehicles.  If you move and forward your mail without changing your address at the DMV you are potentially setting yourself up, not only to be cited with a criminal charge, but you are taking the chance that you will get a DWP because you didn't get actual notice of the underlying suspension.  In fact, in Idaho, you have 30 days to notify the DMV of your new address and if you don't you can be cited for failing to do so.

The individual I spoke of felt she was justified because she had notified the US Postal Service of her change of address.  Even if she didn't notify the DMV the notice should have been forwarded to her and she never got it.  You can forward your mail for up to 1 year.  However, after 6 months, you have to request a continuance.  But all this is an academic point because she never notified the DMV of her change of address.

Is there anyway to get passed the "I didn't receive notice"?  Most likely not.  The fourth presumption of notice I mentioned above says that a reasonable person would have known their license was suspended.  This is a legal catch all.  Unless you can show that your notice was not actually mailed to your accurate address on file with the DMV and that there was no way that you had or should have had knowledge of the suspension, you will be presumed to have notice.  This leads you to have to deal with the underlying suspension and avoiding that slippery slope of DWP that criminal attorneys are always talking about.

If you have been charged with a DWP, DUI or any other crime in Idaho and you need to speak to a Boise Criminal Lawyer, give us a call, (208) 472-2383 and see what we can do for you.  You will be glad you did.

Friday, September 7, 2012

Boise Criminal Defense Attorneys - DUI Lawyers 208-472-2383

License Suspension

As a Boise Criminal Defense Attorney I deal a lot with the Idaho Transportation Department.  The reason I have so much contact has to do with license suspensions.

DUI License Suspension

Many people are aware that there is a mandatory license suspension when you are convicted of a DUI.  This is a requirement established by Idaho Statute and the length of which will be determined by how many times you have been convicted of driving under the influence.  The license suspension applies to driving under the influence of alcohol as well as drugs including illegal drugs such as marijuana, meth or over the counter or prescription drugs.

DWP License Suspension

All criminal lawyers will tell you that DWP is a slippery slope and it's true.  If you already have a suspended license because of something like a DUI and you get pulled over, you are going to get an additional license suspension on top of the one that you already have.  It won't start running until the current one expires.

License Suspension for Minors

There are special rules that apply to suspensions for juveniles.  A minor can be be cited with a DUI for any amount of alcohol in the blood stream.  Whereas a license suspension for an adult on a first time DUI would be for 30 days absolute and then between 60-150 days where you can ask for a restricted license, the law is much tougher with minors.  A minor DUI carries a 1 year suspension with a 90 day absolute.

There are other ways that minors can get there license suspended as well.  If a minor, under the age of 17 is convicted of a traffic offense, there are automatically given notice that if they receive another conviction they will have their license suspended for 30 days.  A third conviction would carry a 60 day suspension.  This continues until the minor reaches 17.  If a minor receives a suspension a day before their 17th birthday, the suspension will run its course, regardless of the age of the minor.

If you need to speak to a Boise Criminal Lawyer about a DUI, DWP or any other crime in Idaho, give us a call (208) 472-2383 and see what we can do for you. You will be glad you did.

Friday, August 31, 2012

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

Interesting Family Law Issues
As a Boise Family Law Attorney I deal regularly with divorce, custody, paternity, modification, child support and domestic violence.  Even though some of these issues can be complicated by conflict the concepts involved in these issues are fairly straight forward.  However, every once in a while something will throw you a curve ball.

As a Boise Divorce Attorney, I have handled divorce and modification cases that seem routine.  Occasionally, however, some interesting issues arise.  One such issue is Paternity.  Now and then a new client will come into my office seeking a modification or responding to one.  This isn't unusual.  What is unusual is when the client has been paying child support and having visitation with a child that is legally not theirs.

Sometimes it is the case of mistake.  Sometimes they presumed it was their child.  Sometimes that is a mutual mistake for both parties.  Sometimes the one party was convinced by fraud that the child is theirs.  Other, more rare situations, are when the client knows the child is not theirs but they felt obligated to provide for the child anyway.

How to Fix Paternity Issues in Idaho
So what happens in these various situations?  If the presumption is wrong, and the child is not biologically the child of one of the parties, and no fraud was committed, your Boise Divorce Attorney or family law attorney will petition the court to terminate any child support order.  If you know the child is not yours but you want to have a relationship with that child and the child's biological parent is ok with it, you can ask that the existing order be kept in place or even modified (one caveat; not all judges will ok a stipulation for you to pay child support and have visitation with a child that is not yours even if both parties agree).  If, however, you were fraudulently convinced that the child was yours and you have paid child support for that child, you can bring charges against the other parent, if they were the one that committed the fraud.  They have to have known with a degree of likelihood that you were not the biological parent and taken child support from you anyway.  If this is the case you can either seek reimbursement from the mother, who collected child support or the child's actual father who should have paid child support that whole time.

If you are public assistance and your child was born out of wedlock, the state will automatically require the father to have a paternity test to avoid the exact problems I outlined above.

If you need to speak to a Boise Divorce Attorney about divorce, custody, child support, modification, termination, adoption or domestic violence, give us a call to speak with one of our Boise Family Law Attorneys, (208) 472-2383 and see what we can do for you.  Call now, you will be glad you did.

Friday, August 24, 2012

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

Every year in Idaho well over 10,000 people are arrested on DUI charges.  As a Boise DUI Attorney, I see a fair number of individuals who fit within this statistic.  Some of these people flat out admit to driving while under the influence.  Many will say, "I only had a few beers, there's now way I was drunk" and still others will say, "The cop had no reason to pull me over".

The Idaho Transportation Department offers some advice on DUI and DUI stops in Idaho.  They say that there are some key activities that the Boise Police and all police in Idaho look for when determining if they have probable cause to pull someone over on suspicion of driving under the influence.  In general they say that people who are driving drunk make wide turns, cross lines, weave or swerve, stop for no reason, drive too fast or too slow and/or have a delayed response to things like traffic signals.  While I know a few really bad drivers who fit this profile stone cold sober, most people don't drive this way unless they are somehow impaired or distracted.

What happens if you are driving this way and you haven't been drinking?  There are several possibilities that I see regularly as a Boise Criminal Defense Lawyer.  Firstly, when you drive this way you give the police a reasonable suspicion that something is going on in your vehicle that shouldn't be happening and thus they can pull you over.

So what types of things do they find?  A very frequent scenario I see in the role of criminal lawyer is driving under the influence of drugs.  Now this may mean illegal drugs, over the counter drugs or prescription drugs.  Obviously, if you have illegal drugs in your system you will be charged with a DUI and possibly possession and any other derivative of that based upon what evidence the police find.  If you have over the counter drugs or prescription drugs in your system you may or may not be charged with DUI.  These cases tend to turn on evidence provided by a physician.  As a defendant what you need is for a doctor to say that the amount of that drug you had in your system would not have impaired you and that you should be able to drive with that amount in your system.  If you can't show this you can be charged with a DUI.

Even if you can show that the amount of drugs in your system didn't effect your driving, you might still be charged with a crime.  Reckless or inattentive driving is another situation I see regularly as a Boise Criminal Attorney.  Those wide turns mentioned about might endanger children in a school zone or speeding through a neighborhood could constitute a reckless disregard for human life.

Another fairly new scenario is texting while driving.  This isn't so much of an impairment, rather it is a distraction.  If you are texting while driving you may only be cited for TWD.  You, however, depending upon the level of your distraction and whether or not you cause harm, may also be charged with reckless or inattentive driving.

The long and short of it is that those signs the police look for to establish cause to pull you over on a DUI can also lead to other criminal charges, because, like I mentioned above, I know some really bad drivers, but...

If you need a Boise DUI Attorney or an Idaho Criminal Defense Lawyer, give us a call and see what we can do for you, (208) 472-2383.  Call now - you will be glad you did.

Friday, August 17, 2012

Boise Criminal Defense Attorneys - (208) 472-2383 Texting While Driving

As of July 1, 2012 it is illegal to text and drive in Idaho.  This is a stand alone law meaning that the police can pull you over if they have reasonable suspicion that you are texting while driving.  This is unlike the seat belt law in Idaho.  In that situation, the police cannot stop you because you aren't wearing a seat belt, rather, if you are stopped for something else and you aren't wearing a seat belt, they can cite you for failure to wear a safety restraint.

This new law is sending a flood of calls to many Boise Criminal Attorneys offices.  What does it mean and what are the ramifications of it?  Firstly, driving while texting is an infraction.  Basically, this means that you will get a ticket if you are operating a motor vehicle and you are reading or writing a text message.  It, however, doesn't apply if you are using a speech activated device to create or read a text.  To me, as a Boise Criminal Lawyer, this raises a curious question of proof.  I personally have a hands free device in my car and with my phone I can speak and the phone will create the text or read me the text.  This doesn't mean, however, that I regularly text this way.  In fact, I usually use the old fashion method of clumsy thumbs.  If a police officer doesn't see me texting, but sees me looking into my lap while I am driving, he or she may pull me over for texting while driving.  Is me looking into my lap good enough evidence to prove I was texting while driving?  What if the police officer looks at my phone and sees a text sent at 1:02 pm, the exact time he or she pulled me over?  Can I tell the officer I sent that text with my hands free device?  Will he or she believe me?  In my mind, as a Boise Criminal Attorney, the problem with the law as it is is that it doesn't require an underlying infraction to be pulled over for.  If it did and I was looking in my lap, then perhaps the police officer could pull me over for inattentive driving. 

I think, without a doubt, it is a very good thing to have a law to keep people from texting and driving.  It is dangerous and can lead to grave harm.  However, as a Boise Criminal Attorney, I feel that the law is ambiguous and poorly written.  It leaves open too many possibilities of bad evidence, loopholes and the like.

In addition, the law is not a moving violation.  This means that if you are cited for texting while driving, a crime in Idaho, your insurance rates won't be effected by it.  Part of the teeth behind the laws in criminal law is to dissuade people from committing crimes.  If you sell marijuana or other drugs, you will go to jail.  If you drink and drive you will get a DUI.  If the legislature really wants to curb texting and driving, shouldn't it carry the threat of increasing your insurance?  If you speed and get a ticket, you can be sure your rates will increase.

This is a new law and there are many unknowns yet to be discovered.  Next blog I will talk about whether or not you need a search warrant to look at the texts or any other information on your smart phone.

If you have been charged with a crime and you need an experienced Boise Criminal Lawyer, give us a call and see what we can do, (208) 472-2383.  We always offer a free consultation.  Call us, you will be glad you did.

Friday, August 10, 2012

Boise Probate Attorneys - Estate Planning (208) 472-2383

Probate and Minor Beneficiaries
As a Boise Probate Attorney I regularly assist clients in the probate of a loved one's estate.  These probate issues often come to me after the fact, meaning that I did not draft the original will.  One of the major issues I see has to do with providing for minor children under a will.  No one hopes to die before their children come of age.  The big problem comes in if you do die before your children reach the age of majority and you have failed to provide anything specific under the will for them.

While some individuals create very complex wills or living trusts to assist in their estate plan, many people rely on simple wills.  In general, these wills leave everything to the spouse and if the spouse predeceases them, then to their children.  This works fine, unless your children are under the age of 18.  Who wants a $250,000 estate to go directly into the hands of a minor?

Estate Planning Solutions for Minor Beneficiarie:
Will Solutions
What, then, do you do?  As an Estate Planning Attorney I would suggest a few different approaches.  First, of course, you should try to deal with the issue before it becomes an issue.  By this I mean, even if you only want a simple will, you should make a provision dealing with the distribution of property in case you die before your child reaches majority.  The way to go about this is to insert a trust provision which handles who will distribute the property or funds to the child, when and in what amounts.  This effectively allows you to prevent a very large sum of money ending up in the hands of a child.  You can do this very simply by creating the trust and naming the trustee.  You could also simply nominate a custodian for any beneficiary under the age of 21.   In this situation, it is helpful to add a letter of direction, telling the custodian what you want them to do with your property and how to distribute or invest it for your minor children.  This allows you to have control of how the property is distributed until your children reach the age of 21 instead of the age of 18.  You can create further control over distribution if you follow the Idaho Uniform Custodial Trust Act (UCTA).  This Code section technically allows a beneficiary to terminate a trust at the age of 18.  However, if the will provision is created stating the share of any beneficiary under 30 is to be held in trust, you can bypass the beneficiaries ability to terminate it sooner.

Another solution is to create a living trust.  In effect, a living trust takes your property out of your estate.  You can establish revocable trust directing where your property will go and how it will be distributed.  This approach also allows you to bypass probate if you place all your property in the living trust.

Probate Solutions
So what happens if you are on the opposite end of the situation and both parents of a minor child have died?  If you have a small estate (under $10,000) the personal representative has the option of doing four different things.  They may distribute the money directly to the child if the child is 18 or older or married.  The PR may distribute the money or property to the person who has the care and custody of the child and with whom the child resides.  The PR may direct the money to the guardian of the child.  Or, lastly, the PR can place the money in an account in the minor's name.

If the estate is larger than $10,000 the Personal Representative has two courses of action.  They can distribute the funds to a conservator or petition the court to transfer the moneys under the Idaho Uniform Transfer to Minors Act (UTMA).  The difficulty relying on this code section for probate attorneys is that the act provides no guidance to the conservator, nor do they have any guidance from the deceased parents.  There is no way they can hope to carry out the wishes of the parents.  In addition, under the act, the money must be distributed when the child turns 18.  In some situations, the court will hear a petition to extend that to age 21. 

As a Boise Probate and Estate Planning Attorney, I feel that it is better to anticipate a potential problem by inserting a very specific plan into your will.  It may never have to come into place, but if it does, your minor children can be provided for and you can prevent them from squandering their inheritance before they reach maturity.

If you have a probate or estate planning issue and you need to speak to an attorney, please give us a call, (208) 472-2383 and see what we can do for you.

Saturday, August 4, 2012

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

Divorce and Separate Debt
As a Boise Divorce Attorney one of the issues I find to be the most frustrating and difficult for my clients to understand is the concept of reimbursement of separate debt by a member of the community.  While this may sound like typical family law lawyer speak, it is a real issue that takes some analysis to understand.

Separate Funds vs. Community Funds
I have written on many occasions about the differences between separate and community property.  Separate and community funds are a similar concept.  Any funds, monies, that you have from before a marriage is your separate money.  Likewise, income generated from separate property sources are generally separate funds, as is inheritance.  Monies made during a marriage as a result of employment or business and through the sale of community property belongs to the community.

Funds Upon Divorce - Where Does Reimbursement Come From?
If one spouse had separate property at the beginning of marriage and did nothing to co-mingle the property or funds and they use the value of the property or separate funds to benefit the community, they are entitled to reimbursement.  All family law judges and divorce attorneys can tell you that the community is required to reimburse the spouse who used their separate funds.  Many divorce clients, however, often see this as an academic exercise.  But, the reason it is important is because Idaho is a community property state and there is a real legal distinction between monies that belong to the community and monies that belong to each other by virtue of being separate property.  The dollar amount owing to the party who used their separate funds is treated just like a debt to the community.  Under Idaho law that person had the right to use their money for their own benefit and they are not required to use it for the community, but if they do, they have a right to reimbursement.

Community Right to Reimbursement for Separate Debt
The scenario works in the converse as well.  When the community pays a separate debt for one of the parties, upon divorce, the community has a right to be reimbursed for its payment of that debt.  This concept also can get convoluted for clients and it can seem to them that their divorce lawyers are speaking gibberish when talking about it.  The important thing here to remember is that it may be difficult to trace payment for separate debt particularly if the marriage is of a long duration and the debt was paid years before.  Most people don't contemplate divorce as a possibility until it becomes apparent that it will happen so there is the idea that it doesn't matter that the community paid for a separate debt.  It is much like saving your receipt.  You never think you are going to have to return something so you don't bother to keep track of it.

Proof of Payment
This leads me to my final thought on the issue of separate and community funds.  As noted above, keeping track of funds can be critical to proving the right to reimbursement.  Whenever you have co-mingling of funds or cross over payments, you run the risk of not being able to prove you are owed monies from the community.  This is an important issue for divorce attorneys and clients alike.  No Idaho Family Law judge will allow you to nickle and dime the other party because the presumption is that all funds and property in a marriage belong to the community.  However, if you can clearly show that you paid a debt of the community from your separate funds or that the community paid for a debt belonging to the other party, you have a right to reimbursement. 

A word of caveat.  You have a right of reimbursement, but you still have to prove that you somehow did not co-mingle the funds or transmute the nature of the property.  Sound like lawyer speak?  Well, sounds like community property law to me.

If you are seeking a divorce and need an experienced divorce attorney, give us a call, (208) 472-2383 and see what we can do for you.

Friday, July 27, 2012

Boise Criminal Defense Attorneys - DUI Lawyers (208) 472-2383 - Does DUI Apply to Riding a Bike Drunk?

 As a Boise Criminal Defense Attorney I see a lot of off the wall things.  Sometimes they are laws that make a ton of sense but are applied wrong and other times they are down right ridiculous situations.  DUI laws are in place to protect us, but sometimes they fall short.  Driving Under the Influence refers to operating a motor vehicle under the influence of drugs or alcohol.  The key word here is "motor vehicle".  I bring this distinction up because on Wednesday, in downtown Boise, there was an accident caused by an individual who was under the influence of alcohol.  He ran a red light and crashed into a car.  The thing is, he was riding a bicycle.  He wasn't charged with DUI.  Instead, he was cited for running a red light.

Can You Get a DUI on a Bike?
The man wasn't charged with DUI because the law doesn't apply to bikes.  The irony here is that if you are riding a bike when you are drunk you can cause harm to yourself or to others, just like you can if you are driving a vehicle under the influence of drugs or alcohol.  A further goofy situation this causes is, what constitutes a motor vehicle?  You can be cited for DUI if you are riding a scooter and are drunk, but does that apply to an electric scooter?  What if you are riding a bike that has a motor attached?  What if you are riding a bike that has a motor attached but you are riding it using the pedals?  You can see how the situation quickly becomes ridiculous.  The short answer is, no, you cannot get a DUI operating a bicycle when you are drunk.

What Happens if You Cause an Accident Operating a Bicycle Under the Influence?
In true Criminal Lawyer fashion I will say, the answer to this depends upon the situation.  If you run a red light and cause an accident, you will be cited with failure to obey a traffic signal.  If you are riding your bike drunk in a disorderly fashion you might be charged with disorderly conduct or public drunkenness.  If you are drunk on your bike and you crash into the state of Idaho property and cause it harm, you might be charged with destruction of public property - and the list goes on.  This isn't fancy criminal attorney foot work, it just is the state of the law in Idaho.

If you have been charged with a DUI or other crime in Idaho and need to speak to a Boise Criminal Defense Attorney or Boise DUI Lawyer, please give us a call, 208-472-2383 - You will be glad you did.

Friday, July 20, 2012

Boise DUI Lawyers - Criminal Defense Attorneys (208) 472-2383 DUI Types in Idaho

As a Boise DUI Attorney people often express their exasperation to me about DUI law in general.  One particular thing that really gets people wondering is the use of various terms in criminal law.  Excessive, Aggravated and DWI are three terms people always ask me about.

What is the Difference Between a DWI and a DUI?
Many criminal attorneys answer this as a regular part of their criminal law practice.  Most forty-five + year olds remember the days when the drinking age was 19 (18 in some states) and if you got caught driving while intoxicated you were charged with a DWI.  DWI means just that.  It was changed, however, because the law encompasses more than mere intoxication.  You can also be impaired as a driver if you are driving under the influence of drugs, whether they are illegal drugs, like marijuana or meth, or legal prescription or over the counter drugs.  The term DUI means driving under the influence which incorporates under the influence of drugs or alcohol.

Excessive DUI
There is ordinary DUI charge and there is a charge for an excessive DUI.  A standard DUI means that you were operating a motor vehicle with a blood alcohol content of .08% or greater or under the influence of drugs.  An excessive DUI means that you were driving with a BAC of .2% or greater.  It is excessive because the level of impairment created.

The penalty for an excessive DUI is basically one step up from a regular DUI.  The penalty for a first time excessive DUI is the same as for a second time DUI.  The tiered penalty is created because of the degree of impairment.

Aggravated DUI
As a Boise DUI Lawyer people often ask me what the difference between an excessive DUI and an aggravated DUI is.  Excessive has to do with the amount of alcohol in your system and the degree of impairment, whereas aggravated is a term used to describe the level of harm or potential harm.  An aggravated DUI means that you were driving under the influence of alcohol or drugs and you caused an accident which caused great bodily harm, disfigurement or death to another individual.

Any DUI charge is a serious circumstance.  If you want the best representation available from a Boise DUI Attorney give us a call today, 208-472-2383 - you will be glad you did.

Friday, July 13, 2012

Boise Divorce Attorneys (208) 472-2383 - Summer Vacation During a Pending Divorce

Summertime can cause headaches for family law lawyers as well as clients and I don't mean because of the heat.  As a Boise Divorce Attorney I often approach the summer season with trepidation in regard to certain custody issues.  The issue for me is the joint preliminary injunction.  Every time a divorce complaint or a modification motion is filed in Idaho the court automatically attaches a joint preliminary injunction.  This injunction places both parties on notice that they are not allowed to take the children out of the state for more than 72 hours and if they do they will be held in contempt of court and potentially face jail time.  So why do divorce attorneys worry about this and what does it have to do with summer?

Summertime is traditionally vacation time.  Often a family will have gone on the same vacation for years.  When the couple files for divorce one party or the other may still want to take the same vacation and they didn't plan on the joint preliminary injunction being a hurdle to their vacation.  Without proper planning or cooperation, this injunction can cause the vacation not to happen.  So, if you are getting a divorce or a modification does it mean that you can't go on vacation?  Not necessarily, but to prevent a contempt charge their are some things that you have to do first and trying to do them two weeks before vacation is the wrong time to start.

There are two ways that your vacation will stay on track.  You can either have a written and signed agreement between the parties or an order of the court.  The easiest and fastest way to get permission to leave is to ask the other party to allow you to take your child out of the jurisdiction.  Now, while this seems easy, often because communication has broken down, it is not an easy task.  Some strategies I use as a Boise Divorce Attorney is to tell my client to be very specific about where the child will be going, how they will get there, when they will call the other parent and when they will return.  Sometimes this is enough incentive for the other party to say yes.  If they know that they will be able to speak to their child and exactly when they will be back they sometimes are more flexible.  If this is the case, you can get your agreement and go, but you also must follow the agreement.  If you don't, once again you can be facing contempt charges.

The second way to keep your vacation on track is by order of the court.  If the other side simply won't agree to sign, in order for you to legally take your child out of the state for more than 72 hours you must get the court to say that you may.  Here too, the court will be very specific about where the child is going, how they are getting there, when there will be telephone visits with the other parent and when the child is to be returned.  The difficulty family law attorneys run into is when the person wanting to leave the jurisdiction notifies their attorney that they are leaving in two weeks.  This simply is not enough time to get in front of the court.  Clients will often be upset because the other party knew they were going to take the vacation, they traditionally take the vacation and now, out of spite, they refuse to sign an agreement.  Even though it isn't fair and doesn't seem right, that is the law.  The reason it is this way is to prevent one party or the other from fleeing the jurisdiction with the child.

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

Friday, July 6, 2012

Boise Family Law Lawyers - (208) 472-2383 Separate and Community Property

Separate and Community Property
As a Boise Divorce Attorney I have spoken frequently in this blog and in others about community property.  To be brief, community property is that property which is acquired during a marriage with community funds.  This is in contrast to separate property.  The distinction between the two is important because upon divorce, community property is divided equally or equitably because it belongs to both parties.  At divorce, however, separate property remains the sole property of the original owner, unless….

As a Family Law Lawyer I deal with “unless…” a lot.  How and why would separate property become an unless?  In the world of family law there is something known as comingling.  Comingling exists in divorce law as well as business law.  It is the act of mixing property or money so that the original source is unclear.  It also often entails a lack of desire to keep property separate which can indicate a sharing nature.  Because there is a mixing, the property becomes transmuted.   Transmuted is a fancy legal word for changed.  As in all these blogs, when I discuss something technical, I am sure it is clear as mud.  Let me try to remove the mud and explain.

Speaking in hypotheticals:  

Wife has cold hard cash from a previous marriage.  She marries new Husband.  Wife places her cash in her own bank account.  Wife never uses money from her account to pay for anything related to the community.  Husband and Wife get a divorce.  It is clear that Wife always kept her money separate.  She never mixed it with money from the community.  It remains her own separate property.

Now let’s take Wife and Husband again but change the circumstances a little bit.  Say Wife and Husband are married.  Say Wife’s parents die and leave her $50,000.  Inheritance, by law, is separate property.  Now let’s say that Wife puts that money into her joint savings account.  Years pass and Husband and Wife make improvements on their home with money from the savings account.  They make regular deposits into the account and make regular withdrawals for other things too, like trips, gifts and taxes.  Years pass and Wife decides she is bored and is ready to move on.  Can Husband prevent Wife from taking and claiming that $50,000 as her own separate property?  You bet he can.  He needs to have an experienced Boise Divorce Attorney who understands how funds are traced and how comingling re-characterizes the nature of separate property.  This is possible because the funds were treated as community funds.  There was never any regard for keeping the funds separate and they were used freely to benefit the community.

So the above two examples are extremes but comingling occurs all the time.  A very common example I see as a practicing divorce lawyer is when separate property funds are used to purchase a new home.  Does the investment in the new home make the separate property into a community asset?  Generally, no, because the separate funds can be traced and any increase or decrease in value can be divided proportionally. The portion that is paid for with community funds will be characterized as community property.  The portion paid for with separate funds will be characterized as separate property.

If you are getting a divorce and have community property issues we have divorce attorneys who can handle the complexities involved in dividing the marital community.  If you would like to speak with one of our family law attorneys, please give us a call at (208) 472-2383.  You will be glad you did.

Friday, June 29, 2012

Boise Attorney Discusses Domestic Violence and Your Right to Bear Arms

Domestic Violence and the Right to Bear Arms
As a Boise Divorce Attorney I handle hundreds of domestic violence cases each year.  Some of these are mere allegations of domestic violence, while others actually lead to the implementation of a restraining order or a criminal conviction for domestic violence.  But what exactly, does domestic violence have to do with the right to bear arms?

No Guns for Felons
Firstly, the Second Amendment of United States Constitution grants the right to bear arms to all U.S. Citizens.  Many people know that you can lose this right if you are convicted of a felony.  As a Boise Criminal Attorney, I see individuals lose this right regardless of the nature of the felony.  For example, it makes sense that you would lose your right to carry a gun if you committed a felony involving a gun.  However, it doesn't stop there.  If you incur a third time DUI (a felony), you will lose your right to bear arms.  There are two exceptions to the "any" felony rule.  If you are convicted of a felony in a foreign country or a felony involving an antitrust or unfair trade practices you cannot be convicted in federal court for illegal gun possession.

Domestic Violence Conviction
Prior to 1996, domestic violence, unless it rose to the level of a felony, and gun control had very little to do with one another.  In 1996 the US Congress passed a law that made it illegal to bear arms if you were convicted of the crime of domestic violence.  What does this mean? 

Although domestic violence is a crime, it is often handled in the divorce or family law context and without criminal implications.  An ex parte hearing is the first step.  This is an emergency hearing where the individual who is being abused petitions the court for a temporary restraining order.  The court will issue the order on a temporary 2 week basis to provide protection, but also to give the other side the chance to have their side heard.  If, after hearing the evidence, the judge determines that there has been domestic violence they will order a no contact order.  These generally last a year and must be renewed thereafter.  If the judge determines there was no basis for the temporary order he or she will dismiss the case.  If the battered individual files charges with the police and domestic violence charge is pursued by the prosecuting attorney the individual inflicting the harm can be charged and potentially convicted of the crime of domestic violence.  If this happens, that individual will permanently lose all rights to bear arms.  It doesn't just apply to handguns for protection, but applies to hunting guns and ammunition as well.  I say permanently because, even if your record is expunged or you are otherwise pardoned (the only way to get your right to bear arms back), it can be difficult to restore your rights.

As a Boise Divorce Attorney, I must always counsel my clients on this potentiality.  If you have been convicted of the crime of domestic violence and you have a gun in your possession, instead of being your divorce lawyer, I will become your criminal lawyer.

Even if you aren't convicted of the crime of domestic violence, simply by being subject to a no contact restraining order you will lose your right to bear arms.  This loss of rights, however, is only temporary.  Once the no contact order has expired you can once again go hunting or have a gun in your home for protection.

What If You Use a Gun As Part of Your Work?
Is there a law enforcement or a military exception to the gun control law?
There is not.  The Federal Code does allow for some exceptions to gun possession for law enforcement or military personnel, but not when a domestic violence conviction is involved.  What this means is you, in effect, is you lose your ability to work in your profession because you cannot pack your weapon, nor carry ammunition. 

Domestic Violence is a serious charge.  If you have a DV issue and you would like to speak to a Boise Family Law Attorney, give us a call, (208) 472-2383 and see what we can do for you.

Friday, June 22, 2012

Boise DUI Attorneys - IID and TAD - What Are They and What Do They Mean for You?

DUI and Technology

As a Boise DUI Attorney, I see many individuals sentenced after being found guilty of a DUI or pleading guilty to driving under the influence.  Part of the sentence for a DUI in Idaho involves the use of technology and electronic devices.  The two devices commonly used are the Ignition Interlock Device (IID) and the Transdermal Alcohol Device (TAD).  As a Boise Criminal Lawyer my clients often ask me, "what are these and what are they for?"

Ignition Interlock Device

An IID is a device that is installed on a vehicle's ignition.  The device requires that the individual "blow" before the car can be started.  Like a breathalyzer, it measures the driver's blood alcohol content.  It, periodically, while the car is being driven, also requires that the driver blow to ensure that the alcohol level in the blood has not changed.

In Idaho, an IID is part of the penalty for a second or third time DUI.  It must be installed after the mandatory license suspension term is completed and must remain in place until the period of probation for the offense has expired.  The requirement that the interlock device must be used will be noted on the individual's driver's license.

If anyone assists the individual restrained by the IID to start their car, they will be charged with a misdemeanor.  This, however, doesn't apply if the individual helped start the car in an emergency or mechanical repair of the vehicle, so long as the individual required to use the IID does not operate the vehicle.

Transdermal Alcohol Device

A TAD is an anklet which continually monitors an individual's BAC.  The device records and sends blood alcohol levels to a probation officer.  The device is sophisticated enough to measure fumes of alcohol or chemicals in the individual's presence and can distinguish if the individual has consumed the alcohol or is just in an area where the fumes are present.

As a Boise Criminal Attorney, I have seen many individuals fitted with these devices.  They are not required by statute but often a judge will require that an individual be monitored in this way.  Often it is the case that the greater offender you are, the more likely you will be fitted with a TAD.

Ordinarily, a probation officer would do random UAs to see if the individual was violating their probation.  The use of a TAD is continuous so there aren't any gaps in the monitoring.

A TAD can be ordered pursuant to a DUI conviction or the conviction of any other crime so long as one of the terms of the probation is that there is no consumption of alcohol.  They can also be required as a condition of parole where one of the terms is that the individual may not consume alcohol.

If you have been charged with a DUI or other crime in Idaho and need to speak to a Boise Criminal Attorney, give us a call (208) 472-2383.  You will be glad you did.