Thursday, March 29, 2012

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

Getting Pulled Over for a DUI in Idaho

When you are pulled over for a DUI in Idaho there are some preliminary things that will happen.  Firstly, the officer must have had probable cause to pull you over.  As a Boise DUI Lawyer people often ask me what this element of probable cause means.  Whenever there is a traffic stop, the police must have probably cause; meaning a valid, legal, reason for pulling you over in the first place.  If, for example, you pull away from a curb without using your blinker or you drive the wrong way down a one way street, the police would have probable cause to pull you over because you have violated a law.  If, however, you were driving your 1991 Bronco, with peeling paint and broken door latches, and just sitting at a stop light waiting for it to change, the police do not have probable cause even if they think you are guilty of a crime because you are driving an older vehicle. 

Once you have been pulled over the police will ask you questions and if they smell alcohol or suspect you have been drinking (because of your behavior) they can ask you to get out of the car and take a series of field sobriety tests.  You do not have to take a field sobriety test.  You can politely decline.  If you don’t, however, the police will very likely take you to the police station for a breathalyzer test anyway.  The importance in not taking the field sobriety test is for evidentiary purposes.  The less evidence the police have against you, the better. 

Do You Have to Blow? Don’t I Have a Constitutional Right Protecting Me From Self Incrimination? 

A very common question I receive as a criminal lawyer is, if there is a Constitutional Right not to incriminate yourself, how can you be forced to submit to a breathalyzer test?  What most people don’t realize is that when they received their driver’s license, they have already voluntarily agreed to submit to a breathalyzer test if they are pulled over on the suspicion of a DUI.  It’s like a “agree to the terms” on a website.  You don’t have to agree, but if you don’t, you don’t get to use the website.  You agree to submit to a breathalyzer and if you don’t, you don’t get a license.

What Happens if I refuse to Blow?

If you refuse to take a breathalyzer test the police can require you to submit to a blood draw.  You will be fined and have your license suspended for not blowing, although you are given a 7 day period in which to request a hearing to show cause why you refused.  This license suspension is a separate suspension from the one you will receive if you are found or plead guilty to the underlying DUI.

Something very important to keep in mind is that you do not have the right to have your criminal attorney present when you take a breathalyzer test or for a blood draw.

Challenging a DUI

How ever your BAC is ultimately established, will determine how your case is defended by your DUI Attorney.  If you choose to fight the charge, there are different factors that go into the evidence that is needed to successfully defend your case.  For example, with a blood draw, it is critical to keep in mind that blood decays rapidly and as it decays sugars in the decaying blood turn to alcohol. This can change the concentration of alcohol in your blood.  This isn’t something you would ever address for a breathalyzer challenge.  Another difference is challenging who administered the test.  For a breathalyzer, the arresting officer is supposed to be trained and certified.  If he or she is not, or has not been properly trained, the test results are thrown out.  For a blood test, the Idaho Code requires certain medical personnel to administer the test.  If the wrong person does it, the test results are thrown out. These are just some examples of how a DUI can be challenged.  As noted above, probable cause is another area upon which to challenge your drunk driving charge.  

Important Considerations

One important consideration with DUI is that time is of the essence.  A DUI can have an enormous impact on your life.  If you miss an important deadline or fail to show up it can have lasting consequences.  Another factor to consider is whether or not you want to challenge your DUI.  Taking the time and the money to challenge a DUI can be a very important element for your life.  There are many requirements that are forced upon you by a DUI conviction and they can be extremely stressful.  If not taken care of it can lead to family problems, such as divorce or financial problems, such as unemployment. 

If you choose not to challenge your DUI, that is a choice you can make.  Our criminal law system provides you the opportunity to discover the evidence and to make the challenges before you actually go to trial.  This allows you to make an informed decision about whether to take a plea agreement or go forward to trial.

If you have been charged with a DUI and you would like to speak to one of our Boise Criminal Lawyers, please give us a call, (208) 472-2383 and see what we can do for you.

Tuesday, March 27, 2012

Boise Criminal Lawyers - What Happens When You Are Charged With a Crime in Idaho?

As a Boise Criminal Lawyer I regularly get anxious calls from individuals who have been charged with a crime in Idaho.  Not only are they looking for a criminal defense attorney, but in general they are very concerned about what is going to happen next.  What happens next depends upon a couple of factors such as if the crime was a felony or a misdemeanor and if you were released on bond or if you are being held in jail.

Bond Hearing or How Bond is Set and How Do I Know When to Show Up in Court?
If you are arrested and released on bond, the court will send you a summons.  This summons will tell you where and when you need to show up.  If you were not released from jail you will be held at least until your arraignment.  After your arraignment you can request a bond hearing.  At the bond hearing the judge will look at several factors to determine if you qualify for bond and what dollar amount the bond should be.  The judge will look at your employment situation, family relationships, ties to the community, the nature of your crime and if you have committed a crime before.  Sometimes you will be released on your own recognizance, meaning you have sufficient credibility to be trusted to come back and the crime was not extremely serious.  If you are charged with a crime that is punishable by death, you will not qualify for bond.

An arraignment is a formal charging of a felony charge.  You will go before the court and the judge will read the charges against you.  This is not your time for trial.  The judge will determine if you are eligible for a public defender, a criminal lawyer provided by the state.  The judge will also ask you to make an initial plea of guilty or not guilty.  You should never make a plea without the advice of a criminal lawyer because it is very important that you are fully informed before you say you are guilty.  Because criminal law is based upon your Constitutional Rights, you may not be found guilty of a crime, even if you committed it, if your rights are violated.

What’s Next?
This depends upon the nature of the crime.  If you were charged with a misdemeanor, you received a summons with a court date.  If you hire a criminal attorney, he or she will usually file a plea of not guilty.  This doesn’t ultimately mean that you won’t accept a plea arrangement, but this gives your criminal attorney time to see what evidence that state has against you and to determine if your constitutional rights were violated.  The court will set a trial date.  If by the time of trial, it is clear that the state has enough evidence to convict you, your attorney can work with the prosecuting attorney for a plea agreement.   At the trial date, you will change your plea of not guilty and submit the plea agreement to the judge for approval.  If the state does not have enough evidence to convict you, your case will go forward to trial.
If you have been charged with a felony, you will have the option of having a preliminary hearing.  Here, in the Magistrate Court, the state’s attorneys have to show that there is a likelihood that you committed the crime.  If they are able to show this you will be “bound” over to the District Court.   Once you reach this stage you and your attorney will either prepare for trial or your criminal lawyer will work with the prosecuting attorney for a plea agreement.

Important Considerations
In all criminal law matters in Idaho, there are important deadlines and time frames.  It is important to have an experienced Idaho Criminal Lawyer who knows what these are and how to deal with them.  The last thing you want to do when you are charged with a crime is unknowingly waive your rights because you missed a deadline or a time frame.

Thursday, March 22, 2012

Boise Attorneys, Idaho Lawyers - Business Law and Copyright

Business Law and Copyright
As a Boise Business Attorney, I often hear from creative people who have written a book, published a website or who paint pictures for a living and want to use these in conjunction with their business.  They have questions and concerns involving copyright issues.  Also, as a Boise Business Lawyer, I hear from people who are seeking to create an internet business and they their website might contain the work of other people and they want to know if they will be infringing upon copyright law.

What is a Copyright and How Does it Effect You?
Any creative work you make, such as a book, a website or a painting automatically has a copyright, even if you don't publish the work.  Your work will be protected for a specific duration of time and only you will have the rights to the work, unless you chose to share the rights with others.  However, simply having a copyright does not necessarily protect you from copyright infringement.  You can only sue a copyright infringer in a court of law and receive statutory damages if the work has been officially registered.  Say that I, as a Boise Divorce Attorney, wish to write a book on divorce in Idaho.  If I use my creative talents to produce that work but I don't take the step to register my book with the copyright office, I will not be able to sue another person or business for using my unique perspective on divorce.  While I do have other recourse against the party who infringes against me if I haven't registered my work, the recourse packs a whole lot less of a punch.

Internet Copyright Issues
Because the internet is relatively new, there is very little case law governing internet copyright infringement.  However, Title 17 of the United States Code still applies to the creation of a website.  The important thing about copyright law and the internet is to remember that you cannot take someone else's work and put it, whole cloth, on your website.  Using a practical example, let's consider my DUI website.  That website was created by me, a Boise Criminal Lawyer.  The thoughts, considerations and offers for help are my own creative work.  What if someone took the contents of my website and put it on their own website?  Suddenly my work is not unique.  Copyrights were created to protect creative work and to prevent others from using a creative work and saying it was their own.  You can look at it as a law against plagiarism.

Let's take another example of an "innocent" infringer.  Let's go back to my example of me writing a book on divorce and incorporating that into one of my Boise Divorce Attorney websites.  Say that Joe Q. Public has gone through a particularly painful divorce and custody battle and wants to create a self-help support website.  Say that he reads my book that I have transformed into my website and wants to incorporate the information in it to his website.  I refer to him as "innocent" because he isn't stealing my creative work to make a profit off of it, he just finds it really good and wants to share it with others.  He must first gain my permission to use the information because it is protected by copyright law.

There are some exceptions to using other people's work which fall under the Fair Use Doctrine.  While the doctrine does not enumerate what exactly fair use is, it does give some general statements such as it is ok to use a portion of another person's work for educational purposes, or to use a small part of a work to comment upon or to critique in a scholarly fashion.  It also looks at the intent of the person seeking to use it.

How Can You Use a Copyrighted Work?
The best way to use a copyrighted work is to get the permission of the author or creator or their heirs.  If the work is not part of the public domain, you will not have to worry if your use constitutes fair use if you have permission.

Tuesday, March 20, 2012

Boise Criminal Defense Attorneys - DUI Lawyers - Minor in Possession

Minor in Possession (MIP)
As the parent of teenaged children and by my very nature of being a Boise Criminal Defense Attorney, I get numerous phone calls from both terrified teens and distraught parents about the consequences of a MIP.  How serious is a charge and what are the penalties for a minor in possession?

Penalty for Minor in Possession of Alcohol
A MIP is a misdemeanor.  Anyone under the age of 21, at the time of the charge, who is in possession of any alcohol including beer, wine or hard liquor will be charges for illegal possession.  The first offense carries a fine up to $1,000.  A second time offense carries a fine of up to $2,000 and/or up to 30 days in jail.  A third offense will result in a fine of up to $3,000 and/or up to 60 days in jail. 

Now, if these fines and potential jail time are not bad enough, you will also face a suspended driver's license.  The first time you are charged with a MIP you will lose your license for up to one year.  Any conviction after that will carry a 2 year license suspension. 

Unlike a DUI charge where there is mandatory minimum absolute suspension, with a minor in possession charge, you can apply for a restricted license immediately.  To be granted this you must show by a preponderance of the evidence that it is absolutely necessary for you to drive.  An example of this would be a restricted license to drive to work or school if there were no bus available or a parent who could take you to and from work and school.

If you plead guilty or are convicted of a minor in possession you also may be subject to undergoing an alcohol evaluation and, if necessary, alcohol abuse treatment.

Effect of MIP on Automobile Insurance
Will my car insurance go up?  This is the second most common question I get as a Criminal Defense Lawyer from those charged with a minor in possession.  The Idaho Code has a specific provision in the statute governing MIP that states that a conviction of a minor in possession of alcohol shall not be used or considered in any fashion for purposes of car insurance.

If you have been charged for possession of alcohol and need to speak to one of our criminal lawyers, give us a call, (208) 472-2383 and see what we can do for you.

Friday, March 16, 2012

Boise Criminal Lawyers - Criminal Defense - DUI Considerations

Criminal Defense of a DUI
Most people know that if you drive a vehicle with a blood alcohol content of .08% or greater you can be charged with a DUI.  There are, however, other circumstances where a lower BAC will land you with a DUI.  Criminal Lawyers are called upon regularly to defend driving under the influence charges in many different circumstances.

Minor DUI
If a minor has been drinking alcohol and drives a car, they can be charged with a DUI even if they don't have a BAC of .08%.  The Idaho Code makes it a crime for a minor to drive with as little as a .02% BAC.  What would not be considered a BAC high enough to charge an adult with a DUI, 0.2%-.0799%, would constitute sufficient alcohol in the system to charge a minor with driving under the influence.

In addition to the differences in the amount of alcohol required in the blood to be charged with drinking and driving, the underage DUI carries different penalties than that of an adult.

Commercial Vehicle DUI
Another exception to Idaho DUI law is for drivers of commercial vehicles.  If you are operating a commercial vehicle under the influence of alcohol, you can be charged with a DUI if your blood alcohol concentration is .04% or greater. 

As part of any DUI conviction, there is a required mandatory absolute suspension of your driver's license.  If you are convicted of a commercial DUI, both your CDL and Class D driver's licenses are suspended and visa versa.

BAC Under .08% and Drugs in Your System
If you have a BAC of under 08% it is  still possible to be convicted of a DUI.  If you have drugs and alcohol in your system, upon the prosecuting attorney showing with competent evidence that you also had drugs in your system, you can be charged with a DUI.  These can be illegal drugs, such as marijuana, meth or cocaine or it can be over the counter or prescription drugs.  If the drugs impair you enough that the state's attorneys are able to show that the combination of drugs and alcohol made you unfit to drive, you can be charged with a DUI.  An example of evidence that might be used would be a field sobriety test.  If you fail the field test, but your Breathalyzer result is under a .08% it may created a reasonable suspicion in the mind of the police officer that something else, such as drugs, is going on.  They can then require a blood draw to detect the presence of drugs.  This is particularly damning for an individual because the results of a drug blood test registers "yes" or "no".  There is no "acceptable" level.  You may have smoked marijuana 1 week before your traffic stop and even though you would obviously not be impaired by the pot at that point in time you could be charged with a DUI.  This is one of those critical situations where you need to have criminal defense attorneys who know how to get you out of this fix.

Drugs in Your System
The Idaho Code defines a DUI as having a BAC of .08% or greater OR the presence of drugs in your system or a combination of both.  As a Boise Criminal Lawyer I often get calls from irate people who have been charged with a DUI when they haven't had one sip of alcohol.  Idaho used to refer to a DUI as a DWI (driving while intoxicated).  That term was changed because it seemed to indicate that you would have to be intoxicated to be charged with that crime.  The crime didn't change, but the denotation did.

If you have been charged with a DUI or other crime in Idaho and need an experienced and aggressive Boise Criminal Lawyer, give us a call, (208) 472-2383, and see what we can do for you.

Wednesday, March 14, 2012

Boise Divorce Attorneys - Marriage and Divorce

Sometimes the answers to questions are so obvious, we can't believe that they are really the answer.  For example, when does a marriage end?  The most obvious answer is upon divorce, but there is another way.  Death, at least legally, will end a marriage.  A divorce decree will return the parties to the status of unmarried people, but so will death.

As a Boise Divorce Attorney another question I am asked occasionally is if a divorce can be denied.  Because divorce is of a legal nature it can be denied, but the denial depends upon the grounds for divorce.  A divorce, for cause, can be denied if the elements of the case are not proven or if they divorce is not filed in a timely fashion.  For example, if you file for divorce on grounds of adultery, you must prove that the other party, in fact, committed adultery.  In addition, you must file for divorce based upon adultery within 2 years of the act or discovering the act.    If you don't your action will be denied.  Another example is divorce on the grounds of felony conviction.  You must file within 1 year of a pardon or the completion of the sentence related to the criminal action.

Can a divorce ever not be denied?  The Idaho Code contains a provision for irreconcilable differences as grounds for divorce.  Irreconcilable differences basically means that you can't get along and that the marriage is ineffective.  This is not a "for cause" action and therefore a divorce on these grounds will not be denied.

Withdrawal of Action
Sometimes a party will file for divorce and then change their mind.  Does this mean that the divorce cannot proceed?  If the plaintiff withdraws their action, the divorce will not go forward.  However, the divorce lawyer for the defendant can actually turn around and refile the case.  They then become the plaintiff.  They must pay a filing fee and have a summons and complaint served upon the other party.

Another form of withdrawal of action I see as a Boise Divorce attorney, is reconciliation.  If it appears that the parties to a divorce may be able to work things out and make the marriage work, the judge can place a stay of 90 days on the proceedings to give the parties a chance at reconciliation. 

If you would like to speak to one of our Boise Divorce Lawyers, please give us a call, (208) 472-2383 and see what we can do for you.

Tuesday, March 6, 2012

Boise Idaho Divorce Lawyers - Who Can Buy and Sell Community Property?

Community Property in Idaho
Community Property is a legal issue special to Idaho.  Not all states recognize community property and even the ones that do have different issues and resolutions than Idaho.  Community property developed as a particular western concept, giving ownership in common to women.  Women in the west were often given rights and responsibilities not afforded to their eastern neighbor ladies primarily because of the conditions unique to the rugged American West such as men being absent for long periods of time and the need for women to be able to keep the homestead running.  What developed as a practical way to deal with property in the west resulted in more rights and control for women.

Who Can Buy or Sell the Community Property?
As a Boise Divorce Attorney I often get panicked calls from individuals on the brink of divorce.  Sometimes those calls revolve around the disposal of community assets or incumbering the community through the purchase of a big ticket item.  As a divorce lawyer I see the real question behind the anxiety as who can buy or sell the community property?

According to Idaho law both the husband or the wife have the right to individually manage and control the property of the community.  Either can also bind the community by contract - aka buy a big ticket item without the knowledge of the other.  If one spouse does this, however, their action will not bind the separate property of the other spouse. They can buy things, but they cannot sell, give away or encumber the community real estate unless they do it together or by giving the other party the express and complete authority to sell the community property through a power of attorney.

What's the Difference Between Community and Separate Property?
Community property is any property acquired during a marriage with community monies.  Separate property is property owned before a marriage.  Separate property can be transformed into community property in a couple of ways.  It can be transmuted, meaning its character is changed, by express gift or by actions that make it look like it has become community such as co-mingling of community funds.  If there is separate real property the transmutation must be evidenced by a written document signed by the owner of the separate property.  You can maintain your separate property or money after you are married.  You can also gain separate property during a marriage if you inherit property or money.  Also, if you sell a piece of separate property while you are married and you use those funds to buy another piece of property that property remains separate property.

Community Property Law is a curious legal phenomenon.  It makes sense to us who live it day in and day out, but to an outsider it can seem like a strange marital control issue.  Idaho Divorce attorneys are well aware of all the intricacies involved when you have a mixing of separate and community property.

If you have a divorce or community property issue and you need to speak to a Boise Divorce Lawyer, give us a call, (208) 472-2383, and see what we can do for you - you will be glad you did.  Also, for more information about divorce in Idaho visit our Boise Divorce Attorney page.