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.

Friday, June 8, 2012

Boise Family Law Attorneys - (208) 472-2383 Child Support Modification – Out of State Orders

Can I modify my child support if I have an out of state child support order?

As a Boise Family Law Attorney I regularly get calls from individuals who have gone through a divorce in another state and have received a child support order from that state.  In general these individuals would like to know if they can modify their child support in Idaho.  The answer is yes, but there are certain criteria that must be met. If they are met, an Idaho Court can modify an out of state child support order.

What are the criteria to modify an out of state child support order?

·         Neither the child nor either parent can live in the state that issued the original child support order
·         Idaho must be able to exercise personal jurisdiction over the party who owes support (please see below for an explanation of personal jurisdiction)
·         The child support order must be registered in Idaho
·         The requested modification must meet the Idaho criteria for a substantial and material change in circumstances.
What does all this mean?  While the first point is obvious, the other three are not.  Do you have to be a Boise Divorce Attorney to figure out what personal jurisdiction means?  Well, no, but personal jurisdiction is a legal term of art which you may or may not understand.  In general, for a state court to be able to tell you what to do, it has to have authority over you.  This means that you have had to have had contact with a state, either by living there, doing business there or the like, and you are subject to its laws. Your contact with the state gives the court a justified reason for being able to tell you what to do.  You also can submit to personal jurisdiction.  This means, for example, that an Idaho Court has no ability to tell you what to do (because you have had no contract with it) but you give it the ok to tell you what to do.  Clear as mud?
What does it mean to register a child support order in Idaho and do you have to be a Boise Divorce Attorney to register it?  You do not have to be a family law attorney, but you have to follow the procedure outlined in the Uniform Interstate Family Support Act.  Registering it basically transfers jurisdiction from the state which issued the order to Idaho.
What are the criteria for modification of child support in Idaho?  You must show that there has been a substantial and material change in circumstances.  This can be any number of things, such as a change in income, but for an out of state order it can also simply be that Idaho Child Support amount are different from the amounts set by the issuing state.
If you need to modify your child support or need to speak to a Boise Family Law Lawyer, please give us a call and see what we can do for you, (208) 472-2383 – You will be glad you did.

Monday, June 4, 2012

Boise Criminal Lawyers - Reckless or Inattentive Driving? (208) 472-2383

Reckless Driving in Idaho
As a Boise Criminal Lawyer I often get calls from potential clients who have been charged with reckless driving.  Often they can't believe what they have done is reckless and they want to know, what, if anything can be done.

The Idaho Code defines reckless driving as driving carelessly and heedlessly in a manner where someone is endangered or likely of being endangered.  Speeding though a school zone is a superb example of reckless driving.  However, is all speeding through a school zone reckless?  The Idaho Code also provides for the lessor charge of inattentive driving.  One could imagine a scenario where school is out for the summer and you are "speeding" 5 miles above the speed limit at midnight in a school zone.  If you are charged with reckless driving, it is likely that your criminal attorney can get that reduced to an inattentive driving charge or get you off all together.

Is it better to have an inattentive driving charge rather than a reckless driving charge?
Just by the very nature of the definition, it is obvious that you would be better off being charged with inattentive driving rather than reckless driving.  A first time reckless driving charge is a misdemeanor punishable by a maximum of 6 months in jail or a maximum $1,000 fine or both.  Inattentive driving, on the other hand, carries a maximum 90 day jail sentence or a maximum $300 fine or both. 

What happens if you are charged with reckless driving but you have proof that you weren't driving recklessly?
If this happens before trial he prosecuting attorney's office has a little device they use in these situations.  The state's attorneys will amend the complaint against you.  Basically, this means they change the charge from the greater one to the lessor one.  If, at trial, however, the state is not able to produce enough evidence, or if in pretrial motions, your criminal lawyers are able to quash condemning evidence, you will not convicted of reckless driving.

If you have been charged with reckless or inattentive driving or any other crime in Idaho, including DUI or DWP, give us a call and see what our Boise Criminal Lawyers can do for you.  (208) 472-2383.