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.