Covid-19 and the Law

Covid-19 and the Law

Covid-19 has affected every aspect of our daily lives.  The law is no different.  From the practical day to day practice of the law to how a trial is heard has all changed because of the coronavirus, particularly because of the community spread in Boise and the surrounding areas.

Changes in the Practice of the Law

The way we currently practice law has changed because of the Covid-19 virus.  We now rely heavily on the use of remote or tele-visits for consultations.  While some folks find this far more convenient, there are others that miss the one on one visits with their attorney.  We also use software for our clients which allows them to upload and review documents as well as sign them.  

Remote Trials

Another very important change due to Covid-19 is the use of Zoom or other software to hold trials, scheduling conferences, hearings and the like.  In Ada County and most counties in Idaho there are no in person divorce trials.  Everything is done remotely.  If a party does not have a reliable internet connection, the Court provides access for them. Divorce Attorneys try cases from their offices.

Is This All Bad?

Undoubtedly, Covid-19 is a tragic virus running amok in our country.  That, however, isn't to say that there are not good things that have come out of the contagion.  Just one example, from a financial stand point in the legal world, divorce attorneys do not have to travel to different counties to appear in court on behalf of their clients.  That can relieve a very large financial burden on the client.

If you have a legal issue and need the assistance of an attorney, please give us a call at (208) 472-2383.

Finding a Boise Divorce Attorney - Need to Find the Best Criminal Lawyer - You Have Come to the Right Place

Who is the Best Divorce Attorney in Boise?  Who is the Most Aggressive Criminal Attorney in Boise?

How do you find the best divorce attorney for you?  What about finding the best criminal lawyer or bankruptcy attorney?  Need to find a savvy probate attorney or business lawyer?  These are questions which are often raised when I receive calls from potential clients.  And this is why at Kershisnik Law, PLLC we offer a free consultation.

Finding a good divorce attorney or a criminal lawyer is not only important for your case, but it is also important for your peace of mind.  Not everyone likes to wear Nike Shoes and not everyone likes to eat McDonald's.  The same is true for your divorce attorney, criminal lawyer, bankruptcy attorney, probate attorney, business lawyer or personal injury lawyer.  Every person has a different style as does every attorney.

What to Look For in A Boise Divorce Attorney, Criminal Lawyer Etc.

So if there are a lot of good attorneys out there, and arguably even more "best" attorneys, how do you find the shoe that fits?  In my years of legal practice I have found several things that are helpful to aid you in finding an attorney who is a great fit.

First, a free consultation is indispensable.  It gives both the client and the attorney the opportunity to see if they hit it off.  You might not think that the attorney needs to be comfortable with the client but they do.  I have had situations where I turned work away because I did not hit it off with the client.  One person came in for a consultation.  When they arrived I grabbed the complaint they had forwarded to me from my secretary and took a moment to read it.  They looked at me with utter disdain.  They were appalled that I had not yet read the complaint.  I explained that there are several reasons why I wait to read the documents until the potential client has come in.  First, just because someone makes an appointment, doesn't mean they will come in.  In my busy schedule I cannot be reading complaints for enjoyment.  Secondly, I like to have their information fresh in my head when I am with them one on one.  Reading is a huge part of my job and I have a good memory, but would you want your doctor to not have read your chart minutes before operating on you?  And on and on.....This particular person was not impressed with my individual attention.  I suggested that she find a different attorney.

Second, an attorney who is not afraid of suggesting that you get a second opinion is, at first glance, a good choice.  I have prospective clients come to me with cases where I see no legal action or where I see that they would lose if they tried to bring suit.  I always suggest that it is my opinion and someone else might see it differently.

Third, along the lines of the above, a good attorney will tell you what they see as strong points in your case and weak points that you might have to deal with.  Also, in this regard, the whole expanse of your case may not be clear at first and in fact in all cases facts and evidence arise that can change the course of what was originally thought.

The fourth thought is price.  High price, low price, payment plan are not necessarily good things to judge a lawyer by.  Some attorneys might undercut the price to get you to sign up.  An attorney's fee is based upon the time they spend working on your case.  Do you really want the McDonald's Dollar Menu for your attorney just because it is cheap?  Likewise, very expensive attorneys do not necessarily mean the best attorneys.  Some people over value their worth and their ability.  There are a lot of cocky lawyers, but do you want an attorney who might mess up your case because they over value themselves? Likewise, there are people who like to try and impress others by how much they had to spend on their lawyer and try to give the impression that they had the best attorney because they were pricey.  Don't get caught up in image and snobbery.  Anyone who matters can see right through it.  If someone is impressed by another's bragging, they are equally trying to impress you too.  Attorneys in general are not cheap because they have spent many years educating themselves, but dollar amounts should not be your primary reason for choosing an attorney.

How to Make the Client Lawyer Relationship Successful

Like the question about choosing the best attorney in Boise, I also have learned a lot about making the client/attorney relationship a successful one.

First, listen to your attorney.  Your attorney has spent years mastering the law.  The law is not necessarily based on fairness or common sense.  Your attorney knows the judges and the other lawyers and how best to work out the situation for you.

Second, ask questions but do realize that having your attorney on speed dial will cost money.  It is important to know what is going on in your case but your attorney is busy helping others just like you.  That is not to say do not call them, but make sure that you are not using your attorney as an ear just to gripe.

Third, realize your attorney knows what is going on.  Often a case will go very fast and then slow way down so it seems like nothing is happening.  This is the way the legal system works.  Tickle your attorney now and then if you think you have been overlooked and even let them know that, but also realize the nature of the law is hurry up and slow down.

Fourth, stay apprised of your bill so there is no sticker shock in the end.  You will need to put down a retainer at the begging of your case but that may not be the end of what you will have to pay.  If you have a payment plan make sure you look at your statements to see how much you are out of pocket and if you have a billing question don't be afraid to ask about it.  Mistakes happen but it is better to clear it up before it is far down the road.  Some people never check their statements and in the end they might say that they don't want to pay that much or they are unhappy.  In general, the unhappiness stems from the cost, not the result.

And finally let your attorney know if you are confused, want something different or need help.  Your attorney is a trained professional who can provide you valuable information or direct you to a person who can help you.  Take advantage of their training and take what they have to offer you.

If you need to find a Boise Divorce Attorney, Criminal Lawyer, DUI Lawyer, Bankruptcy Attorney, Business Attorney or Personal Injury Lawyer, give us a call for your free consultation and see what we can do for you. 208-472-2383.  Call today.

Holiday DUI - Boise Criminal Attorneys - 208-472-2383

Holiday DUI

It's that time of year again when Boise Criminal Lawyers see an increase in DUI charges. Part of the increase has to do with the all the parties and holiday cheer.  Another portion has to do with the increase in police presence and DUI patrols.  Still yet some has to do with depression surrounding the holiday when people are more likely to be emotionally down about the sadnesses in their lives such as divorce, family or job loss and the like.

The best advice anyone can give about Holiday DUI is to play it safe.  The message is not new:  Don't drink and drive.  People often go out with the best intentions.  They plan on a designated driver, or not drinking too much.  They may even plan to take a taxi home rather than risk a DUI.  Unfortunately, the best laid plans may fall through.  Perhaps you don't realize how much you have had to drink.  Perhaps you are more depressed about your relationship and the impending divorce than you think.  Whatever it is, inevitably someone fails to follow through with their plans and that's when the unfortunate happens.  A DUI, like any criminal charge, will ruin your holidays. 

DUI Patrols and Probable Cause

People often ask me if increased DUI patrols and checks constitute entrapment or a violation of their civil rights.  The short of it is most likely not.  If you are drinking and driving you are committing a crime if your blood alcohol level is over the legal limit.  You are placing yourself at risk and others in your vehicle and on the road.  The increased patrol is an awareness that this time of year brings more drinking and partying.  

Of course, the police still must follow the rules of probable cause before they pull you over.  If, however, they fail to follow the proper laws to stop or arrest you, you have good grounds to suppress any evidence they collect from their stop.  Often the suppression of evidence is the best way to beat a DUI.  While it may be difficult to remember everything from your DUI stop, usually because you have been drinking, if you can, you can provide your criminal attorney with valuable evidence to aid your defense.

What to do After You Are Charged with DUI

What do you do when you are charged with a DUI?  It is critically important to get a Boise DUI Attorney immediately.  There are some very important time constraints.  When you are charged or convicted of a DUI there are two potential license suspensions.  The first suspension comes from the Department of Transportation.  You must act very quickly to challenge this suspension.  Although the likelihood of not having you license suspended for a DUI by the DOT is slim, it is worth a shot.  The second license suspension comes after you plead guilty or are found guilty of a DUI.

People often think that they can handle their own DUI case.  The problem with this is unless you are trained in the law and you know and have personal experience with he prosecuting attorneys you re risking the same result as a do-it-yourself plummer.  You will get leaks and often leaks that come back to haunt you.  

I hope you all have a very happy holiday season.  I also hope that you play it safe and don't get a DUI.  If you do, however, give us a call, 208-472-2383, and see what we can do for you.  We are here for you and we can answer your questions.  Give us a call today.

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.

Bankruptcy Attorneys Boise Idaho (208) 472-2383

Disclosing Debt and Assets in Bankruptcy
As a Boise Bankruptcy Attorney, one of the things I hear most frequently from people is whether they have to disclose all their debt and their assets for a bankruptcy and what happens if they don't.  If you fail to disclose your assets will be committing fraud and can be fined up to $5,000 and can be given up to a 5 year jail sentence or both. 

Why would someone conceal information from the Bankruptcy Court?  If you have assets that exceed your exemptions, those are used to pay off your debt to secured creditors.  If you don't tell the Bankruptcy trustee how much property you actually have, your intent would have to be to keep that property for yourself and not use it to pay your just debts.  In a bankruptcy you have to swear that you are disclosing all the required information and if you fail to you have committed fraud against the court.  Likewise, some people might not want to inform the Bankruptcy Court about certain debt they have.  As a bankruptcy lawyer I usually see this most often when they want to have credit available to them.  As you know, when you file Chapter 7 or Chapter 13 your credit will need some time to be repaired.  You need to disclose all your debt.  You can, however, approach the creditor and ask if they will allow you to keep the line of credit open.  It can happen, but is unusual.

Can I File for Bankruptcy?
If you are having financial difficulty this is a question you may have asked yourself or a bankruptcy attorney.  If you are in financial straights you can look into the possibility of filing for bankruptcy.  There are a few things that you cannot do, however.  You may not use bankruptcy to stall paying your debt, to delay, to obstruct, to harass or for any other improper purpose.  You also cannot, within 60 days of filing, incur a luxury purchase in the amount of $1.075 or more.  You also cannot receive an aggregate of cash advance in the same or greater amount.  If you do, that debt presumably will not be discharged.

Are There Alternatives to Bankruptcy
Yes.  Part of the new bankruptcy law is to require that those considering bankruptcy take two credit counseling courses.  The first course, which must be completed before your application is accepted, is aimed, in part, at helping people understand that they can negotiate with their creditors.  It is possible to develop your own repayment plan with creditors without taking the additional step of bankruptcy.  However, if you are seeking a discharge, it is unlikely that a creditor will discharge your debt completely.

If you are considering bankruptcy and need to speak to an attorney, give us a call, (208) 472-2383 and one of the lawyers in our office will help you understand bankruptcy and help you decide if it is right for you.

Boise Criminal Lawyers - Idaho Criminal Defense Attorneys - Aggravated DUI

Aggravated DUI and Criminal Defense
As a Boise Criminal Lawyer I am often asked if a DUI is a misdemeanor or a felony.  In general a first or a second time DUI, within 10 years, is a misdemeanor.  Thereafter the DUI becomes a felony.  There is an exception to this case, however.  An aggravated DUI, whether it is your first DUI or not, is a felony.  Another question I regularly hear as a Boise Criminal Defense Attorney is, what makes something an aggravated crime?  For a DUI to be considered aggravated, the intoxicated driver must have cause great bodily harm to someone, other than him or herself.  This harm includes permanent disability and disfigurement.  It is the act of causing extensive harm to another that makes something aggravated.

A further distinguishing factor between an aggravated DUI and a "regular" driving under the influence charge lies in the penalty.  The penalty is accelerated, in the sense that it very quickly becomes very severe.  A charge of this type, even if it is your first drunk driving charge, may result in you being sentenced to the state penitentiary for up to 15 years.  A third time driving under the influence charge (within 10 years) , however, only carries a maximum 10 year state penitentiary sentence.

Aggravated DUI and Personal Injury
An aggravated driving under the influence charge is one of those areas that can have a cross over between criminal law and civil law.  If you are charged with this type of DUI the state of Idaho can and will charge you with a crime that requires criminal defense.  In addition, the party to whom you caused the injury, or their family (if the victim died) can sue you in civil court for a personal injury.  So instead of facing just the DUI charge, you may be facing a civil suit as well.


If you have been charged with an aggravated DUI or any other criminal charge in Idaho and you need to speak to an attorney, please give us a call and speak with one of our Boise Criminal Lawyers, (208) 472-2383.  Give us a call now.

Boise Divorce Attorneys - Idaho Criminal Lawyers - Custody and Safe Haven

Idaho Safe Haven Law
Some years ago Safe Haven Laws did not exist.  If you left your child, at say a church or a hospital, you could be prosecuted for the criminal charge of abandonment.  If you had a baby you didn't want you would have to go through an adoption and termination process to relinquish your parental rights.  If you did anything else, such as drop the baby off, neglect the baby or otherwise fail to act appropriately as a parent, you could face criminal charges and require the services of a criminal lawyer.  In addition you would have to wait for the adoptive parents' Family Law Attorney to file the appropriate paperwork on behalf of the adoptive parents, get the termination of parental rights paperwork and hearing and have the adoption completed before your parental responsibility was relieved.  This process, because it involves home studies and other evaluations, can take a long time.  Your desire to care for the child and your ability to do so may very well be compromised in that length of time especially if you didn't wan the child in the first place.

The Idaho Safe Haven Act allowed parents to lawfully "abandon" their child.  The act requires that the child be left at a safe haven and that it be done within the first 30 days of the child's life.  The child has to be delivered by the custodial parent and they must express the intent not to want the child back.  The safe haven will take temporary physical custody of the child and the parent won't be subject to the criminal charge of abandonment.  

Once a child has been abandoned to a safe haven, the facility must notify the police who will then take protective custody of the child and deliver him or her to the care and control  of the Department of Health and Welfare.  A shelter care hearing is held to place physical custody with the Health and Welfare.   Health and Welfare is required to to place the child with potential adoptive parents as soon as possible so that the child may bond normally with parents.  During the first thirty days, the Department does investigative work to ensure the child was not wrongfully abandoned or kidnapped and abandoned.

Termination of Parental Rights
Once the Department of Health and Welfare has physical custody of the child  and they have gone through the investigative process in the first thirty days, the department will move to the stage of termination of parental rights.  As a Boise Divorce Attorney I have seen the following scenario.  A young mother gives birth to a child and doesn't want it.  She doesn't want to deal with having a Family Law Attorney set up a an adoption or a Custody Lawyer filing for paternity tests or setting up visitation or the like.  Usually, out of fear, she abandons the child.  As a custody lawyer I hear from the the father or the father's parents who want to keep the child and not have their son's parental rights terminated.  Is there any thing they can do?  The Idaho Code provides for a registration of parental rights.  The parent must go to the Department of Vital Statistics and fill out the appropriate paperwork.  Before the Department of Health and Welfare proceeds with the termination, they will check the registry to see if anyone is claiming parental rights and who therefore has an interest in the termination.  It is critical that a claim of parental rights be done immediately because if it is not done in a timely fashion both parent's parental rights will be terminated.

Liability
When a child is abandoned to a safe haven, the Idaho Code protects the employees of the facility where the child is left from civil and criminal liability.  It also protects the police officer who arrives to place the child in protective custody.  What this means is if something happens to the child, no criminal charges or civil suit may be made against the employee or the police.

Adoption
Once the child has been placed with prospective adoptive parents, the parental rights have been terminated and all the requirements for the adoption process have been complied with, the Department of Health and Welfare will terminate its custodial rights and the child will be allowed to be adopted.  The Department has its own attorneys dealing with the custody and termination of their rights and the adoptive parents will have their lawyers who will actually file the adoption paperwork.  At this point, the real parents have no further interest or say in the child, nor do they have a right to bring in their own attorney to have a say in the matter.

If you have questions regarding adoption, termination, custody, parental rights, divorce or any other family law issue and 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.  

   

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.

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.
  

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.

Boise Bankruptcy Lawyers (208) 472-2383 - Chapter 7 Bankruptcy

The Nuts and Bolts of Bankruptcy

As Boise Bankruptcy Lawyers we often get calls from individuals wanting to know how much bankruptcy costs and how long it takes.  These are common questions which I call the Nuts and Bolts of Bankruptcy.

The first cost to consider is the cost of having a Boise Bankruptcy Attorney represent you.  There is a wide range of costs here.  Some lawyers will charge the least possible amount, while other attorneys represent the more expensive end.  So how much should you pay for a bankruptcy?  The answer to this depends upon how comfortable you are with your bankruptcy and how much input, advice and effort you will expect from your bankruptcy attorney.  If you want to get off on the cheap, then you shouldn't expect too much help or advice.  You also, however, don't need to spend an arm and a leg.  You can find a reasonably priced bankruptcy lawyer to get the job done right.  Another thing to consider when looking at the cost of bankruptcy is how much debt do you have and how much time will the bankruptcy lawyer have to put into your case.  Obviously, the more debt the more work.

The next cost is your filing fee.  Every Chapter 7 Bankruptcy will come with a $299 filing fee.  That is the fee established by the Federal Bankruptcy Court.

What is required for a Chapter 7 Bankruptcy
You must file a bankruptcy petition in Federal Bankruptcy Court.  It is here that you pay your $299 filling fee. You must reveal all of your debt, whether it is dischargeable or not.  Certain debt, such as student loans, taxes and child support cannot be discharged.  An individual filing for bankruptcy will be required to go to credit counseling.  It must be through an accredited and recognized company.  For a list of acceptable credit counselors, go to www.usdoj.gov/ust

In addition, your bankruptcy will be overseen by the bankruptcy trustee and you and your bankruptcy attorney must attend a debtor examination.  After the trustee is convinced that you have revealed all of your debt, it is up to the bankruptcy judge to affirm your bankruptcy.  It can take about 4-6 months for a bankruptcy to be completed.  However, once you have filed for bankruptcy an automatic stays is put into place and all collection activity must cease.

Also, you may only file for Chapter 7 Bankruptcy once every eight years.  If you get into another financial fix and are swamped with debt, it is possible to file a Chapter 13 Bankruptcy. In a Chapter 13 your debt is not discharged, it is reorganized and you are put on a payment plan.

If you have overwhelming debt and need to speak to a bankruptcy lawyer, please give us a call and see what we can do for you.  Call now, (208) 472-2383

Boise Criminal Lawyers - 208-472-2383 - Possession, Drug Charges, Synthetic Drugs

As a Boise Criminal Lawyer I am in the curious position of knowing many intimate details about illegal drugs, Details that I would never have the desire nor opportunity to learn about simply because of the fact that I am a criminal attorney.  I have learned more about illegal drugs, street drugs and synthetic drugs than I ever did in my 9th grade health class.  It is almost mind boggling how many synthetic drugs are on the market and how they are ever changing, primarily to evade the stamp of "illegal".

In October of 2010 Spice, a synthetic drug whose effects mimic marijuana, was outlawed in Idaho.  Spice is a highly addictive and dangerous way to get high, and while it is a synthetic cannabinoid, it has a very different and more intense high than marijuana.  Outlawing Spice is the legislature's and law enforcement's way of dealing with manufacturers who deal in these illegal drugs as well as retailers and users.

While outlawing Spice has the immediate effect of taking the dangerous drug off the market, it is much like a dog chasing its own tail.  As soon as Spice was gone, new synthetic cannabinoids were manufactured and changed just enough to not be "illegal".  Alternative "incenses" are sold all over the internet as well as in local headshops.  While these incenses are marked, "not for human consumption", everyone who uses the drugs consumes them.

If you are in possession of one of these new synthetic drugs, you are a manufacturer of these drugs or you are a retailer of them, before you know it your legal possession will be challenged.  I have already heard from several people who have had the police come into their shops and challenge their stock and it is up to them to prove that it is not Spice.

If you have been charged with possession of drugs and need to speak to an experienced and aggressive Boise Criminal Lawyer, give us a call and see what we can do for you.

Boise Family Law Lawyers (208) 472-2383 Domestic Violence and Restraining Orders

Domestic Violence and Restraining Orders

As a Boise Divorce Lawyer, my clients with restraining orders often ask me the following question. What do you do when you have a restraining order against someone and you need to call the police to notify them that the order is being violated?  You can keep your restraining order with you, and hope you can find it when you need it, or now, thanks to the Hope Card, you can keep a small, credit card sized, laminated information card with you.  The Hope Card provides the police with all the pertinent information you need to prove that you have a restraining order, including a photo of the person who is being restrained from coming near you.

Is the Hope Card for everyone?  No, it is only issued when you have at least a 12 month restraining order.  If you do, you can get the card free from the Idaho Attorney General's office.  You also must go through the regular process to get your restraining order in the first place.  You can do this on your own or be represented by a Boise Divorce Attorney.  Once the restraining order is in place, you can visit the attorney general's website and apply on-line.  Eventually, the card may become available to all victims of domestic violence despite the length of time of the restraining order.

If you are a victim of domestic violence and need to speak to a Boise Family Law Lawyer, please call (208) 472-2383.

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

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

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

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

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

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

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

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

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

Boise Family Law Lawyers - Guardianships

Guardianship

Practicing family law in Idaho entails more than providing legal services for divorce, custody and modification.  One area of family law which deserves attention is guardianships.

Why would a guardianship be necessary and who might need or want one?  A guardianship may be created for a child or for a person who is unable to tend to their affairs on their own.  A guardian may be appointed for a child when their parent is unable to act in the capacity of their parent.  A guardian may be appointed for an adult who has become incapacitated and is unable to make important financial, legal and day to day decisions.

For a child, a guardian may be appointed when the day to day care of the child by the parent has been interrupted.  Thinking about today's economy, it is becoming more common for a child to be placed in the care of their grandparents while the parents move to a different state to find employment.  A guardianship does not have to be created in this situation, however, doing so enables the grandparents to easily take care of legal, educational, medical and day to day needs of the child.  A guardianship can also be created for a child when a parent fails to take proper care of a child.  The guardian is appointed to ensure the child's needs are taken care of.  The guardian can be a grandparent but it can also be an unrelated party.

Can a guardianship be terminated?  Yes it can.  It can end on its own when a child reaches the age of majority or if the child dies.  A guardianship can be terminated by a court if a judge determines it is no longer necessary or the purpose for which it was created (such as to manage a financial account).

For an adult, a guardianship is often created when a person is incapacited because of something like an accident or an illness which renders the individual incapable of taking care of their affairs.  A guardianship can also be created for a mentally handicapped person who is unable to tend to their own affairs.  These types of guardianships can also be terminated.  If the incapacity ceases to exists, a judge can determine that the guardianship is no longer necessary.

Being appointed a guardian carries with it very important duties.  For example, the guardian of the child must provide for the child in a fashion that a parent would provide for a child.  They have an obligation to feed and clothe the child and tend to his or her education.  Likewise, for an adult, a guardian has a duty to care for the person's fianancial, medical and day to day affairs in a responsible manner and to exercise the care approriate for the situation.

If you have a family law issue and need to speak to a Boise Family Law Attorney, please call us at (208) 472-2383 and see what we can do for you.

Boise Business Attorneys - Small Business Lawyers - Non-Compete Clauses in Idaho

Are non-compete clauses allowed in Idaho and can you get around them?  This is a common questions I am asked as a Boise Business Attorney.


Non-compete clauses are generally an agreement entered into at the termination of employment or business venture.  The parties generally agree that in exchange for a termination of a contract or business venture, a money settlement or other benefit will be given to the employee or leaving partner.  In exchange for the benefit, the leaving party agrees to a contract term limiting where they can conduct the same kind of business, how long they must refrain from conducting the same kind of business and where they can or cannot conduct the same kind of business.


Non-compete clauses are generally enforceable so long as they are not over-limiting resulting in the inability of  the party bound by the agreement from making a living.  Idaho law takes into account three separate terms of non-compete clauses to determine if it is valid or over reaching. These are the scope of work, the duration of the non-compete and the geographic scope.  Until recently, Idaho was fairly consistent about nullifying a non-compete clause in its entirety if any one of the three items was too limiting.  So, for example, if your non-compete clause stated that you could not work or do business in the same line of business for 3 years, throughout the U.S., Canada and Mexico, you could have the entire non-compete invalidated because the geographic scope was too excessive and even though the other two terms were reasonable.  Recently, however, Idaho has begun to consider only striking the violating term and upholding the remainder of the non-compete.  So, what this means is an Idaho court might say it is reasonable to have a 3 year non-compete for the same line of business.  It then might say if the original business is only conducted in the northwest, the leaving party can conduct that type of business outside of the northwest.


If you need the help of a Boise Business Attorney, please give us a call at (208) 472-2383 and see what we can do for you.

Boise Bankruptcy Attorneys - Chapter 7, Chapter 11, Chapter 13 - (208) 472-2383

Bankruptcy is a specialized area of legal practice.  Unlike a divorce, DUI or other criminal case, a bankruptcy is handled in Federal Court rather than State Court.  If you were to get a divorce in Boise you would file in the Fourth Judicial District for Ada County.  For bankruptcy, you would file in Federal Bankruptcy Court.  Likewise, for a divorce, DUI or criminal matter in Ada County you would have a county Magistrate Judge hear and decide your case.  A bankruptcy is heard and confirmed by a United States Federal District Bankruptcy Judge.

It's not just location that makes bankruptcy a specialized area.  It has its own code of procedure and rules.  If you have an attorney who doesn't know these rules you can end up not getting your bankruptcy confirmed.  Like in all areas of law, in bankruptcy there are peculiarities that you don't know if you don't practice in that area.

Another difference about bankruptcy is it tends to be administrative.  It is rare that an individual filing for bankruptcy will actually ever go before the bankruptcy judge.  There is a debtor's examination meeting that occurs prior to the confirmation but that is run by the bankruptcy trustee, not the judge.  This is known as a 341 meeting.  341 refers to the Code section which requires that this administrative step be taken.

There are several different types of bankruptcy which an individual or a business might claim.  The most common is Chapter 7, Chapter 11 and Chapter 13.  Chapter 7 is the liquidation of debts.  Here there are income requirements that you have to meet in order to qualify.  There is also Chapter 13 which is an individual debt adjustment.  This does not discharge your debts, rather it allows you to repay them over a period of years.  Chapter 11 is reorganization and is used by businesses to repay their debts.

If you have found yourself in a situation where you are contemplating bankruptcy, give us a call and see what we can do for you.  Call today (208) 472-2383

Boise Idaho Personal Injury Lawyers - Workers Comp Attorneys

What's the difference between a personal injury and a workers comp claim? 

This is a common question.  Most every employer in the state of Idaho is required to carry workers comp insurance.  If you are hurt on the job, the workers comp laws of Idaho ensure that there is coverage for you.  Personal injury, on the other hand, occurs when you are injured by someone other than your employer.  In a personal injury law suit you file a civil claim against the party who has injured you.  They may or may not have insurance that will cover your damages.

When you are injured on the job it is critical that your report your injury immediately to both the Idaho Industrial Commission and your employer.  If you do not report your injury within 60 days you can lose all your benefits.  Another difference between personal injury and workers comp is who covers the bills associated with your injury.  In a personal injury you are personally responsible for paying your medical bills and then trying to collect the cost from the party who injured you.  With workers comp, your bills are sent directly to and covered by (all reasonable and necessary bills) the insurance carrier.

Another difference between personal injury and workers comp is coverage of lost wages.  If you are injured in an accident not related to work and you file all the appropriate paperwork, you will be entitled to time-loss benefits which is compensation for lost wages if you are off the job for more than five days.  You also may qualify for temporary total disability benefits if you doctor confirms that you cannot work.  These benefits last until you have recovered to the maximum degree of recovery and are released by your doctor to work again.  If you are not completely temporarily disabled, you may qualify for temporary partial disability benefits.  In a personal injury law suit, if you miss work and are temporarily or permanently disabled, you won't collect any payment until you have settled with the insurance company or received and collected on a judgement against the party that injured you.

Death benefits are also provided by workers comp.  In general, your spouse will receive 500 weeks of death benefits.  This can change, however, if your spouse remarries.  In addition, your children, up to 3 total, will receive benefits until they turn 18.  Again, with personal injury, there is no guaranteed coverage for death benefits.  Any money you receive to compensate your loved ones will only come from a settlement with the insurance company or a judgment when you win the personal injury law suit.

So if workers comp sounds so good, why would you ever need a workers comp attorney?  You may ultimately decide what the Idaho Industrial Commission determines is reasonable and necessary or a full benefit does not actually meet your expectations, your out of pocket expenses or is commiserate with your injuries.  For workers comp cases in Idaho you are not allowed to file suit in civil court, like you would with a personal injury case.  For workers comp you have to file an appeal and have a formal hearing.  Prior to going to the formal hearing you may also want to go through mediation.  Mediation is non-binding upon you so if you still don't feel like you are getting what you deserve you can request a formal hearing.  Workers comp attorneys assist you in these matters.  They present your case before the formal hearing board or negotiate with the Industrial Commission lawyers during mediation. If mediation doesn't work for you The Idaho Industrial Commission  lawyers and your workers comp attorney or attorneys will have a binding legal hearing to determine what your benefits should be.

There is one situation where your injury may be taken to a civil court.  If you are injured at work but a third party is involved, in addition to filing for benefits under the workers comp laws of Idaho for the amount of the injury caused by your employer, you can sue the third party for the injury or the amount of the injury they caused.

If you have been injured on the job and need to speak to a Boise Workers Comp Attorney, please give us a call, (208) 472-2383.  We offer a free consultation.  Give us a call and see what we can do for you.

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

Divorce can get ugly.  As a Boise Divorce Attorney I have seen some really unsavory divorce and custody actions.  It is my job as a divorce lawyer to try to help you to go through the process without high conflict.  This isn't always possible.  It depends to a great deal upon the individuals, the degree of animus and the level of maturity of the parties.  However, as many Boise Divorce Attorneys will attest, there are a few things that you, as an individual, can do to help your divorce go smoothly.

One of the biggest areas of conflict in divorce and custody actions has to do with a new partner, spouse or significant other.  Keeping your divorce issues and your custody issues between you, your soon-to-be ex partner and your lawyers is far better than including your new boyfriend or girlfriend in the mix.

Being timely for visitation drop off and pick up and being courteous about potential conflicts are other important elements in divorce.  Often conflict begins here.  The parties, because they are at odds, begin to use their children to get back at the other party.  If someone is late for visitation drop off, the other party might use that against them or to claim they are not fit to be a parent.  Divorce is very hard on children and no child deserves to be put in the middle of a custody dispute.

Being up front and honest with your soon-to-be ex and with the attorneys is also critical to the process and the outcome of a divorce.  Incomes for child support calculations, use of community savings and care of community property are areas where people will often try to hide or fudge or somehow use to deceive the other party.  You are obliged by law to be honest about your income and to care for the goods of the community.  Lying about your income to decrease your child support obligation or destroying community property out of spite are sure ways to create a high conflict divorce.  Just a note about child support.  People often don't want to divulge their full incomes because they don't want the other party to get their money.  Child support is just what it says it is.  It is to support your child.

There is no guarantee that your divorce will go smoothly but using common sense and civility will go a long way in helping your divorce go quickly and with a low level of conflict.  There are of course certain issues which may result in conflict.  Your attorney knows how to manage these and it is far better to discuss these with your divorce lawyer rather than directly with the other party.

If you are seeking a divorce or custody and need to speak to a Boise Divorce Attorney, please call, (208) 472-2383,

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

It seems like there are more stories in the local newspaper about increases in arrests over  holiday weekends.  For Boise Criminal Lawyers this translates into an uptick in the number of calls associated with folks looking for a good criminal defense attorney.  These holiday arrests don't just involve DUI.  They often involve other crime.

I have frequently discussed how to avoid a DUI but today I would like to talk about a good way to avoid being arrested for the crime of possession of drugs or paraphernalia.  As a Boise Criminal Defense Lawyer I regularly get calls from individuals who describe their arrest in detail.  In a lot of situations something happens to initiate a traffic stop, such as a broken headlight or blinker.  Contrary to popular belief, just because a person in in possession of marijuana or paraphernalia doesn't mean they are under the influence of marijuana.  So often people are arrested for possession because of an underlying offense, such as a traffic violation.  Here's the common scenario.  You're driving along and the detestable red lights, which signal trouble, flash at you.  The cop pulls you over, struts like a rooster to your window and snoops around a little bit.  You might be nervous, you might be driving an old Duster, you might be wearing a Grateful Dead T-shirt or you might just want to get the heck out of Dodge, but whatever it is it signals the cop to think something might be going on.  And then it happens.  The cop asks if he or she can search you or your car.  Just Say No!  People often think they have to let the police search them.  You do not.  If they have not arrested you, they cannot search you without your permission or without a search warrant.  Unless you have a rap sheet a mile long or you are really paranoid or aggressive, the police simply are not going to secure a search warrant on a simple traffic stop.

If the police search you, with your permission, then whatever they find is potentially admissible as evidence against you.  The police know that if they don't have your permission to search you or the vehicle anything they find that is not in "plain sight" may be excluded. 

This brings up a few important points.  One, if you are pulled over and you know you have marijuana or paraphernalia on you don't say yes to a search.  You do not have to.  It might also be sensible to always say no, just in case you forgot about the pipe or roach in your pocket (this actually happens all the time).  It is also an important if you have been arrested and the police searched you or your car without your permission and found incriminating evidence, make certain you tell your Boise Criminal Lawyer that this is how the evidence was obtained so that they can moved to have it excluded.  An obvious but often overlooked point is, don't act guilty during a traffic stop.  If you have been pulled over for a traffic violation, be agreeable and move on.  Your attitude can wind up getting you busted.

The world of criminal law revolves around what evidence is admissible.  You have to fully inform your Boise Criminal Lawyer of all the facts surrounding your arrest so that they can keep out any evidence that violates your rights.

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