Think Like a Lawyer:  DUI Defenses

If you’ve been charged with a DUI, don’t give up on a powerful defense. This article will explain key DUI defenses that you can discuss with your lawyer to plan an attack against the prosecution’s evidence:

Reasonable Suspicion for the Stop. Examine the reason for the stop.  Did the officer observe a violation of the law?  Or did he pull you over because of a guess or a prejudice?  The officer must have reasonable suspicion that the driver or passenger have committed, is committing or will commit a crime.  Reasonable suspicion is more than a hunch and has to be based on specific facts.  If the officer can’t justify the stop, then your attorney can file a Motion to Suppress the evidence.  If the motion is successful, the prosecution will typically not have the evidence available to convict you.

Don’t Assume the Blood Alcohol Tests Are Irrefutable. A test is intimidating evidence, but there are still ways to undermine the reliability of this evidence against you:

  • Undermine the reliability of the testing procedures.
    • Did the administrator of the test have the proper training?
    • Were the testing procedures followed with exactness?
    • Was the device functioning properly?
    • Were there results that were inconsistent with each other?
    • Did they observe you prior to the DUI?
    • Were you smoking, eating, drinking, burping, vomiting, etc. prior to or during the test?
  • Rising Blood Alcohol. The relevant point in time for blood alcohol level is at the moment you are driving.  If your blood alcohol level goes up after you are arrested because the alcohol is absorbing into the blood stream, then you have an argument that the test is not accurate to the level while you were driving.
    • The amount of food that is consumed, the gender of the driver, and other factors may play into whether the blood alcohol defense can be credibly asserted
  • Medical Problem Defense. The key point here is whether you have a medical problem that would render the results inaccurate.
    • Do you have a medical condition such as asthma or emphysema that affects your lung capacity and ability to blow into a machine?

Fight the Officer’s Observations and Field Sobriety Tests.

  • The key here is to undermine the validity of the tests. Do you have a medical condition?  Were there weather conditions?  Did the officer explain and administer the tests properly?
  • tests, or if correct instructions were not given, then you can question the reliability of the conclusions drawn from the tests.

Don’t give up.  There are many possible defenses in your case, so consult with your attorney.

 

 

 

Should I Stay or Should I Go:  Thinking About Divorce

If you are thinking about getting a divorce, you are not alone.  The decision to pull the trigger can have consequences for your finances, your family, and your freedom to move or make decision.  This article will help walk you through questions to ask an experienced divorce attorney if you are on the fence about whether you should get a divorce at all or if you are deciding when you should get a divorce.

What will be the effect on my time with children?

If you have children, your time and decision-making power for them are likely to be two of your top concerns.  Discuss with your attorney some of the typical parenting plan arrangements so that you can get an idea ahead of the divorce of the options that are best for you.

How will a divorce impact my ability to move out of state?

If you have children, a divorce can impact the ease with which you can move out of state.  Consider your long terms plans for yourself and your children, and if you prefer to settle outside the state you are currently in, then that’s definitely a topic you should discuss with your attorney.

How will divorce impact my standard of living?

Think about the property/assets that you had prior to marriage and those that were acquired during marriage.  Discuss how these will be divided.  Consider timing.  Are you or your spouse eligible for a raise or bonus in the near future.  Is now a good time or would a short wait be more or less advantageous to you?  It’s important to think in advance about the optimal timing.

What are the tax consequences?

Evaluate how taxes will likely play into the mix.  Will keeping or selling property have tax consequences?  How do the retirement accounts play in?  How will claiming the children on taxes factor in?

How adversarial is my spouse likely to be?

Planning ahead includes thinking through your spouse’s reaction to divorce and preparing to manage his or her reaction.  If you can find a fair middle ground with your and your spouse, you will both save on legal fees that come with an adversarial posture.

What would be the consequences of losing at trial?

Be sure to understand all the consequences of a plea and all the consequences of losing at trial so that you can make an informed choice.  Get the whole picture of counseling, probation, and fines.

The choice of whether to call it quits on the marriage or keep trying to work things out is a difficult one with many unknown consequences.  If you can get an idea of what you would be entitled to and how you will be impacted overall, you can make a better decision about the right way and time to end the marriage.

 

 

Guilty Plea or Go to Trial?

If you’ve been charged with a DUI, you will eventually have to make the important decision of whether to accept the “known evil” of a plea deal, or risk the unknown of a trial?  This article will walk you through the questions you need to ask your attorney as you contemplate this important step:

  1. You can fight the charge even if you feel guilty.

You do not have to make a decision the first time that you are asked what plea you will be entering.  Even if you think you are, in fact, guilty, you have a right to enter a not guilty plea and to prepare a defense.  You can take your case all the way to trial, even if you feel guilty.  The police officer may have violated your rights during the stop.  The tests may have been administered improperly or registered incorrectly.  Don’t assume just because you feel a certain way that you can’t mount a powerful defense.

  1. How likely is success?

You need to discuss your odds with your attorney.  Nobody has a crystal ball to tell you what will happen, but they can tell you what has happened in other cases with similar fact patterns.  What is your attorney’s experience with this police officer?  Does he come to court prepared? What about the judge?

  1. What will the plea bargain do for you?

What deal is being presented?  Is there any real advantage to entering a plea?  If you are likely to receive the same sentence if you do not enter a plea, then that is something to consider in your choices.  Is cost of defense a factor?  You are in the driver’s seat of your case, so be assertive in making a decision that is right for you.

  1. Who are the key players?

What kind of prosecutor do you have?  Is he or she likely to prepare a case, or will the prospect of trial be such an annoyance that a better plea will be offered on the day of trial? How reliable are the witnesses?  How effective is your counsel?  The facts are important, but the skill and preparation of the players.

  1. What would be the consequences of losing at trial?

Be sure to understand all the consequences of a plea and all the consequences of losing at trial so that you can make an informed choice.  Get the whole picture of counseling, probation, and fines.

The choice of whether to fight or bargain is a tough one.  Consulting with an experienced criminal defense firm is vital for making an informed decision.

 

 

Visitation Rights of Grandparents in California

Are you a grandparent who adores your grandchildren and is concerned about visitation in the event of divorce?  This article will help you understand your rights as a grandparent.

  1. Can a grandparent ask the court for visitation?

Yes, a grandparent can ask the court for reasonable visitation.  In order to grant that request, a court has to evaluate two factors:  1) there has to be a bond already in existence between grandparent and grandchild, such that the visitation is in the best interest of the child, and 2) the court has to balance the best interest of the child in having visitation with the parents’ right to make decisions about their child.

  1. Can the grandparents take action to get visitation if the parents are still married?

Generally, no, the court will not order visitation for a grandparent if the parents are still married.  The exceptions to this general rule include:

  • Grandchild has been adopted by a stepparent
  • Child does not live with either parent
  • One of the parents joins the grandparents in their petition for visitation
  • A parent’s whereabouts are unknown
  • The parents are living separately
  1. Where can I find more information about grandparent custody rights? 

California Family Code section 3100-3105 can provide more information about grandparent custody rights.  You could also consult an experienced family law firm, such as David Knecht Law.

  1. How does a grandparent ask for visitation in court? What is the process?

A grandparent can file a petition in court to ask the court to order visitation with a grandchild. In general, the first step would be to find out if there is an existing case already open or whether the grandparent needs to start the case themselves. The next step would be to file the appropriate paperwork and serve those on the parents. Subsequently, a hearing or mediation may be scheduled. When the judge makes a decision, he or she will sign a court order.

A grandparent can add security, love, and wisdom to a grandchild’s life.  If you are a grandparent who is concerned about securing the legal right to visit your loved one, contact a firm that is experienced in family law, David Knecht Law.

 

DUI: What to Expect When You’re Caught Under the Influence

California has two relevant laws regarding drunk driving. The first law makes it illegal to drive under the influence of alcohol. The second makes it illegal to drive with a blood alcohol concentration at or above 0.08%. Notice the important distinction here?

Driving under the influence of alcohol, as defined in the first law, has nothing to do with any measurement of blood alcohol, but only with an objective assessment of your sobriety. Imagine, for instance, someone particularly susceptible to the effects of alcohol drinks just one drink then proceeds to drive. If they were stopped by the police and the breathalyzer returned a blood alcohol reading of only 0.03%, they could still be charged under this law if something about the person’s driving gave the police probable cause to pull them over to begin with.

Conversely, under the second law, the impairment or otherwise of the person’s actual driving ability by the effects of alcohol are irrelevant to the reading itself. Another person might have been driving perfectly well, but was submitted to a breathalyzer test in a sobriety checkpoint, which returned a reading of 0.12%. This person, too, would be charged.

In practice, these two laws function as one. A person can be convicted of both offenses—sections a) and b) of Vehicle Code section 23152—but can only be punished for one, and the punishments are the same.

At the time of the incident, however, when a person has been detained under suspicion of drunk driving, there will be certain procedures that you can expect the police to follow.

Your encounter with the police will most likely begin with some questions. You should remember that you are not obliged to answer any questions that may incriminate you. This is your Fifth Amendment right. And while you will be (or should be) advised of this in the Miranda warning, it still applies at all times.

The same applies to field sobriety tests where the officer will instruct you to attempt physical tasks, such as walking in a straight line and so forth. Your participation in these tests is voluntary. The detaining officer should, but frequently will not, advise you of that fact.

At this point you should be given your choice of submitting either a breath test or a blood test. You can refuse this, too, but by carrying a drivers’ license, you gave your implied consent to giving a chemical test when required—meaning you can be tested by force.

The most important thing is to be aware of your rights at all times. When you are placed under arrest, do not say anything until you have your lawyer present. Visit our website at http://www.davidknechtlaw.com/ to find out why your first call should be to David Knecht.

Changing the Terms of Your California Divorce Decree

Circumstances change over time, and sometimes that means that the divorce decree, or Final Judgment of the Dissolution of Marriage, needs to be modified. There are two ways a divorce judgement can be changed.

  1. Appealing the judgment to the California District Court of Appeals.

Appealing the judgment is a method that is not used as often because appeals are usually only granted If the trial court did not apply the law correctly or if the judgment was the result of one of the party’s bad faith, such as intentionally hiding assets.

  1. Motion to Modify the Terms.

A motion to modify the terms is the more commonly used approach to change the divorce decree.  Modifications are usually more likely to be successful, less expensive, and faster.

  • Can modifications be temporary?

Yes, modifications can be either temporary or permanent.  For example, if a party has lost his or her job, the divorce judgment may be modified to change child support or alimony temporarily.

  • Can modifications be permanent?

Yes, modifications can not only be permanent, but they can change some or even all of the divorce decree.   Examples of a permanent modification might be where one party permanently changes careers or acquires a disability or injury which permanently changes that party’s ability to pay child support or alimony.  Other changes could be to child custody, where the changes accommodate the growing and changing needs of children.

Some people feel locked into the divorce decree, perhaps because they don’t realize that changes are possible or perhaps because they fear the pandora’s box that may be opened if they readdress the current terms.  An experienced divorce attorney, such as David Knecht, can provide advice about how to modify your divorce decree to make it right for you.

California Divorce:  What Happens if You Want to Move Out of State With Your Children?

Your rights with respect to your children will be governed by your own specific custody situation, but this article will discuss some of the general topics relating to relocation that you can discuss with your attorney.

  1. Can one parent relocate out of state and take the children?

In general, a parent who has sole custody of the children can move out of state, unless the other parent can show that the children will be harmed.  If the parents have joint physical custody and one parent opposed the other one leaving, the parent who wants to relocate will have to show the court that the move is in the best interest of the children.

  1. Can a parent take a vacation or trip out of the state or country with the children?

If the other parent is going to miss their visitation, you will typically need that parent’s permission to travel out of state with your children.  You can also look at your order and see whether it contains restriction on travel.  If so, you will need a special order to modify those terms.

  1. Can custody decisions be made in the states of each parent, if they are not in the same state?

 

No, custody decisions are only made in one state.  Here is some general information in what courts look at for determining the right state for the decision:  if the state is the child’s home state (living in the state for the last 6 months), or if the child has significant connections to people in the state, so that it can be proven that the child’s care, personal relationships, etc. are based there, or if the child is at risk of being abused or neglected if sent back to a different state.  (See the Uniform Child Custody Jurisdiction and Enforcement Act for complete information on this topic.)

Taking your child out of state in violation of the order can be serious business, so consult an attorney experienced in family law to get answers on whether you can take a trip or relocate with your family.  David Knecht is an experienced family attorney who can find the answers for you.

 

Prenuptial Agreements in California Part 2:  Waivers of Spousal Support

Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article is Part 2 and focuses on the rules relating to alimony, also known as spousal support.

Do we need to involve attorneys?

Yes, if you want it to be enforceable later.  The rule is that the person against whom enforcement of the spousal support provision is sought must have been represented by independent counsel at the time the agreement containing the provision was signed.

Can we put in any terms we want as long as we agree, and attorneys are involved?

No, when it comes to spousal support, the court will not enforce a provision that is unconscionable even if the person who agreed to that unconscionable provision was represented by independent counsel.   

Is there a waiting period?

Yes, the party waiving spousal support needs to have seven days between the prenup is presented and signed and be advised to seek independent counsel.

How does a court decide what is unconscionable?

The court will look at the assets and earning power of each spouse and may determine that a waiver of spousal support is unconscionable if one spouse has significantly less than the other. Also, if the court determines that it would be unfair to enforce the waiver based on what the person would have received in spousal support if the prenup hadn’t been signed.

What other factors will be considered to invalidate the prenup?

The prenup cannot have been executed under duress, fraud or undue influence.

What are some other things to watch out for?

It is important for the spouse waiving the support to have actual or constructive knowledge of the assets and obligations of the other party or to voluntarily waive such knowledge.  Because of this, if the parties want an enforceable prenup, both need to be full and accurate in their disclosure of assets and debts and should not attempt to lie or trick the other person

If you are looking for a local, Dixon attorney to assist with a divorce or family case, please give us a call.

 

Prenuptial Agreements in California Part 1:  Cans/Cant’s

Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article will examine what can be accomplished and what is unenforceable in a premarital agreement.

 

Can I punish my spouse financially if he/she cheats?

 

Some couples may want to include a financial punishment for the other spouse who cheats, and this is commonly referred to as an infidelity clause.  California is a no-fault divorce state, so “fault” such as infidelity will not be a relevant consideration to a California court. As such, California courts will not enforce a financial punishment against a spouse for cheating.  

 

Can we negotiate child support or child custody in the prenup?

 

No, a court is going to look at the best interest of the child standard for child support and custody, and visitation rights so a premarital agreement will not be binding with respect to those issues.  

 

What are some topics where a prenup can be helpful?

 

  • Each spouse’s rights to property.  
  • The right to manage or control property, such as buying, selling, using, etc.
  • What is going to happen to property in the event of death, divorce, etc.
  • Spousal support in the event of divorce (special rules apply)

 

Is there an alternative to a prenup?

An irrevocable trust is an estate planning mechanism that can be used to protect property.  A revocable trust permits the grantor to place the assets under the control of a trustee, then who administers the assets for the benefit of beneficiaries named by the grantor.

Unfortunately, an irrevocable trust has a number of disadvantages, so it may not be the right mechanism for you.  The grantor loses ownership of the trust property, so you generally won’t be allowed to change your mind and take the property back.  Additionally, there are taxation issues involved with an irrevocable trust that may not be advantageous. Consult with a Vallejo attorney to see whether an irrevocable trust is right for you.

 

How is a prenup changed?

After marriage, a premarital agreement can be changed only by a written agreement signed by both the parties, so consider carefully the terms you are including.

 

 

Alimony: Federal Tax Code Changes

There’s a change to the tax code that could impact you.  If your divorce is final after December 31, 2018, then alimony will no longer be deductible in your federal taxes if you are the person paying the alimony.  It will no longer be included in your gross income if you are the person receiving alimony.

Where does the new rule come from?

The Tax Cuts and Jobs Act (TCJA), signed into law in 2017 will end the alimony-payer deduction and the payee’s income inclusion for agreements executed in after 2018.

Is there a “grandfather clause”?

Yes, alimony agreements executed on or before December 31, 2018, are grandfathered in.  Also, if you later modify an agreement that was executed prior to December 31, 2018, then you can choose to stay grandfathered in or adopt the new rule.

How is the new rule different than the old rule?

The old rule was that the alimony was tax deductible and the money paid to the spouse was included in income.  The new rule is that the party paying alimony no longer gets the deduction and the person receiving it now doesn’t have to report those amounts as income.

Does this change California State tax?

No, the new rule relates to federal taxation but not state taxes.  Your California state tax rules will remain the same.

What’s the practical effect of this change?

The general impact is that overall more taxes will likely be paid because previously the payor spouse received a tax break through a reduction of their gross income, and the receiving spouse was at a lower income. For each couple, though, the practical impact of this may vary.  There may be other strategies that can be employed that have tax advantages to both parties, so consult with a Fairfield lawyer to find out the best options for your particular circumstances.