4 Potential Consequences of Your First DUI

Whether you have just been arrested for DUI or whether you are further down the road in the process, you need to be prepared for what is ahead. You likely have many potential defenses to fight the charge, which are discussed in other articles. For this article we will assume you are 21 or older and entered a guilty plea or conviction of a first DUI and give you a look at “worst case” scenario.

1. Driving Consequences

  • Suspended License:  The DMV will automatically suspend your license if you had a blood alcohol concentration of .08% or more for four months.  The DMV will suspend your license for a year if you refuse the test. You’ll need to pay a $125 fee to get your license reinstated at the end of the DMV suspension. The court can also suspend your license, which is typically run concurrent to the DMV suspension, meaning that both suspensions are in effect at the same time.  A driver may be able to get a restricted license, to drive only to certain places like place of employment.
      • If you want to fight the DMV suspension, you need to request a hearing within 10 days.  
  • Interlock Device:  You may be ordered to get an interlock device on your vehicle, which measures your breath alcohol every time you drive.
  • SR-22 Insurance. If you don’t win the DMV hearing or don’t dispute it, and your license is suspended, you will need to get a special type of automobile insurance called SR-22 insurance for three years.

2. Court Ordered Counseling and Probation

  • 3-9 Month Programs:  You will likely be ordered to complete one of three programs, with the program usually determined by your blood alcohol content (BAC) measurement from the DUI:  3 month (30 hour), 6 month (44 hour) or 9 month (60 hour program). Additional hours may also be required based on county requirements. Each program requires drug and alcohol education, hours of group counseling, and certain hours of individual counseling.
  • Probation: Probation is typically 3-5 years.

3. Jail Time – Max is 6 months

  • Jail Time:  Crimes come with a maximum punishment, but this does not mean the judge will impose the maximum jail time.  The maximum for a first offense is up to six months in jail.

4. Financial Consequences

  • Fines, penalties and costs. The court at its discretion will impose a fine of between $390- $1000. Additionally, you will likely incur costs of defense attorney, costs for counseling, money for the interlock device if ordered and the cost of SR-22 insurance. The total cost can be very expensive, but consult with your attorney for an estimate of total costs.

 

How Do We Divide Our Assets and Debts in Divorce?

Your attorney can help you with a plan for dividing property and debt, but here are three important steps to help you on the path to a successful division of assets and debts:

  1. Write down all property and all debts.

Making a list is the first step of dividing everything fairly. Here’s a list to get you started thinking through your own finances:

  • Real property – your home, land, investment properties
  • Other property – Furniture, jewelry, cash, technology, automobiles, recreational vehicles
  • Wage earnings
  • Investments – stocks in an individual account, Roth IRA, 401K
  • Health Saving Accounts
  • Pensions
  • Mortgage
  • Student Loans
  • Credit Card Debt
  • Automobile Loan
  • Loans from family members
  1. Label each as community property or separate property
  • Community property – assets, income, or debts earned or acquired during the marriage.
  • Separate property – property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.
  • Common question: What do we do with an asset that can’t be divided physically? For example, do we have to sell the house in order to divide the money?  The answer is that each spouse has to get assets equivalent in value, so in lieu of selling the house, one spouse may keep the house and the other would get the value of half of that asset.
  1. Place a value on each asset and debt.

In preparing for a divorce, it may be helpful to see if you and your spouse have the same estimation of the value of assets and debts or if there is a large disparity. For your list, make an estimate of the value of each item.

  • Be aware that some items may have more value than you realize. For example, a pension plan can be very valuable and special rules apply to pension plans. In this situation, consulting with an attorney on the value and division of the pension plan can be important.

5 Secrets to Dealing with Cops

Many people find interactions with the police to be very frustrating and risky.  This article will share five secrets from turning a negative encounter into a safer experience that will lay the foundation for your defense in the future.

  1. Keep calm and be confident but not argumentative.

The police officer will be assessing your attitude and demeanor from the moment he interacts with you, so you need to watch what you say and do and what your body language communicates. You want to exude a positive and calm presence, without anger or frustration.  This will send a message that you are not dangerous.

  1. Don’t debate with the officer, but avoid admitting to allegations.

Know that the officer will write down everything you say, so don’t admit to wrongful conduct if it’s not true.  At the same time, you do not want to get into a heated debate with the officer.  Express yourself politely.  For example, if an officer asks you if you know you were speeding, you could respond with “No, I did not know that,” or you could say, “Thank you for letting me know why you pulled me over, but I did not believe I was speeding.”  You have a right to remain silent, and it is often the best course of action to avoid talking as much as possible.

  1. Never run or fight.

Never run from a police officer. This will only get you into more trouble. Never lay hands on an officer or resist arrest.  These actions escalate the situation, so for your own safety you should comply with officer’s orders.

  1. Ask questions.

Often a very polite question can lay the foundation for your case later on.  A simple question to the officer can help you later:

  • When you feel detained:
    • “I don’t want any trouble, but I just wanted to clarify whether I’m free to go now.”
  • When they want to search you or your vehicle:
    • “Officer, are you asking for my consent to search? If so, I’m sorry but I can’t consent.”
  • When they are requesting to search your home.
    • “Officer, do you mind showing me a warrant? I’m sorry, but I can’t consent to a search of my home without one.”
  1. Don’t be afraid to ask for an attorney.

You have a right to an attorney, and don’t be afraid to exercise that right. Your request may not change the officer’s actions, but the very fact that you requested and attorney may help your attorney fight your case.

 

3 Things Most People Do Wrong When Being Charged With a DUI

When you have been charged with a DUI, it is easy to focus on negative

1. What Most People Do Wrong:  Panic, Give Up, or Focus on Regret. What You Can Do Right:  Spend energy on affirmations.

    • You can’t change the past, so you need to put your energy into the future.  Here are some affirmations that will help you be confident in yourself and your future happiness.
      • Know that you may have defenses that you aren’t aware of yet.
      • Understand that everyone makes mistakes, and you can always recover.
      • Forgive yourself and focus on what you can learn from the experience to help you in the future.

2. What Most People Do Wrong:  Delay.  Procrastination is one of your most dangerous enemies if you have been charged with a DUI. Some people requesting a DMV hearing and miss the deadline, others delay seeking legal counsel immediately, others wait to begin changing harmful habits.   

What You Can Do Right:  Take immediate action!  

  • Request a DMV hearing to avoid the default, which is a suspended license.
  • Immediately start looking for an attorney who is experienced in criminal law, particularly DUI.
  • Change your habits starting now, so that you don’t end up in more hot water. Make sure you do not risk getting another DUI. If you struggle with substance abuse or alcoholism, work with your attorney to identify treatment programs or counseling that you may work into a plea deal if you decide not to go to trial.

3. What Most People Do Wrong:  Spend money as usual, and forget to set aside funds for DUI.  What You Can Do Right:  Start preparing financially.   If convicted, you will be facing costs of fines, counseling, and eventually increased insurance costs and an interlock device when you can drive again.  These costs add up, so now is the time to start preparing financially to handle those responsibilities.

      • If you qualify, a public defender can save you costs.  Some defendants prefer to hire a private attorney.
      • Start setting aside money from paychecks to allocate to DUI expenses.
      • Talk to family members about assisting you during this time, if they are able to contribute.

A DUI can be challenging, but you can hit it head on by being proactive.  Don’t give up or panic.  Find an attorney who may be able to assist you in beating the charge.  Take immediate action to defend yourself and your right to drive. Prepare financially to put yourself in the best position to succeed in making the most of a tough situation.

 

Criminal Court 101:  Basic Fundamentals of Criminal Court

If you have been charged with a crime in California for the first time, you probably have a lot of questions.  This article will help you understand the basic rules for the criminal court system.

What is the difference between criminal court and civil court?  

  • Criminal court – criminal charges are brought by either the federal government, state government, or city against you with the allegation that you have violated a law. If the defendant is found guilty, the judge can impose a sentence that includes fines, jail/prison, or other restrictions or requirements.
  • Civil court – this occurs when one party (for example, a person, business or organization) has a claim against another party and requests the court to decide the question.  A person will not go to jail or prison for a civil case.

What types of criminal offenses are there?  

  • Infractions – this is the lower violation in terms of seriousness, and it is something like a traffic violation.  The punishment is usually a fine.
  • Misdemeanors – this is more serious than an infraction. The jail time can be 6 months or a year and the fine can be up to $1000 typically.
  • Examples include DUI, petty theft, vandalism
  • Felonies – these are the most serious.  Punishments can include fines, jail, prison, or even the death penalty in very rare cases.

What is the difference between the state system and the federal system?  

  • Type of crime – there are federal laws and state laws, but in some cases, one crime could qualify as either federal or state.  
  • Procedures – there are different procedures in the federal system vs. the state system, for example in the procedures for charging a defendant and for sentencing
  • Courtroom/judges – the courtroom and judges are different for federal vs. state

Do I need an attorney?

  • You have a right to represent yourself, so you are not required to have an attorney.
  • An attorney is trained in the rules and procedures of the court, and typically that information will be advantageous to your case.
  • Conventional wisdom is that there are advantages to having someone represent you besides just the knowledge.  Most attorneys, if they are charged with a serious offense, will even hire someone to represent them.  A person who is outside the situation is often less emotionally invested and has the impartiality to see angles and arguments that someone who is under the stress of the case may not be able to discern as easily.

5 Things You Should Know About Domestic Violence

If you are facing domestic violence charges or if you are a victim or a witness in a domestic violence case, you may have some basic questions.  

Can the victim “drop the charges”?  No, in a criminal case the victim is not the person bringing the charges.  In a civil suit, the plaintiff can choose to dismiss the case.  In a criminal case, the charges are brought by prosecutor, and the judge has the power to dismiss the case. The prosecutor has to have enough evidence to be able to convict the defendant, so the victim’s testimony may have an impact on the prosecutor’s ability to convict.  However, in many domestic violence cases, the prosecution has pictures, statements from the victim which may be admissible due to the particular circumstances, or other types of evidence that can be used in spite of a victim’s reluctance.      

Do the defendant and the victim have to be married for the crime to count as domestic violence?  No, the defendant and the victim just have to be in an intimate relationship (which includes but is not limited to marriage).  For example, domestic partners, currently or previously dating, living or lived together, have a child together can all qualify as an intimate relationship for a domestic violence charge.

Is domestic violence a felony or a misdemeanor level crime?  Each case is unique and the prosecutor determines the charges.  There are multiple different types of specific crimes relating to domestic violence.  In general, the extent of injury involved is one factor the prosecutor uses in determining how to charge, and the second factor is previous criminal convictions.  

Are there any possible defenses to a domestic violence charge? Yes, there are many potential defenses, and you should seek legal advice on the facts of your specific case. Self-defense is one common defense, where the defendant claims that he/she reasonably perceived an imminent threat, had a proportional response and was not the initial aggressor.  False allegations for manipulating child custody or divorce proceedings.  Here, the defendant shows that the witness has a motive to lie about facts, and did in fact lie about them.  Another tactic for winning these types of cases is to attack the level of proof presented.  The prosecutor must prove the crime beyond reasonable doubt and many domestic violence cases leave room for significant doubt about what was said and done. Another common defense is to show that the conduct was not willful, in the instances where a true accident occurred.

Is a domestic violence allegation a big deal? Yes, it can be, and it’s likely that you are going to want to hire an attorney to vigorously defend you.  Fines can be up to $6,000, and on rare occasions with enhancements even higher.  Penalties can include up to a year of jail for misdemeanors and several years for felonies.  Convictions can have consequences for your career as well, so it’s important to take a domestic violence allegation seriously.

 

3 Most Common Financial Questions When Hiring a Divorce Attorney

It has been said that there are no right answers to the wrong questions, so the first step in making your divorce process work for you financially is to ask the right questions.  This article will outline a few of the most important financial questions when hiring a divorce attorney.

1. What is the structure of the fee agreement?

Your lawyer should have you sign a fee agreement that lays out how you will be billed.  Understanding this agreement is extremely important.

Ask about the retainer.  The retainer is like a down payment that you pay up front, and it will be used to cover the fees as your case progresses.  

Ask whether you will be billed hourly or flat fee.  If you are billed hourly, then you will obviously be billed for the attorney’s time, but what isn’t obvious is how this can add up and how you can work with your attorney to keep costs down.  

Ask about who will work on your case, and how you will be billed for each attorney or staff member’s time.  Find out how much you will billed for the paralegal or other support staff.  If you want only a particular person or group to work on your case, you need to put that into the agreement because otherwise the default is that firms may utilize various people to work on your case and you may be paying to re-educate one attorney about issues another one has covered.

2. What kind of cost estimates can be anticipated?

Your attorney will very likely be unwilling to get pinned down to a definitive cost estimate of the overall divorce because your ex-spouse is a wild card that can lead to lower or higher costs depending on what they decide to do.  However, if you push for specific answers to smaller questions, you may be able to get a reasonable understanding of the costs that will be involved.

Does your attorney anticipate fees from any other professionals?  What are the typical ranges for these people– i.e. counselors, investigators, accountants, appraisers, etc?

What has been your attorney’s experience in terms of costs in prior cases that he or she has handled?  For example, you can ask about cases where the spouse was cooperative and where the spouse was uncooperative, where custody was an issue, where certain types of assets were involved, etc.

3. How can I keep costs down?

You are the person who will be in touch with your attorney the most.  Find out your attorney’s preferences and how to save his or her time.  

Find out whether your attorney feels that it will be more cost effective to communicate with him or her via email, text, calls or in person.  Focus on the most cost-effective ways of working together. 

Find out what kind of document organizations works best for your attorney.  If you make sure that any documentary evidence you have is assembled and summarized in an organized manner then you will save your attorney time and therefore save yourself money.

Are there things you can do yourself to save attorney time?  You may want to find out if there are tasks relating to your case that your attorney can delegate to you to save on cost. Your attorney may have staff set up to do non-legal tasks, but it never hurts to ask whether there are things you can do to keep costs down. 

You can expect that your divorce will have a significant financial effect on you, your ex-spouse, and your children.  Don’t be afraid to ask questions about the process and educate yourself on how you will be billed, what you can anticipate, and how you can minimize the impact to your financial bottom line. 

What to Do If You Have Already Hired a BAD Attorney

The person representing you is vital to your case, but sometimes your initial decision was the wrong move.  What do you do now?  The next step is a decision only you can make, but this article will walk you through sound reasoning that will assist you in making the right choice.  Know that you are not alone.  If you are questioning whether you need to hire someone else, don’t hesitate to set up a consultation with the attorney you have in mind as a replacement and get his or her opinion on the situation.  

Is your attorney making mistakes that are prejudicing your case? – Is your attorney doing things or NOT doing things that are going impact you long-term and hurt you in some way?  Serious mistakes on your attorney’s part can affect you forever.  Here are some of the serious ones to watch out for:

  • Missing deadlines for filing motions.
  • Forgetting court appearances.
  • Completely ignoring communications with you.
  • Not having sufficient knowledge or experience to adequately represent you.
  • Being dishonest or encouraging you to make misrepresentations to the court either verbally or in writing.

Possible courses of actions with prejudicial mistakes:

  • Terminate your relationship with your attorney and find alternative representation.
  • In some cases, it may be appropriate to ask for a reduction or refund on your fees.
    • If the attorney’s mistakes are particularly egregious, you may feel it is appropriate to report those to the Bar of the State you live in.  
    • If the attorney you are dissatisfied with is a public defender and not someone you have hired, you can request a different attorney or represent yourself.  Be prepared to share with the judge the exact reasons why you are dissatisfied because a bare assertion that the attorney isn’t doing a good job will probably not be specific or factual enough to sway the judge to your point of view.

Are you dissatisfied with your attorney for reasons that may be fixable with communication? – Is your attorney doing things that annoy, bother or frustrate you?  

  • You don’t feel respected by your attorney.
  • You don’t feel that your attorney has thoroughly evaluated the information or evidence you or others have provided.
  • You don’t feel your attorney has the right tone with a judge/opposing counsel/prosecutor, and you would like a different tone?  (i.e. more or less adversarial, more confident, etc.)

Possible courses of actions where you feel the problems may be fixable with communication:  

  • Many attorneys respond to facts.  Give specific examples of what is bothering you and recommendations on what you feel would be an appropriate resolution.
  • In some cases, it may be appropriate for you to request a partial refund on your bill.
  • Many attorneys appreciate organized, written communications.  Summarize your concerns with your attorney’s performance in writing.  Not only does this step help the attorney understand you, but it can also document the problems.

You deserve to have an attorney that you feel confident in and who represents you well.  The practice of law is a service business where you are the client, so take charge of the relationship.  Work it out if you can or find someone different, but don’t sit back without making informed and thoughtful decisions about your future.

What Is the Typical Legal Procedure for a Standard Divorce

When you are embarking on a journey, it is important to have an overview of where you are now and where you are going.  Similarly, with a separation, divorce or an annulment of a marriage or domestic partnership, an overview of the system will help you plan ahead.  This article will give you a view of a big picture, but be aware that this is a generalized summary that will certainly vary depending on the unique facts of your case, your assets and your family.  

1. Petitioner Files Paperwork.  The Petitioner is the person who files the paperwork to get the divorce process started.  The forms needed to start your case in California can be found at this site:  http://www.courts.ca.gov/1229.htm

2. Serve the Forms.  The other party (Respondent) needs to know what paperwork is filed.  To accomplish this, a person serves the forms to the Respondent.  The Petitioner can’t serve the forms themselves because the Petitioner is a party in the case.

3. Respondent Responds.  The Respondent has 30 days to reply to the paperwork that is served.  There are 4 possible scenarios here:

  • Respondent Doesn’t Respond.  The Petitioner waits 30 days and files the appropriate paperwork for a Judgment.  
  • Respondent and Petitioner Work Out a Written Agreement. Respondent doesn’t respond but the Petitioner files the written agreement between Respondent and Petitioner and the paperwork for a judgment.   
  • Respondent Files a Response and Written Agreement (“Uncontested Case”).  This is the “uncontested case,” where one of the parties files and Appearance, Stipulation and Waiver and a Proposed Judgment.
  • Respondent Files a Response (“Contested Case”).  The Respondent files a response, but the parties can’t agree, so it proceeds to the next step toward trial.  

4. Disclose Financial Information.  Both parties are required to fill out disclosures of financial information within certain timeframes. This is where you submit information, and you must not withhold information or be dishonest about any information.

 

5. Orders.  During the process, either party can request temporary orders relating to child support, spousal support, custody, etc.

 

6. Mediation.  Mediation is where an attorney or an arbitrator assist the parties in seeing whether they can come to an agreement on important issues such as dividing the assets or time with the children.

 

7. Trial Preparation and Trial.  There are various steps that can lead to trial.  The discovery stage is where parties are trying to get more information from each other.  They can do this with interrogatories, which are questions posed that are required to be answered.  Requests for admissions is where you submit a statement to the other side that they have to affirm or deny.  There are also requests for production, where certain documentary evidence can be requested.  Deposition is sworn testimony where a person is asked questions while they are under oath.  These steps help the parties prepare for a trial, where the judge will make a decision on the issues presented.

 

8. Final Judgment and Timing. Your divorce will be finalized by a document that is signed by a judge.  This is when the proposed Judgment that was filed by one of the parties is signed by the Judge and becomes a Final Judgment.  Be aware that in California, you have to wait until 6 months after the case is filed and the Respondent has been served before the Judgment is Final.

 

9. Additional Resources.  This is just a primer on the divorce process, but there are many resources for more information.  One very helpful resource can be found at http://www.courts.ca.gov/1225.htm.   

 

 

5 Ways to Make Sure You Don’t Lose Your Shirt When Splitting Marital Assets

With any looming separation or divorce, you are wise to be worried about the income and assets and how your financial well-being may be impacted.  This article will give you some essential background information and five ways to make sure you protect your assets in a divorce.

Background.  In California, community property includes all the assets and income acquired during the marriage, and the law requires that the community property will be divided equally, unless there is a written agreement requiring something different.  

1. Identify the Extent and Value of Your Marital Assets.  This step is vital to protecting your financial future.  Discover and document everything you can about the state of your marital financial affairs.  In many instances, taking screen shots of information that shows both the information and the date can be very useful down the road.

 

  • What bank accounts do you have and how much money is in them?
  • What investment accounts do you have and what are those values?
  • Are there employment benefits involved, such as HSA accounts?
  • What health insurance do you currently have?
  • What real estate holdings are involved?
  • What other benefits might be applicable, such as military benefits?

 

2. Get Your Ducks in a Row About Your Separate Property.  In general, separate property is anything acquired before the marriage, by gift or inheritance during marriage, or property obtained during the marriage that can be traced to a pre-marriage acquisition.  What does this mean for you?  The court is going to presume that any property acquired during the marriage, except by gift or inheritance, is community property.  That means that you need to gather the proof to show that what is yours is yours.  Look at all sources of documentation to prove your case. This is a list of where to start to look for that proof:

 

  • Check emails
  • Find texts
  • Ask the gift-giver for any documentation they might have of the gift.
  • Look for documents or receipts
  • Check account histories

3. Don’t Sweat the Small Stuff. Most people in a divorce are angry, disappointed and hurt.  There is a temptation to be stubborn and to focus on a few key emotional items.  If you want to be financially successful in your divorce, you will likely be best served by letting go of the negative emotions and thinking about your marriage as a business that is winding down.  Don’t get caught up with issues or assets that don’t have a great value.  Time is money, and you will not get the satisfaction that you are seeking out of a “So there!” moment from operating out of revenge or vindictiveness.  As much as you can, look at your assets impartially, and seek to make moves that will benefit you the most long-term.

4. Don’t Lie, Cheat or Hide.  For many, it is ever so tempting to hide an account here or lie about an asset there.  This is typically a very poor long-term strategy for protecting your money.  A court can order you to pay the legal expenses of the other side for the search of hidden assets.  Those legal fees can add up.  Furthermore, a judge can sanction you for lying to the court.  Think long-term not short-term, and be forthcoming in your disclosures, not just because it’s your duty, but also because it really is almost always in your best interest financially as well.

 

5. Hire Competent Help.  The legal fees for an attorney can seem daunting, but having an experienced guide help you through the maze of dividing assets will often save you money.  Find an attorney who is experienced in divorce and who is committed to helping you reach your goals for dividing your assets.