3 Secrets Police Don’t Want You to Know About Winning a DUI In California

Many California drivers think that your DUI is an open and shut case and you should just roll over and accept the consequences of your actions. However, regardless of what the police would like you to believe, there are actually several different ways to win your DUI case in California. So whether you have been charged with having a blood alcohol level over the legal limit of .08%, caused an accident, or had a high blood alcohol content test, here are three secrets to beating your DUI:
1.    Breath and Blood tests are not exact sciences.
Although many people charged with a DUI take the word of the breath test without question, many drivers are beating their DUI by challenging the test that got them in trouble in the first place. There are dozens of things that could possibly skew the results of a breath test, including:
•    Being mishandled by the police officer
•    Environmental factors (interference by radio frequencies)
•    You burped or had acid reflux or heartburn that skewed your blood alcohol level.
•    Your low carb diet tricks the breath test into displaying a false high BAC
•    The Breath test itself malfunctioning

2.    Officer Error
In addition to mishandling the procedure of a breath test, there are many circumstances where police errors could lead to a judge throwing out your DUI charge. Police officers are required by law to have probable cause to stop you in the first place, and if they do suspect a DUI and wish to arrest you, they are required to advice you of your Miranda Rights- you know, the “You have the right to remain silent…” rights- in order to use statements against you. While you may know these by heart from your latest Law & Order binge, they are required to advise you of them all the same.

3.    Challenge the field sobriety tests and physical symptoms
Whether the officer arrested you for not being able to balance on one foot, or because the officer believes he smells alcohol in your breath,  these tests and physical symptoms can be explained by non-alcohol related facts. Challenging the charges due to the results of the field sobriety tests or “FSTs” can be as simple as presenting evidence that:
•    you were wearing awkward footwear such as: high heels, boots or uncomfortable shoes.
•    there was poor lighting or bad weather and that is why your eyes appear blood shot.
•    you were eating or distracted by passengers and that is why you were weaving or driving erratically.
•    you were intimidated by the police officer and couldn’t focus.
If you’ve been charged with a DUI, remember that each case must be evaluated individually by an experienced attorney to determine how to aggressively defend your case. Whether due to technical malfunctions, police error, or misunderstanding between you and the police officer, you can use all the facts and evidence at your disposal to defend your DUI and keep your record clean.

What is Litigation? Everything you need to know before getting litigation counsel

Whatever the circumstances that have led to your involvement in legal proceedings, unless you have a background in law or justice you will probably find a lot of unfamiliar law terms and procedures. Without knowing what these terms mean, it can be hard to know what is going on with your case and what you should expect at each step of the court process.

At the Law Offices of David W. Knecht, we strongly believe that you should be properly informed about your case and its progress. Furthermore, we are committed to making sure that not only do you have the right information about what kind of case you are involved in, but that you also fully understand the information so that you know the full implications of your situation. With this in mind we would like to offer a clear and simple explanation of one key legal term that people hear a lot, but may not be able to articulate exactly what it is.

Litigation is a kind of law practice that focusses on the resolution of disputes through the legal system. What are known as “tort” case—when one party alleges that another party has in some way infringed upon their rights or caused them damages—very commonly involve litigation. However, litigation crops up in lots of other types of cases, too; such as family law, divorce proceedings, and probate cases. The defining feature of litigation is that there is an issue being disputed.

You could think of the idea of a lawsuit as a litmus test for whether a case will entail litigation. If you were buying a house and required an attorney to look over the sale contract, you would not want him to sue the seller so there would be no litigation involved. If, on the other hand, you had bought a house and then discovered that your new neighbour was planning to rent out their backyard as a twenty-four hour rehearsal space for death-metal bands, you might consider preventing them from doing that with a lawsuit. This would mean litigation.

Sometimes litigation does mean that your dispute will end up being decided in court, but in reality most litigation cases are settled somewhere along the way—perhaps by a demand letter, or during the subsequent negotiations. This saves potentially huge amounts of money in court costs and legal fees, not to mention your time.

David Knecht has vast experience in the field and is dedicated achieving the best result for his clients. Call Mr. Knecht today to discuss your case.

What to Expect When You Are Caught in Possession of Illegal Substances

We live in confusing times with regard to the laws surrounding illegal substances. There is a lot of debate surrounding the way we as a society deal with certain substances, and how we view the problems associated with them. An ever-increasing number of states are implementing drug law reforms, particularly concerning cannabis possession, with measures ranging from partial decriminalization to outright legalization in different jurisdictions.

Whatever the social issues, however, you should keep in mind that the current laws are still enforceable, so it’s a good idea to acquaint yourself with the law, and know which substances are legal and illegal where you live. If you are caught in possession of illegal substances, knowing what to expect will help you to ultimately secure the best possible outcome in your particular circumstances.

Your Rights

When you are placed under arrest, the arresting officer will read you the Miranda rights. Most people are familiar with these rights as they are often quoted in movies and TV beginning with, “You have the right to remain silent…” and continuing on to inform you of your right to legal representation.

Practicing both of these rights is advisable. The police may try to persuade you to make a statement without counsel present. If this happens, be courteous but firm. Insist that you are allowed to speak to your attorney, and do not answer any further questions. If the arresting officer failed to read you your rights, inform your lawyer of that fact.

Talk to Your Lawyer

In order to represent you effectively, your attorney will need to know the circumstances that led to your arrest. Make sure you relate accurately what happened, and in what order. Where were the drugs found—on your person, or under the seat of your vehicle? Why were you approached by the officer in the first place? Your attorney will need to know this to determine whether the search violated your Fourth Amendment rights, in which case it might be possible to suppress the evidence.

There are many possible defences that a good attorney can mount. If you require legal representation now, or think you may in the future, contact David Knecht today.

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.

What is the Difference between a Divorce and Dissolution?

Making the decision to end a marriage can be very difficult and distressing. At this highly emotional time you will have a great many things to consider, one of which will be what kind of legal proceedings you can expect to be involved in. If you have sought advice about family law in California, you will probably have heard the term “dissolution” used as well as “divorce.” It is helpful to clarify these terms for yourself so that you understand precisely what they mean, and how they apply to you.

Definitions

Technically speaking, in California couples do not file for divorce. The term used under California law to mean divorce is “dissolution.” However there are two types of dissolution that can be granted. The first is known as a “regular dissolution.” This is what most people mean when they say divorce, and is a complicated, sometimes protracted process that will usually entail an appearance in court.

The second option is called a “summary dissolution,” which is what people usually mean when they use the word “dissolution.” It is simpler, cheaper and easier to obtain than a regular dissolution, and does not require you to go to court. The catch is that not everyone is eligible for it.

Which Do I Need?

Obviously, if your case meets the requirements, a summary dissolution would be preferable to a regular dissolution. Ask yourself the following questions. These will determine if you qualify for a summary dissolution of marriage.

  • Have you been married for less than five years? If your marriage lasted longer, you will need to seek a regular dissolution.
  • Do you have any children together? This includes any children born or adopted before the marriage. If you are expecting a child, that also counts and will disqualify you from obtaining a summary dissolution.
  • Do you jointly or separately own in whole or part any land or buildings? If you do, you will need to get a regular dissolution.
  • Do you rent any land or buildings? This will have the same effect as above, but you do not need to count your current domicile unless you have a one-year lease or option to buy.
  • Do you have community obligations (debt incurred since your marriage) totalling more than $6000, community property (things you acquired during your marriage) worth more than $40,000, or separate property worth more than $40,000? If your debts and worth exceed these thresholds, you are not eligible for summary dissolution. You do not need to count your cars (or car loans) in these amounts.
  • Have you and your spouse agreed that neither party will seek support from the other? This is necessary for summary dissolution.
  • Have you and your spouse agreed upon a division of your property and debt (including cars)? Once this is signed, if you also satisfy all the other requirements, you may proceed to seek a summary dissolution.

Whether or not you qualify for regular or a summary dissolution, it is strongly advised that you retain legal representation. For more information contact David Knecht at davidknechtlaw.com

What Are My DMV Administrative Hearing Rights? How to Ensure You Get Your Right to a Hearing and What that Right Includes

Many people are not familiar with what an Administrative Per Se license suspension is, let alone what rights they have under its terms. It is important to remember that even though it is part of the legal processes that you will find yourself subject to if you have been arrested on a DUI charge, the Administrative Per Se suspension happens solely through the DMV, and is completely unconnected to the process of your case through the court.

When you were arrested, the arresting officer confiscated your driver’s license and gave you a pink piece of paper. That is your temporary driver’s license. It lasts for 30 days, at the end of which, your license will be automatically suspended. This is called an Administrative Per Se, or “on-the-spot” suspension.

The thirty days is to provide for due process and give you time to challenge the suspension with a DMV review. The catch, however, is that you only have 10 days from the date of your arrest to request the hearing to challenge the suspension of your license. It is absolutely imperative that either you or your attorney make the request within this window. If you fail to call the DMV to request the hearing, you will in most circumstances have waived your right to contest your suspension.

All too often, people will overlook the Admin Per Se, more worried about fighting their case in court than dealing with a government department, but you can and should contest the DMV suspension. David Knecht has extensive experience in this area, having successfully represented clients in many DMV administrative hearings. Contesting the legality of these Admin Per Se suspensions is one of areas of expertise at the Law Offices of David W. Knecht, and you may engage us to represent you in this matter as well as in your DUI charge.

Call David Knecht today to schedule an appointment to talk about your rights to a hearing.

Child Custody: What Does the Judge Consider?

You know what’s best for your children. Unfortunately, when it comes to divorce and child custody battles, things get messy and sometimes a judge ends up stepping in to help decide what’s best for the children. When determining custody, or considering changes to current custody arrangements, there are two general principles California courts follow:

  1. The health, safety, and welfare of the children are the Court of California’s primary concern.
  2. The courts of California believe that children benefit from frequent and continuing contact with both parents.

However, within the parameters of these two principles, there are a variety of factors that judges consider when deciding custody cases. Below are judge considerations when determining custody rights.

 

What the judge will not consider:

Your Gender

In California there is no presumption that a mother is entitled to the custody of her child. They look at whom the primary caregiver is, the overall health of the child, and the best interests of the child moving forward, but the sex of the parent does not matter. In fact, often the state of California presumes that joint custody is often the best solution for children.

 

What the judge will consider:

Your relationship with your children from birth to present date

The judge will want to know which parent has been the child’s primary caregiver—who picks the child up from school, who takes the child to the doctor and deals with special health concerns, and who primarily provides for the child. The judge will also look at the amount and quality of time each parent spends with each child. They will also consider if there have been extreme instances of fighting or contention between a parent and a child.

Previous or current status quo

If there is a predetermined custody schedule that you and your partner have been following that has been working for the children, courts will often look to that status quo as the basis for any ongoing orders. If your current arrangement has been working well, the court will want a good reason why the status quo should be changed.
Since the Courts of California agree the continuing contact with both parents is generally the best solution, courts will also consider which parent is more likely to encourage a positive relationship between the other parent and the children. Parents trying to interfere with a child’s relationship with their other parental figure are generally viewed unfavorably.

 If there is any evidence of abuse or neglect

Your child’s safety is the most important factor in California. Evidence of abuse or neglect between a parent and child will almost always result in an unfavorable decision for that parent. The court of California will never intentionally place a child in a home environment that is unsafe or unsuitable.

 Additional factors that determine a parent is unsafe or unsuitable

If a parent has ever been convicted of rape, murder or sexual abuse, the parent will generally be found unsafe. If a parent has ever been found guilty of abuse between their spouse, children, or any other individual, the court would prefer not to grant custody to that parent.

 Drug, alcohol or substance abuse problems

If a parent has struggled or is currently struggling with a drinking or substance abuse problem and have developed habits that inhibit their ability to properly care for their children, they may have a harder time gaining custody. The courts generally look at drug convictions from the past five years, and/or evidence of frequent drug use before making a decision about custody.

 Preferences of the child

The court of California usually acknowledges the parental preference of children who are considered mature enough to make sound decisions, usually around ages 12-14 and older. However, the court will consider the opinion of children who are younger than in certain circumstances.

If you have or are looking into opening a custody case, contact David Knecht Law to find out more about custody laws and rights. Mr. Knecht can help you find the path leading to the most efficient and fair resolution of your case.

Warning: Marijuana Isn’t as Legal as You Think

Marijuana is a hot and heavily debated topic. With all the changes, discussion about changes, and differing laws between states, citizens often become confused about what the real laws in their state really are.  If you are a California citizen wondering whether marijuana is legal for you, the answer is not as simple as you might think.

Medicinal marijuana was legalized in California in 1996, but recreational use of marijuana is still prohibited by both state and federal law. And there are still some restrictions for those who legally use medicinal marijuana.

Can I possess marijuana?

It is a crime to possess more than one ounce of marijuana, unless you are a legal medical marijuana user (meaning you have a prescription from a licensed physician) or you are the primary caregiver of a legal medical marijuana user. If you have less than one ounce of marijuana in your possession, and you do not have a prescription, you could be fined. Possessing more than one ounce of marijuana carries higher penalties depending on the quantity. Possessing marijuana while driving can result in additional fines. If you have marijuana in your possession while you are in a school zone, depending on the quantity and type of marijuana, you could get up to three years in jail.

Can I grow marijuana?

You must either be a legal medical marijuana user or primary caregiver to legally plant, grow, harvest, dry, or process any part of the marijuana plant. If you are not either of these, you could face up to three years in jail.

Can I sell marijuana?

No, you cannot sell marijuana, and you cannot have marijuana in your possession with the intent to sell. You can be charged with the “intent to sell” if you have a large amount of marijuana, the presence of items used to measure or divide marijuana (baggies, scales, etc.), marijuana divided into multiple containers, cash, weapons, or simply if the arresting officer believes the marijuana was for sale.

Can I transport marijuana?

If you are a legal medical marijuana user or primary caregiver, you may transport marijuana as long as it is for the patient’s personal use and it is an amount reasonably related to the patient’s current medical needs. If you don’t have a prescription, it is illegal to transport, import, furnish, administer, give away, or offer marijuana. It is also illegal to attempt to do any of these things.

If you have questions about marijuana, contact David Knecht at davidknechtlaw.com.

Take the Pressure Off Your Family with an Advance Healthcare Directive

What is an advance healthcare directive?

An advance healthcare directive is a living will coupled with a power of attorney.

A living will is a legal document that expresses an individual’s desires about what healthcare and treatment the individual would like to receive should he or she become incapacitated and unable to communicate due to an injury or illness. A power of attorney gives an individual the right to make medical decisions on your behalf.

What does an advance healthcare directive do?

As the default medical action is to keep the incapacitated individual on life support, an advance healthcare directive typically limits or eliminates life support.

Who makes medical decisions for me if I don’t have an advance healthcare directive?

Medical decisions, for those who cannot make their own decisions, are usually made by a close relative—a spouse, parents, adult children, siblings, etc. The problem arises when there is a disagreement among these people about how you should be cared for. An advance healthcare directive eliminates the need for arguments and disagreements in your family since you’ve already made an undisputable decision.

Another major benefit of an advance healthcare directive is that it keeps loved ones from having to make extremely difficult, and possibly divisive, decisions on your behalf.

Should I have an advance healthcare directive?

Making decisions about what type of medical treatment you would like to receive in a situation that calls for an advance healthcare directive is a very personal decision that has a direct impact on those closest to you. Concerns about quality of life, possibility of regaining consciousness, and the financial, physical, and emotional burden on loved ones are all factors that should be weighed in making a decision about an advance healthcare directive.

Can I change my mind once I have an advance healthcare directive?

Yes. You can easily change or even revoke an advance healthcare directive prior to becoming incapacitated. Simply contact the attorney or website that helped you create your advance healthcare directive.

How do I get an advance healthcare directive?

There are two primary ways to get an advance healthcare directive: You can either contact an experienced estate planning attorney who will work with you to create the document you want, or there are a number of online resources that provide the necessary documents that you can fill out on your own.

For help with an advance healthcare directive or other estate planning needs, contact David Knecht, davidknechtlaw.com.

An Introduction to Trusts

A trust is a legal arrangement that gives a third party (the “trustee”) the right to hold assets for the grantor.

 

What does a trust do?

A trust holds assets until a specified event occurs (usually death), at which time those assets can be distributed according to the grantor’s specific instructions.

 

What are the benefits of a trust?

One of the greatest benefits of a trust is that, unlike a will, a trust allows the grantor to distribute his or her assets without probate (the legal process that establishes the validity of a will). Not having to go through probate saves time, court fees, and could save money on estate taxes.

Trusts may also allow greater control over the distribution of one’s assets than using a will. Trusts are also kept private, so if the grantor doesn’t want his or her assets to be made publicly known, then a trust is an attractive alternative to a will. A trust can also manage assets if they are given to someone who is unable to manage them on his or her own (minor children, or inexperienced or incapacitated individuals, for example).

 

What types of trusts are there?

There are many different types of trusts: marital trusts, bypass trusts, charitable trusts, and generation-skipping trusts to name a few. However, one of the key distinctions between the types of trusts is whether they are revocable or irrevocable.

  • Revocable trusts (sometimes called a “living trust”) are still under the control of the grantor. This means the grantor can make changes or revoke the trust during his or her lifetime. This type of trust still has the benefit of maybe helping to bypass some of the requirements of probate, but estate taxes will probably still have to be paid.
  • Irrevocable trusts essentially transfer ownership of the assets to another person or entity. The idea is that you can potentially bypass probate and estate taxes. This type of trust is more effective at avoiding estate taxes, but the grantor loses control over the assets and cannot modify or revoke the trust.

 

How do I get a trust?

Because of the large number of both state and federal laws regulating trusts, it is advisable to hire an experienced estate planning attorney who can navigate the legal requirements for you and help you create the best estate plan for your unique needs.

David Knecht at davidknechtlaw.com can help you with your estate planning questions and needs.