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.

Understanding the Power Of Attorney: What Can You Do When You Can No Longer Act for Yourself?

What is a Power of Attorney document?

A Power of Attorney (or “POA”) document grants legal authority for an individual (called the “agent”) to act on behalf of another individual (called the “principal”). These documents are typically used to allow the agent to make financial and medical decisions for the principal, especially if the principal has become mentally incapacitated.

 

Do I need a Power of Attorney document?

If you want to be sure that someone with your best interests at heart will be making decisions on your behalf should you ever become mentally incapacitated, then the answer is yes. While some causes of mental incapacity can be foreseen (like certain illnesses, or even old age), many cannot. A sudden car accident that results in a brain injury, for example, can render an individual incapable of making simple life decisions, let alone important medical or financial decisions. To protect yourself and your assets in the case of an accident, or any other cause of mental incapacity, it is a good idea to have a POA document.

 

What types of Power of Attorney are there?

There are several different types of POA. These are some of the more common types:

  • General – A general POA gives the agent the authority to act on behalf of the principal, but only while the principal is mentally competent
  • Durable – A durable POA gives the agent the authority to act on behalf of the principal, and this authority continues even if the principal becomes mentally incompetent
  • Springing – A springing POA gives the agent the authority to act on behalf of the principal, but only when the principal becomes mentally incompetent, or some other specified event or circumstance occurs
  • Health Care – A health care POA gives the agent the authority to make medical decisions (and only medical decisions) on behalf of the principal; it can either be durable or springing.

 

How do I get a Power of Attorney?

  • The first step is to determine what type of POA you would like.
  • Next, you need to decide whom you would like to be your agent. This should be a person you can trust to always act in your best interest. Often a spouse, sibling, child, or close friend is chosen.
  • Then you must fill out the appropriate POA paperwork. For this paperwork to take effect, it must be signed by the agent, the principal, and either two witnesses or be acknowledged before a notary public.

 

Can I change or terminate a Power of Attorney?

Yes, you can modify or even terminate your Power of Attorney. To do so, you need to fill out a Revocation of Power of Attorney form and you must provide notice of the change or termination to your previous agent.

 

Who can help me fill out the right Power of Attorney documents?

For more information on Power of Attorney documents or for assistance in Estate Planning, contact David Knecht at davidknechtlaw.com.

The 5 Things You Need to Successfully Get Your Children Through Your Divorce

Like many parents preparing to get a divorce, one question weighs heavily on your mind—How can I help my child or children get through my divorce without any harmful effects on their health and well-being?

You’ve already heard about all the negative side effects children of divorced parents can develop—depression, failure in school, delinquent behavior, premature sexually active behavior, etc.—and desperately want to go through your divorce without your children falling into these situations. You just aren’t sure how.

Below are 5 ways to help your children understand and get through your divorce without the feared consequences.

1. Create a conflict free pre-divorce environment.

The single most important factor determining how well your children will get through a divorce is now thought to be the environment in the home before the divorce. Excessive arguing between parents, depression, blame pointing, etc., before the divorce can hurt your child’s ability to cope with divorce even before the decision to divorce has been made.

To improve your children’s ability to cope with divorce, work on improving the environment in your home. Take arguments and fighting with your spouse to a place where your children cannot see or hear them. Especially don’t fight about your children in front of your children. When you fight about your children in front of them, they assume it is their fault and desperately want to remedy the situation.

2. Present your divorce as a united and loving front.

Don’t play the blame game with your partner in front of your children. Plan this conversation ahead of time and present it to your children as a well-thought out, reasonable and supported decision from both you and your partner.

Ensure that your children understand that the divorce is not their fault, that you still love them, and that they will continue to receive love from both of their parents. Children fear abandonment, so reassure your child that your divorce is not an attempt to abandon them, but rather to create a healthier environment for them. Reassure them that they are still very important to you and your spouse and that you are not making this decision to hurt them.

3. Be understanding of your children’s feelings, and ensure children that they don’t need to feel okay immediately.

Feelings of shock, betrayal, grief, and hurt are often the first feelings children experience. Depending on the child, children may react to these feelings by acting out or withdrawing. Be sensitive to your children’s needs and be understanding of your child’s emotions, listen to your children and legitimize their concerns.

Don’t expect your children to feel better about a divorce within a certain time or all at the same time. Children can take up to two years or longer to adjust to a divorce. Be prepared to help your child through recovery even if their road to recovery is longer than you expected.

4. Take charge of your own emotions and stresses.

Don’t play the blame game or bash on your partner in front of or with your children. Doing this forces your children to feel as though they need to pick sides, when that is not the case.

You will need emotional support, just as your children do, to get through your divorce. However, this support cannot come from your children. Even if you have grown children who you think can handle it, they can’t and you still need to find outside support. Find friends and family who you can lean on for support so that you can be a strong basis of support for your children.

5. Focus on the Positive.

Let you children know that your family isn’t the only one going through a divorce. Explain to them that others are going through the same thing, and that others have come through the divorce stronger people.

Children can often become closer to parents because scheduled time with children often becomes planned and more meaningful. Children can also have twice the support if parents remarry.

Take your divorce as an opportunity for you to focus on your relationships with your kids. Stay involved in your children’s lives. Phone calls, letters, play dates, lunch dates, sports games, performances. Create a regular, predictable, consistent, and conflict free schedule where both parent continue to be a part of your children’s lives.

For more advice and help with your divorce, contact David Knecht at DavidKnechtLaw.com.