Mirror of Justice

Health Insurance Benefit Laws

July 18th, 2009 at 05:37am Under Administrative Law

Once you’re done comparing health insurance quotes and plans and you’ve settled on employer-based health insurance, it’s good to keep in mind the Department of Labor’s Employee Benefits Security Administration (EBSA) administers a number of laws that cover these health insurance plans.

Here is a list of some of the laws affecting health insurance :

1) The Employee Retirement Income Security Act – This law protects people in retirement, health and other benefit plans through private employers by providing rights to information and a grievance and appeals process for private employer health insurance participants.

2) The Consolidated Omnibus Budget Reconciliation Act – This law only applies to special instances, but if you qualify as a former employee, retiree, spouse or dependent child you can purchase a temporary continuation of health insurance at group rates.

3) The Health Insurance Portability and Accountability Act – This law applies to working Americans and families with preexisting medical conditions. Through this act there is a guarantee of individual health insurance policies for eligible people and it prohibits discrimination in health care coverage.

4) The Newborns’ and Mothers’ Health Protection Act – Just as it sounds, this law offers rules on minimum health insurance coverage on how long the mother and child can stay in the hospital after childbirth.

5) Mental Health Parity Act – This law ensures mental health is given as much emphasis as physical health by requiring annual, or lifetime, limits on mental health benefits to be no lower than limits for medical and surgical benefits provided by a group health insurance plan.

6) Women’s Health and Cancer Rights Act – Breast cancer is a frightening diagnosis and treatment runs a wide range of intensity and invasiveness. This law protects breast cancer patients who want to have a breast reconstruction after a mastectomy. When you are part of an employer – based health insurance plan the Department of Labor’s Employee Benefits Security Administration is a great source of information on subjects such as your rights to information on how your plan works, how to quality benefits available in your plan and how to make claims on your health insurance plan.Remember EBSA administers these laws that help protect your health insurance when you lose coverage, change jobs or if you suffer from certain special medical conditions. Also remember when choosing employer-based plans to carefully compare your health insurance options to make sure your plan works best for you and your family’s medical needs.Find out more about EBSA on the web at -www.dol.gov/ebsa.

Best Immigration Attorney – Make Good your Opportunity

July 18th, 2009 at 04:39am Under Immigration Law

Searching for the best immigration attorney is of utter importance if you want success in your immigration application. Only a good immigration attorney will have knowledge of all nuances and finer points of immigration law to achieve best results for your immigration application. All the aspects of immigration application require deft handling and exceptional skill, whether filing papers or preparing for interview. It is important to see that your immigration lawyer specializes in the area for which you are filing your immigration application. Careful Selection Is The Key
Although, there are attorneys who have expertise in many fields of immigration law, you should select your attorney carefully as the success of your application depends entirely on the handling of your documents and your presentation, as directed by your attorney. Your best immigration attorney should have a better experience than others in the line and should also have a better success rate to show his superiority.
It is also important to see the status and standing of your best immigration attorney before you start doing business with him. In order to judge an attorney it is very important to see where he got formal education from, and from where he passed his bar exam. Taking education from reputed schools makes a lot of difference in developing the mental level of the students. Then it is also important to see if your immigration law attorney has joined any well known association of lawyers or is a member, executive member or head of any bar council. Such people are better informed and more acquainted with local administrative and private personalities and can easily work their way out of tricky situations. Your attorney should also be a member of the American Immigration Attorneys Association.
The task of selecting your attorney becomes quite easy if you find that he/she is constantly in the news for his/her achievements, is constantly invited to august gatherings and functions, and is well recognized in the lawyers’ fraternity. You can also be sure of the credentials of a lawyer who has been appointed by a newspaper or journal to report on issues of immigration or is running columns on immigrations issues and magazines with high circulation.
If your immigration attorney is well known in trading circles, maintains a decent office, takes part in forums and discussions, is well recognized in society and also maintains a good track record of past performance then you can select him as your best immigration attorney. But before you hire your attorney you should also make sure he has a deep knowledge and understanding of your case by asking him to clarify all your queries and confusions regarding your immigration application. If you have some knowledge of the immigration law required in your case, it will help you in making the right selection of your best immigration attorney.

Don’t Get Caught Out By New Privacy Rules In Family Law Cases

July 18th, 2009 at 04:38am Under Family Law

Don’t get caught out by the new rules on privacy laws which allow the media to attend many private family court hearings where previously they would have been excluded, says family law solicitor Anne Blenkinsop.The rules, which came into force on April 27 2009, aim to encourage greater openness in future.Anne, a partner and a collaborative lawyer* at leading regional law firm Furley Page, explains: “While the majority of such proceedings won’t be of interest to the press, there is always the chance that a reporter will ask to be admitted to the court room. They might be present, for example, when the court fixes the time table for financial disclosure and valuation of assets – or at the final hearing at which the assets are divided.“But even if they are permitted to attend a hearing, it doesn’t give them the right to see private documents. Neither can they necessarily communicate information relating to the proceedings to the public.”The media is excluded when the identity and interests of a child, a party or a witness need protection. The court can make this decision after hearing representations or on its own initiative. * The collaborative family law process is a relatively new way of dealing with family difficulties and aims to resolve disputes in a fair way. It involves private face-to-face meetings between a separating couple and their solicitors and is felt to be preferable to the standard procedure of negotiating by letter and telephone. Both parties and solicitors sign an agreement to resolve the couple’s differences without going to court. If successful, their case would then be unlikely to attract any media attention.

Use a Buyer’s Agent When Purchasing Real Estate in Mexico

July 18th, 2009 at 04:38am Under Estates Law

So, you’ve reached a point in your life where you think that you’ve learned a little about business, finance, contract negotiating, real estate, etc. and have at least a layman’s knowledge of law pertaining to each. Being that savvy, you might also be aware of the incredible retirement locations and values south of the border; furthermore, you might even be considering Mexico as your retirement destination. If so, you might as well forget everything you’ve learned and leave your law degree at home!

Mexico, as beautiful as it is, has a somewhat different way of doing business and a completely different set of laws. Additionally, all legal transactions, including real estate transactions, are done in Spanish. Therefore, for those of you that may be considering locations in Mexico as possible retirement destinations, the following information should give you some insight as to how the Mexican real estate industry works, list some of the possible pitfalls, and most importantly, give you the guidance required to assure a pleasant and safe experience.

In 1984, we made our first real estate purchase in Puerto Vallarta; a condominium in Mismaloya, about seven miles south of town. Our second purchase, two years later, was the adjacent condo. A year later, we removed the wall between the two condos and remodeled them into one very spacious three bedroom condo. For thirteen years, while still working in Houston, we thoroughly enjoyed visiting Vallarta two or three times a year.

At some time after the purchases of the two condos, we noticed that our original escrituras (legal property documentation similar to a title or deed that is held in a fidecomiso or bank trust) showed the property values to be about one third of what we actually paid for them. When we inquired about the discrepancy, we were told that the lower values were used in order to reduce our annual property taxes.

It wasn’t until many years later, when we decided to sell the condo, that we learned that capital gains taxes were due on the huge difference between the selling price and the documented purchase price. Ouch, we owed substantial taxes on a paper gain, when in fact; there was very little real gain! We then learned that the condo developer entered the extremely low sales prices on all the escrituras in the condo complex in order to evade paying substantial capital gains taxes. As we later learned, the developer could have entered the selling price, the appraised value, his cost of construction, or just about anything imaginable into the escritura, and we, being the naïve Americans that we were, were at his mercy!

Upon the sale of the condo, we bought a beautiful new mountainside villa with a panoramic view of Banderas Bay, El Centro, and the Sierra Madres. We saw the new villa advertised in one of the local magazines and asked our realtor friend to show us the property. He showed us what seemed to be every property in town, before reluctantly taking us to see the villa in the magazine. Some time after buying the villa, we learned that our realtor friend received only 10% of the commission on the sale because that was all the listing agent was willing to pay. The listing agent ran the ad in the magazine and didn’t feel that an agent representing a buyer was necessary in order to sell this beautiful new villa. Therefore, our agent spent a couple days showing us nothing but properties listed by his agency before caving in to our demands and taking us to the villa of our dreams; one that we have thoroughly enjoyed for more than a decade.

These experiences revealed the tip of the real estate iceberg and after living here for ten years, we’ve finally been able to expose the entire iceberg and share some of the details below.

To begin with, there are no licensed real estate brokers or agents in Mexico! In fact, there is no mandatory licensing for real estate agents in all of Mexico because the Federal legislation process has yet to accomplish it and therefore such legislation remains in limbo. In Puerto Vallarta, where there are in excess of 80 real estate agencies, there are probably more than 500 real estate agents with minimal qualifications. With the booming real estate market and economy that exists today, it’s quite obvious why we have such a diverse group of agents and brokers in Vallarta.

In order to have some degree of continuity from agent to agent, a voluntary association for real estate personnel exists in various areas of Mexico. The Asociacion Mexicana de Profesionales Inmobiliarios A.C., known as AMPI, is quite active in Vallarta with the membership of approximately 50 of the 80 real estate agencies in Vallarta. Although membership in AMPI is not compulsory and has no bearing on the capabilities of the agents representing the buyers or sellers, it is considered to be the standard bearer for listing agents in the area.

A second real estate association, mainly consisting of Mexican agencies based in the Vallarta area, is Asociacion de Profesionales Inmobiliarios de Vallarta A.C., known as APIVAC.

These associations schedule periodic conferences, conduct educational programs, and hold various meetings where they attempt to keep their members and the public current on activities in the area as well as changes in the Mexican law as it pertains to real estate. They have codes of ethics and they do attempt to establish uniform sets of operating policies and procedures, some of which are in writing, others understood but not documented. They bring real estate personnel together where their members voluntarily agree to abide by their organizations´ statutes and codes of ethics while attempting to operate with some degree of continuity and professionalism. For sure, these associations are better than nothing but still not to be confused with associations such as the National Association of Realtors or NAR in the US. Dual agency disclosure, designated agency, full disclosure, confidentiality, imputed knowledge and notice, implied knowledge, fiduciary duty, loyalty, and vicarious liability are foreign concepts to the majority of real estate agents in Mexico. Consequently, misleading or inaccurate statements often made by many of the agents can put both the buyer and seller in intolerable predicaments in Mexico.

Although AMPI and NAR do have a working relationship, one example of the differences between AMPI and NAR is that NAR provides its member agencies with standard statewide listing forms, pre-qualification forms, escrow account and earnest money forms, standard purchase agreement forms, letters of intent, etc. In Vallarta, there are no such forms provided by AMPI or APIVAC. Each real estate agency has its own listing form or uses a form provided by an outside privately owned publisher, which clearly depicts the listing agent as receiving 100% of the commission upon sale of the property. Also, NAR has written and enforceable guidelines regarding the handling of commissions and the sharing of commissions between the selling and buying agents. Although there are guidelines in Mexico for real estate commissions, they are still flexible, and to some degree negotiable with the seller. The listing agent can then negotiate commission sharing with the buyer’s agent.

All other forms vary from agent to agent and are not necessarily written in the best interest of the buyer. Also, most forms and contracts for North Americans are in English; however the Spanish version is the only document that has any legal standing in Mexico. Therefore, regardless of what you read in English, a Spanish speaking attorney should always represent you along with your agent.

Another major difference between the Mexican based associations and NAR has to do with the Multiple Listing Service or MLS. In the States, the MLS is controlled and monitored by NAR and is available to all NAR agents. In certain Mexican cities, including Vallarta, there is an MLS; however it is not controlled by AMPI or APIVAC. Instead, it is privately owned and operated by a local publisher and is available for property searching to the public at no charge. AMPI members are able to list their properties on the Vallarta MLS, with the general public as well as the other AMPI and APIVAC members having access to the listings.

Once you understand the inner workings of the real estate industry in PV, you need to learn a little about Mexican real estate law. It can be quite complex regarding trusts, escrows, mortgages, treatment of taxes, etc. and is often open to interpretation by a state appointed attorney, known as a notario. A small percentage of the realtors in Vallarta have a fair understanding of Mexican law as it pertains to real estate transactions; however the vast majority of them are sorely lacking in this field. Even with little or no knowledge of the law, they will be anxious to advise you, right or wrong; therefore, the best law to follow is caveat emptor, or buyer beware!

Because of the many pitfalls that a buyer can encounter while purchasing real estate in PV, we learned over twenty years ago that it is wise to interview realtors with scrutiny, keeping in mind that most all will be promoting their own listings first and meeting your needs second. It’s just human nature and with virtually no control in Mexico, it’s pretty much assured. Also, because almost 100% of them have listing agreements with the sellers, they are legally bound to act in the best interest of the sellers, and not necessarily in the buyer’s best interest. Because the buyer usually has no contractual agreement with the realtor, he will in all probability get the “short end of the stick” in this conflict of interest.

Of all places, in Mexico you should select an agent that is 100% dedicated to helping you find the property that meets your needs and satisfies your requirements; preferably, a contractual agreement with an agent with no listings, no axe to grind, no ulterior motive, and is exclusively representing buyers and their best interests.

A true buyer´s agent in PV should have no property listings, should have complete access to the Vallarta MLS, should know the areas and growth trends in and around Vallarta, should be able to professionally negotiate on the buyer’s behalf, should have a decent understanding of Mexican real estate law, should have a working relationship with the local notarios, real estate attorneys, escrow and title agents, mortgage bankers, insurance agents, inspectors, appraisers, and lastly, your representative must have a thorough working knowledge of the local real estate industry and understand the idiosyncrasies associated with it.

Buying your dream home or condo in Vallarta should be one of your best experiences, however without due diligence, it can be a nightmare. Obtaining an exclusive buyer´s agent with 100% dedication to you is a prerequisite for assuring a pleasant beginning of your retirement in Paradise.

Fundamental Techniques to Augment the Effectiveness of Your Environmental Lobbying Organization

July 18th, 2009 at 04:37am Under Environmental Law

Environmental advocacy is a diverse area. It involves both safeguarding the public from environmental hazards and protecting the resources of nature. As gains have been secured at the local, state and national level, there is a growing awareness in the field that further gains will be contingent on developing the same professional skills as private and government organizations that encapsulate best management practices.

When you read about successfully launching an environmental lobbying organization you might find some good advice in the literature. Yet the ongoing actual management of such advocacy groups is another matter. That is why many environmental lobbying groups labor to effectively manage. This article shares several insights from the field.

Collaborate with other environmental lobbying organizations

The State of New York alone has over 400 environmental advocacy organizations listed by the Environmental Conservation Department of Environmental Conservation. And in the last five years, there has been increasing levels of collaboration between geographically diverse environmental lobbying groups.

One underlying reason for this trend has been lower air travel costs – a trend that may now be reversing with skyrocketing fuel costs. A separate driver is the availability of free conference calling services such as Rondee.com.

All of these companies work on the same central principle: they provide you a personal access number and a toll number to dial. If all participants dial the same number and enter the same PIN code, they are put into the call together.

Involve academic experts

A frequent erroneous conception is that campus curricula is too far removed from the realities of environmental politics to be meaningful. However, programs such as that offered by New England School of Law provide graduate level training in environmental advocacy as wells as organizing. Indeed, they train young campus leaders for careers as advocates and community organizers.

Students at these programs are great candidates to be inspired as volunteers or leaders for your organization. Also consider seeking the involvement of a faculty or staff member who can offer perspective and advice to your group. While students arrive and depart as the years go by; faculty tend to remain.

Stay well focused

The most effective environmental organizations are ones that stay clearly focused on their mission and do not allow members or leaders to get enmeshed in peripheral goals. Virtually all environmental lobbying organizations operate under significant time limitations. Focusing on three goals with total effort will generally yield superior results compared to going after nine goals at 33% effort.

Augment your network

The most successful lobbying organizations create networks of supporters who share their philosophy and goals. While the word networking frequently gets a bad connotation, the simple fact is these networks can provide substantial support and members can keep connected more effectively through conference calling systems. Indeed, associations provide the emotional support which is so critical to maintaining enthusiasm among group officers and members.

Use technology strategically

Some environmental advocacy groups have distributed leadership teams, and it is impractical to expect in person meetings. One solution is to use an application for desktop sharing.

Whether it’s sharing a PowerPoint presentation illustrating the group’s fundraising initiatives or a spreadsheet showing the tracking of volunteer participation, desktop sharing can be extremely useful for not a few advocacy groups.

The silver lining in all this is that these suggestions are not expensive. Environmental advocacy groups can improve their performance through these techniques.

Law Firm Marketing Mistakes Made When Finding New Clients

July 18th, 2009 at 04:19am Under Entertainment Law

If your law firm marketing plan follows typical law firm marketing strategies employed by many other practices, you are failing miserably and you know it. Yet other firms out there have a steady stream of clients in and out of their offices. You see them every day: consistently busy and constantly entertaining new clients that afford them wardrobes of expensive suits and prestigious new sports cars.
You see them making it work; making their firm all it can be. You’ve got to do something to make your practice successful, too.
The accounting firm featured on the cover of the business journal in your waiting room is well-known nationwide. The CEO of that firm emerges from the elevator. Your heart leaps as he heads your way. Forget about it! He’s heading for the law firm down the hall, just they way they all do. You won’t even get a second glance.
Once again, you feel like shoving everything off of the coffee table with a frustrated swipe of your fists. You grit your teeth and glare at the neighboring law firm. What are they doing that you aren’t? You’re sick and tired of being out done, but don’t know how to fix it. Here are several law firm marketing mistakes you may be making and what you can do to fix them.
* You have failed to convince them of the value your service gives to them specifically. Solution: Go back and do more research on your target market’s “points of pain.” Use more of these in all of your conversations with prospects.
* They don’t trust you. Solution: Develop a list of specific things you can do to build your credibility. Examine your personal image: your clothes, your mannerisms, your listening skills. Analyze your business image: your office location, your office furniture, the quality of your stationary, your business cards, etc.
* They perceive your cost out weighs your value. Solution: Either temporarily
reduce your price or immediately find ways to significantly increase your
perceived value.
* They don’t believe your benefits or values because you haven’t demonstrated
them. Solution: Find a way to give them a FREE sample of your services.
* Their risk seems too great. Solution: Find creative ways to reduce or eliminate
the risk of working with you.
* They don’t feel like you listen to them. Solution: Stop talking so much during your presentation (lawyers often talk too much when they are either nervous or feeding their ego). Ask more questions. Develop a list of questions to ask prospects. Work on reading their body language. Use active listening skills and reflective feedback. Use the 25/75 Rule. A good attorney talks less than 25% of the time during the initial interview. They ask good questions and then listen 75% of the time. The interesting thing is that prospects will feel you are more competent the less you talk, the more you listen and the better your questions are.
* Prospects will not hire you when they don’t want you, don’t believe they need you or can’t afford you. Solution: Cut your losses and move on. They are
currently NOT in your target market.
If you are tired of buying the cheap suits off the bargain racks and driving the foreign economy car that gets great mileage and matches the car the old retired woman down the street drives, then do something about it! To be a winner you must act like a winner and that includes successful marketing techniques.
There are professional, skilled services out there that are in business to help you successfully employ law firm marketing strategies to make your practice a success. It is time you contact one to get the help you need.

HAWAII EMPLOYMENT LAW ALERT: DEPARTMENT OF LABOR TO INCREASE AUDITS

July 18th, 2009 at 04:10am Under Employment Law

HAWAII EMPLOYMENT LAW ALERT:  DOL TO INCREASE AUDITS

On March 24, 2009, the Department of Labor (“DOL”) issued a statement making clear that employers, including Hawaii employers, can expect an increase in DOL audits.  The statement, issued through Secretary of Labor, Hilda Solis, can be found at the DOL’s website, http://www.dol.gov/opa/media/press/esa/esa20090324.htm.

Among other things, Ms. Solis stated that she is “committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment.”

In addition:

The department’s Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.

Finally, Ms. Solis stated that:  “I am dedicated to ensuring compliance with federal labor laws to both strengthen our economy and protect workers in this country.”

Given the expressed intent of DOL, it is critical that Hawaii employers take the necessary steps, now, to both reduce the risk of potential liability connected to a possible audit AND to prepare for audit itself. 

Thus, Hawaii employers should at a minimum take the following steps prior to and during the audit:

After the audit is completed, it is critical that the Company not repeat any errors in policies or procedures identified by DOL.  Accordingly, any necessary revisions should be made promptly with assistance of counsel.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

Dui Guilt Myth — Chapter 12

July 18th, 2009 at 03:02am Under DUI Law

CHAPTER 12

“WHAT DO I NEED TO KNOW ABOUT THE LAW IN MY STATE?”

—DUI LAW IN VIRGINIA

Differences in DUI Law in Virginia from Other States

The Virginia legal system for DUI’s has several notable differences from other state these major differences will be outlined below.

DWI and DUI in Virginia are the Exact Same Offense

In most states there is a difference between DW I, “driving while intoxicated” and DUI, “driving under the influence.” For an example, in most states driving while intoxicated is a more serious offense than driving under the influence. Other states have even a third finding available such as operating while impaired or OWI.

In Virginia, there is no difference between DUI and DWI. Virginia Code Section 18.2-266 makes it illegal to drive while intoxicated or under the influence of alcohol and/or drugs.

The Virginia Code defines intoxicated as follows: “‘Intoxicated’ means a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.”

Blood Alcohol Content (”BAC”) relates to BAC While Driving

Under Virginia DUI law, anyone driving on the highways of Virginia has, according to Virginia’s implied consent law, given their “consent” to a breath or blood tests if they are arrested for DUI. If this test results is a .08 or above, there are are significant effects in the prosecution of one’s case. One way of proving DUI, known as the “per se” law, looks at nothing but the breath result. If it is .08 or above, the person is guilty of DUI; if it is below .08, the person is not guilty of DUI. However, since Virginia looks at the BAC at the time of driving, the defendant still has the ability to present expert testimony that his BAC while driving was in fact less than a .08.

Similarly, another way of proving DUI, looks at the .08 or higher breath result as one of the pieces of evidence in the overall trial. Although the statute says that if the BAC is .08 or above, there is a “presumption” of intoxication, the Virginia Court of Appeals ruled in 2007 that such presumptions are an unconstitutional infringement upon the Constitutional guarantee of the presumption of innocence in any criminal trial unless the language is interpreted to mean that there is not a mandatory presumption of intoxication. The Virginia Court of Appeals ruled that the courts must interpret the words “shall be presumed” to mean “may be inferred.” Thus, in a DUI prosecution under this section, the judge may infer (but is no longer required to presume) that someone is intoxicated if the prosecutor proves that they were a .08 or above while driving. Again, the defendant may present evidence that in fact his actual BAC while driving was below a .08 or that the results should not be given much weight because of issues with the machine or manner of testing. If the defendant is able to do this, then the judge may not make any inference based on the breath result.

Right to New Trial on Appeal to Circuit Court- Trial de Novo

Virginia grants anyone convicted in General District Court what is called a “trial de novo” on appeal to the higher trial level court in Virginia, known as the Circuit Court. Thus, any DUI defendant in Virginia who is unhappy with the judge’s ruling or sentence in the General District Court, has the ability to appeal to the Circuit Court and as soon as the appeal is noted, the conviction of the lower court is completely wiped off his record. I like to tell my clients that it is just like taking an eraser to a blackboard, and the client is in the exact same position that they were prior to the first trial (i.e. they are presumed to be innocent and have not been convicted of DUI.) Or, to use a golf analogy, Virginia allows all DUI clients a “Mulligan” on their first DUI trial!

The trial courts rule on both fines and jail time and license suspension issues

In many states, a DUI charge leads to two separate trials. The trial in court in front of a judge who determines whether someone is guilty and what fine and/or jail time someone receives, and in administrative license hearing in front of that state’s Division of Motor Vehicles. Virginia does not have a separate hearing for the determination of the status of someone’s driver’s license. By statute, the judge has to suspend the person’s license for a specific time based on whether this is a first or subsequent offense. The judge has the authority to grant a Restricted License allowing the person to drive to work, school, alcohol education classes and certain medical and family driving.

Virginia DUI Penalties

Administrative License Suspension (ALS)

For a first DUI offense and/or breath test refusal, your driver’s license will be automatically suspended for seven days if your BAC is 0.08 percent or higher.

For a second DUI offense and/or breath test refusal, your license will be automatically suspended for 60 days or until you go to trial, which ever comes first.

For a third DUI offense and/or breath test refusal, your license will be automatically suspended until you go to trial. Conviction of a DUI offense will result in suspension of your driver’s license and other penalties in addition to the administrative suspension.

First Offense – Penalties

i) BAC < .15

Class 1 misdemeanor (Up to $2,500 fine and 12 months in jail) with a mandatory minimum fine of $250.

ii) BAC .15 to .20

If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 5 days or,

iii) BAC > .20

if the BAC level was more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days.

License Suspension

License revoked for 1 year. Eligible for immediate Restricted Operator’s License. Ignition Interlock required for BAC of .15 or above.

Second Offense – Penalties

A) Committed within less than 5 years from a prior offense

• Minimum $500 fine

• Confinement in Jail for one month to one year. 20 day mandatory minimum jail sentence.

• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.

• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.

• Minimum $500 fine

• Confinement in Jail for one month to one year. 10 day mandatory minimum jail sentence.

• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.

• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.

License Suspension

License revoked for 3 years.

• 2nd conviction within 5-10 years- eligible for Restricted Operator’s License after 4 months. Ignition Interlock required for Restricted OL.

Third Offense – Penalties

A) All 3 committed within 5 years period

• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and $2,500 fine.

• Mandatory minimum jail sentence of 6 months

B) All 3 committed more than 5 years and up to 10 year period

• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and $2,500 fine.

• Mandatory minimum jail sentence of 90 days.

• Mandatory minimum fine of $1,000.

• License Suspension

License revoked indefinitely.

Fourth Offense in 10 Years- Penalties

Class 6 Felony with mandatory minimum 1 year imprisonment and mandatory minimum $1,000 fine

License Suspension

License revoked indefinitely.

Conviction of any DUI offense involving a juvenile passenger (age 17 or younger) in the vehicle at the time of the offense carries an additional mandatory five-day jail term in addition to all other fines and jail sentences. You may also be assessed an additional fine of at least $500 and up to $1,000.

A second DUI offense with a juvenile (age 17 or younger) in the vehicle carries an additional 80-hour community service requirement in addition to all other fines and jail sentences.

Multiple Offenders and the Trauma Center Fund

Virginia also requires anyone has been previously been convicted of DUI/DWI in any state to pay $50 to the Trauma Center Fund to subsidize the cost of emergency medical care to accident victims in alcohol or drug use car crashes.

Virginia Alcohol Safety Action Program (ASAP)

If convicted under Va. §18.2-266 (DUI/DWI statute) or Va. §46.2-341.24 (DUI/DWI of a commercial vehicle), Virginia statute requires enrollment in ASAP. This course costs between $250 and $300. The program is 20 hours long and focuses on substance abuse and driving, substance abuse and health, and self-evaluation of potential for substance abuse.

Ignition Interlock Program

Virginia requires that anyone convicted of a second DUI or anyone that has a BAC greater than .15 for their first DUI have an ignition interlock system installed. This system records the drivers BAC via breath test each time the car is started. It also requires that the driver blow into the breath analyzer ever 5-20 minutes.

1. If everyone insists on their constitutional right to go to trial, the prosecutor will be in court all day.

2. In most cases, the mandatory minimum sentences for DUI are so harsh that a defendant in a DUI trial risks absolutely nothing by going to trial. Many clients ask me if a judge will penalize them with a harsher sentence if they assert their right to trial. The Virginia legislature has now raised the minimum sentence for all DUI cases to such a high level, that, if you decide to go to trial on your case, in most instances, as a practical matter, you are going to get the same sentence as the person who pleads guilty.

4. The prosecutor is unprepared. In the vast majority of jurisdictions in Virginia, prosecutors do not look into traffic cases ahead of time. Most of my clients are shocked when I tell them that it is impossible for me to contact a prosecutor with knowledge about their case prior to the court date to discuss their case, because the prosecutors do not look into the cases ahead of time. In most jurisdictions, if someone shows up without an attorney, the prosecutor does not get involved. Thus, it is impossible for someone attempting to represent himself in these jurisdictions to discuss a possible plea bargain with the prosecutor, because the prosecutor will not speak to them. In some jurisdictions, such as Virginia Beach, there is not even a prosecutor for any traffic case, even a DUI with an attorney!

5. The police officer is unprepared. Your case is just one of an entire docket full of cases that the officer has on that date. It is not unusual for an officer to have 5 to 10 DUI cases on one date in addition to dozens of other traffic tickets. The officer often has little if any recollection of your arrest. That becomes apparent time and time again in court when I object to an officer testifying by reading from his notes and, after my objection is sustained by the judge, the officer clearly has no independent recollection of the arrest.

6. Most prosecutors know very little about the science (or lack thereof) behind field sobriety testing. At no time during law school does the professor ever say, “Today we’re going to learn about standardized field sobriety testing.” A thorough knowledge of these tests would actually hurt their cases and prevent them from making arguments that I routinely hear prosecutors make to judges while trying to argue that the results of these tests should be given more weight than they were ever intended to. For example, the three standardized field sobriety tests were only used to predict a BAC of .10 or above. Since the legal limit is now .08, there is almost no weight that a judge could give to these tests on someone with a BAC of .08 or .09.

7. The police officer did not follow proper procedures for the field sobriety tests. If a police officer receives proper training about field sobriety tests, they will be told the proper standards and procedures according to the National Highway Traffic Safety Administration (”NHTSA”). However, for example, on the “follow the pen with your eyes” test (the horizontal gaze nystagmus test, or HGN), the manual says that if the suspect moves his head during the test, the officer should use his flashlight or his free hand as a chin rest of the suspect.

In 25 years of practicing law, I have never seen an officer use anything as a chin rest for a suspect, even though in the vast majority of those cases the officer testifies that the suspect was swaying and unsteady on his feet! The manual also states that the walk-and-turn and one-leg stand test should not be done if the suspect is over 50 pounds overweight or has physical impairments that could affect his balance. The manual also states that the walk-and-turn test “requires a line that the suspect can see.” This is rarely done.

8. The breath testing equipment is inaccurate. The breath testing machine is just that- a machine. The machine uses an assumption to calculate the amount of alcohol in a person’s blood based on the amount of alcohol that is released into a person’s breath. The amount can vary from between 1100 and 3200. However, the machine uses a standard ratio of 2100, almost the average between the two.

If you exchange alcohol at the 1100 rate, the machine gives a reading twice as high as it should. On the other hand, if you exchange at the 3200 rate, it gives a reading half as high as it should. In any event, the principle is flawed and readings can vary up to 50% from the actual breath content. The manufacturers of the Intoxilyzer 5000 have flat out refused to reveal their source codes to defense attorneys. The source codes are basically the mathematical formula that the machine uses to convert a small sample of breath to a blood alcohol content number. Courts in Florida and Minnesota have already ruled that this refusal is a basis to dismiss DUI prosecutions. Virginia appeals courts have yet to rule on this issue.

CONCLUSION

A DUI charge is liable to make you feel overwhelmed and at the mercy of a Court system, police system and legal system that you do not understand. With the police and the prosecutor trying to convict you, you might think that it is useless to fight the charges against you.

The goal of this book is to help you feel more in charge of this potentially overwhelming ordeal, to shed some light on what you are going through, and to help you find a qualified defense attorney who will work to ensure that justice is done. When it comes to your case, justice means demanding that the police follow proper procedure, that only legally admissible evidence is presented at trial, and that you are not convicted on the basis of anyone’s opinion or prejudice.

Regardless of the particulars of your case, you deserve to find a lawyer who knows what your are going through, who knows what you are up against and who has years of experience going to bat for others in your situation by fighting the DUI Guilt Myth. And a chance to fight for your rights is not simply what you deserve. It’s the law.

 www.BobKeeferLaw.com

Toyota Formulates Anti-drunk Driving System

July 18th, 2009 at 03:02am Under Drunk Driving Law

Toyota is formulating an anti-drunk system that detects drunken drivers via steering wheel-based sensors. The sensors detect the alcohol content of drivers through their sweat. If the sensors detect unusual steering or if the installed camera shows that the pupils of the driver are not focused on the road, the vehicle will be slowed to a halt.

Vehicles equipped with said detection system will not start if sweat sensors detect high alcohol consumption in the driver’s bloodstream. Also incorporated in the system is the special camera that shows the driver’s eyes. Said system is expected to come to the market by the end of 2009. Now, occupants of the automaker’s vehicles will not only be protected by the Toyota transmission speed sensor, side and front airbags, and other safety features; they can also rely on the efficiency of the anti-drunk system.

Nissan, another Japanese automaker, has previously ventured in a system almost similar to this one. Nissan’s device is called the breathalyzer. The latter is likened to the immobilizers used in the United States as part of several drunk-driving sentences. The system can also be mated to a camera in order to monitor if the driver is sleepy while driving. Saab and Volvo auto parts are also designed to complement this system. This is because Sweden has stringent laws against drunk-driving. Similar technologies like alcohol ignition interlocks are also rampant in the United States and other territories.

What triggered Toyota to formulate the anti-drunk system is the fact that drunk-driving and alcohol related accidents have surged in Japan in 2006. In August, a drunken driver collided with another vehicle carrying a family of five. The three children were killed when the vehicle fell off the bridge. The accident prompted safety roadside spot checks to be done by the police. It also was the beginning of the clamor for higher penalties relating to drunk-driving and other safety issues. With the present statistics relating to drunk-driving accidents, it is just but essential to equip vehicles with features and systems to ensure safety of the occupants.

Toyota, a Japanese multination corporation, is the second largest automaker worldwide. It is popular in the field of manufacturing automobiles, buses, trucks and robots. To measure the magnitude of its financial presence in the world, the company is the 8th largest company by revenue. Also, Toyota is expected to become the world’s largest automaker this year or no later than 2008. The automaker is investing a great amount of money in cleaner-burning vehicles like the Prius and the much-awaited RAV4 that runs on hydrogen fuel cells.

Toyota is in almost every part of the globe. It has established factories and assembly plants in the United States, Japan, United Kingdom, Australia, Canada, Indonesia, Poland, South Africa, Brazil, Turkey, France, and more recently Pakistan, India, Argentina, Czech Republic, Mexico, Malaysia, Thailand, China, Venezuela, and the Philippines.

Divorce Rules You Should Know

July 18th, 2009 at 03:01am Under Divorce Law

Child support is an important issue in a divorce case. The laws across the various states of USA are more or less uniform on this. There are various child support programs and funding by the state. Most follow the Family Support Act of 1988 to the core. The main tenet of this law is that the interest of the child will prevail over all other’s interest. Payment for child support is calculated on the basic of three formulas. The first is Income Shares. This is the most used formula where an estimate of the total amount required for raising a child properly is calculated. Both parents income is then calculated and a percentage is fixed for the child’s benefit. The second method is called Percentage of Obligor Income. This is based on the non custodian’s income. The third method is known as Delaware-Melson method. This allows the clause of ability to pay in the process. Some states like Massachusetts use a hybrid of all these methods. The main purpose of all these laws is to make sure that the child receives the best education and lifestyle.

The rate of divorce has increased many fold over the years. Most informed couples believe that it is better to have divorced than to endure a broken marriage. A divorce is always a very difficult and serious decision for any couple. Irrespective of the time that they have spent in matrimony, divorce can be tough proposition. Not only does it tax the concerned parties mentally and economically but there are other important issues like child custody, property share and alimony to be settled.

Alimony issues also play an important role during a divorce. This refers to the amount that is paid by one ex-spouse to the other. Some also call this maintenance law or spouse support. Historically courts had a tendency of deciding on the alimony amount directly proportional to the number of year stayed together. But recently the trend is shifting. Now limited duration marriages draw maximum alimony. A spouse who is economically at a disadvantage receives this amount. Alimony is also more common in cases where one parent desires to stay home to care for the children for a period of time.

Divorce Recovery Suite is an on-line community-based organization which provides support and information that an visitor may require prior to divorce and after it. Their comprehensive site includes divorce laws, child support and custody, information on legal separations, child visitation rights, divorce settlements, grounds for divorce, separation agreements, definitions of adultery, recovery from divorce, child welfare after divorce and a chat room that provides a passionate help to all the couples who are undergoing this uncomfortable process.

The visitors to the site can also get hold of state specific divorce laws and regulations, simple interpretation of the complex laws, live video and text chat room where people can share their experiences and problems. Visitors are encouraged to listen to others problems and provide solutions to those problems. You also get access to a country wide list of divorce and separation attorneys, counselors, physical and spiritual healing methods, father’s and grandparents’ rights and solutions to issues of parental alienation. They have regular updated information on the site.