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Monthly Archives: October 2016

DUI Checkpoints on Halloween: Laws to Remember

Welcome to FindLaw's DUI Law series. If you have been charged with a DUI, know someone who has, or just want to know about the law and how to protect your rights during a DUI stop, please come back each week for more information. Want to hear something truly scary? You had a few drinks, are on your way home, and there are police lights on the road up ahead. Do you look too drunk to drive? What's your blood alcohol content? Are you going to jail tonight? DUI checkpoints can be a frightening experience. With 55 deaths last Halloween in drunk driving accidents, and promises of more DUI checkpoints this season, the prospect of a DUI is even more horrifying. So make sure you remember these laws if you run into a DUI checkpoint this Halloween. Know What to Expect According to Ralph Waldo Emerson, "Knowledge is the antidote of fear." And knowing what happens at a DUI checkpoint can assuage your fear of them. You should know that most DUI checkpoints are legal, and officers are allowed to stop your car and request license, insurance, and registration information.Based on your interaction, they may ask you to perform field sobriety tests or submit to a breathalyzer or drug swab. So the stop will resemble a normal DUI stop, only officers don't need a good reason to pull you over -- they just need a neutral formula for stopping motorists. Know What to Do No, it's not illegal to turn around before a DUI checkpoint. However, the police may still stop you for other reasons. If they see you driving erratically, making an illegal turn, or otherwise violating traffic laws you can still get pulled over. Once a drunk-driving investigation is started, it will be similar to any other, so make sure you follow some handy tips for DUI checkpoints. Know What Not to Do Sometimes, knowing what not to do at a DUI checkpoint is better than knowing what to do. Obviously, you don't want to drink and drive, but if you're reading this post, we're guessing that's not an option. You should also avoid driving or acting erratically, being disrespectful of police, and having lose bottles of alcohol rolling around in your car. Oh, and not having a gun in your lap can help as well. If you've been spooked by a DUI charge this Halloween, contact a local DUI attorney today. Related Resources: Don't face a DUI alone. Get your case reviewed by a lawyer for free now. (Consumer Injury) Halloween DUI Checkpoints Should Scare Adults (KPCC) Halloween 101: Halloween DUI Checkpoints Planned (FindLaw Blotter) Can You Turn Around at a DUI Checkpoint? (FindLaw Blotter)
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How to Legally Challenge an Election

It's no secret that Donald Trump thinks the upcoming presidential is "absolutely being rigged." When given the opportunity to clarify his stance, Trump said, "I would accept a clear election result, but I would also reserve my right to contest or file a legal challenge in the case of a questionable result." If the results are "questionable," what would such a legal challenge look like? And what grounds would you need to challenge an election's results? Legal Questions Republican election lawyer Chris Ashby told PBS that it wasn't necessary for Trump to reserve his right to contest the election this far in advance, and "after the election, if there is some evidence that an election of electors in a particular state was tainted by fraud, then he could pursue that." Ashby added: "You can't just say that there was generally fraud. You have to know how many votes either from fraud or by mistake. And it has to be enough votes to cover the margin between the candidates. And so, if you think that you have to go out and actually get this evidence, you have to find voters, you have to election records, and you have to quantify this, and you have to do it in a time period of about a month." So, in order for Trump, the Republican Party, or someone else to legally challenge the results of an election, the election must particularly close and there would need to be credible evidence of fraud or miscounting of votes, enough to cover the margin of victory. State and Federal Questions Even though president is a federal office, voting in federal elections is still run by the states. Each state has its own rules and procedures for counting and contesting votes, and any challenge to the results would occur at the state level. Some state laws may require a manual recount if results are within a certain margin, while others may provide a means for a candidate or party to request a recount. Either way, the challenge would need to be made regarding a particular state's results, and it would need to come quickly. Most states have their own deadlines to certify final election results, and federal law requires all states to certify and report their results within 35 days of the election. Trump would need an extremely tight result, legitimate claims of fraud or mistake, and he would need to, very quickly, follow state-specific procedures for challenging that state's result. So a little bit more than simply not winning. Related Resources: Browse Civil Rights Lawyers by Location (FindLaw's Lawyer Directory) Why Voter Fraud Doesn't Matter, but Allegations of Rigged Elections Do (FindLaw's Law and Daily Life) What Should I Bring to the Ballot Box? An Update on State Voter ID Laws (FindLaw's Law and Daily Life) 7 Important Voting Rights Questions (and Answers) (FindLaw's Law and Daily Life)
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How to Find a Divorce Lawyer

When a married couple, or just one married person, wants to divorce, the first concern is finding the right divorce lawyer. While a person’s first instinct might be to hire their one lawyer friend, or the same lawyer that handled their injury case, or the cheapest lawyer they can find, unless those lawyers know divorce law, it’s a big risk. With the help of online lawyer directories, the simplest way to find a lawyer is by calling as many as you have time to call, and talking with as many potential lawyers as you can. Divorces can range in complexity from simple to impossible. When a married couple has no assets, no children, and both parties have their own equal incomes, the divorce may be as simple as just filing some documents that a court needs to approve. However, if there are children, a marital home, a shared car, a family business, and/or other assets, it is much more complicated. So how do you evaluate a potential divorce lawyer? Not Just Any Experience One of the most important factors any client should evaluate when hiring an attorney is that attorney’s experience in the type of law they will be asked to handle. For a divorce case, you may need an attorney who knows how to handle not only a simple divorce, but also child custody, and, if there was a family business, business transactions or dissolutions. Ask your prospective attorney about prior divorces they have handled, and probe them about how complex those divorces were. Even if an attorney has been practicing law for 20 years, if they have never handled a divorce with child custody at issue, and you have children, you may not want to be that attorney’s first. Comfort And Trust After Experience After you’ve found an attorney with the right experience, you should ask yourself whether you feel comfortable divulging private information to them. In order for your attorney to be effective, you will need to be able to discuss personal matters without hesitation. While your sex life, generally, is not something that needs to be discussed, in some states, infidelity matters during divorce. Your attorney doesn’t need to be your friend (and probably shouldn’t be), but should be someone that you feel comfortable, and trust, with discussing potentially embarrassing information. Related Resources: Dealing with a divorce? Get your case reviewed for free now. (Consumer Injury - Family) Why Is There a Divorce Waiting Period? (FindLaw’s Law and Daily Life) What Is Ex Parte Divorce? (FindLaw’s Law and Daily Life) When to Get a Second Lawyer’s Opinion for Your Divorce (FindLaw’s Law and Daily Life)
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Timeline for Your Workers’ Compensation Claim

If your first thought after a work injury isn't, "When can I get back to work," it's probably, "When can I get paid for getting injured at work." Missing work is tough, especially if you're missing paychecks, too. If you got injured on the job, you probably know you can file a workers' compensation insurance claim. But how long is that going to take? While all cases are unique, here's a quick look at what to expect from your workers' comp claim. Your Steps The timeline for your workers' compensation claim begins at your injury, and there are some steps you'll want to take immediately to ensure your claim is reviewed and completed as quickly as possible. First, take care of yourself and seek any necessary medical attention, even if you're worried you can't afford it. Most states require employers or their insurance company to pay for an injured employee's medical bills as soon as they file a claim. So you do not have to wait until your claim is approved to receive compensation for medical costs. Second, report the injury to your employer, and, if possible, report the injury in writing and keep a copy of the report for personal records. Your employer is then required to offer you a claim form immediately. Make sure the claim form is filled out completely and specifically and that you file it as soon as possible. You should also keep a copy of your completed claim form for your records as well. Employer and Insurer Steps Once your employer receives your claim form, it is their responsibility to immediately notify their insurance company and arrange medical assistance and compensation for you. Your employer may also be required to complete and file a wage verification form with the insurer within a certain amount of time after your claim or compensation form. After receiving your claim, the insurer generally has 30 days to either accept or deny your claim and notify you of its decision. (Be aware this time limit can vary by state.) If your claim is approved, the insurer must start paying out benefits soon after. If your claim is denied, you can request a hearing to review the decision. There is a time limit on the request for a hearing, normally around 60 days after you received notice of denial. A hearing date will then be set, usually within 30 days of your request. After the hearing, the hearing officer normally has 15 days to make a final decision. If you need help filing a workers' comp claim, or if your claim has been denied, you may want to contact a local workers' comp attorney for advice. Related Resources: Hurt on the job? Have your injury claim reviewed for free. (Consumer Injury) How Long Do I Have to Be Employed to Get Workers' Comp? (FindLaw's Injured) How Long Will Workers' Compensation Benefits Last? (FindLaw's Injured) When Is It Too Late to Sue for Injury? (FindLaw's Injured)
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What’s the Punishment for Selling Stolen Goods?

The law in every state allows some latitude when it comes to the crime of selling and buying stolen goods. The one factor that can make the most significance is whether buyer or seller knew that the goods were stolen. Although knowledge makes all the difference, however, not knowing generally will not allow a purchaser, nor seller, to keep the proceeds, nor the goods. Depending on the jurisdiction and the value of the goods, certain states can charge the offense as a petty crime. Petty crimes, typically, are misdemeanors, or infractions, that do not carry very stringent sentences. Usually, this is reserved for situations where the value of the goods is less than $500 or $1,000, and did not involve an additional crime, such as a weapons, assault or battery charge. If a seller has no knowledge the goods they are selling are stolen, it is likely they would be treated similarly to a buyer who had no knowledge. Value Matters When a prosecutor is deciding whether to charge a defendant with a misdemeanor or felony for selling stolen goods, the value of the goods is very significant. In California, for example, if the value is less than $950, then selling stolen goods cannot be charged as a felony. However, if there were other crimes committed in conjunction with the sale of the stolen goods, this could change how a prosecutor decides to charge the case. Misdemeanor convictions carry a maximum sentence of one year in jail, while felony convictions can carry sentences of several years or more. Typically, for a felony selling stolen goods charge in California, assuming there are no other crimes, a guilty party could be facing up to one to three years in prison. Under the federal law, selling stolen property across state lines could land you a ten year prison sentence. Business Types Matter If you are a private party found to be selling stolen goods, you may have less to be concerned about than if you are a pawn shop owner or swap meet vendor. In most states, these business operators face stricter regulation when it comes to selling goods.Generally, pawn shop owners and swap meet vendors need to keep track of where and from whom they received the items they sell. Some states require these businesses to conduct a reasonable inquiry into whether the item was legally obtained before they offer the item for sale. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Is It Illegal to Threaten Someone Online? (FindLaw Blotter) Arrested for Vaping? (FindLaw Blotter) Juvenile Carjacker Arrested Twice in 48 Hours (FindLaw Blotter)
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How to Keep Your Kids Safe From Sex Offenders on Halloween

For most parents on Halloween, it's not the costumes that scare them. Among the biggest fear that parents have on Halloween is that their child will be abducted or worse. The fear of kidnapping on Halloween seems rational as children are dressed in costume, are out in large numbers (often unsupervised), are out at night, and the whole holiday provides cover for would-be criminals. To help mitigate the concerns of parents, many states and localities have laws regulating the actions of sex offenders during Halloween. In California, for example, sex offenders on parole are required to be at home from 5 p.m. to 5 a.m., with any exterior lights turned off, and are not allowed to open their door for anyone except law enforcement. Although laws prohibiting sex offenders from participating in Halloween are not in every state, parents can take other actions to protect their kids. Check the Local Sex Offender Registry While many states have specific laws about sex offenders and Halloween, there are many that do not. Even in states that have laws about this, parents may want to proactively warn their children about which houses to stay away from as most states do not require that sex offenders post "no candy" signs asking people to stay away. In recent years, parents have been utilizing sex offender registries to keep their kids safe on Halloween. Each state has a sex offender registry and database that the public can access via the internet. The databases allow parents to identify where the sex offenders live so that they can advise their children to stay away from those houses. Give Kids a GPS Enabled Cell Phone Some parents may be concerned that simply telling their child to stay away from a house won't actually be enough, or their child won't remember which house. For these parents, letting your child use a GPS enabled cell phone that you can track on a computer or another device can provide much needed peace of mind. Additionally, you can require your child to call or text you to check in every so often, or when they reach certain waypoints, so that you can remind them which houses to skip. For the exceptionally paranoid parent, hiding a GPS tracking device inside your child's costume may be necessary to ease that paranoia for long enough to let your child learn some independence and have some fun. Also, there are several apps that can help you closely monitor your kids while they're out trick-or-treating. Related Resources: Candy or Meth? It May Be Hard to Tell (FindLaw Blotter) Avoid Dangerous, Illegal Halloween Decorations (FindLaw's Law and Daily Life) 5 Silly Halloween Laws to Make You Scream (FindLaw's Law and Daily Life) Can You Refuse a CPS Drug Test? (FindLaw's Law and Daily Life)
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NYPD Nabbed Over 3,000 Guns in 2016

The New York Police Department announced that it has seized over 3,000 guns so far this year, and over 1,000 of those will remain off the streets for good. The NYPD says its Field Intelligence Officers' haul is the highest in the last three years. So what happens with all those weapons now? Big Iron According to the New York Daily News, the police used to dump seized guns in the Long Island Sound, but Deputy Commissioner for Support Services Robert Martinez says the department now takes the weapons to an "undisclosed location, to either be melted down or "stamped into oblivion." The Daily News also reports that scrap metal from the guns can be recycled for other uses. "These guns will never again be used to hurt somebody or threaten the quality of life of the good people of this city," Police Commissioner James O'Neill said. "This is the end of the iron pipeline. This is the last you'll see of these guns." A total of 1,995 handguns and 426 rifles are slated for destruction, 1,158 of which were used in felonies, 12 in misdemeanors, and 485 were acquired through the NYPD's gun amnesty program. Little Problem Not everyone is pleased with the NYPD's plan for the weapons, however. The National Rifle Association is pushing back on gun destruction efforts, and has even successfully lobbied some states to pass laws that require police agencies to sell seized firearms instead. "Most departments are strapped for funds as it is," the gun lobby said, "to cut off the potential cash flow for the sake of making some social commentary is short-sighted at best ... Firearms should be treated the same as boats, jewelry or any other confiscated asset and sold at auction." Commissioner O'Neill was not swayed. "Why on Earth would we do that? We went to a lot of hard work to get these guns off the street." Related Resources: Charged with a crime? Get your case reviewed for free now. (Consumer Injury - Criminal) Guns Around the Country: Tougher State Laws Linked to Fewer Shooting Deaths (FindLaw Blotter) Obama's Executive Action on Gun Control: What It Means (FindLaw Blotter) When Can Police Legally Seize Guns? (FindLaw Blotter)
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How Does SSDI Impact an Injury Lawsuit?

If you are on SSDI and are considering filing a lawsuit or pursuing an injury claim, you may be concerned about how a settlement or court award could impact your receipt of benefits. Social Security Disability Insurance is a federal program designed to assist disabled individuals that are unable to work by providing those individuals with an income source. While SSDI will want to know if you have received wages, the general rule is that an injury settlement or court award for an injury case are not wages, UNLESS a portion of that award is meant to compensate you specifically for lost wages. Also, it should be noted that if you receive punitive or exemplary damages, or any interest on the award, these may also be concerned as unearned income. Can SSDI Affect Your Settlement? While your SSDI is generally safe from loss as a result of an injury settlement or court award, your settlement or award may be less than you might expect because of your SSDI. Often, injury plaintiffs are disappointed when they find out that their cases are not as highly valued as they expected. Many times, a case’s high value lies in the plaintiff’s status as a high-wage earner. If someone who makes $1,000,000 per year misses one day of work because of the injury, that one day of lost wages could be worth at least $2,700 or more. If that person misses ten days, that can add $27,000 to their case. If you are on SSDI, there will be no wage loss to recover because SSDI covers your wages, and therefore, any settlement may feel a little bit lower than you might have expected. Don’t Confuse SSI With SSDI It is important to not confuse SSI with SSDI. Supplmental Security Income (SSI) is a need-based federal program that provides disabled and elderly individuals with income to supplemental SSDI or regular social security benefits. Any income or monies a person receives can have an impact on a recipient of SSI benefits. It is highly advisable for a recipient of SSI to seek the advice of an attorney regarding how to handle settlement or court award money as SSI benefits can be easily lost if a person receives a lump sum. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) If You Can’t Get Workers’ Comp, Can You Get SSDI? (FindLaw’s Injured) 5 Things a Personal Injury Lawyer Can Do (That You Probably Can’t) (FindLaw’s Injured) Personal Injury Lawyer Dropped Your Case? Now What? (FindLaw’s Injured) When to Sue a Pediatrician for Malpractice (FindLaw’s Injured)
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Why Voter Fraud Doesn’t Matter, but Allegations of Rigged Elections Do

A lot of accusations get tossed around come election time, and this year has been no exception. Some are old -- accusations of voter fraud have been thrown around for at least a decade and have spawned strict state voter ID statutes. Some are new -- few candidates, if any, have claimed outright that an election is rigged and refused to say they will accept the results of an election if they lose. Both claims sound serious, striking at the heart of our democracy. But the negative effects of one of these charges have been disproven, while the consequences of the other may be right around the corner. The (Mostly) Myth of Voter Fraud The claim goes something like this: unscrupulous voters could register to vote in more than one place, vote in districts where they don't live, vote more than once, or provide false information to election officials. And as Justin Levitt noted in the Washington Times, this can be a real concern: "This sort of misdirection is pretty common, actually. Election fraud happens ... Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam." And then there's pretending to be someone else at the polls, which Levitt describes as a "clunky way to steal an election." Levitt began tracking allegations of voter fraud, and looked at "general, primary, special, and municipal elections from 2000 through 2014," a data set containing at least 1 billion ballots. And in all, found just 31 specific, credible allegations of voter fraud at the polls. To put that number in context, all 31 of those votes would not have been enough to swing the state of Florida for Al Gore in the 2000 election. As Senator Cory Booker, D-N.J., put it, "You're more likely to get struck by lightning in Texas than to find any kind of voter fraud." The Very Real Voter ID Law Response In response to allegations of voter fraud -- or for more sinister reasons that courts have touched on below -- some states began passing voter ID laws requiring voters to present some form of identification at the polls in order to cast a ballot. Voter ID laws can vary from state to state, from strict photo ID requirements in some states to no ID requirement at all in others. In general, courts have upheld these requirements. In 2008, the Supreme Court looked at Indiana's ID law that required a person to present a U.S. or Indiana ID in order to cast a ballot. (Voters without a photo ID could cast a provisional ballot, and had to visit a designated government office within 10 days with a photo ID or a signed statement saying they cannot afford one in order to have their votes counted.) The Court found the law constitutional, even though the state failed to produce any evidence of the kind of fraud the law was passed to prohibit. But some courts have started to push back on overly restrictive ID laws. The federal Fourth Circuit Court of Appeals recently struck down North Carolina's voter identification requirement, but for reasons that may be unique to the state. Along with requiring photo ID in order to vote, the North Carolina law also abolished same-day voter registration and ended preregistration. But it wasn't just the text of the law that the court had a problem with -- it was the context: ... the General Assembly enacted [the laws] in the immediate aftermath of unprecedented African American voter participation in a state with a troubled racial history and racially polarized voting. The district court clearly erred in ignoring or dismissing this historical background evidence, all of which supports a finding of discriminatory intent. Because the law was passed with discriminatory intent, the court ruled it invalid. Given the near absence of any in-person voter fraud, it's fair to wonder whether these voter ID laws accomplish the goal of preventing fraud, and, if not, what they actually do prevent. Critics of the laws point to a disparate impact on minority and senior voters -- those less likely to have an ID -- and many believe voter ID laws were passed with that purpose in mind. The Fourth Circuit felt the same in its opinion on North Carolina's ID law: "Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices" the court noted. The state's General Assembly then acted on that data in multiple ways, "all of which disproportionately affected African Americans." The Dangerous Allegation of Election Rigging Since August, Donald Trump has been suggesting that the "election is going to be rigged." And the type of fraud he's alleging -- "People are going to walk in and they're going to vote 10 times, maybe, who knows?" -- is exactly the kind that voter ID laws are intended to stop and the kind that happens just 31 times in fourteen years. But the fact that an election can't be rigged or could not effectively be swayed in the way Trump imagines doesn't make his claims any less serious. The legitimacy of any representative democracy is the belief that the government officials selected to represent the people were chosen fairly, and that their presence in government is the will of their constituency. To suggest a rigged election, or a corrupt election process, is to undermine that legitimacy. Absent the legitimacy of elected officials, the laws they enact and represent also lose their legitimacy. And, according to recent psychological studies, the perceived legitimacy of law effects whether people follow it or not: ... people who respond to the moral appropriateness of different laws may (for example) use drugs or engage in illegal sexual practices, feeling that these crimes are not immoral, but at the same time will refrain from stealing. Similarly, if they regard legal authorities as more legitimate, they are less likely to break any laws, for they will believe that they ought to follow all of them, regardless of the potential for punishment. Delegitimizing the election's process and results can have dangerous consequences, both during and after the election. ...
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Driver Liability for Cell Phone Related Car Accident

How an accident happens will largely determine who is ultimately held liable. If the at fault driver was found to have caused the accident while talking or texting, they will likely have more difficulty defending their case, and they may potentially face additional penalties. Nearly every state has laws on distracted driving, and most include some limitations on the use of cell phones by drivers. Regardless of whether you have an ear piece, integrated Bluetooth, or speakerphone system, if you are talking or texting on a cell phone while driving, an officer or other party can claim that you were driving while distracted. According to the most recent report by the NHTSA, one in ten on the road fatalities involved distraction. Accidents While Phoning or Texting If a driver is found to be at fault for an accident, then they can also be found liable for the injuries and property damage they caused. While a majority of auto accident cases settle out of court, the facts concerning how the crash happened are relevant to establishing the injured party's case for damages. When a jury is asked to decide an auto accident injury case, they will usually be tasked with deciding two primary issues:Whether the defendant caused the injuries and damages.How much money should be awarded to the plaintiff for suffering the injuries and damages. In most jurisdictions, if both parties are considered to be partly at fault, or fault is uncertain, the party that is found to be more than 50% at fault, generally is the party held responsible for the damages. If a party was on the phone when the accident occurred, they may be found some percentage (comparatively) at fault. In states like California, if a driver is found to be 25% at fault, any award they receive will be reduced by their percentage of fault. Rear-Ended While Talking on the Phone There are some auto-accident cases where it won't matter if the victim was on the phone or texting. If you are stopped at a red light, and you get rear-ended while texting or talking on the phone, it is highly unlikely that your texting or talking had anything to do with causing the accident. In this sort of a situation, your phone use, while still potentially against the law, generally cannot be used to attack liability. Related Resources: Find Personal Injury Lawyers in Your Area (FindLaw's Lawyer Directory) What's More Dangerous Than Texting and Driving? (FindLaw's Injured) 1 in 4 Car Crashes Involves Cell Phone Use: Report (FindLaw's Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw's Injured)
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