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What Can I expect if I am convicted of a DUI?

Jan 30

Around the holiday season, the DUI rate inevitably rises.  When someone gets charged with driving under the influence of alcohol, he or she always asks, “What kind of punishment am I looking at?”  Like the answer to most legal questions, it depends.

Generally, a person can be convicted of DUI when he has either 0.08 percent or more by weight of alcohol in his or her blood, or is otherwise under the influence of alcohol, drugs and/or any other substance to a degree which renders him or her incapable of safely driving.  The law is more strict when the person charged is under 21, a bus driver, or a day care driver (0.02 percent or more blood alcohol level), or a commercial vehicle driver (0.04 percent or more blood alcohol level).

Generally, upon a person’s first DUI conviction, he can expect either a jail sentence of not more than a year, and/or a fine of at least $600 but not more than $2,100. Jail time is not mandatory on a first conviction of DUI. Additionally, the defendant’s driver license will be suspended for 90 days. This is an absolute suspension because there is no law in Alabama which provides for or allows a work permit.

If the same person is convicted a second time within five years of his first DUI, he is required to serve a jail sentence of at least five days but not more than one year, or perform at least 30 days of community service.  The fine imposed will be at least $1,100 but not more than $5,100.  Further, his driver license shall be revoked (rather than just suspended) for one year.

On a third conviction, a defendant is required to serve at least 60 days in jail, which cannot be probated or suspended by the judge, but cannot be required to serve more than one year.  The fine imposed will be at least $2,100 but not more than $10,100. In addition, the defendant’s driver license will be revoked for a period of three years.

A fourth or subsequent conviction of DUI is considered a class C felony, and is punishable by a mandatory jail sentence of not less than 10 days, and a potential prison term of not less than one year and one day but not more than 10 years.  If the sentence does not exceed three years, confinement may be in the county jail at the judge’s discretion. However, if the sentence is one year or less, confinement must be in the county jail. The fine imposed must be at least $4,100 but not more than $10,100.  Also, the defendant’s driver license will be revoked for a period of five years.

In each case, the defendant’s mandatory minimum fine and sentence is doubled if he is over 21 and a child under 14 was present in the vehicle at the time of the offense.

In addition, any person convicted of DUI shall be referred to the court referral office for evaluation. The defendant shall, at a minimum, be required to complete a DUI or substance abuse program approved by the Administrative Office of Courts. The Department of Public Safety cannot reissue a driver license to a person convicted of DUI without receiving proof that he or she has successfully completed such a program.

This column is intended for general information purposes only.  It is not intended, nor should it be construed as personal legal advice.  The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.

 

How Do I Get a Restraining Order?

Jan 30

I have received a lot of questions recently about how to get a restraining order. Contrary to popular belief, a restraining order is generally not something you can just walk up to the courthouse, Sheriff’s office, or lawyer’s office and pick up. In fact, in most cases you can’t get a restraining order unless there is underlying case filed in court.

Of course, most requests for restraining orders come from a victim who has been abused by someone else in some way. Depending on the type abuse, the situation is handled differently. If law enforcement has charged the abuser with a crime like assault or domestic violence, then the matter is handled in criminal court. If not, then the victim must seek to bring the matter before the civil court in some way.

In criminal cases dealing with violent crimes, the court will usually automatically impose a type of restraining order on the defendant. In most cases, the defendant is ordered to stay away from the victim and have no contact with them while the case is pending. This order is usually not as specific as most people think. For example, the defendant will probably not be specifically ordered to stay a certain distance away from the victim, and may not have to leave the Wal-Mart if you both are in there at the same time. If the defendant does make contact, especially to harass or intimidate or to abuse the victim in some way, his bond may be revoked and he may have to sit in jail awaiting a hearing on the matter.

In civil court, you have to have an underlying case, like a divorce or a suit for damages related to an assault to request a restraining order. A civil restraining order from a divorce, for example, usually involves the court ordering that both parties not annoy, bother, harass, or otherwise disturb the other party. These orders come in various forms and depend greatly on the situation. Some even order that parties can’t use social media like Facebook to talk bad about the other party (believe it or not, people usually can’t resist doing this kind of thing).

The exception to the rule is a protection from abuse order, which contains provisions most people associate with a bona fide restraining order. A protection from abuse order (PFA) is a civil order that protects you from abuse by a current or former intimate partner. There are very specific rules regarding obtaining a protection order and keeping one. Next week, we will look more closely at how to obtain a protection from abuse order.

Am I Common Law Married?

Dec 05

Many times, the solution to domestic problems like custody, property disputes, and visitation of children revolves around whether the parties are married. More times than you would think, when I ask “are you married?” I get the answer “yeah, we’re common law married.” In reality, however, most people have no clue what it takes to establish a common law marriage. In fact, there are many misconceptions floating around about common law marriage.  For example, some people think that having a child together and/or that living together for some certain length of time automatically creates a common law marriage. These facts alone, however, do not create a marriage. In fact, a couple can live together for many years and have many children, but still not be common law married.

To create a common law marriage, a person must prove three things: First, both parties must have the legal right or “capacity to marry.” Second, the couple must hold themselves out to family, friends and the community as being married. Third, each person must intend to be married to the other person. A common law marriage is just as legally binding as a ceremonial marriage and it can only be ended by a divorce or by the death of the husband or wife; but how does someone actually prove these three things?

For a person to have the “capacity to marry,” he or she must be an adult (i.e., must have reached his or her 19th birthday). The couple must be of the opposite sex from each other, must be of sound mind, and must not be married to someone else.

To “hold yourself out to the public as being married” usually requires showing that you live outwardly as if you were married. When a judge has to decide whether a couple is common law married, he or she will weigh many factors to decide their “intent to marry.” The judge must rely on the answers to questions like: Did the couple live together? Did the woman use the man’s last name? Did the couple sign contracts together to buy a home or a car? Did the couple file joint tax returns? Did the couple have joint bank accounts? Did the couple refer to each other as husband and wife? Did they share household duties and expenses? Did they have and raise children together?

Intent to marry is probably the hardest element of the three to prove. This is because by the time a judge gets involved, inevitably one party is representing that they had no intent on being married to the other. Usually, the judge will use the answers to the questions above to determine whether each party intended on being married. As stated earlier, the answer to any one question does not determine if you have a common law marriage. When taken together, however, the answers help a judge decide if a couple intended to be married. Ultimately, a person only knows for sure if there is a common law marriage when a judge says so.

Domestic Violence Laws in Alabama

Dec 05

Domestic violence laws in Alabama prohibit certain acts of physical violence between an aggressor and a victim, including a parent and child, husband and wife, and couples in a dating or engagement relationship. The crime of domestic violence can carry serious penalties. In order to be found guilty of a domestic violence offense, a defendant must commit a specified violent act and the defendant and victim must share a certain relationship.

Alabama law recognizes three degrees of domestic violence, as well as the felony of domestic violence by strangulation or suffocation. In order for the prosecutor to charge domestic violence in the first, second, or third degree, the alleged aggressor and victim must be in one of the following relationships: current or former spouses, parent and child, parent or parents of a child, current or former household members, and couples who are or were in a dating or engagement relationship. Domestic violence by strangulation can occur between people in the relationships explained just above. However, if the defendant and victim were dating or were engaged, they must have been in the relationship within ten months of the offense. In addition to the relationships just described, domestic violence by strangulation or suffocation prohibits certain violent acts between a stepchild and stepparent.

Domestic violence in the first degree may be charged when the aggressor commits either first-degree assault or aggravated stalking. A defendant convicted of domestic violence in the first degree is guilty of a Class A felony, which carries a maximum of life or 99 years in prison. Defendants who have prior convictions for first-degree domestic violence must serve a minimum of one year in prison for subsequent first-degree domestic violence convictions before being released on probation or parole, or receiving a reduction in prison time for good behavior.

Domestic violence in the second degree can occur when the aggressor commits second-degree assault, stalking (not aggravated), intimidates a witness, commits first- or second-degree burglary, or commits first-degree criminal mischief. Second degree domestic violence is a Class B felony, carrying up to 20 years in prison. For second and subsequent convictions for second-degree domestic violence, the defendant must serve at least six months in custody before being released on probation or parole, or receiving credit for good behavior.

Domestic violence by strangulation or suffocation occurs when an aggressor, by strangulation or suffocation (or attempting to strangle or suffocate) commits an assault with the intent to cause physical harm; or commits the crime of menacing. This crime is a Class B felony and careis the same punishment as second degree domestic violence.

Domestic violence in the third degree occurs where the defendant commits the crimes of third-degree assault, menacing, reckless endangerment, criminal coercion, harassment, criminal surveillance, harassing communications, third-degree criminal trespass, second- or third-degree criminal mischief, or third-degree arson. Domestic violence in the third degree is a class A misdemeanor, which carries up to a year in jail. For second and subsequent convictions for third-degree domestic violence, a defendant must serve a minimum of ten days in jail. According to the law, if you’re convicted three times for third-degree domestic violence, the misdemeanor charge turns into a felony.

Laws You May Not Know About

Oct 17

I have had several people request that I write about “little known laws.” Here are a few that may interest you (all references made are to the Alabama Code):

Anyone who maims or injures themselves to “excite sympathy or to obtain alms or some sort of charitable relief” is guilty of a class C felony.  §13A-14-1.

Any person who gives a minor a bowie knife shall be fined not less than $50.00 nor more than $500.00. §13A-11-57.

Anyone who carries a concealed slingshot shall be fined not less than $50.00 nor more than $500.00, and may also be imprisoned in the county jail for six months. §13A-11-53.

A person who possesses, obtains, receives, sells, or uses a short-barreled rifle or a short-barreled shotgun is guilty of a Class C felony. §13A-11-63.

It is illegal for anyone to use pepper spray in the commission of a crime. §13A-6-27.

Anyone who knowingly profits from unlawful gambling activity as a player commits the crime of simple gambling and is guilty of a class C misdemeanor, unless he was engaged in a social game at a private place.  §13A-12-21. However, a person commits the crime of promoting gambling if he profits from unlawful gambling other than as a player and is guilty of a class A misdemeanor. §13A-12-22.

Anyone who finances, advertises, sells tickets to, operates, or purchases a ticket for a hog fight is guilty of illegal hog fighting, which is a class A misdemeanor upon conviction for a first offense and a class C felony for a second offense. §13A-12-6.

Anyone who displays in public any bumper sticker, sign or writing which depicts obscene language descriptive of sexual or excretory activities is guilty of a class C misdemeanor. §13A-12-131

Anyone who promotes, engages in, or is employed at a bear wrestling match is guilty of unlawful bear exploitation, a class B felony. §13A-12-5.

According to §13A-12-1, these acts are prohibited on Sunday: charity work, shooting, hunting, card playing, racing, and compelling a child to perform any labor except customary domestic duties. Anyone violating this law shall be fined not less than $10.00 nor more than $100.00, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for up to three months.

And finally, §13A-14-3 makes it unlawful for any person to promote, advertise or conduct any type of marathon dance contest continuing or intended to continue for a period of more than eight consecutive hours. Violation of this section is a misdemeanor punishable by imprisonment in the county jail for not less than 30 days nor more than 90 days and/or by a fine of not less than $50.00 nor more than $500.00. My friend Kevin Turner was really upset about this one.

This column is intended for general information purposes only. It is not intended, nor should it be construed as personal legal advice. The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.

 

Abbreviations for Criminal Charges

Oct 17

A few months ago, Sheriff Jeff Shaver and the Cherokee County Sheriff’s Department created an extremely useful website where you can find out information regarding the Sheriff’s department. The website is located at http://www.cherokeecountyalsheriff.com. One of the most frequently viewed areas of the website by far is the daily arrest records. The arrest records section of the website is so popular that you can, like me, get the arrest report emailed to you each morning.  I am discovering, however, that most people do not know what the abbreviations are for many of the charges found on the arrest report. Below is an explanation of some of the more common abbreviations and what they mean

“NWNI” – Negotiating a Worthless Negotiable Instrument. This charge is more commonly known as writing a bad check. NWNI is a Class A misdemeanor. Anyone convicted on NWNI can also expect to pay court costs, the face amount of the bad check, collection costs, and possibly a fine as determined by the judge.

“UPODP” – Unlawful Possession of Drug Paraphernalia. Drug paraphernalia is defined as any equipment, products, and materials of any kind which are used, intended for use, or designed for use in growing, producing, storing, or using illegal drugs. Unlawful Possession of Drug Paraphernalia is a Class A misdemeanor.

“UPOM” – Unlawful Possession of Marijuana. There are two varieties. 2nd degree UPOM is a Class A misdemeanor and is usually charged for first time offenders with smaller amounts of marijuana. 1st degree UPOM is a Class C felony and is charged for repeat offenders, or for those with larger amounts of marijuana.

“UPOCS” – Unlawful Possession of a Controlled Substance. This includes meth, cocaine, crack, etc. UPOCS is a Class C felony.

“UDOCS” – Unlawful Distribution of a Controlled Substance. This crime involves selling, distributing, and/or transferring a controlled substance. UDOCS is a Class B felony.

“FTP” – Failure to Pay. This means that someone who has previously convicted of a crime has failed to pay their fines, court costs, and/or restitution as ordered by the Court. The court issues a warrant for the individual and they are brought before the judge to explain their non-payment.

“FTA” – Failure to Appear. A criminal defendant has failed to appear at his hearing and the judge has issued a warrant for his arrest so that he may be brought before the court. When you see an FTA and FTP on the arrest report, the underlying charge usually follows. For example, an FTA on a UPOM means that a defendant has failed to appear on a Possession of Marijuana Charge.

“Violation of Release Order” – This means that a criminal defendant who is on bond, or has been released from custody under certain conditions, has failed to meet one or more of the conditions given to him at his release. The judge issues a warrant for this person and he is brought before the court to explain his actions.

Craigslist Scammers

Aug 17

Craigslist Scammers

Craigslist has been around for a while, and many people I know use this service to buy and sell items. Unfortunately, (like in most aspects of our lives now) thieves and scammers are always out there trying to take advantage of good people. I have recently had some one call and ask me about a transaction over Craig’s list that was found out to be a scam. Below is a list of popular Craig’s list scams that everyone needs to look out for and be aware of.

Someone claims Craigslist will guarantee a transaction, certify a buyer/seller, OR will handle or provide protection for a payment. These claims are fraudulent, as Craigslist does not have any role in any transaction. The scammer will often send an official looking (but fake) email that appears to come from Craigslist offering a guarantee, certifying a seller, or offering to handle payments.

A distant person offers a genuine-looking (but fake) cashier’s check. You receive an email offering to buy your item, sight unseen. The scammer offers a cashier’s check for your sale item as a deposit. The value of cashier’s check, however, far exceeds your item. The scammer offers to “trust” you, and asks you to wire him back the balance via money transfer service. Banks will often unknowingly cash fake certified checks and then hold you responsible when the check finally fails to clear. You are now legally responsible for paying the bank the value of the bad certified check.

Someone requests wire service payment via Western Union or MoneyGram. Scam “bait” items include apartments, laptops, TVs, cell phones, tickets, and other high value items. These scams often claim that an MTCN or confirmation code is needed before he can withdraw your money. This is false, however, and once you’ve wired money, it is gone. Common countries currently include: Nigeria, Romania, United Kingdom, Ukraine, Spain, Italy, Netherlands—but could be anywhere.

A distant person offers to send you a money order and then have you wire money back to them. Much like the scam where a trusting buyer gives you a certified check for your item then requests the balance be wired to him, this is always a scam. The cashier’s check is fake and once the bank discovers this, you will have to pay them the money back.

A distant seller suggests use of an online escrow service. Most online escrow sites are fraudulent and operated by scammers. It is a good idea to stay away from this sort of transaction altogether.

A distant seller asks for a partial payment upfront, after which he will ship goods. The seller will tell you he says he trusts you with the partial payment and may even say that he has already shipped the goods.

There are a lot of scams out there in today’s marketplace, so always be careful when dealing with someone over the phone or the internet. Just remember that the old saying “If it seems too good to be true, it probably is” is usually right — otherwise, it wouldn’t be an old saying.

The “One Person, One Vote” Debate

Jan 27

It seems that the closer we get to an election (especially a presidential election), the more people begin arguing about the mechanics of vote-casting. True to form, as we approach 2016, the debates and court cases are in full swing. Many times, these arguments are just political banter and not given much real consideration. One particular case before the United States Supreme Court, however, may have a serious impact on voting.

Recently, the Supreme Court seemed ready to order a significant shift in how voting election districts are mapped throughout the country. On November 8, 2015, the Court heard arguments that could result in a ruling which requires all 50 states to change the way they draw election districts for members of the House of Representatives, state legislatures, city councils and other local bodies. This decision would have a great impact on many elections.

From the United State’s creation, our founding fathers based our government on the “one person, one vote” principle. In other words, in order to form a government of the people, and to insure that everyone was represented in government, each citizen should have a vote, and that vote should count equally with all the other votes. Because of our vast population, however, most elections are decided by each individual vote, but by a collective of votes in “election districts.” The inevitable problem is that throughout American history corrupt lawmakers have tried to manipulate these election districts in a way beneficial to themselves or their political party.

Literally from day one, election district manipulation has resulted in heated debates and scores of lawsuits. In early American history, the major goal was to prevent election districts from being drawn by land area, which would result in rural districts with less population always being dominated by urban districts with greater population. Later, especially after the civil war, election districts were constantly manipulated and drawn by racial lines. Many Supreme Court decisions have been cast and many laws have been created over the years to combat this problem.

At issue before the court now is the basic question of who gets counted when election districts are drawn: Is it all people, including children, prisoners and immigrants who are not eligible to vote? Or is it only adult citizens who are eligible voters?

The Plaintiffs, two Texas Republicans who live in rural districts, say they are denied the “equal protection of the laws” because the state’s election districts undercount the votes of U.S. citizens and overcount those who live in districts with large numbers of immigrants. For example, of two Texas state Senate districts, both with 800,000 residents, one had about 574,000 citizens who are eligible to vote and the other had only 372,000 people who are eligible to vote. Although these two districts have equal numbers of people they definitely do not have an equal numbers of voters. The Plaintiffs argue that the court should clarify its “one person, one vote” rule and tell states they should give “equal weight to equal numbers of voters.”

If the US Supreme Court agrees with the Plaintiffs, election districts across the nation will be recalculated and redrawn. Because many of the immigrant districts are traditionally democratic, republicans are expecting an advantage in future elections if election districts are reorganized.

Teens and Texting While Driving

Nov 10

Sometimes an Alabama family law firm is contacted to provide legal representation when a teen driver has been involved in a vehicle accident because they were texting while driving. This is a known danger, not just to the teen driver, but also to others on the road that could be injured by that teen’s distracted driving. An Alabama criminal lawyer may become part of the case if someone is injured or killed due to negligent driving or illegal driving.

A 2009 study reported by WebMD.com shows that texting by teens while driving is more of a distraction than fiddling with their MP3 music or talking on a cell phone. All are distractions, but this study showed that when teens were texting during the testing, they drove erratically and even ran over virtual people. They made mistakes by driving too slowly or weaving outside the simulated lanes. Texting is even worse than talking on a cell phone; it requires looking down at the keypad and away from the road ahead.

Participants in this study were screened to exclude teens with ADHD, substance abuse problems or a history of unsafe driving. All teens had been driving for at least six months. There was no difference between city or rural driving while texting; distracted driving by teens in urban driving had the worst results. This study showed a definite correlation between use of the fingers for texting and dangerous driving. The article also quoted a study by the American Automobile Association that states a 50 percent increase in car accident risk for people who text message while driving.

Your teen driver needs to know that texting while driving creates a very dangerous situation. It will make them far more likely to become involved in a tragic accident because their attention is taken away from watching the road and driving carefully. If your teen has been in an accident due to texting, as driver or as a passenger, you need to contact an Alabama family law firm with experience handling teen driving while texting cases for best results. You can obtain a free initial consultation with no obligation by calling our offices today.

Don’t Let Your Child Be Stuck With a Criminal Record

Oct 27

Don’t let your child be stuck with a criminal record, fight the charges to keep their criminal record clean. Some parents try to teach their child a lesson if they get in trouble without realizes the far-reaching consequences of a criminal conviction. It is not a good idea to try to teach your child a lesson when they are in trouble. You should be there for your child and help them through this issue with the justice system.

The first thing you should do is to find an Alabama family law attorney to help assist with your child’s case. There is no way you should let your child go without representation when a conviction could have far reaching consequences. The consequences of a criminal charge can be very serious. With certain convictions, there is a chance that certain things could be withheld such as federal financial aid.

Any child can make a mistake in situations that occur during youth. Whether your child is caught knocking down mailboxes or whether your child accused of a serious crime. Make sure to contact a lawyer with the knowledge and experience to provide your child with the representation they need in efforts to prevent a conviction in the case.

If there is a conviction in the case, make sure to contact an attorney who can assist in getting a charge removed from your child’s record. It is important to contact an Alabama criminal lawyer to represent their interests. If the charge is removed, it will mitigate the possible damages that could occur if those charges were to remain on their record.

Anyone can make a mistake, but everyone deserves a second chance. The only way to protect your child’s record is to assist them with their defense and make sure an attorney with knowledge and experience handles their defense. Contact an Alabama criminal lawyer to help you get the best outcome for your child.