Free New York Blog

It would seem that the fabric of Minnesota’s DWI laws is slowly unraveling as new challenges are made to the laws and how they comply with constitutional protections. As a result, persons charged with DWI offenses in Minnesota have a number of viable defenses at their disposal and should ALWAYS consult with an attorney before entering any plea.

One of the major issues presently being litigated is whether Minnesota’s laws unconstitutionally coerce persons arrested to provide breath, blood or urine samples for alcohol testing. As many Minnesotans are aware, when a person is arrested for suspicion of drunk driving, they are read an implied consent advisory which is a short statement of their rights. That advisory informs the driver that they have a right to consult a lawyer before submitting to any testing. However, if they refuse to submit to breath, blood or urine testing, they can be charged with a criminal offense. In fact, the criminal offense charged, which is a refusal to test, often has more severe consequences than being charged with a DWI. Specifically, a refusal may turn a misdemeanor DWI into a gross misdemeanor refusal. The former carries with it up to 90 days in jail and a $1000 fine, where the latter may be punished by up to 1 year in jail and a $3000 fine. Moreover, the license revocation for most first offense DWI’s is generally 30 to 90 days. For a refusal, that revocation period is one year.

This is critical because challenges to the law are based upon the State and Federal constitutional protections to be free from unreasonable searches and seizures. The United States Constitution’s Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. The Minnesota constitution contains a parallel provision. Minn. Const. art. I, § 10. Minnesota case law has consistently stated that a search and seizure conducted without a warrant is per se unreasonable. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).

When you consider that a breath, blood or urine test is, indeed, a search for inculpatory evidence, then constitutional protections must be applied. Both federal law and State law have historically recognized that seeking a sample of breath, blood or urine is, in fact a search as the term is defined in constitutional law. this was established in Skinner v. Ry. Labor Executives’ Ass’n., 489 U.S. 602 (1989). and, in Minnesota in State v. Shriner, 739 N.W.2d 432 (Minn. App. Oct. 2, 2007).

The end result is that an Officer seeking to test a driver’s blood, urine or breath to determine the presence of alcohol must either have a warrant to search and seize that sample or have some valid exception to the warrant requirement. State prosecutors would argue that there is a viable exception for exigency. Exigency requires that there is some immediate need to seize the evidence or it will be gone. In other words, some emergency.

The problem with that argument is that generally, there is plenty of time for an officer to seek and acquire a warrant after a person is arrested for a DWI. Police have up to two hours after the driving conduct to acquire a sample that would be admissible in court as evidence of a DWI and their are always Judge on call for that precise purpose. When determining whether the situation presented exigent circumstances, Minnesota courts examine the totality of the circumstances. State v. Lohnes, 344 N.W.2d 605, 611 (Minn. 1984).

Minnesota courts have noted that factors to consider when determining whether exigent circumstances are present for an officer to search include: (1) the time that has passed while the accused is transported to the hospital, (2) the need for the officer to investigate the scene, (3) the evanescent nature of alcohol in the blood, (4) the availability of the accused in the hospital, and (5) the time necessary to obtain a warrant, including a telephonic warrant. See, e.g., State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978); State v. Shriner, 739 N.W.2d 432, 436 (Minn. App. 2007), review granted (Dec. 11, 2007).

The fact that seeking a warrant is inconvenient, should not be a basis to ignore constitutional protections. Of course, it would be exceedingly rare for a police officer to force a driver to provide a breath, blood or urine sample and, presently, there is no need since the driver may be charged with (arguably) a greater offense should they refuse to provide a sample for testing. This is whether Minnesota’s Implied Consent statute runs afoul of constitutional protections.

A second exception to the warrant requirement is consent. Prosecutors will argue that the when a driver is read the implied consent advisory and consents to a breath, blood or urine test, they fall with in an exception to the warrant requirement. This is an established exception to the warrant requirement under State v. Hanley , 363 N.W.2d 735, 738 (Minn. 1985). However, to be valid (and thus fall within the exception), such consent must be “freely and voluntarily” given as indicated in State v. George , 557 N.W.2d 575, 579 (Minn. 1997). The U.S. Supreme Court said it best in Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), stating that “an officer has a right to ask to search[,]¼an individual has a right to say no.” Id.

So, is it really freely given consent when a police officer tells a driver that they: (1) may choose to submit to breath, blood or urine testing BUT, (2) if they do not, they will be charged with a crime?

The state of Minnesota has begun to review this issue and it appears presently that the answer may be “no.” In State v. Netland, 742 N.W.2d 207, 214 (Minn. App. 2007) pet. for rev. granted (Feb 27, 2008), the court of appeals held that “because an individual does not have the right to say no to a chemical test, and indeed, is subject to criminal penalties for doing so, the ‘consent’ implied by law is insufficiently voluntary for Fourth Amendment purposes.” Unfortunately, the court backtracked a little bit in 2008 when in State v. Pernell, 2008 WL 123944 (Minn. App. 2008) pet. for rev. granted (March 26, 2008), it decided that the “consent” under the Implied Consent statute is voluntary. Nonetheless, this remains a viable defense since the Supreme Court of Minnesota promptly accepted review both cases. Presently oral arguments are schedule for September.

Some state court Judges are already acting in reliance on Netland and ruling in favor of DWI defendants on a constitutional basis by suppressing breath, blood and urine tests in DWI proceedings as evidence that was seized in an unconstitutional fashion.

If you have ever been in trouble with IRS you would know how intimidating they can be. Not knowing much about tax matters, facing the IRS alone is a frightening task especially when they start throwing questions at you left, right and center and even the little bit you know seems to flee your mind. My advice is never to face the IRS alone unless you know how to argue with them and are knowledgeable enough to face the harangue of questions they are quite adapt at throwing at you. Only IRS lawyers know how to negotiate with the IRS to solve any tax problem you are faced with.

A tax payer being investigated by the Internal Revenue Services is a serious matter that requires the immediate intervention of a tax lawyer who is trained especially in all aspects of tax related issues. They are the only people who will be able to help you on government and federal tax issues and it’s imperative that you hire the best so you can to get you out of your predicament. Once the IRS commences their investigations, they leave no stone unturned to find out how you acquired your wealth or why you did not pay the due taxes on time.

Even if your fault has been simple negligence, oversight or not being aware of certain laws will not convince them of your innocence. As far as the IRS is concerned you have committed a criminal offence and they will be after you with everything they’ve got to prosecute and throw you in jail in case you are unable to pay the penalty. These attorneys however know how the IRS mind works and will be ready to argue your case with the relevant documents ready and all facts at their fingertips to defend you against the accusations.

Finding the right tax attorney to defend your case successfully is very important. There are some who are experts in corporate tax and others who are qualified in defending the individual tax defaulter and you should be specific in your requirements when you are on the look out for an attorney. Those who have absolutely no idea from where they can find capable IRS attorney, should surf the web to find one who will be able to assist them in their tax problems.

They usually charge more for their services than the regular lawyers do. If you are in trouble with the IRS don’t stop to think of the cost, but retain your attorney as soon as possible because the money you spend on an IRS attorney is well worth it if you consider the fact that without one you can most probably land in jail. Even if your crime does not put you behind bars, they are capable of helping you to avoid maximum penalties that are imposed by the IRS. Some people foolishly imagine that they can argue with the IRS and win their case. Don’t ever make that mistake because the IRS is a very powerful institution that is well trained in the art of making people break down and confess. Only trained lawyers will know how to use every loophole in existence to defend you against the internal revenue service.

Patent numbers are issued sequentially, beginning with the number one. Patent number one was issued to Samuel Hopkins on July 31,1790. It took 75 years for the United States Patent and Trademark Office (USPTO) to issue patent number 1,000,000. Patent number 7,000,000 was issued February 14, 2006. It took only seven years for the USPTO to move from issuance of patent number 6,000,000 to 7,000,000.

What does this mean? Simply, there is more creativity now that at any time in history. The old saw that “there is nothing new” is completely wrong. There has never been so many people and entities creating novel, unique products, technology and services, and so driven to commercialize these inventions. More patents and entrepreneurs attempting to market their products is indicative that there is more competition for successful placement.

It is essential that entrepreneur’s protect their inventions. This is a form of insurance. To attempt to market an invention without covering the work with the shield of patent, trademark, copyright or trade secret protection indicates a frivolous approach that will not succeed. Investors, licensees, and investors demand the protection that these intellectual property products afford. Even if the entrepreneur is going to self-market the invention, protection is essential in order to fend off competition.

A pharmacist in Atlanta, at the beginning of the 20th century, created a formula for syrup that he sold at the soda fountain in his pharmacy. John Pemberton mixed the syrup with soda water and sold drinks of the concoction as a wellness beverage to cure aches and pains. Mr. Pemberton had created Coca-Cola. He never anticipated that Coke would become an international comfort product, the soft drink. The smartest thing John Pemberton ever did, besides inventing Coca-Cola, was to handle the secret formula for the syrup as a Trade Secret. To this day, the Coca-Cola Bottling Company zealously protects the ingredients and chemistry involved in producing the base syrup that is the essence of classic Coca-Cola.

Big Boy Restaurants protects the recipe for the tartar sauce that goes on their sandwiches, and that many customers buy by the bottle and take home. McDonalds doggedly protects the process their restaurants utilize to cut, cook and season their French-fries. William Wrigley was just as manic in keeping secret his technique for delivering powerfully flavored, long lasting, chewing gum.

Trade Secrets typically are not able to secure patent protections. The novelty of the Trade Secret is in the blending, chemistry or chronology utilized to deliver the finished product. If you have such a recipe you will want to keep this knowledge very near, as it can become very dear. If the public knew the formula for Coca-Cola, quite possibly there would be a lot of consumers keen to blend their own drink at home. Coke would not like that!

If your product has the potential and necessity to become a Trade Secret you will want to follow several very basic steps. First, write down every event related to the development of the formula. Keep a logbook with the data, dates and details of your work. As you finalize your development work memorialize all of the steps essential to delivering the finished product you wish to keep secret in a recipe or summary document. Then store in a very secure place (a safety deposit box, or safe) all of the work product and the recipe or formula.

The Trade Secret gains incredible asset value when your product becomes a market success. Selling a business built around a fully protected Trade Secret exponentially increases the value of the company. Coca-Cola, Betty Crocker, Duncan Hines, Oil of Olay, Schlitz, Dom Perignon, Ben and Jerry’s and Estee Lauder’s Youth Dew are only a few examples of famous brands built around a Trade Secret.

A Trademark is important in developing brand awareness for a product. Use a Patent Attorney when approaching the highly specialized area of seeking Trademark protection. I have never seen an entrepreneur successfully navigate the very complex workings of the USPTO. I HAVE seen many attempts to handle the process, all resulting in complete failure.

The content of a Trademark can include a customized, identifying icon, stylized brand name and a branding statement. Nike uses the famous slash (icon) the Company’s name (recognizable stylized font) and “Just Do It!” (branding statement). Include all of the elements that the public will recognize in your Trademark application.

Look around at local, regional, national and international companies and brands that you see every day. Pat’s Cheese Steaks in Philadelphia is a local business that has gained great fame and brand recognition and protects their brand with a trademark. It is a destination for visitors to Philly. Chanel, the French haute couture brand, is internationally revered and the classic “C” that adorns every unit of Chanel product is one of the most recognized brand icons in the world. Truly Nolen, the national pest removal service, trademarks the mouse ears seen on every piece of sales collateral, advertisement and service vehicle the Company uses.

Owning a Trademark confers an obligation to police and protect the assigned mark. The inclusion of (TM) on every unit of product is essential. Again, consult an attorney. Trademarks can inadvertently become vacated and lost.

Copyrights are utilized to protect intellectual property. Movie content, poetry, music, books and plays are copyrighted. We have worked with clients on a number of video and board games. We always copyright the rules and/or the play features of the game.

Recently, Dan Brown, the writer of the wildly successful book the “The Da Vinci Code”, was suited for plagiarism by the British authors of a book about the search for the Holy Grail. The search for the Holy Grail is central to the plot of the “The Da Vinci Code”. There are full library shelves devoted to the search for the mystical Holy Grail. And yet, during the run-up to the movie release of “The Da Vinci Code” a legal action involving this intellectual property was commenced. Brown and his publisher vigorously defended their rights under their Copyright protection. They won full vindication from the court.

Producers of intellectual content properties (movie studios, record labels, book publishers) are very hesitant to accept unsolicited proposals for review. “The Da Vinci Code” saga is the reason. Legal action is rife in the area of intellectual property. We all remember things that we saw, heard or experienced from the distant, but dim past. Regurgitating a variation of that experience may find its way to the written page. Voila, was this material plagiarized?

Mattel and Hasbro will not review ANY outside toy submissions. Is it not coincidental that there has not been a breakthrough toy introduction in years from Hasbro or Mattel? This is one of the unfortunate byproducts of a litigious society, the limits placed on needed innovations. Protect your intellectual property with a Copyright.

I recommend to my clients, before spending a dime on a patent attorney, that they perform a cursory search at the USPTO.Gov web-site by providing all obvious key words applicable to their invention. If a number of patented products come up, and they are spot-on their idea, the item might not be a candidate for a filing. If the field seems open and clean, then I advise hiring the patent attorney to conduct a professional, thorough search. The in-depth search will confirm the potential for successfully obtaining patent protection.

Patents are the preferred style of protection for most inventors and entrepreneurs. Patents (utility) are very powerful agents of defense against predators, thieves and knock off artists. Not to be a boor, but, again, utilize the services of a patent attorney. I am always amazed and amused at how many people think they can successfully write, provide highly specific 3-D CAD art, file, handle USPTO objections and move the patent through the labyrinth of a Federal Government bureaucracy. Go Figure! They waste time and money, and usually negate any opportunity to have a re-filed patent successfully obtain a patent number.

The Provisional Patent filing is basically a letter that is placed on file with the USPTO. The Provisional filing advises the USPTO of the description of the product you are attempting to develop. The letter has a one-year life cycle and must be extended with a formal patent filing (Utility or Design) or the product is vacated forever.

We utilize the Provisional Patent as a fully legal way to state that a product in early stage development is Patent Pending. This filing is also very inexpensive relative to a design or utility patent. A Provisional Patent filing also enables the entrepreneur to have a one year time window to test and gauge market response to the invention. If reaction is positive, then it reinforces the necessity of continuing to devote assets to further development of the opportunity.

The Design Patent simply covers art features noted in the application. This is the weakest form of patent protection. A competitor only needs to change a design element, cosmetic feature or add an artisan variant to overcome a Design Patent. However, for products that have real commercial potential, but can not overcome prior, existing product art to obtain a Utility Patent, the Design Patent offers one potentially important benefit: the option to keep a product suspended in ongoing Patent Pending status.

We have done this on a number of occasions. A simple amendment to the initial filing means that a bureaucrat at the USPTO must find the file, pick it up, insert the amended filing detail and re-log the filing. As a result the filing goes to the back of the line and we gain months more Patent Pending protection.

Why go through all of this? When a product is in Patent pending mode it has ultimate protection. When a patent number is issued the clock starts ticking on the effective life of protection and details of the novelty of the patented product become public knowledge. Your product is obviated. It can be amazingly simple for the less than scrupulous knock off artist to engineer around your inventions unique features and benefits.

By keeping a product in Patent pending limbo we keep the features shrouded from any public awareness. This often leads to a first to market advantage and competition is only aware that there is a Patent pending. The added time that the product obtains, to build and extend sales traction, and begin the branding process is exponentially more valuable than the legal fees required to keep adding elementary addenda to the Design filing. You want to be first to market, and have as much time as possible to stand-alone in a market.

The Utility Patent is exceedingly valuable, both as a protective shield against competition and as a business asset. The invention that receives a Utility Patent number from the USPTO is potentially of interest to licensees, partners, investors and venture capital. Most patented products (Utility), however, never make it to market. We often see inventions that are novel, and thus patent possible, but not commercial, or needed, or beneficial. We all know a mad scientist or two, with endless designs, inventions and patents, none of which are ever going to be a market success.

The Utility Patent protects the novel features and benefits that the application describes in great detail. The patent attorney will narrate the unique aspects of your invention. They will also mention other patents near your space but painstakingly note the differences inherent to your invention. In addition, a great deal of effort will be devoted to creating 3-D Computer Assisted Design art that portrays your product from every possible angle and graphically depicts the uniqueness of your product.

Utility Patent filings rarely sail though the USPTO without being challenged. A competent patent attorney often anticipates the weakness in a filing and has a sheath of retorts ready to address the examiners concerns and questions. This re-directs the file back into the bureaucracy at USPTO. I tell my clients that they can expect up to an 18-month wait before receiving notice of the USPTO decision. However, on several complex filings, I have seen the process take up to six years.

Believe me, it is worth the work, the wait and the investment if a successful outcome from the USPTO is achieved. A Utility Patent conveys gravitas. The invention has stood up to the most stringent scrutiny and been accorded the most highly desired verdict: this invention has import.

There are many benefits to hiring a tax attorney. Some small business owners forego hiring one until they are faced with an IRS audit. Most of the time, it’s already too late and the damage has already been done. The best tax attorney could not only save you in times of an IRS audit but can also prevent it from happening. They are experts and have advanced trainings and knowledge on tax laws. Businesses that retain the services of a tax attorney can minimize taxation while complying with the law in various complex financial situations.

Why hire a tax attorney

The most common reason why people hire one is when they have tax problems involving back taxes, tax returns that are delinquent or not properly reported, payroll taxes, and other tax and audit issues. How do you choose the best tax attorney?

Choosing the best tax attorney

The first consideration that you need to make is whether to get a tax attorney who specializes in a particular tax law or get the services from a law firm. If you want a more personalized service, hiring a small firm could work to your advantage. However, if you have a more complex tax issue hiring the best tax attorney from a big law firm has its advantages. Because they have more lawyers, paralegals and staff working for their firm, they can pool their expertise and resources to better manage your case. Most of the time this will give you leverage in your case.

Experience

When you are in need of the best tax attorney, it is not the best time to just go with any lawyer you find in the yellow pages or the internet. First you have to know the lawyer’s or firm’s experience in handling tax issues and what their success rates are. The longer and more experience they have in dealing with the IRS, the better your chances are for a speedy and favorable resolution. The best tax attorneys know the loopholes and the ins and outs of the industry so they are able to strategize an effective action plan for your case.

Fees

Attorney fees are always expensive. You want to know how much your lawyer is going to bill you and if there are any other fees that are on top of the attorney fees. You also have to be wary of lawyers or firms that would ask you to pay all the fees upfront. Although this does not apply to all, most of these firms and lawyers will not be willing to go above and beyond their duties to resolve your tax problem as they already have your payment. Respectively, good faith money is fine as this also serves as an assurance on the lawyer’s part that you will not run away after your case is solved.

Finding the best tax attorney for your tax issue could save you from a great deal of stress of having to deal with the IRS so choose wisely and always consider the value for your money.

Even minor moving violations in Florida such as tickets for running a red light can add up and cause you serious problems in the future. If you have accumulated a certain number of serious traffic offenses or moving violations, you may be designated as a habitual traffic offender.

This designation is applied by the Department of Highway Safety and Motor Vehicles (DHSMV) and results in the revocation of your driver’s license. The only possible way to avoid this serious punishment is to have the help of a Miami criminal defense attorney. Your attorney can help you defend against the charges and potentially have them reduced or removed.

Serious Traffic Offenses Lead to Habitual Traffic Offender Status

You will be designated a habitual traffic offender in Florida after you are convicted for 3 serious traffic offenses. The DHSMV considers the following to be serious traffic offenses:

• felony involving the use of a motor vehicle;

• driving while your license is suspended or revoked;

• failing to stop and render aid when you are involved in an accident resulting in serious injury or death;

• driving a commercial vehicle when your privilege was disqualified;

• driving under the influence;

• vehicular manslaughter (either voluntary or involuntary).

Multiple Traffic Violations Lead to Habitual Traffic Offender Status

When you are cited for a traffic violation in which points are assessed on your license, it counts toward your habitual traffic offender status. Once you have accumulated 15 such traffic violations within a 5-year period you will be designated a habitual traffic offender in Florida. Traffic violations may include citations for speeding, disobeying traffic signals, reckless driving, and other such non-injury traffic law violations.

Even if violations took place in a state besides Florida, a Miami criminal defense attorney can help you. Out of state traffic charges can count against you in Florida, so it is important to consult with your Miami criminal defense attorney to review your license status and potential case.

Challenging License Revocation for Habitual Traffic Offender Status

You should contact a Miami criminal defense attorney as soon as you are in danger of being designated a habitual traffic offender. The quicker you act on avoiding these charges, the lower your risk of having your license revoked. If you are already facing the habitual offender status you may be able to challenge the designation.

In the event the revocation does go through, your Miami criminal defense attorney can assist you in petitioning for reinstatement. You will need to prove hardship and need such as for business, school, medical or work purposes. If your habitual offender status was due to DUI convictions, you may need to complete alcohol treatment programs, or have an ignition interlock device installed on your vehicles.

During the past 40 years, the divorce rate has increased substantially throughout the US. This trend varies from state to state. Yet, California has been a leader in this upward trend.

Let’s take a look at some of the potential reasons for California’s high divorce rate:

1) Lenient laws

California is a no-fault state, the first state in the US to enact the no-fault divorce law. This simply means that marriage partners are not required to prove fault or build a legal case against the other spouse. The no-fault law makes divorce an easily accessible option for a troubled marriage. They do not require a separation nor do they necessarily require the services of a lawyer.

In 1969, Gov. Ronald Reagan signed the Family Law Act with the new and revolutionary no-fault law. It was the general consensus at the time that the old traditional laws no longer served the public interest, and the new law was “more humane and enlightened.” The no-fault law made “irreconcilable differences” the basis for a divorce.

After the enactment of the new laws in 1969, there was a rapid increase in the divorce rate. In 1970, the first full year of the new no-fault law, the divorce rate in California was 60% higher than the rate for the entire US. This rapid increase continued for the next decade. By 1980, California lawmakers, embarrassed by the high number of divorces, implemented a quick fix — they would no longer retain or publish statistics. Yet, California’s rate continues to climb.

2) Entertainment industry

Many married couples in the nation’s entertainment industry work and live in California. These celebrities generally enjoy a lavish lifestyle with liberal views. Often they marry for the wrong reasons and soon end up in divorce. Infidelity and divorce seem to be the new trend. Some celebrities use frequent divorces for publicity. Juicy details that attract the news media, and they make a great deal of money.

3) Women’s financial independence

Many married women in California are career women. Dual career homes add stress to the marriage and can ultimately lead to divorce. With increased financial independence, women do not hesitate to end a troubled marriage.

4) More liberal social norms

Californians are liberal minded and divorce is socially acceptable. Although it is considered to be unfortunate, the partners are free to continue their careers and social lives without any shame or disgrace.

5) Remarriages

There is a prevalence of remarriage among California divorcees. Unfortunately, second, third, and successive marriages have a greater risk of divorce. As a result, remarriages contribute to higher rates.

There is an expectation that the products that you find available for sale on store shelves, through industrial suppliers, or elsewhere are not inherently dangerous beyond the obvious. Knives, of course, come with the threat of piercing or cutting injuries, but when handled as intended they are not likely to cause harm. Unfortunately, the faith in companies which leads one to believe that they would not release hazardous goods to the public is often misplaced and strikingly removed from the reality of the situation. Defective or dangerous products can strike without warning and may leave you or your loved one to cope with the effects of a serious injury.

Under the auspices of product liability law, as a person who has been injured by a manufacturer’s negligence you may be entitled to pursue financial compensation by filing a civil lawsuit. To build a successful case, you will have to prove that your injuries were caused or exacerbated by the product in question and that your conduct was not to blame. A thorough investigation by a skilled and experienced attorney may uncover evidence that suggests the company might have been aware of the danger and chose to ignore it for the sake of profit and expediency, in which case the nature of your case may change significantly.

Differentiating Between Design and Manufacturing Defects

Though legal issues pertaining to dangerous or defective products tend to be grouped together under the practice area of product liability, there are actually additional distinctions to be made. There are two clearly separate kinds of product defect, with each distinguished by the point in the process at which it is introduced. Design defects are those flaws which are integrated within the company’s vision and technical plans for a product. As a result, all properly manufactured items will share the problem. Design defects are especially troubling because they could be completely eliminated through more careful oversight and concern for public safety. Manufacturing defects are instead introduced during the physical creation of products and thus are highly variable.

The following represent examples of design defects:

Inadequate support structures for load bearing
Lack of mechanisms to limit excessive heat or other foreseeable dangers
The use of small, removable parts in products for children

Manufacturing defects may be:

Improper assembly of an item
The use of substandard materials
Unsafe levels of lead paint or other toxins

Evaluating Your Legal Standing

To determine whether a product liability action may be appropriate in your case, contact the Des Moines product liability lawyers of LaMarca & Landry, P.C.

My spouse ran up huge credit card debts during the marriage. In dividing assets and debts in the settlement agreement who should be responsible for these debts?

In California, Family Code section 910 provides that the community is liable for all debts incurred during the marriage and prior to separation. It doesn’t matter whether the debt was incurred by one spouse for there own benefit or for the family. It also doesn’t matter whose name appears on the bill or the credit card statements. If it was incurred during the marriage and prior to separation it’s a community property debt and both spouses are equally liable. This means that when the parties are negotiating a settlement and tallying the marital balance sheet such debts should be divided equally. A better option might be that one spouse agrees to pay off the joint debts in return for a greater share of the community property. The spouse paying off the debts can at least make sure that joint debts are paid because as long as debts are jointly owed both spouses are financially responsible to the creditors.

What if a married couple pays off one parties pre-marriage debts?

Consider this example. Bob and Jackie get married. Bob has huge credit card debts that he incurred before the marriage. Bob and Jackie want to improve their credit rating so they can buy a house. They agree to pay off Bob’s debts. However, once they are debt free, Bob files for dissolution. In this case, Bob and Jackie have used community property earnings to pay off Bob’s separate property debt. California case law states that the community is entitled to a re-imbursement for the amount it paid to discharge one parties separate property debts. 1 So in the above example, the community is entitled to a reimbursement for paying Bob’s debts.

What if one party uses their separate property to pay off community property debts?

In this example after they get married Bob and Jackie go on vacation and rack up huge debts. Jackie dips into her brokerage account which she built up prior to the marriage to pay off the vacation debts. In this case, Jackie has used her separate property to pay off community debts. California case law states that a spouse who, during marriage and before separation, uses separate property to satisfy a community debt is presumed to make a gift to the community. 2 So in the above example, Jackie is not entitled to a re-imbursement for paying the community vacation debts.

There is one important exception to his rule. Family Code section 2640 provides that where one party uses their separate property for the acquisition of community property, the paying spouse has a statutory tracing right of reimbursement if they have not waived the right in writing. Contributions to the acquisition of property include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of property. They do not include payments of interest on a loan to purchase property, or payments for maintenance, insurance, or taxation of the property. So in the above example, if Jackie had used her separate property brokerage account to pay off the principal on a joint mortgage or for a downpayment she would be entitled to a reimbursement of that amount.

After separation one spouse uses their separate property earnings or property to pay off community debts.

In this example after Bob and Jackie separate, Jackie continues to drive the BMW which was purchased with a loan during the marriage. Bob continues making the loan payments on the car. Can Bob claim a reimbursement credit for all the payments he makes from the date of separation to the date of trial?

California case law has developed the general rule that a spouse who, after separation, uses earnings or other separate property to pay pre-existing community obligations should be reimbursed out of community property upon dissolution. 3 These are traditionally called “Epstein credits” after the California Supreme Court case that established the rule.

Under this general Bob could, in theory, claim credits for all the payments he makes on the car loan after separation. But what if Bob was driving the car and making the payments. Wouldn’t it be unfair for Bob to have the use of the car and also claim reimbursement credits? That’s what the Court said in Epstein. It laid out an exception to the general rule where the paying spouse also uses the asset and the “amount paid was not substantially in excess of the value of the use.” So this means that Bob could not claim credits for the monthly payments if he drives the car but probably could claim a credit if he paid of the entire loan.

There are two other important exceptions to the Epstein general rule that a spouse who uses separate earnings or property to pay off pre-existing community obligations is entitled to a reimbursement: (a) where there is an agreement between the parties that the payments will not be reimbursed, and (b) where the payments were intended as a gift or as child or spousal support.

After separation one spouse uses community property funds to pay of their living expenses. What are the consequences?

In this example, Bob and Jackie separate and Bob agrees to pay $1000 per month in support and “whatever else you need out savings.” Jackie takes out $1,000 community property from the joint bank account to pay various living expenses. California case law provides that the community is entitled to re-imbursement where one spouse uses community property to pay separate obligations after separation to the extent that exceed a reasonable amount for child and spousal support. 4 A reasonable amount would probably be the amount of guideline support that a Court would order in an application for temporary child and spousal support. If that amount were $1,500, in the above example, Jackie would have to reimburse the community $500 ($2,000 – $1,500 she received). In the division of community property she would receive $250 less in community property. Since this rule flows from Epstein, the parties can waive the rule in writing and agree that such payments shall not reduce the community estate.

After separation one spouse stays in the family home while the other spouse pays the mortgage. What are the consequences?

It’s often the case that after separation one spouse moves out of the family home (“the out-spouse”) while the other spouse stays in the home with the children (“the in-spouse”). The out-spouse, usually the husband, may offer to maintain the status quo by continuing to pay the mortgage payments and other payments such as property taxes to maintain the property. In such a situation the in-spouse should be warned that there may be serious consequences of such an arrangement at the time of trial.

We’ve already seen one consequence. The out-spouse paying the mortgage payments may be entitled to Epstein credits because they are paying separate property earnings towards a community property debt unless there was an agreement to waive such reimbursements or such payments were a form of child or spousal support.

The other major consequence is that if the reasonable rental value of the family home is more than the mortgage payments, the in-spouse may be required to re-imburse the community for the difference in these payments between the date of separation and the date of trial. These are called Watt’s charges after the case that established the rule. 5. The general rule is that where one spouse has the exclusive use of community assets during the date of separation and trial, that spouse may be required to compensate the community for the reasonable value of that use. Consider this example. Bob and Jackie separate. Jackie and the kids stay in the family home after separation. Bob agrees that he’ll continue to support the family and pay the mortgage and other expenses. The mortgage payments are $1,500 per month. If Jackie had to pay the fair market rent for the property she’d pay $2,500 per month. Bob pays the mortgage for 10 months from the date of separation to the date of trial. Bob could argue that he should be re-imbursed Watt’s charges of $10,000 ($2,500 – $1,500 x 10). In a division of community property he’d be entitled to an extra $5,000. Bob could argue that he should also be entitled to Epstein credits of a further $15, 000 ($1,500 x 10) which would increase his share of community property by $7,500.

This would mean that Jackie’s entitlement to community property would be reduced by $25,000 when she thought that Bob was supporting her and maintaining the status quo? Isn’t this grossly unfair? 7. You’d think so but that didn’t stop the Court of Appeal awarding Epstein credits and Watts charges in similar circumstances in In re Marriage of Jeffries (1991) 228 Cal. App. 3d 548. But wait a minute. Isn’t there an exception to the rule where payments are made “in lieu of spousal support?” The answer is yes “but” this has to be clearly spelled out before the Court will treat such payments as support. In Jeffries, there was even an Order of the Court that said the payments were “in lieu of spousal support.” However, the Order also said that the Court retained jurisdiction to characterize these payments and determine whether the Husband should be entitled to reimbursements.

In another case the Court of Appeal reached exactly the opposite conclusion to Jeffries. 6. In this case the husband also paid the mortgage pursuant to a temporary court Order “in lieu of spousal support” and at trial claimed Epstein credits and Watts charges. The Court of Appeal held that public policy and the language of the Court order required that the Court deny the husband’s claims for Epstein credits. The Court then decided that since the wife was, in effect, paying the mortgage she would not have to pay any Watt’s charges because the monthly mortgage payments were the same as the fair market rental value of the home.

The only solution to this mess is for the parties and their attorneys to agree early on in the proceedings whether a spouses payment of community debts (such as the mortgage) and one spouse living in the family residence should be treated as spousal support which does not generate Epstein credits or Watt’s charges. If it’s treated as spousal support any agreement or Order should contain explicit language that mortgage and other payments by the out-spouse and exclusive residence by the in-spouse in the family home “shall be treated” as spousal and child support and the paying spouse shall not receive any reimbursements such as Watt’s, Epstein, Jeffries credits and charges.

Who is responsible for credit card debts?

Family Code 2623 (a) provides that debts incurred after separation but before the judgment of dissolution are confirmed to the spouse who incurred the debts if they are for “non-necessaries of life” of the spouse or the minor children. If they are incurred for the “necessaries of life” of the spouse or the minor children, then they will confirmed to either spouse according to each parties needs and abilities to pay when the debts was incurred, unless there’s a written agreement or order for support.

Generally, debts incurred during the marriage shall be divided between the parties. However, Family Code 2625 gives the court the power to assign a debt incurred during the marriage to one spouse if it “was not incurred for the benefit of he community.” 8 Further, Family Code 2602 provides that the court may also award an offset against a party’s community share if it finds that amounts were deliberately misappropriated by a wrongdoing spouse.

Footnotes:

1. Marriage of Walter (1976) 57 Cal. App. 3d 997.

2. See v. See (1966) 64 Cal. App. 2d 778. In Re Marriage of Nicholson (2002) 104 Cal. App. 4 289, the Court of Appeal held where Husband had used $30,000 that his mother had given him as a gift (i.e. separate property ) to pay off the credit card ( community property debts) so they could qualify for a loan to buy a house, he was not entitled to a re-imbursement.

3. In re Marriage of Epstein (1979) 24 Cal. 3d 76. Also In Re Marriage of Tucker (1983) 141 Cal. App. 3d 128.

4. Epstein, above; In re Marriage Stalworth (1987) 192 Cal. App. 3d 742.

5. In re Marriage of Watts (1985) 171 Cal. App. 3d 366.

6. In Re Marriage of Garcia (1990) 224 Cal. App. 3d 885.

7. This is the conclusion of one Family Law Commissioner: “It is fundamentally unfair for one spouse to move out and to allow a post-separation living arrangement to stabilize on one set of financial assumptions and then, without warning to the other spouse, introduce for the first time at trial a concept as pernicious as a Watts credit claim to set up an entirely different set of financial assumptions.” Commissioner Richard Curtis (2003)

8. Marriage of Cairo (1988) 204 Cal. App. 3d 1255. Gambling debts incurred on credit cards during marriage assigned to Husband.

© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an “Advertisement.” It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

If you’ve been injured in an auto accident, the first thing you need to do after having your medical needs seen to is take steps to defend your legal rights and contact an auto accident attorney. Whether you realize it or not, in the coming months and years your life is going to change drastically. There are going to be expenses involved in your accident and your recovery that you had no way of planning for a year ago, and those expenses are likely to put a tremendous financial drain on your budget.

A good auto accident attorney will be able to help alleviate some of the burden of those expenses by negotiating a settlement for you with the parties responsible for the accident in the first place. If you’ve been injured as the result of another’s carelessness, that individual now has a responsibility to you to ensure that you are able to receive the medical care and rehabilitative therapy you need to make a full recovery without putting yourself into the poor house.

Your auto accident attorney will work with all parties involved to negotiate a fair and legal settlement that will meet your needs, seeking to obtain compensation for your:

o Lost wages
o Medical expenses (including prescription and physician co-pays)
o Rehabilitative therapy
o In home care
o Child care while you are unable to care for your family yourself
o Property damage
o Pain and suffering
o Mental well being and counseling
o Embarrassment

Essentially, any expenses arising from the accident are the responsibility of the people who caused the accident. Your auto accident attorney will work to ensure that they accept that responsibility and take steps to see that their obligation is met and you are properly cared for.

When choosing the auto accident attorney that will represent your legal rights, you’re going to have a very large pool from which to make your selection. Ideally, any lawyer that is actively practicing personal injury law will have the skills and the courtroom savvy to negotiate the best settlement possible; however, as that is not always the case there are several things to consider before making your selection.

First and foremost, any good personal injury attorney is going to work on a contingency basis. In other words, they aren’t going to charge you a dime unless they are able to negotiate a settlement for you. The bottom line is that most lawyers are overworked, and putting together a good legal case takes time and effort. A good auto accident attorney will exert that time and effort to ensure that you get the best results possible from your claim, and they are going to reap the rewards of that effort. An attorney that charges you up front is far more concerned with money than with your well being, and they may lead you into a court battle that is going to cost you thousands of dollars in fees with their eyes wide shut, knowing you don’t have a chance of winning or unwilling to put in the time and effort needed to solidify your case but willing to take your money anyway.

The second thing you want to look for is experience. Very few lawyers (and none with any sense) go straight from law school to private practice. A good auto accident attorney will work with a large firm for several years to get their feet wet before branching out on their own, and that will give you, the client, the opportunity to see their case history.

An attorney who regularly walks into the courtroom and negotiates a settlement for their clients is much more likely to win you the compensation you deserve than one who is consistently trampled by the opposition, and an auto accident attorney with more experience will know the written and unwritten ins and outs of the trade that can make all the difference when it comes to your settlement.

Your auto accident attorney is going to be your strongest resource when it comes to winning your claim in a court of law, defending your legal rights and taking back your life after an accident.

If your spouse, child, relative or a friend met death recently due to the negligence, carelessness or even intentional actions of the responsible party, then a wrongful death lawsuit should be filed and a car accident attorney can help you make sure that you and the other survivors of the accident are sufficiently compensated for both loss and grief. Albeit that the responsible party can never be charged with a criminal case, you can file a civil claim or lawsuit to hold the responsible party accountable for such misdeeds.

If you are looking forward to achieve a just and appropriate compensation for your loss, then it is very much imperative to seek legal counsel from a good attorney who is experienced in dealing cases regarding wrongful death. Being an attorney that files and carries out a wrongful death lawsuit takes a large extent of knowledge and strategies to be used, and the will to determinedly fight for the rights of the victim.

A good attorney dealing with wrongful death cases will deliver profound legal counsel and a determined representation on the court if you are seeking to file a wrongful death lawsuit, and will work with the best of his skills to make sure that your rights are upheld. If you are qualified to receive financial compensation due to the unprecedented death of a family member, then a wrongful death attorney can assist you in working out with the best way on how to ensue and push your claim for an unbiased resolution.

Once proven that you loved one has died due to the recklessness and negligent actions of the party responsible for the accident, a wrongful death attorney can help you receive amends for medical and funeral expenses, loss of current and imminent revenue, and pain and suffering for the loss of a loved one. In certain cases, if the responsible party is proven of unwillingness to compensate the victim or his/her surviving family, they can be dealt punitive damages to rebuke them for their negative actions.

Cases of wrongful deaths can come up to be very much confrontational and complex, as the liable party will be most likely to deny their accountability on the accident. In some occurrences, the responsible party tends to resort on destruction or tampering of solid evidences that may prove any trace of negligence or deliberate actions that can put them behind bars. For such reasons, it is very important also to have an aggressive wrongful death lawyer to seek advice from in case of any suspicions of intentional actions for the accident to happen. An experienced lawyer will have the adequate resources to conduct a thorough research to prove the opposing party’s liability.