What You Should Know About DUI and DWAI

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Driving while under the influence (DUI) and driving while ability impaired (DWAI) can be difficult to deal with given the laws of Colorado on the subject. The reality of the law is that some things are set in stone, some things are discretionary, and some things you just should not do. One of the biggest myths is that if you do not take or consent to a test the police cannot prove you are drunk and you will not lose your license. Not true.

What is set in stone?

  • If your Blood/Breath Alcohol Level (BAC) is under .05 you are driving while ability impaired.
  • If your BAC is .08 or higher you are driving while intoxicated.
  • Everyone who operates a motor vehicle is considered to have automatically consented to taking a blood, breath, urine or saliva test in Colorado.
  • There are two parts to DUI or DWAI: criminal and administrative. You will have to deal with the criminal courts with regard to the charge and you will have to deal with administrative hearings regarding your driver’s license. Do not ignore the notice that comes in the mail.
  • If you are convicted of three DUI/DWAI’s within seven years you face a mandatory 5 year license suspension as a “habitual traffic offender.”
  • If you are found guilty or make a plea bargain, you will be responsible for court costs and fines.
  • If you refuse a breath/blood test you lose your driver’s license for a year.

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What is discretionary?

  • Depending on your BAC and traffic record there are varying ranges for how long, if any, your license can be suspended. The Department of Revenue does not have absolute discretion over the penalties. Some penalties they cannot change.
  • Some of the penalties carry a range of fines, jail time, or other penalties which can be bargained for or requested.
  • You may make a plea bargain with the prosecuting attorney, but that deal still needs to be accepted by the Court.
  • What happens in Court is not necessarily what will happen at the hearing about your driver’s license.
  • You may be able to get a restricted license which allows you to drive to work and home again. You may have to have a breathalyzer installed in your car that prevents your car from starting if alcohol is detected.

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What shouldn’t you do?

  • Drive while intoxicated by drugs or alcohol. Even if you are just going to the corner to get cigarettes from the convenience store don’t do it.
  • Run away from the police before or after they have stopped you.
  • If you refuse to do a blood test or a breath test in Colorado you automatically lose your license. The refusal is also admissible in court and it can be inferred by the Court that you are guilty.
  • Become aggressive or argumentative with the officers who have pulled you over.
  • Sit in the driver’s seat of your car with your keys in the ignition or your hand.
  • Keep open bottles of any alcohol or containers of drugs or firearms in your car.

Be responsible and designate a sober driver, call a cab or a friend, and don’t drink and drive or drive while under the influence of drugs (legal or otherwise), these are always the best courses of action. If not for yourself, then do it for the person you might injure or kill if you get into an accident.

Written by Karen L. Geiger and June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

What Is this Thing They Call Mediation and Why Should I Do It?

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In the late 90’s courts starting using mediation more and more to help parties fashion their own solutions to their cases and to lighten the amount of cases taken to trial. Whether or not you have a civil or domestic case mediation allows you to be in charge of your case and it’s outcome.

So what is mediation exactly? It is when two parties (Plaintiffs and Defendants/ Petitioner and Respondent) sit down with a neutral person who is not a part of their case nor interested in the outcome of their case. Where there are protection orders (also known as restraining orders) in place, mediation can still occur with the parties in separate rooms and agreements as to who gets to leave first, etc.

The process is confidential, unless there is information that would normally be required and exchanged between the parties as part of the case. Part of that confidentiality is that a mediator cannot be called into court to testify about the mediation session or things either party did during mediation. Mediators cannot give you legal advice and they are usually not licensed attorneys.

Mediators work to fashion between the parties a compromise. The mediator talks to each side and finds out what their ultimate desires are with regard to their case. Everyone has a wish list or what they really want the court to do for them. Mediators take those wish lists and talk to the parties to craft compromises which still meet their desires and needs as much as possible.

During mediation parties can more candidly exchange facts and figures to support why they want something. Sitting down with a neutral person to hash out the differences is sometimes the best way for each party to understand the how and why of the other party. It can lead to greater communication and understanding in divorce and custody cases.

One of the best attributes about mediation is that it allows the parties to “control their destiny” in a way that going to trial or hearing does not. Going to court can be costly and there is never a guaranteed outcome to any case. By going to trial or hearing you are giving control of the outcome to a person who does not know you, the other side, or any other individuals who may be effected by the judge or magistrate’s decision. There is a limited amount of time to present why you are there and what you want. Outcomes are entirely dependent on how that court interprets the law and what it sees in the case that is presented. Generally most people are not completely happy with the decisions of the court whether they are on the “winning” side or not. With mediation there is give and take and a chance to craft a solution that both parties can live with ultimately.

In Colorado there are a number of options for mediation. The most utilized option is the Office of Dispute Resolution ( also known as “ODR”) which operates under the Colorado court system. It is available in every county and they have a variety of mediators skilled in various different parts of the law. ODR mediation rates are very affordable usually $60/person/hour. There is also available a sliding scale or other relief if you cannot afford the costs of mediation. The majority of mediation done by ODR occur in the courthouses across the state.

There are also private mediators whose prices range from $70 – $500 per hour per person. Many of these mediators are also worth it depending on the type of case and the mediator’s expertise. In high conflict divorce cases where there are lots of assets to be divided the higher priced mediators can be more skilled in communicating the advantages and disadvantages to the parties. Going to mediation can save you hundreds to thousands of dollars in legal fees. Depending on the facts of the case, an attorney can spend two to sixteen hours preparing for court. That is in addition to going to court to try the case. There are also costs for experts, exhibit copies, printing, mileage and parking among other expenses to consider. Reaching an agreement in mediation allows you to have control over the outcome and over your financial output.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

So You Are Officially Divorced. What Now?

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Your Decree has come in and your divorce is final. So what do you do now? Here’s a checklist of things which may apply to your situation to help you get through what happens now.

Personal Care

✓ If you are feeling a sense of loss, grief or depression seek professional assistance or a support group to take care of yourself. There are lots of support groups available in your community through churches, schools, etc.

✓ Take some time for a little personal self-care. Have a massage, visit a spa (yes even the guys enjoy this), take a short vacation or weekend break.

Financial Accounts

✓ Close all joint checking & savings accounts as soon as all outstanding checks and automatic payments have cleared the bank

✓ Open new checking & savings accounts

✓ Update automatic payments taken from your accounts with new account information

✓ Change named beneficiaries of retirement accounts & life insurance policies

✓ Create new Estate Plan (Will, Trust, Health Care Surrogate/Agent, Living Will & Power of Attorney)

✓ Ensure all prior Powers’ of Attorney are revoked in writing

✓ If Qualified Domestic Relations Order (QDRO) is required by your Permanent Orders, follow-up with your attorney and the Plan Administrator to ensure they are notified of the divorce and the QDRO is completed. Some plans have time restrictions that need to be followed.

✓ If there is to be a transfer of IRA funds the receiving spouse must open a qualified IRA to receive the funds and the distributing spouse must notify the financial institution to initiate the transfer

✓ Close all joint credit card accounts

✓ Change all passwords for online account access

✓ Request a final bill from your legal counsel and ensure it is paid

✓ Obtain a copy of your credit report 30 days after the final judgment to ensure that all joint accounts have been closed

✓ Close joint safe-deposit boxes & open new one in individual name

Insurance

✓ Secure COBRA or other health insurance / notify employer of divorce if health insurance provided through employer

✓ Update auto, home owner & flood insurance records / secure new insurance

✓ Change beneficiaries on all life insurance, disability or other insurance policies

✓ Obtain necessary term life policies if required by your Separation Agreement or Permanent Orders

Property & Asset Records

✓ Sign documents to retitle cars, campers, boats, planes and other vehicles into individual names and file new title with DMV or other agency

✓ Begin looking into refinancing any assets as required by your Permanent Orders or Separation Agreement

✓ Record deeds transferring title to real property

✓ Notify utility companies if new name on account

✓ Ensure any funds held in escrow are transferred or returned (security deposits on rental property, utility deposits)

✓ Notify the Post Office of change of address and mail forwarding

✓ Arrange for the transfer of any personal property that must be distributed as soon as possible

Parenting Issues

✓ Update school records with name and address of both parents

✓ Update medical records with name and address of both parents

✓ Sign up for Our Family Wizard (http://www.ourfamilywizard.com/ofw/), or Talking Parents (http://www.talkingparents.com) or other program to manage parenting contact, children’s schedules, medical reimbursement payments, etc.

✓ Set up direct deposit or Income Withholding Order for child support. Complete papers from the Family Support Registry and return them in order to open the required Registry accounts for child support

✓ If supervised parenting time is ordered, make sure all paperwork for the chosen supervision facility/person is completed in a timely manner and returned

Name Change

✓ Update Social Security Administration

✓ Update driver’s license & auto registration with DMV

✓ Update bank and credit card records

✓ Update employment records

✓ Update insurance records (health, life, disability, auto, homeowners)

✓ Update IRS records

Professional licenses

✓ Update Passport

✓ Update agencies as required for your professional license, especially when a name change is involved

Taxes

✓ Obtain IRS Publication 504, “Divorced or Separated Individuals” for information about filing status, exemptions, alimony, QDROs, etc.

✓ Change your tax withholding allowances with your employer

✓ Use the IRS withholding calculator to determine your new withholdings (http://www.irs.gov/Individuals/IRS-Withholding-Calculator)

✓ If you are receiving alimony or self-employed determine if estimated quarterly payments will be necessary.

✓ Execute IRS form 8332, Transfer of Dependency Exemption, if required under terms of the Separation Agreement or Permanent Orders

End of Life Challenges and Planning

Anelderlyyone who has gone through the passing of a loved one, be it close friend or family, knows how much an estate plan, medical directives, and having someone you trust to get you through it really means.  Many times estate planning lawyers have yet to go through the kind of sadness and hard decisions that actually face our clients. From personal experience it is one of the hardest things you have to do.

Terri Schiavo’s family court battles were a learning lesson for the entire country on what can happen when people closest to you do not agree on what should be done with your medical care.  It had people rushing to take care of things like living wills and end of life decisions. The underlying issue from Ms. Schiavo’s situation was not having the right paperwork in place, but the sadness of her family who needed to let go and who could not. That is the sadness and harsh reality for those of us who hold medical directives for friends and family. My own experience is not unique in this.

Shortly after graduating from law school I went to work with my mentor, Marshall, who was an inspiration to me. I had worked with him and his wife since 1993. They were a second family to me.  In 2004, we lost his wife unexpectedly.  Afterwards, Marshall had many thoughts about how and who he wanted to take care of his medical decisions if he could not. Part of his decision, Marshall explained to me, was that he loved his son too much to put him in that position. A fear that his son would second guess himself or harbor regrets was paramount to his decision to ask me to do this for him.  I advise all my clients to sit down and discuss in detail what they want and how they want these things to happen, and that is what we did. It is invaluable to have that discussion in the back of your mind when you are making decisions.  There were many times when I had to think back to the discussion Marshall and I had about what he wanted and what he would want me to do.

Advanced-Health-Care-DirectiveLiving Wills and medical directives can give more guidance than simply “I don’t want to be in a vegetative state.” Yes, they dictate the kind of care you want and, if you reach a persistent vegetative state, it details how long you want those measures to done.  However, a medical directive can be more than that. It can include consulting with trusted doctors and persons, give timelines, direct the kind of care you want B nursing home vs. in-home care, hospice, and many other things. As detailed and in depth a talk as you can have with the person you want to handle your affairs is vital. You have to trust the person you are appointing to be in charge of you to make the decisions you want made regardless of the difficulty of the decision.

thinkingThe decisions for Marshall were not easy. He would be in and out of the hospital in the next couple of years. When he was not able to make decisions, it fell to me.  As much as possible I discussed things with his son before deciding what to do. Inevitably there is a point where what you know your loved one wants is not what the physicians recommend. An emergency room doctor told me once to let Marshall pass.  He did not know what was ailing Marshall, but told me not to have him treated or diagnosed. There was a terrible conflict within me about this advice.

In the end, it was the living will which helped me most. All medical directives are somewhat flexible and you can add in additional information much of the time. The one thing that Marshall added to his was to speak to a certain doctor he trusted.  In the end Marshall was treated and eventually brought home to hospice care. However, that one directive stating to consult his doctor was the saving grace of the evening. It also allowed me to share the burden with someone who was not “in the middle” of things. I encourage all clients to add details such as that to any medical directives they have drawn up.

What I had to do was step back and look at what my heart said and what Marshall had told me he wanted. The biggest question everyone has to face is, “Am I doing this for myself or for my friend/father/mother/etc.”?  The discussion we had years before was helpful in determining what should be done. Marshall did not want to pass in a hospital and he did not want to be kept alive with no hope of regaining his life.  When he did pass he was at home surrounded by his son, family, and me.

hands-medHome hospice and hospice care in general is a blessing to families going through the end of life with loved ones. The care and consideration for the patient and those who love them is phenomenal.  Watching someone go through the end of life is overwhelming. The sadness, loss, grief, anger, and many other emotions crowd in and out of a person minute by minute.  Hospice and hospice nurses are unique in giving the patient comfort and dignity in their last days which also comforts their loved ones. It gives everyone a chance to say good-bye and express their love.

The person you ask to make these decisions for you is someone you have to trust absolutely. Talking to them about your expectations and desires should not be avoided.  If you trust them to make your decisions, you have to communicate to them what you want that to look like. That person is taking on what can sometimes be overwhelming decisions.  They have to be strong enough to make the right decisions for you and follow your directions and desires. Having medical directives in place which detail your desires assists doctors in treating you and in advising your designated agent.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com