Saturday, November 27, 2010

Boise Divorce Attorney Discusses Collaborative Divorce

As a Boise Divorce Attorney I have many people asking me about the benefits of collaborative divorce. While the idea of a collaborative divorce is appealing, is it really anything new?

Many divorce attorneys seeking to find their "niche" will tell you that this is the new, kinder and gentler divorce. Frankly, I don't see this as anything new. As a Boise Divorce Attorney who has practiced law for 17 years I can tell you that I have seen cases where people naturally get along better than others. It is in a situation like this where a collaborative divorce may "work".

The International Academy of Collaborative Divorce Professionals put forth a set of criteria to determine whether or not you might be a candidate for collaborative divorce. They consist of things like respect, placing your children first and self control. Divorce tends to be a highly emotional time. People who are in a divorce situation generally no longer get along, hence the need for the divorce in the first place. There are, however, those individuals who divorce and still get along, who still see each other regularly and who are still friends. This, however, is not the norm. For most people who are seeking a divorce, collaboration does not work because there is too much conflict.

I do not believe that the idea of a collaborative divorce is a bad thing, but I do not believe that is anything new. If you and your soon to be ex still get along you may be a candidate for collaborative divorce. If, on the contrary, you are like most people seeking a divorce collaboration is not a practical solution.

If you need more information concerning divorce please visit or

Sunday, November 21, 2010

Idaho Criminal Attorney Discusses Idaho Rape Statute Which Allowed Two Men to Go Free

Rape law in Idaho is governed by Idaho Code 18-6101. That statute, however, was unable to protect a woman who had been tricked into believing that she was having intercourse with her boyfriend.

On July 21, 2010 the victim, who had been drinking to the point of vomiting, was escorted to a bedroom by two men whom she had never met. The woman then proceeded to have intercourse from behind with her boyfriend. At some point later, the woman was approached again from behind and, thinking it was her boyfriend, began to have intercourse with the man. After a few moments she became suspicious and questioned whether the man having sexual relations with her was her boyfriend. She jumped up and turned on the light and discovered that the man was not her boyfriend.

The question is, was the woman raped? The Idaho rape law would protect the woman if she was so drunk that she could not give her consent or that her consent was invalid because she was drunk. The victim, however, never made any allegation that she was too drunk to consent. The victim did in fact consent but she thought she was consenting to her boyfriend.

Is there a rape law that protects against trickery? Yes, Idaho Code 18-6101(7). It says that, "Rape is defined as the penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female… where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.

This code section, however, could not protect the victim because she did not in fact think that the person she was having intercourse with was her husband, she thought that he was her boyfriend. The two men were not convicted of the crime of rape because of that technicality.

As an Idaho Criminal Attorney I can tell you that the Idaho Rape Statute has this and many other "holes" that allow for innocence based upon a technicality. For example, even though the Idaho Code says, "The essential guilt of rape consists in the outrage to the person and feelings of the female... and any sexual penetration, however slight, is sufficient to complete the crime" (ID Code 18-6103), it truly is not subjective like it purports to be. The Idaho Code defines rape as penetration by a penis. If the guilt of the crime is supposed to be subjective, as 18-6103 says it is, then having an object forced into a woman's vagina, mouth or anus should also be rape, if the victim feels that this violation is rape, but that, sadly, is not the case in Idaho. A woman can only be considered having been raped if a penis is used.

This Idaho Criminal Attorney thinks that these loop holes in the Idaho Rape Statute need to be fixed in order to protect and preserve the dignity of women and to prevent further injustice.

For more information about Idaho Criminal Law visit or call Kershisnik Law at (208) 472-2383 to speak with Idaho Criminal Attorney Pat Kershisnik about Idaho Criminal Law and crimes in Idaho.

Monday, November 15, 2010

DUI Alcohol and/or Drugs

The DUI used to be known as a DWI, but it was changed because you can be charged with driving under the influence of drugs. Although DWI also pertained to driving under the influence of drugs, it literally meant driving while intoxicated.

As an Idaho Criminal Attorney I often hear from people who are confused about this fact. They will get pulled over and sited with a DUI when they hadn't been drinking. Upon further questioning, they often will admit that they were under the influence of drugs.

Idaho Code 18-8004 states that it is unlawful for someone under the influence of alcohol, drugs or any other intoxicating substance to operate a motor vehicle. Even if your blood alcohol level is below .08 you can be cited with a DUI if you have drugs in your system.

If you have been charged with drunk driving or drugged driving or for more information about DUI and drug charges visit or

Thursday, November 11, 2010

Idaho Criminal Attorney Discusses DUI Traffic Stop

Many people don't know what constitutes probable cause for a DUI traffic stop. As and Idaho criminal attorney I hear the statement, "the police had no reason to pull me over" all the time. Whether the the police can pull you over or not depends upon reasonable cause. The police must have reasonable suspicion based upon their own actual observation of a person's questionable or unusual behavior to make a traffic stop for DUI.

I have seen an Idaho criminal attorney or two try to argue that swerving within your lane, for example, is not probable cause as long as you don't cross the dotted lines because that is not a crime in Idaho, but this Idaho criminal attorney believes that trying your case based solely upon that as a defense is a sure way to lose. The police are trained and know the tell tale signs of drunk driving. That is not to say, however, that the police cannot be mistaken. If, for instance, you have a medical condition or you lost your shoe while driving, you may have swerved within your lane, but that does not change the fact that the police observed unusual driving behavior. This first stop sets the stage for the police to further determine whether or not you are a candidate for a DUI. The question to challenge the initial stop has to be did the police have probable cause? If they stop you, don't smell alcohol on your breath and find that you pass field sobriety tests, then you are free to go and no constitutional right has been violated.

There are many ways to challenge a DUI but unless you did absolutely nothing and you can show that, the police are trained to give the information they need to to show that they had probable cause for the initial traffic stop.

For more information concerning DUI in Idaho please visit, or

Tuesday, November 9, 2010

Child Custody and National Guard Service

As a Boise Divorce attorney I often advise clients about the criteria laid out in the Idaho Code as to how child custody in Idaho is determined and when and how it can be modified. A modification can be sought when there is a permanent and substantial material change in circumstance. An interesting exception to this modification rule exists and pertains to active members of the Idaho National Guard and military reservists.

The exception is this: When an active member of the Idaho National Guard is called to duty or when a military reservist is ordered to active federal service, this does not constitute a substantial or material and permanent change in circumstance. In other words, this is not a basis upon which to seek a modification of a child custody decree, either in terms of physical custody or visitation.

For information regarding divorce, child custody, modification and visitation in Idaho, please visit or

Sunday, November 7, 2010

Boise Divorce Attorney Discusses Child Custody and Father's Rights

As a Boise Divorce Attorney I have seen Child Custody change over the years. When I began to practice there was a definite preference for moms being the custodial parents. The premise was that women are more nurturing and "loving" because they are women. While there haven't been huge leaps away from this concept the idea that children can and do fare well with their fathers as custodial parents has moved to the forefront. Some Idaho judges actually use the Idaho Code criteria for placement of children and consider factors like stability as being a separate issue from the gender of the parent.

As a Boise Divorce Attorney I have seen this result in primary physical custody being placed with fathers rather than mothers. This, however, isn't the norm. If you have a mom who is really out there: a mom who does drugs or parties too hard and a dad who is mellow and law abiding and responsible you might end up with that dad as the custodial parent.

The general trend, however, still places young children with moms as the primary physical custodian. As the child gets older and begins school, this child custody arrangement often changes to shared physical custody as long as there is a fairly close proximity of the parents' households.

If you need more information about child custody from a Boise Divorce attorney please visit, or

Wednesday, November 3, 2010

Boise Divorce Attorney Discusses Divorce in Boise

As a Boise divorce attorney I can tell you that there is a difference in a divorce in Boise and a divorce elsewhere in the state. You would think that because Idaho divorce law is the same throughout the state that the results and the process would be the same. But, it is not.

A Boise divorce takes considerably longer than in any other county in the state. This simply has to do with the amount of people in Ada County. A divorce in Canyon County, however, takes on average only 58 days to complete. A Boise divorce takes closer to 9 months.

Other issues that vary are child custody determinations. Child custody in Boise is a different animal than child custody in Canyon County. Canyon county judges rely on home studies to help them make child custody determinations, whereas Ada County judges do not.

Property valuations also vary county by county. Some judges will allow bankruptcy values or tax assessment values as credible evidence. In general in a Boise divorce, you will not get the same acceptance of that evidence.

Who qualifies as an expert also varies throughout the state. Some counties will allow expert testimony from those whom this Boise Divorce Attorney considers less than expert. Other counties require actual expert credentials.

While some of these issues can be chalked up to different judges' personalities, not all differences are because of that. Local rules often dictate how evidence is allowed in and what evidence will be heard and what time frames things will be done in.

As a Boise divorce attorney I would say it is not necessarily that one county is better than another, but there are differences that effect the outcome of a divorce in Boise vs the outcome of a divorce in Canyon County.

For more information on divorce in Idaho visit or

Monday, November 1, 2010

Idaho Criminal Attorney - DUI Challenges - Breathalyzer Accuracy

According to David J. Hanson, Ph.D, 23% of those people who take a breathalyzer test end up with inaccurate results. Not only are the test results inaccurate but the Blood Alcohol Concentration register about 15% higher than they actually are.

What does this mean for someone charged with a DUI? As an Idaho Criminal Attorney I can tell you it can mean a huge difference. If you are at that fine line just below or just above legally drunk (BAC of .08 or greater) it can mean the difference between a DUI and a inattentive or reckless driving charge. If you are at that line between an excessive DUI (BAC of .20 or higher) and a standard DUI it can make the difference between prison and jail, not to mention much longer license suspensions and greater fine amount.

So how do you challenge a breathalyzer? There are many arguments that can be made depending upon the evidence in the possession of the police and the prosecutor. Some challenges require an expert. The example I gave above about inaccurate results would require an expert to testify about the validity of breathalyzer results. Some examples of successful challenges of the evidence that I have made as an Idaho Criminal Attorney challenging DUI charges against my clients are:
- The breathalyzer was not properly maintained; failure to calibrate or clean
- The police administered the test incorrectly; failure to warm up machine
- The officer was improperly trained or qualified
- The result was affected by a characteristic of the driver such as asthma,
burping, hyperventilation
- The test was administered after the driver used mouthwash, a strong breath mint or used lip balm or oil
- The driver was in the presence of paint, gasoline, varnish or other strong fumes

This evidence won't necessarily relieve you of your DUI charge or subsequent conviction. This is because the police use more evidence than just the breathalyzer to evaluate whether you have been driving under the influence. Field sobriety tests, for example, are supposed to be the criteria which the police use to determine if they need to administer a breathalyzer test. These types of challenges, however, can be useful in lessening the extent of the penalty and potentially the charge against you.

For more information concerning DUI, driving under the influence, please visit