As a Boise DUI Lawyer I feel one of the saddest parts of my job is when someone is charged with aggravated driving under the influence. This is a difficult charge because what it means is that someone was driving under the influence of alcohol, drugs or other intoxicating substance and caused great bodily harm, permanent disability or permanent disfigurement to another.
The penalty for aggravated driving under the influence is very serious. This is a felony charge. You can be sentenced to prison for up to 15 years and ordered to pay a fine of up to $5,000. In addition, you will lose your license, beginning upon your release, for up to five years. You will also be ordered to pay restitution.
If that weren't enough, Idaho law allows any evidence of your conviction to be used in a civil proceeding against you. A "conviction" for the purposes of this code section not only includes if you are found guilty but if you plea or get a withheld judgment.
If you need to speak to a Boise DUI Lawyer call or an Idaho Criminal Attorney, (208) 472-2383 or visit us on the web at www.lawboiseid.com or www.duiboiseid.com
Showing posts with label Idaho Criminal Attorney. Show all posts
Showing posts with label Idaho Criminal Attorney. Show all posts
Saturday, January 22, 2011
Monday, January 17, 2011
Abandonment and Non-Support is a Crime in Idaho
Both as a Boise Divorce Attorney and an Idaho Criminal Attorney I often am asked what can be done when a parent abandons his or her children. Abandonment of a child under 18 years of age is a crime in Idaho. What exactly constitutes abandonment in Idaho?
Idaho Code 18-401 states that abandonment is when one intentionally and willfully fails to provide a child with the necessary food, clothing, shelter or medical care. Abandonment is a felony and is punishable by up to a $500 fine or up to 14 years in prison or both.
Although it is a crime in Idaho it is not regularly pursued. People often feel that if a parent fails to have anything to do with the child then it is better for them to be out of their life anyway. It is also often the case that the abandoning party claims that the other parent prevented them from having contact with their child.
To pursue a case of abandonment it would be important to provide evidence showing that the other parent was not prevented from making contact and that no support was offered.
This code section also applies to abandonment and non-support of your spouse. If you intentionally and willfully leave your spouse in a destitute condition, when you yourself have the means to support yourself and your spouse or if you willfully refuse or neglect to provide your spouse with the necessary food, clothing, shelter or medical care you can be found to have abandoned your spouse or found to have failed to support them. Unlike abandonment of a child, this particular form of abandonment is dependent upon the spouse's behavior. You can be justified in abandoning your spouse if your spouse's misconduct forces you or warrants such behavior.
If you need to speak to a Boise Divorce Attorney or an Idaho Criminal Attorney call (208) 472-2383 or visit www.lawboiseid.com or www.divorceboiseid.com
Idaho Code 18-401 states that abandonment is when one intentionally and willfully fails to provide a child with the necessary food, clothing, shelter or medical care. Abandonment is a felony and is punishable by up to a $500 fine or up to 14 years in prison or both.
Although it is a crime in Idaho it is not regularly pursued. People often feel that if a parent fails to have anything to do with the child then it is better for them to be out of their life anyway. It is also often the case that the abandoning party claims that the other parent prevented them from having contact with their child.
To pursue a case of abandonment it would be important to provide evidence showing that the other parent was not prevented from making contact and that no support was offered.
This code section also applies to abandonment and non-support of your spouse. If you intentionally and willfully leave your spouse in a destitute condition, when you yourself have the means to support yourself and your spouse or if you willfully refuse or neglect to provide your spouse with the necessary food, clothing, shelter or medical care you can be found to have abandoned your spouse or found to have failed to support them. Unlike abandonment of a child, this particular form of abandonment is dependent upon the spouse's behavior. You can be justified in abandoning your spouse if your spouse's misconduct forces you or warrants such behavior.
If you need to speak to a Boise Divorce Attorney or an Idaho Criminal Attorney call (208) 472-2383 or visit www.lawboiseid.com or www.divorceboiseid.com
Wednesday, December 22, 2010
Boise DUI Lawyer Talks About DUI Statistics
As a Boise DUI Lawyer I have spoken frequently about the increase in the number of DUI arrests around the holidays. Interestingly in today's Idaho Statesman, there was an article outlining the numbers for Idaho DUI arrests, crashes and fatalities. In addition, the article discussed the increase in the number of excessive DUI arrests. An excessive DUI is when the BAC of the individual is .20 or higher.
The statistics showed that the number of arrests for driving under the influence in Idaho have increased and the crashes and fatalities have decreased. In 2005 Boise Police and Idaho State Police arrested 9,072 people in Idaho for driving under the influence. There were 1,952 DUI crashes that year and 100 fatalities. By 2009 the number of DUI arrests had increased to 12,327. The number of crashes associated with driving under the influence decreased to 1,567 and the death rate decreased to 65.
While those number represent a decrease in accidents and deaths and an increase in arrests, something disturbing is on the rise. The statistics show that Boise Police and Idaho State Police are steadily increasing the number of individuals they arrest for excessive DUI. Boise Police and Idaho State Police arrested 279 individuals and cited them for excessive DUI in 2006 in Ada County. That number has increased to 384 to date and there are still two weeks of the year left.
As a Boise DUI Lawyer I walk that fine line of excessive DUI with my clients, particularly when they have blown barely a .20. The penalty for excessive DUI is so much greater than a regular driving under the influence charge. While I never condone drinking and driving, it is my responsibility as an Idaho Criminal Attorney to preserve an individual's rights. Because the statistics show that the calibration of breathylzers are not 100% accurate there is always that possibility that an individual arrested for excessive DUI may not have actually had .20 BAC. As a Idaho Criminal Attorney, I would not recommend that you not blow when you are pulled over, but when someone is so close to an excessive DUI a blood draw would give a more accurate BAC. As a Boise DUI Lawyer, I recommend that every excessive DUI charge be challenged at the very minimum on a calibration technicality. I want to stress again, however, that I am in no way advocating driving under the influence. My suggestion to challenge the excessive DUI comes from my role as a defender of your rights. My role as a Boise DUI Lawyer and an Idaho Criminal Attorney is to represent my clients in such a way that they are not convicted of a crime by false evidence or an illegal violation of their rights.
For more information concerning DUI in Idaho visit www.lawboiseid.com or call (208) 472-2383.
The statistics showed that the number of arrests for driving under the influence in Idaho have increased and the crashes and fatalities have decreased. In 2005 Boise Police and Idaho State Police arrested 9,072 people in Idaho for driving under the influence. There were 1,952 DUI crashes that year and 100 fatalities. By 2009 the number of DUI arrests had increased to 12,327. The number of crashes associated with driving under the influence decreased to 1,567 and the death rate decreased to 65.
While those number represent a decrease in accidents and deaths and an increase in arrests, something disturbing is on the rise. The statistics show that Boise Police and Idaho State Police are steadily increasing the number of individuals they arrest for excessive DUI. Boise Police and Idaho State Police arrested 279 individuals and cited them for excessive DUI in 2006 in Ada County. That number has increased to 384 to date and there are still two weeks of the year left.
As a Boise DUI Lawyer I walk that fine line of excessive DUI with my clients, particularly when they have blown barely a .20. The penalty for excessive DUI is so much greater than a regular driving under the influence charge. While I never condone drinking and driving, it is my responsibility as an Idaho Criminal Attorney to preserve an individual's rights. Because the statistics show that the calibration of breathylzers are not 100% accurate there is always that possibility that an individual arrested for excessive DUI may not have actually had .20 BAC. As a Idaho Criminal Attorney, I would not recommend that you not blow when you are pulled over, but when someone is so close to an excessive DUI a blood draw would give a more accurate BAC. As a Boise DUI Lawyer, I recommend that every excessive DUI charge be challenged at the very minimum on a calibration technicality. I want to stress again, however, that I am in no way advocating driving under the influence. My suggestion to challenge the excessive DUI comes from my role as a defender of your rights. My role as a Boise DUI Lawyer and an Idaho Criminal Attorney is to represent my clients in such a way that they are not convicted of a crime by false evidence or an illegal violation of their rights.
For more information concerning DUI in Idaho visit www.lawboiseid.com or call (208) 472-2383.
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 www.lawboiseid.com or call Kershisnik Law at (208) 472-2383 to speak with Idaho Criminal Attorney Pat Kershisnik about Idaho Criminal Law and crimes in Idaho.
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 www.lawboiseid.com 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 www.lawboiseid.com or www.duiboiseid.com
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 www.lawboiseid.com or www.duiboiseid.com
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, www.duiboiseid.com or www.lawboiseid.com
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, www.duiboiseid.com or www.lawboiseid.com
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 www.lawboiseid.com
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 www.lawboiseid.com
Thursday, October 21, 2010
Idaho Criminal Attorney Discusses DUI
Years and years ago just after prohibition had been repealed a new product came out onto the market. It was known as Geritol. Geritol promised a new vibrancy for beleaguered housewives and those frazzled business men; more energy, more stamina, more gusto. While some called it "snake oil", Geritol was so popular because those people who used it knew it worked. Well it turns out that the original Geritol did work. It worked so well because it contained alcohol so, yes indeed, those aggravated souls were more relaxed and depending upon how much they used, they lost their inhibitions. They thought it was harmless. They thought it was medicinal.
As an Idaho Criminal Attorney I can tell you that in criminal law cases today we are witnessing many similarities to Geritol use which is rapidly turning into everyone's nightmare; DUI. The Mojito or the glass of red wine is the modern day Geritol. We relax after work with our beverage of choice, which is fine, but many people think that that one or two Mojitos or one or two glasses of wine aren't enough to impair their driving.
Then it happens, you return from an evening of Mojitos and relaxing company with friends and you get pulled over. Now what?
DUI in Idaho carries the following penalties for a first time offense:
- Up to a $1000 fine
- Anywhere from 2 days to 6 months in jail
- up to a 180 day license suspension with 30 days of that being absolute and
with the remaining suspension being restricted
- An alcohol evaluation
- Victim's panel
- Up to 2 years probation
DUI is a serious offense. There are actually two license suspensions involved with a DUI. Your driving privileges will be suspended not only if you are convicted of a DUI (suspended by the court) but also upon your arrest (by the Department of Transportation). You have 7 days from the date of your arrest to request an administrative hearing with the Idaho Department of Transportation if you wish to challenge this license suspension. If you don't do this or if you lose at the hearing your license will be suspended for 90 days. If you are convicted of a DUI you will get an additional 90 day license suspension. In Ada and Canyon Counties the court will allow these suspensions to run concurrently. You can also petition the court for a restricted license after the first 30 days of your license suspension.
As an Idaho Criminal Attorney I see people miss this deadline all of the time. While you may not prevail (usually because of the extent of the evidence against you), why would you not want to take the option to challenge your license suspension?
Just remember, DUI can happen to anyone. Just like the Geritol took people by surprise because of its alcohol content, medicinal Mojito drinkers could get the same surprise.
For more information about DUI and Criminal Law please visit us on the web at www.lawboiseid.com
As an Idaho Criminal Attorney I can tell you that in criminal law cases today we are witnessing many similarities to Geritol use which is rapidly turning into everyone's nightmare; DUI. The Mojito or the glass of red wine is the modern day Geritol. We relax after work with our beverage of choice, which is fine, but many people think that that one or two Mojitos or one or two glasses of wine aren't enough to impair their driving.
Then it happens, you return from an evening of Mojitos and relaxing company with friends and you get pulled over. Now what?
DUI in Idaho carries the following penalties for a first time offense:
- Up to a $1000 fine
- Anywhere from 2 days to 6 months in jail
- up to a 180 day license suspension with 30 days of that being absolute and
with the remaining suspension being restricted
- An alcohol evaluation
- Victim's panel
- Up to 2 years probation
DUI is a serious offense. There are actually two license suspensions involved with a DUI. Your driving privileges will be suspended not only if you are convicted of a DUI (suspended by the court) but also upon your arrest (by the Department of Transportation). You have 7 days from the date of your arrest to request an administrative hearing with the Idaho Department of Transportation if you wish to challenge this license suspension. If you don't do this or if you lose at the hearing your license will be suspended for 90 days. If you are convicted of a DUI you will get an additional 90 day license suspension. In Ada and Canyon Counties the court will allow these suspensions to run concurrently. You can also petition the court for a restricted license after the first 30 days of your license suspension.
As an Idaho Criminal Attorney I see people miss this deadline all of the time. While you may not prevail (usually because of the extent of the evidence against you), why would you not want to take the option to challenge your license suspension?
Just remember, DUI can happen to anyone. Just like the Geritol took people by surprise because of its alcohol content, medicinal Mojito drinkers could get the same surprise.
For more information about DUI and Criminal Law please visit us on the web at www.lawboiseid.com
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