Understanding How the Legal System Works
The legal system is governed by a common set of behaviors and rules of conduct. As individuals, we all have rights and the right to representation. In all instances, there are various legal assistants available to help us navigate the legal system; however, depending on the crime and its severity, we may not qualify for appointed counsel.
Public defenders are assigned to individuals who cannot afford the price of a defense attorney. For misdemeanor offenses, if you are not willing to plead guilty, you will be provided with a public defender. Public defenders carry anywhere from 25 to upwards of 100 cases at one time. Many times those public defenders will advise you to accept a plea deal. While your public defender may be an excellent lawyer, he or she usually does not have the time to adequately build your defense case . When charged with a serious felony, this can be a recipe for disaster.
Legal aid societies serve the same purpose as public defenders. They are there to help if you can’t afford an attorney. Legal aid lawyers are fully licensed attorneys who agree to work solely in the public interest for less than his or her normal hourly price.
While a legal-aid lawyer may be willing to fight the good fight for you, it is still in your best interest to hire a private attorney. The fees for private attorneys vary. The complexity of the crime and the attorney’s experience typically determines the fee range. Expect to pay anywhere from $1,500 on up for most misdemeanors and $4,000 and up for felony cases.
Legal Rights 101
If you have been stopped and arrested for drunk driving you should at least have some awareness of your basic rights and legal protections. You have the right to a fair trial, the right to protection against self-incrimination and the right to privacy. These fundamental rights apply to everyone in all walks of life. Even in everyday situations it is important to understand your basic rights. You may not know this, but it is illegal for a police officer to ask you for identification when driving a car or walking down the street. If you are not being detained, then the officer is not permitted to demand that you identify yourself or show your driver’s license. Of course, when asked a simple question you should always tell the truth. There is nothing wrong with simply identifying yourself when curious citizens in the neighborhood see you walking alone at night. But you are not required to show your identification to anyone unless you are moving involved in a motor vehicle or you have been arrested. Asking for identification on the street is simply a way to invade a person’s privacy. The stop and arrest of innocent citizens not engaged in any illegal conduct is a violation of a person’s privacy under the law. Obviously, when you are arrested for drunk driving you probably expect to be forced to identify yourself and answer questions, because you are being detained. But, there are no legal duties to respond to questions and provide sworn testimony during a traffic stop or detention. Even if you are arrested for drunk driving and the police officer asks for your name, your address and possibly asks you some questions, you are not required to respond. You may politely refuse to provide identification to a police officer upon request, unless he advises you that you are being detained and questioned about a potential crime. However, there is an exception to this rule. Should you be pulled over while the officer observes the smell of fresh alcohol coming from your vehicle, questions are fair game under New Jersey criminal law. If the smell of alcohol is fresh, it is reasonable to conclude that the driver is intoxicated. The police officer is therefore entitled to ask if the driver has had a drink, when the driver had a drink, where the drunk was consumed and whether the driver can produce a road sobriety test. You are not required to answer any of the above questions. In fact, answering any questions regarding the consumption of alcohol can be detrimental to your case. Almost every statement taken in a criminal investigation can be used against you in court, make no mistake about it. Another aspect of a routine drunk driving arrest is that the police officer is required to read specific criminal rights to the arrested party. First, police officers are required to provide a printed Form 298, which is also called a Miranda Rights Form. This piece of paper, partially titled, "Rights for Statutory Refusal" informs you of your following legal rights: • The right to be informed of your constitutional and statutory rights. • The right to request help from a relative or attorney. • The right to obtain an attorney upon request. • The right to have an attorney present when giving a breath sample. • The right to have a relative present while giving a breath sample. • The right to be informed of your right to refuse to provide a breath sample. • The right to refuse to provide any responses to police questioning. • The right to have your request to speak with an attorney or request for an attorney honored before providing any responses to police questioning. • The right to have your request to speak with a relative honored before providing any responses to police questioning. • The right to have your request to make a telephone call to reach an attorney or relative honored before providing any responses to police questioning. Many police officers fail to order a breath sample due to vagueness of the application of the implied consent law. The New Jersey Supreme Court even called the statute unconstitutionally vague. That is essentially why the police officer may not legally demand a breath sample. At the hospital, or a place where you are being held, the police officer may be entitled to ask that you submit to testing by blowing into a breathalyzer. Of course, you are required to submit to a breath test at the precinct or the police barracks. The breath test is generally offered on the state’s Alcotest machine. Either way, you are asked to submit to an analysis of your blood alcohol content.
Obligations Under Contracts
Contracts are the backbone of most commercial and many legal relationships. However, frequently people do not understand or have a misperception of what a contract truly is. Contracts do not need to be in writing, Contracts can be verbal, Contracts can be implied by law, Contracts can be in electronic form, or otherwise. The mere fact that two people or entities agree on something, does not make it a contract. So, what elements are required to create a contract?
First, there must be an offer. Second, the offer must be accepted. Third, there must be consideration. The fourth element is that there must be legal capacity.
Typically, when an attorney drafts a contract for you he or she will request basic information to help him or her determine what elements are needed to create the contract. For instance, your attorney will typically inquire as to whether money is going to be exchanged, if one party takes an action and the other party pays for that action, then most likely there is consideration for a contract. Generally, consideration is the exchange of money and services between parties. The next question is what are the terms of the contract, what is the contract going to be used for?
The easiest contract to break is a verbal contract. When you have a verbal contract you have to prove that there was an offer, acceptance, consideration and capacity. With a verbal contract, once the phone call ends or you hang up with your potential co-contractor, unless you have it recorded and memorialized, it will be very hard to prove what actually took place. The other type of contract that is easily broken is an implied contract. A verbal contract can be considered implied if the person has a reasonable expectation the deal is done. Implied contracts are assuming that the deal was done based on an action between the parties. Also, if someone has a habit of dealing with you in a certain way and you don’t say anything that would contradict it, it can be assumed you have a contract of that manner.
Next, a written contract is generally harder to be broken but is not as ironclad as people think. Just because it is written down, does not mean it will be enforceable. This is why you must read the fine print in the contract, you must read every word. When people have issues with contracts, it is usually because they didn’t review the fine print or didn’t read the entire contract. Common issues also include typing errors, invalid factual scenarios, an incomplete date, and incorrect addresses among other issues. The best way to deal with a contract is to read it as the attorney presents it to you and immediately go through it and make notes. If you have questions, put a question mark in the margin or next to the paragraph at issue and then look at it later.
Another good practice is once the contract is completely drafted and executed, highlight only the areas you want to highlight. That way, if you are ever in a situation where someone might say you known something that you didn’t necessarily look out for or maybe weren’t aware of, you can say that you don’t believe you saw that part in the contract, or you weren’t aware of it and you did not highlight it for a reason.
Family Matters in Legal Terms
Family law cases vary considerably in complexity based on the issues at hand. A divorce where the parties have no children and no significant assets and liabilities, is typically a straightforward uncontested proceeding. However, once children are brought into the mix and one or more contested issues arises, the case can become complicated very quickly. Parents will often try to resolve their issues amicably while opposing counsel may not be as conciliatory, thus adding a layer of tension to the discussions.
Contested issues can be anything from where the children are to attend school to who is going to pay for their medical expenses. The disposition will appear in a final judgment as a specific provision and will have a significant impact on everyone involved, including the children.
If your children are involved in a family law matter, you will have heard too much about parenting time, child support, and sole vs. joint legal custody. For the parents, the single most important thing you can do is to not bad mouth the children’s other parent to them. It can be devastating and will be used against you in court.
Child support is a straight forward calculation within specific parameters with no negotiation. A non-custodial parent who earns $30,000 gross, with one child, will pay $1,055 in child support at the time of this writing. This amount will go up if support is due for additional children and may reduce if the number of children drops. If your child is under age 12 and needs to be placed in a childcare facility while you are working, you may be entitled to an offset. The federal government subsidizes child-care for working parents so that more jobs will be created. The offset can be substantial depending on the amount of time your child is in day care and the income of the parents.
When parties are unable to agree on a schedule for the children after separation, the law provides a default (parenting plan) which is a 17 day on/11 day off cycle favored by the courts in New Jersey. Imagine how challenging it will be to divide holidays, then. The holiday schedule favors the parent who celebrates the particular holiday. The attorney is not seeking to limit the parties’ options; however, if there is no agreement reached to establish a routine schedule, the courts will establish one for you based on the rule in New Jersey.
Divorce and family law cases typically contain an element of urgency. Domestic violence matters can make for fast tracked proceedings, as can post-judgement relief if an ex-spouse has failed to pay child or alimony support. There is no waiting period once the attorney files the motion with the court. That is the only real certainty regarding the timing of proceedings. As a result, it is in your best interest to engage an attorney quickly after deciding to seek representation.
Workplace Laws and Regulations
In the complex world of hiring, firing, and everyday employee relations, understanding the basic legalities at play is crucial for both employers and employees. From workplace discrimination to employment contracts, and even the rights associated with wrongful termination, an understanding of the law can provide peace of mind and inform better practices.
Workplace Discrimination
Discrimination in the workplace can take many forms – from subtle favoritism to outright inequity. It typically takes place in three core areas: hiring, employment terms, and terminating employment. Specifically, "protected classes" are covered in all stages of employment, where each state has a list that they consider protected classes. Federal laws also cover discrimination of the following "protected classes":
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, or national origin.
Employment Contracts
Depending on the industry, you may be asked to sign a traditional employment contract. This contract will typically outline all of the major duties, responsibilities, benefits, and payments the employer is entitled to from the employee . Contracts generally exist in three types: An employment lawyer in your area will have all the answers to your questions about what your contract should include. Further, an attorney can help you negotiate aspects of the contract that you may be uncomfortable with, or that exceed or conflict with the laws of your state.
Wrongful Termination Rights
The legal reasons for firing an employee are just as important for the employee to know as the employer. While some states do not allow an employee to sue their employer for wrongful termination, as long as an employee isn’t in a state where they cannot file such a lawsuit, and the reason for termination falls outside of the employee’s protected class, the employee has the right to sue their employer. There are also exceptions to "at will employment," allowing employees to sue their employer. One of these exceptions includes employment situations where the employee expects the employer to follow their policy manual, and the termination violates that policy. Another example involves statements made by the employer in anticipation that the employee will rely on those statements; when the employee is wrongly terminated after relying on those statements, they may have the right to sue.
Land and Property Law
Property and Real Estate Issues – From buying and selling commercial and residential real estate to purchasing or leasing land, we can help through the entire transaction. We are experienced in the law of landlord/tenant relationships, commercial leases, employment agreements, construction and mechanic’s lien issues, and easements. Real estate documents should be written correctly, and the best way to ensure this is to have them drafted by a lawyer. Simple contracts like lease forms are generic; an attorney can help to customize them to the specific needs of the parties. Attorney representation will also help clients determine and protect their interests in the event of a dispute in any of these areas. While the purchase or sale of real estate may seem straightforward, problems can arise when the deal doesn’t go as planned. If your sale does not close as expected, your earnest money deposit could be at risk; if you can’t meet the terms of a purchase agreement, you may be able to cancel the contract without a loss. Real estate transactions require guidance from a qualified attorney who is familiar with all aspects of real estate law. Zoning issues are constantly changing and problematic if they are an unexpected surprise. For example, the current statewide moratorium on zoning changes related to high capacity wells is affecting well over 140 towns and villages in Barron and Washburn counties. Any change in local zoning laws or ordinances requires proper notification and publication procedures be followed to be valid.
Legalities Regarding Purchases
Consumers have a right to be free from false and misleading claims by businesses. The Federal Trade Commission (FTC) enforces federal protection and deceptive advertising laws, and certain state consumer protection laws are enforced by state attorneys general and other agencies. If you believe you have fallen victim to illegal activities or practices, you should contact your state attorney general.
The Fair Credit Reporting Act (FCRA) requires consumer reporting agencies to adopt and follow reasonable procedures for the accuracy and confidentiality of information in its consumer reports. Consumers have the right to receive a copy of their consumer report within a reasonable time after they file an application for it or feel they have been affected by a credit report decision. Not all background reporting agencies will comply with these provisions. A consumer can ask a reviewing agency for copies of what was reported to them about their credit. Most states allow consumers to request their free copy of their credit report once a year.
If you ever feel that your privacy may have been invaded, rules are placed on companies that deal with the Personal Information of consumers. They must establish a comprehensive written information security program, and the FTC has determined that reasonable measures need to be taken. If any of these companies violate the Privacy Rule and you are harmed or suffer damages, then you may be able to sue.
Criminal Law 101
The majority of criminal offenses in Utah are charged as either misdemeanors or felonies. Misdemeanors are less serious offenses, usually resulting in less harsh penalties. A misdemeanor may be result in up to one year in county jail and/or up to $2,500 in fines. On the other hand, felonies are more serious. A felony can result in several years in prison and thousands of dollars in fines.
Simply stated, a misdemeanor is a lesser criminal offense. Misdemeanors usually call for little or no prison time but may involve jail time. An example of a misdemeanor criminal offense includes driving under the influence of drugs or alcohol (DUI). A DUI can result in up to six months jail time and a $1,500 fine.
A felony is a more serious crime that usually results in a lengthy prison sentence and higher fines. A felony can result in up to 15 years prison time and a $10,000 fine. A felony is far more serious than a misdemeanor and has a far more serious impact on a person’s life and freedom. An example of a felony criminal offense includes robbery, rape, murder, etc.
They are a threshold of sorts. To be charged with a crime a prosecutor must first have the evidence they need to the level of "beyond a reasonable doubt." A prosecutor must have sufficient evidence against the defendant to charge them with a crime. This level of "proof" is higher and more difficult level of evidence than that found in a civil case. It is what is known as the "reasonable doubt" level of evidence . This requires a prosecutor to thoroughly investigate the alleged offense and available evidence before charging a defendant.
Prior to formally charging you with crime through a criminal complaint, law enforcement or a hired private investigator will gather evidence that adequately proves you committed a crime. The prosecutor will review their findings, determine at what level to charge you, and then decide whether or not to go forth with the criminal case. If the prosecutor decides to move forward with the case then they will file a criminal complaint.
Constitutionally and legally, once you are charged and arrested for a crime the law states that you are presumed innocent until proven guilty. It is the duty of the prosecutor to prove they have evidence that shows you are guilty beyond a reasonable doubt. As a rule, the burden of proof is always on the prosecution in a criminal case, not the defendant.
As a defendant you can expect that the prosecutor will produce witnesses to testify against you, and the defense will be required to produce evidence and witnesses to testify on your behalf. You can also expect that the prosecution will provide evidence against you and that your defense attorney will present a defense to that evidence.
You can expect that there will be a lot of evidence provided and testimony heard. You will be questioned and cross examined harshly. You will be expected to abide by strict court rules and procedures and you will be held responsible for violating such rules and procedure.