DUI penalties can be issued by both the Department of Motor Vehicles (DMV) (in the form of an Administrative License Revocation proceeding), or as court imposed sentences (or both). Court imposed sentences can include fines, jail, house arrest, probation (including required attendance at AA classes, MADD driver impact panel groups, and community service.) Court imposed sentences can also require the offender to participate in a substance abuse evaluation, revocation or impoundment of driving privileges, and/or installation of ignition interlock devices. The penalties can be enhanced for an individual with a previous DUI conviction within the last fifteen (15) years and/or based upon the blood alcohol content over .15.

Once a ticket for DUI has been issued, time becomes critical under the DMV Administrative License Revocation procedures. In almost all instances, the arresting officer confiscates the alleged offender’s driver’s license and then issues the driver a temporary permit. Under the Administrative License Revocation an individual’s license will be suspended for 180 days for the first offense, one year for the second offense or one year if the individual refused to submit to chemical testing. This suspension begins fifteen (15) days after the arrest. Each driver is entitled to an appeal of this suspension; however the appeal must be filed within ten days of the arrest. For an Administrative License Revocation first failure of alcohol test drivers are immediately able to apply to the DMV with no required no-drive period during the 180 day revocation, if the driver does not request a hearing. The driver gets credit for revocation days and interlock days served against any DUI sentence. If the driver requests a hearing they are not eligible for the ignition interlock permit under the Administrative License Revocation suspension.

It is imperative that you contact an attorney immediately to ensure your options are examined and a decision can be made as to whether you should request an Administrative License Revocation hearing and to help you through the court process.

Once a DUI case is filed in Court the major issues include:

1. Whether or not the officer had probable cause to conduct a traffic stop;

2. Did the officer follow proper procedures, including conducting field sobriety testing accurately to obtain the required probable cause to conduct a preliminary breath test;

3. Was all testing equipment properly maintained to ensure accurate testing results;

4. What are the most appropriate and least intrusive penalties imposed?

The Attorneys at DeMars, Gordon, Olson, Zalewski and Wynner are dedicated to careful and candid evaluation of each and every case as well as working with our clients to obtain the best possible results.

Boyd was the contingent beneficiary of a life insurance policy , a document covered by ERISA . The primary beneficiary was the ex-spouse of the deceased , who obtained that designation during the marriage . In the divorce settlement , the primary waived any right to the insurance proceeds .  However , the deceased never changed beneficiaries with the insurer .  When the policyholder died , the insurer paid the ex-spouse , ignoring the waiver document , following the language in a Supreme Court decision , Kennedy v. Plan Administrator for DuPont Savings , 129 S.CT 865 (2009) .

The court in Boyd agreed , even though the policy in Boyd did not have a specific provision stating how benefits could be waived .  The insurer was correct to pay the ex-spouse under the terms of the plan . Hence , any action by Boyd to recover the plan benefits had to be brought against the ex-spouse under an unjust enrichment theory of recovery .

The bottom line is that any controversy involving plan documents governed by ERISA requires experienced ERISA counsel .  Jim Zalewski has over 30 years experience in dealing with ERISA matters , and has served as a co- chairman of an ERISA Litigation sub-committee for the ABA .  Whether you are dealing with a similar matter , or  have questions about your pension or health care plans , please call us to make sure your rights are properly represented .

As an opening post, here are the movies I have seen so far this month.

AUGUST 2011 MOVIES

8-1-11. 13 ASSASSINS

8-5-11. PLANET OF THE APES

8-6-11. COWBOYS V ALIENS

8-7-11. THE TRIP

8-8-11. CHANGE UP

8-12-11. 30 MINUTES OR LESS

8-17-11. THE HELP

8-19-11. NOSTALGIA FOR THE LIGHT

8-20-11. THE DOUBLE HOUR

8-21-11. SARAH’S KEY

My thoughts on the most recent movies I’ve seen:

The Help has Oscar nomination written all over it.

Nostalgia For the Light is a subtitled documentary at the Ross, but well worth reading the subtitles. It connects astronomers, archaeologist and the dedication of the widow’s search for the bones of loved ones in Chilie’s Atacam desert left by Pinochet’s regime.

The Double Hour is not playing in Lincoln, but for the Hitchcock fans it is worth renting.

Sarah’s Key is another wonderful movie with a superb performance by Kristin Scott Thomas. This is a moving story of a sister’s love and never ending grief at the loss of her brother during the 1942 Paris roundups and deportation of thousands of Jewish families and a Journalist mission to find the truth.

I’d love to hear your movie comments, suggestions and questions.  Please email me at Nwynner@demarsgordon.com.

In Turner , a hearing was held to determine whether he was in contempt of court for failure to pay court-ordered child support . Neither party was represented by counsel .  Though found to be in contempt and sentenced to one year of incarceration , he was allowed to purge the contempt ruling and avoid the sentence by paying the overdue support before his release .  He was unable to pay , and filed an appeal .

The Supreme Court held the state had no duty to provide counsel to Turner , since the other party was not represented by counsel at the hearing .  Nevertheless , it  vacated the ruling , since it found there were no procedures to assure a fundamentally fair determination of whether he was able to comply with the support order .  The Court relied on three factors : 1. the Defendant’s potential loss of liberty without due process ; 2. the lack of substitute  safeguards to insure the accuracy of the information ; and 3. the lack of alternative procedural requirements that would insure fundamental fairness where a defendant is not represented by counsel .

The exact impact of the Turner decision is yet to be determined . However , the ability to pay , and the information on file , will now be viewed with additional scrutiny .  Please contact one of our Family Law attorneys if you have any questions on child support proceedings .

The Court concluded that while HIPPA provides for both criminal and civil penalties for improper disclosures , these penalties must be enforced by government agencies , not individuals acting on their own .  Though this is the first Circuit Court to rule on this issue , other federal District courts have been following this rationale .

What this means is that an individual can still sue for invasion of privacy should this occur , and cite the violation of HIPPA standards .  However , the law does not allow for a separate cause of action based on a HIPPA violation alone .  Please give us a call if you have a question on this issue .

In addition to his presentation, Jim reports the following as highlights from the other presentations at the meeting:

• The Department of Labor will be viewing independent contractor relationships with increased scrutiny, moving from a “control” test to an examination of where the purported contractor does the majority of his/her work.

• Under the new ADA regulations, the EEOC has indicated there will be no need to show that a party sought reasonable accomodation if he/she is proceeding under the “regarded as” category of disability.  The EEOC views the amendments to the act as expanding coverage, though acknowledging that an individual assessment has to be made on each case.

• Review of social media such as Facebook is being used more frequently as a tactic in sex harassment cases, and is being upheld by the courts as being permissible discovery.

Many other topics were discussed.  Employment laws are constantly changing. Give Jim Zalewski a call to discuss these or other matters that may affect your workplace.