News & Events

To stay abreast of the latest information at our firm, we invite you to look through our News and Events section of the website. Here, you’ll find details on anything from firm milestones to the latest changes in law that might affect you.

Driving Under the Influence (DUI) Update

Driving under the influence (DUI) is one of the most common cases filed in County Courts. This charge is a hot-button issue around the State. As a result DUI laws change frequently. Having an experienced attorney to help you through the many different options can be crucial in dealing with a DUI charge.

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.

ERISA : The Devil Is In The Details

It is important to use counsel familiar with ERISA rules and interpretations even when executing simple waiver documents . A recent Fourth Circuit decision illustrates that a waiver is not always a waiver , even in what appears to be a simple divorce settlement .

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 .

Family Law Update

The U.S. Supreme Court recently held in Turner v. Rogers, 387 S.Ct. 142 (2011) , that while the Due Process clause does not automatically require the state to provide counsel to indigent non-custodial parents in civil contempt proceedings, it does require the state to provide alternative procedural safeguards . The party must be given an opportunity to present evidence on the ability to pay child support , and to contest the evidence presented and the court findings.

Employment Law/HIPPA Update

Many health care providers and employers take great care to protect patient privacy and personal health information in order to comply with HIPPA . That burden may have been eased a bit by the recent ruling in Acara v. Banks , a decision in the U.S. Court of Appeals for the 5th Circuit . Ms. Acara claimed her physician violated HIPPA when he disclosed her personal health information in a deposition . The defense contended HIPPA does not provide a private cause of action for such disclosures. The Court agreed.

Mediation Conference

Jim Gordon recently attended and participated in the 2011 Heartland Regional Conference of Mediators held in Ankeny , Iowa, May 5th and 6th . The conference contained presentations on topics such as “Maximizing Mediation” and “Online Mediation” . Jim is well-trained in all aspects of civil litigation mediations , with an emphasis on family law cases . Please contact Jim Gordon to see if he can help you with any form of alternate dispute resolution .

Employment Law Update

Jim Zalewski recently spoke at the American Bar Association’s Employment Rights and Responsibilities Mid-winter meeting in San Juan, Puerto Rico. He was part of a panel discussion dealing with the conflict between state and federal immigration laws, and the pending cases in the U.S. Supreme Court.

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

News Release

March 3, 2011 DeMars, Gordon, Olson, Zalewski & Wynner Launch New Website DeMars, Gordon, Olson, Zalewski & Wynner recently partnered with Turbine Interactive in launching a new website. New features of the website include a comprehensive biography section, expertise descriptions and an area devoted to client testimonials. The Firm hopes that the new site will not only better communicate news with their current clients, but be a great way to reach out to potential clients, as well. The new site will allow visitors to more easily access and learn about the firm and its special areas, including employment law, intellectual propoerty, adoptions, and mediation services. The firm will also use the latest outreach media to provide updates on important decisions or events as they occurr. Inquiries are welcome. Please visit the site at www.demarsgordon.com.