Wednesday, February 24, 2016

Since we're in Las Vegas, let's talk about Enhancements!

I had a great photo picked out for this space, but the boss said "no"

This is a Family Blog!

Let's talk about enhancements in the legal sense. And no, it won't be as much fun as the other kind. 

There are crimes and there are enhancements to crimes. Enhancements are extenuating circumstances surrounding the commission of a crime that can give the prosecution more ways to "throw the book at you". 

There are many examples of enhancements. A few of the more common ones are:
  • Using a deadly weapon in the commission of a crime
  • Causing Substantial Bodily Harm to another person
  • Committing a crime if you're a known gang member
  • Committing a crime when the victim is a vulnerable person or is over the age of 60.
What do all those mean? Allow me to explain. 

- Walking up to someone and demanding their money could liberally be construed as a robbery, especially if the person assumes that they will be harmed in some way if they don't comply, but walking up to someone with a gun or a knife or an ax in your hand and making the same verbal demand means that you have committed that crime while using a deadly weapon, and that's an immediate enhancement. 

- Assault is basically you threatening to use unlawful force or violence against someone else. Grabbing someone by the shirt and making a fist could be assault if the victim believes they're about to get punched. This scenario would be misdemeanor assault, but do the same thing except you have a knife in your hand? You've just committed a felony, sir. Enhancements! It's now going to go to court as "Assault with deadly weapon", not just 'assault'. This also goes for battery as well. If you get into a fight with someone and you punch them in the face or the stomach, you're probably only guilty of misdemeanor battery, but if you hit someone with a brick or a beer bottle you may find yourself on the receiving end of "Battery with Deadly Weapon" felony charges! 

What about this "Victim over 60 / Vulnerable Person" stuff? 

I got your "Vulnerable" right here, sonny!

If someone commits a crime against a person (e.g. assault, battery, robbery, kidnapping, coercion, domestic violence, etc.), and that person is over the age of 60, that person could be in for some extra prison time due to the victim's age. It's an automatic enhancement that the District Attorney's office will add whenever a victim fits this criteria. 

A Vulnerable person is defined by law as: a person 18 years of age or older who:

(a) Suffers from a condition of physical or mental incapacitation because of a developmental disability, organic brain damage or mental illness; or
(b) Has one or more physical or mental limitations that restrict the ability of the person to perform the normal activities of daily living.

What is "Substantial Bodily Harm"?

Simply speaking, this is when a fight or a battery goes way too far. Let's say Fred and Barney get into a fight. Barney's mad at something Fred said after one beer too many and Barney knocks Fred to the ground and punches him. If it stops here, this is just a misdemeanor crime. However, if Barney continues to pummel poor Fred until Fred's jaw and ribs are broken and he's missing some teeth, then there's a good chance that Barney will get charged with "Battery causing Substantial Bodily Harm". 

Since most people don't sit around reading law textbooks all day, I like to try and illustrate in real-world terms just how quickly something you may think of as being "minor" can turn ugly. If you find yourself in a situation where you've been or are about to be accused of a crime, even if you think it's something silly, you need legal representation. We are more than happy to help you, call us today!


Wednesday, February 10, 2016

Son, it's time your mother and I had a talk with you about...


This man is basically a pharmacy. 

In Nevada, it is illegal to posses a prohibited or controlled substance (without a prescription). Depending on the type of substance involved, the criminal charges one may face here range from a misdemeanor through a very serious felony offense, both Nevada state and federal. There is a range of possible criminal penalties a you may face including county jail time through life imprisonment.

I'm sure many of you reading this may equate the odds of you getting busted for drug possession as being roughly the same that you'll ever win the lottery or have your home hit by a meteorite. After all, you're a respectable person, right? and you're too cool to do drugs...

The Research & Development people really dropped the ball here. 

But, like many things in Nevada, it can be far easier for the flying excrement to impact the rotating air impeller than most people realize. 
(You never realized there was a classy way to say that, did you?)

So let's say that you are on prescription pain medication. Maybe more than one. Perfectly legal, right? Prescribed by a licensed physician, filled and dispensed by a qualified pharmacist and all that... but, let's say that you want to keep a few pills in your car or at your office in case you need them, but you certainly don't want to keep your entire monthly supply of pills there, so you just put a couple of them in a baggie, or mixed in with your Tylenol for example. This is where things can go wrong in ways you didn't expect. 

So there you are, with your legal, prescribed pills in some random container and you have occasion to be contacted by law enforcement. Maybe you get pulled over for speeding. Maybe you're involved in a car accident. If the police see what they believe to be prescription pills and they're not in the prescription bottle, you may have a problem. 

Officer ... I swear.... 

You see, if you have a prescription medication, you actually are in possession of a Controlled Substance. It's controlled - that's why you have to have a prescription to get it. If you are in possession of a prescription medication with no way to prove that you're allowed to have it, now you are looking at potentially being arrested for: Possession of Dangerous Drugs without Prescription. This crime is NOT a misdemeanor. It either a Gross Misdemeanor or a Felony depending upon what type of medication you have. 

This is problematic for several reasons. In the legal universe, there's something called 'the burden of proof'. Upon whom the burden of proof rests differs depending upon what type of case it is. Sometimes it's on the law enforcement officer, sometimes it's on the accused or potential accused. In a case like this, the burden of proof rests on YOU. What this means in plain English is that if a Police Officer has a legal and lawful reason to notice that you have a controlled prescription medication on your person and no way to prove that you're allowed to have it, it's ridiculously easy for him to arrest you. In fact, the declaration of arrest that he has to write is quite simple. All he has to do is explain his legal reason for contacting you, how he legally came to find the medication, and how you had no way of proving it was lawfully in your possession. 

That's it. 

Now, the burden of proof is on you to prove your innocence. Unfortunately your opportunity to prove this comes later, in the form of a court appearance in front of the Judge. This court appearance will also come after you've been arrested, after your car has been impounded (if you were driving at the time of the police contact), after you've posted several thousand dollars in bail (see yesterday's blog), and after you've spent a day or a week in jail. 

I mean, we all know about Cocaine, Meth, Heroine and their derivatives being illegal...

But most of us don't ever expect to get into any kind of trouble for carrying around our own medication!

So, if you've been prescribed prescription medication by your doctor:


Tuesday, February 9, 2016

Let's talk about Bail.

How much does it cost to get out of jail in Clark County? 

Sorry. They don't accept these.
Nevada, historically, has had some difficulties keeping up with the current times. We lean towards "the old west" in many annoying and inconvenient ways still to this day, but in May of 2015, the powers that be saw fit to update our bail amounts for certain crimes committed here. 

Why is this a big deal? 

A couple of reasons, really. 
  1. It makes it more expensive to get yourself or someone else out of jail if they have the misfortune of finding themselves incarcerated. 
  2. It made our bail amounts more comparable to other nearby states California. 
See, for a very long time after California implemented its famous (infamous?) Three-Strikes Law, Nevada still boasted very old-fashioned, and very low, bail amounts. In plain language this means that getting arrested for a crime here was "cheaper" (for the criminal) than being arrested for the same thing in LA or San Diego or San Bernardino. Let's use Grand Larceny: Auto as an example. In rough figures, getting caught for that crime in SoCal would likely cost you $10,000 - 20,000 to get out of jail before your hearing. Here in Nevada it would cost you a lofty $3,000. 

What this means is that, for many years, Nevada police agencies were seeing an alarming trend where prolific, repeat offenders were choosing to commit their crimes in Nevada for very basic reasons:
  • They were scared of serving the rest of their life in a California prison as a Three-Strikes inmate;
  • They could commit the same crime here with less financial risk...
I don't like making my blogs too overbearingly wordy so here's a picture of a dog dressed as a banana.
Please enjoy. 
Anyway, the point is that Nevada decided to basically make it more expensive to get arrested here in an effort to dissuade prolific career criminals from effectuating their dastardly deeds here in our city of sin.

As always, if you've been accused of a crime, you NEED the representation of an experienced litigator. I'd be happy to help! 

Friday, February 5, 2016

Child Custody - Something to think about if you're considering divorce

A house, a car, a happy marriage and 2.5 children. It's the American Dream, right? 

But it doesn't always work out that way, does it? 

Sometimes a marriage is doomed from the beginning. Sometimes people have kids in an effort to save the marriage, (don't do this, by the way...) and sometimes the kids just get caught in the crossfire of two people who've grown apart. 

If you're considering ending a marriage and you and your soon-to-be-Ex have kids, you have a lot to think about. 

  • Who gets primary physical custody? 
  • Who gets legal custody? 
  • Who can claim the children on their taxes after the divorce? 
  • Where do the kids live? 
  • Where do they spend the holidays? 
These questions, and many others depending upon your unique circumstances, need to be addressed before a final decree of divorce can be granted. 

Whether your divorce is a mutual decision between the two of you or if it's going to be a protracted battle, you should know that going back and forth about these issues can get very expensive very quickly. Each time the parties disagree, they have to run to their lawyer and air their disagreement with the other party, then that lawyer has to contact the other lawyer via a motion or a countermotion or an opposition to a motion or an answer & counterclaim. The labor lawyers charge for drafting these documents can cost thousands of dollars and that doesn't even include the filing fees that the court charges just to file the documents. 

And really, who can justify such shenanigans?
The point is that it's best for both of you to try and put your differences aside, at least briefly, and try to calmly work out these details before you file for divorce. Divorce is never pleasant, but sometimes it's necessary. That doesn't mean two people can't be civil for the sake of a greater good. The smoother you and your spouse can make the divorce process, the cheaper and less traumatic it will be for everyone involved. 

A good place to start would be by reading Nevada Assembly Bill 263 (A.B. 263). This is the bill that changed Nevada state law on how it pertains to divorce, custody and visitation issues. 

As always, it's best to have legal representation, even if you and your spouse seem to agree on most things. Unless you two agree on literally everything there's bound to be some friction and an experienced attorney can help you safely navigate through rough waters. 

Wednesday, February 3, 2016

New DUI laws in Nevada! You can now refuse evidentiary testing.... but....

In the past, Nevada's "Implied Consent" Laws...

...stated that you didn't have a choice. If you were arrested on suspicion of driving under the influence of intoxicating liquor or drugs, a Nevada peace officer would read you, verbatim, something called "implied consent". 

Even though you may not remember hearing it...

It boils down to the police officer telling you that he "has reason to believe you are driving while under the influence and you are required to submit to evidentiary testing of your blood, breath or urine to determine your level of impairment" and that if you refuse "the law allows me to use reasonable force to obtain the sample" against your will. 

A few years ago the supreme court ruled that strapping someone into a chair and forcibly entering their body (with a needle) to get a blood sample against the person's will was a violation of the person's Reasonable Expectation of Privacy and subsequently ruled that a search warrant is required before strapping someone into a chair and probing them with a needle.

Too much Chianti and look where you end up...
Read on...