April - Bankruptcy
July - Criminal
Holidays - DWI
Many people are somewhat familiar with some of the tests that are given by police officers when they are investigating a possible DWI. The first test which comes to mind for people when they think about DWI testing is the eye test, or the Horizontal Gaze Nystagmus test. To understand the HGN test, you will first need to know what Nystagmus is. Nystagmus is defined by the American Optometric Association as “a vision condition in which the eyes make repetitive, uncontrolled movements.” Basically, Nystagmus is when your eyes look like they are jerking when they are following an object; this is something that is involuntary and cannot be controlled.
Due in part to a person’s inability to control Nystagmus, it is said to be the most reliable of the field sobriety tests. A total of six clues can be found during the administration of the HGN testing (3 clues for each eye). The test is designed to start with the person’s left eye being examined for any of the three cues. Afterwards, the the right eye is examined.
The first clue officers will look for is lack of smooth pursuit. They are looking to see if your eyes track smoothly from one side to the other, or whether your eyes begin to start jerking, which would be an indication of nystagmus. When you are impaired by alcohol, your eyes lose their ability to track objects smoothly. The officer will check each eye individually for lack of smooth pursuit.
Second, the officer will check to see how each eye reacts once it has moved as far to one side as possible. Officers are trained to look for “distinct and sustained” nystagmus at what is referred to as at “maximum deviation.” What the officer is looking for in each eye at this part of the test is if your eyes are twitching or jerking when you are looking as far to one side as possible. The officer will observe each eye individually and may observe one clue for each eye during this part of the test.
The third thing an officer will be looking for is referred to as “onset of nystagmus prior to 45 degrees.” When the officer is watching the eyes move from one side to the other, they are looking to see if your eyes start jerking before the imaginary 45-degree point during the test. Again, an officer must observe each eye individually and may observe one clue for each eye during this portion of the test.
NHTSA bases the use of the HGN test off a study by the Southern California Research Institute. Through the research provided by SCRI, the HGN test is said to be 77% accurate at detecting impairment in a person who has a blood alcohol level of .01 or higher.
Of all field sobriety test administered, NHTSA purports the HGN to be the most reliable of the field sobriety tests. However, the HGN test is rarely used alone. In most potential DWI encounters, police will use a battery of tests to complete their assessment of whether or not an individual is impaired. Some of the most popular tests used in conjunction with the HGN are the walk and turn and the one leg stand test. Both of which we will break down in future blogs.
DWI cases are very technical and many precise steps must be followed by an officer to get a correct assessment. Fortunately, at Wilson & Haubert, we understand the procedures which must be followed and are able to pick out the issues when protocols are not performed correctly. If you or someone you know has been charged with a DWI in Arkansas, contact our offices and speak to an experienced Arkansas DWI attorney today.
Debtors must qualify to file Chapter 7. If you don’t qualify, then you must file Chapter 13. That is an easy one. If you qualify for Chapter 7, you might nevertheless want to file for Chapter 13 for the following reasons:
In Chapter 13, you will make monthly payments in your plan (from 3 to 5 years) to the bankruptcy trustee for the distribution to creditors (the people you owe). You must have enough disposable income to pay all priority and secured debt in full and to pay unsecured creditors in an amount at least equal to the value of the debtor’s nonexempt property.
Chapter 13 can stop a foreclosure. The automatic stay will stop any foreclosure action. In your Chapter 13 plan you will make your mortgage payment and catch up on any missed payments. You will pay the arrears
in your chapter 13 plan and your mortgage will go back to normal when your bankruptcy is over.
Chapter 13 can stop a repossession. You can catch up on your payments through the plan, much like a foreclosure. Also, if you purchased your car 2.5 years before you filed bankruptcy, then you may be able to lower what you owe on your car.
In Chapter 7 you are only able to keep your exempt property. In Chapter 13 you can keep your non-exempt property in exchange for repayment of unsecured creditors in the amount equal to the value of the unexempt property you are keeping.
Once a Chapter 7 is completed, normally 60 days after your meeting of creditors (341 meeting), your debt are discharged. However, some debts are not dischargeable, and you will still owe them. At that time, those creditors can come after you. If you are in a Chapter 13, you are protected for the life of the plan. Some debts that are not dischargeable in a Chapter 7 are student loans, taxes, home owner’s fees, marital settlement agreements, etc. Since you have to pay these debts, you may want to control them and pay them over time.
Chapter 13 will protect your co-debtors for the life of the plan. So, if grandma co-signed for your car and you file chapter 7, then the bank can come after grandma as soon as you file. If you file 13 and have a 5-year payment plan, then grandma is protected for 5 years. You may want to sell property: If you want to sell property in bankruptcy (to keep away creditors), then 11 U.S.C. 1303 allows you to sell your property in a way that will generate the highest value. When receiving the highest price for the property is the best way for your financial situation, Chapter 13 can help you do that without the interference from creditors.
Even if you have to pay it all back, Chapter 13 allows you to stop the interest and late charges and actually pay down what you owe. When you are in Chapter 13 payment plan, any money that is paid to unsecured creditors will pay down what you owe since the claims are frozen as of the date of filing. This is true even for tax debts.
When facing bankruptcy, it is always important to talk to a bankruptcy attorney and discuss all the issues to make a decision. If you need a consultation, please feel free to call, email, or chat with us.
Dennis K. Wilson is a graduate of the University of Arkansas at Little Rock School of Law. He served as a law clerk for the honorable Morris S. Arnold, Federal Appeals Court Judge for the United States Court of Appeals, Eighth Judicial Circuit. Before opening his own firm in 1996, Dennis practiced Estate Law with Miller Looney & Associates of Little Rock, Arkansas.
As a member of the Arkansas Bar Association Estate and Trust sections and Arkansas Bar Association Elder Law Legislative Review Committee, Dennis has lectured extensively on Estate Planning, Charitable Gift Planning, and Elder Law issues to attorneys, insurance professionals and other groups. Dennis is a member of WealthCounsel, the Arkansas Children’s Hospital Professional Advisors Counsel and the National Academy of Elder Law Attorneys. He is one of a small group of attorneys in Arkansas concentrating on Asset Protection relating to Elder Law issues as well as traditional asset protection for individuals and business owners. He practices statewide in the areas of Asset Protection, Estate Planning, Elder Law, Trusts, and Charitable Gift Planning.
In addition to his legal background, Dennis is an ordained Baptist minister with degrees in Biblical Languages, Philosophy and a Masters in Theology, and he currently serves as pastor of the Mt. Pleasant Missionary Baptist Church of Cabot, Arkansas. He has served as legal counsel for various planned giving groups including churches associated with The American Baptist Association, The Southern Baptist Convention, The Church of Christ, as well as institutions and organizations including The Missionary Baptist Seminary of Little Rock and The Arkansas Baptist Foundation.
At Wilson and Haubert, Dennis practices in the areas of Estate Planning, Business Law, & Elder Law.
In my last blog I discussed dreaded idea of being found liable for some injury or harm caused to another person. Liability means your assets, or your company’s assets, are going to be used to make the harmed individual whole. In other words, you are going to pay for the injury. Broad exposure to unlimited liability can bankrupt you. I suggested the use of an LLC to protect both business and personal assets because limited liability companies compartmentalize your exposure limiting it in many ways.
I also introduced the concepts of outside and inside liability. Lawsuits that have a direct relationship with a company are considered inside lawsuits. For instance, a rental property owned by a LLC that is sued due to some harm caused on the property is an inside lawsuit. The injured party will sue the company that owns the property. In that situation all the inside assets (assets owned by the LLC) could be judicially liquidated and ordered to pay the damages of the injured party.
In the example given above, assuming the owner of the LLC was not personally negligent, the only assets available for judicial liquidation and collection by the injured party would be the assets of the LLC itself. The owner’s personal assets and other corporate assets are outside assets. These outside assets are not attachable by the judgment as they are not a part of the company where the injury occurred.
So, what if the company where the injured party is doing business has no assets and the owner is not personally negligent? The injured party may still acquire a judgment for collection, but there are no assets available for collection. The injured party cannot collect. This is the position you want for your company.
A wise corporate structure is one that will have the public doing business with an operating company that owns little to nothing. The equipment and real property needed to operate the operating company will be owned by other limited liability companies which will lease these assets to the operating company. This keeps any potential lawsuit or judgment as an outside lawsuit relative to the equipment and real property. In other words, the equipment and real property are not at risk even though used in the business where the injury happened.
The purpose for these structures is to encourage property owners to put their capital to work while limiting the personal risk. It is good for the economy when entrepreneurs put their assets to work. These structures are obviously good for the owner of the company, but can be bad for the injured party. Responsible companies should carry liability insurance which will address the harm to injured parties without the loss of the capital ventured. I do not in any way encourage or suggest business owners should ignore the harm their business could cause. This is what insurance is for. At the same time, no smart business owner should put his wealth at risk without limiting the liability.
A good rule for corporate structure is to keep the liability inside the company and keep the assets outside the company.
If you are in a position where you might be held liable for something your business does, you are in a position to need an Arkansas-based business attorney. A little bit of planning and thought about business structure could literally determine whether your business survives.
Stay tuned for Part Three and further discussions about protecting your assets with a limited liability company.
We all know how traumatic divorce can be, and the stakes are raised when children are involved, because there’s the whole matter of child support. However, the trauma is often the same even for children conceived outside of marriage. Unfortunately, many people, particularly men, feel that child support laws are not equitable and fair for both parents.
When there is a breakdown in a couple’s relationship, settling the matter of child support is not always easy. However, the calculation of the amount of payable is governed by state regulations. Calculations are typically done based on the percentage of income model, or the income shares model. In addition, some states use variations of these models, or a combination of both.
Under the percentage of income model, child support is based solely on the income of the noncustodial parent. The income of the custodial parent is not included. Since in most cases the noncustodial parent is the father, many fathers often feel hard done by law. In many cases, the noncustodial parent complains that there is no accountability required by the custodial parent when payments are made.
In some quarters, it’s believed that fathers often resent having to pay support, because they don’t believe it’s a fair measure of the financial needs of the child. So some of them only pay child support on an ad hoc basis, or avoid paying it altogether.
However, in those instances where fathers are awarded custody of the children, and child support calculations are done based on the percentage of income model, the laws are duly enforced. Therefore, child support payments are calculated as a percentage of the mother’s income. So in that respect, the child support law is fair.
Some states in the US have made the decision to amend the laws so that calculations for child support consider the income of both parents. This is the basis of the income shares model.
The income shares model is designed to ensure that children are not at a financial disadvantage because their parents are no longer together. The amount payable by each parent will depend on their percentage share of the combined income.
Pooling the resources of both parents to arrive at child support is seen as a more equitable calculation. However, some noncustodial parents think that this still does not go far enough. They believe that the formula should focus primarily on the real expenses associated with raising a child. This would make the matter less contentious for the noncustodial parent, as the child support payable would be based on real costs.
The existing models are sometimes implemented in different forms in various states. It’s therefore important to consult with an attorney in your state regarding the specifics of child support laws for the state in which you live.
If you are needing a reputable lawyer in regards to your children, give us a call.
It’s a mistake you probably hope to never make: driving after you’ve had one too many drinks, and getting pulled over by the police. A moment of indiscretion is sometimes all it takes to get caught driving under the influence, but if you should ever find yourself charged with DUI, its best to get yourself a DUI lawyer.
Wondering how a lawyer can help you? Here’s how.
Trying to navigate the court system can be stressful, but a lawyer can make it less daunting for you. The lawyer can clearly set out your options so that you know how to proceed.
A good DUI lawyer knows their way around the court system, and that knowledge and expertise is going to be invaluable in ensuring that you get the minimum penalty possible. Since a lawyer has intimate knowledge of the court system, and also regularly interacts with judges and prosecutors, he or she will know what it takes to get a DUI charge reduced. Having your charge reduced can be a huge benefit, because it will lessen the time it stays on your record.
A lawyer can advise you how to plead, which is especially useful if you are a repeat offender. Hiring a lawyer may be well worth it, if it will help you to reduce any likely fines. While some courts tend to be lenient in setting fines for first-time offenders, that’s usually not the case for repeat offenders, or for drivers caught with very high blood alcohol levels.
An experienced DUI lawyer can also skillfully negotiate on your behalf to minimize or avoid jail time. You certainly don’t want to have to tell your boss that you’re going to have to take a few days off work because of a DUI conviction. That revelation is certainly not going to go down well, and you may even find yourself out of a job. So it makes sense to hire a DUI lawyer that can help you avoid jail time.
Statistics show that the outcome of a DUI case is usually more favorable for someone with a lawyer. If it means having charges dismissed or reduced, then getting a lawyer is definitely worthwhile. Make certain that the lawyer you select has a defense strategy that will benefit your case.
Being charged with DUI can be damaging to your reputation, as it can affect your driving record, auto insurance, and much more. That’s why you should do everything possible to have it reduced, it’s therefore sensible to have a lawyer handle your case rather than try to fight it on your own.
Becoming a pharmacist is hard work. It takes a lot of late nights studying pharmacology, learning how to compound, and understanding how medications work together and against each other. It is a huge undertaking, and one that folks don’t take lightly. As a result of all that hard work, someone who makes it through pharmacy school and becomes a licensed pharmacist is given a great amount of power. The power to help people who are in need, to change lives.
With that great power comes great responsibility. The responsibility to correctly counsel patients on the medications they have been prescribed. The responsibility to catch prescription errors and make sure dangerous interactions do not occur.
But we’re all human. Mistakes can happen. And if they do happen, you need someone who can protect you and the license you worked so hard to earn.
Many issues come before the Arkansas State Board of Pharmacy. Some of the most common infractions which land Arkansas Pharmacists in front of the State Board of Pharmacy are misfiling prescriptions, failure to counsel patients on their medications, and missing medications.
The Arkansas State Board of Pharmacy holds formal hearings three times per year. Formal hearings are usually reserved for serious infractions that can not be resolved without a full hearing before the Arkansas Pharmacy Board.
The Arkansas State Board of Pharmacy addresses other issues through what it calls “informal hearings.” Informal hearings are held once per month and are primarily for issues that do not require hearings as in-depth as the formal hearings.
Still other infractions may be resolved by informal reviews. These are informal meetings with lawyers from the Arkansas State Board of Pharmacy to attempt to reach a satisfactory outcome for everyone involved, including the pharmacist. Many things can come from these informal reviews. The issues may be resolved by consent agreement, a diversion program, or the Board may decide to go forward with a formal hearing.
The Board evaluates each individual infraction depending on many factors. One of the main factors considered when an infraction is reported is whether any harm was done to a patient because of the infraction. If no harm was done, the Board considers how big the risk of harm was.
Being reported to the Board for any type of infraction is a scary situation to be in. The Pharmacy Board is represented by its General Counsel and you as a Pharmacist have the right to be represented by a lawyer of your own. A report to the Board of an infraction is something you shouldn’t take lightly. Having an experienced lawyer to represent you is vital to protect you and the license you worked so hard for.
At Wilson & Haubert, we have experience dealing with the Pharmacy Board, and we’re here to protect pharmacists and their licensure.
If you’re a pharmacist and someone has reported an infraction against you, or you fear one may soon be reported, call us today so we can get started protecting you.
Expensive. Can you find a cheap lawyer? Yes, but it is not best. Can you hire one to do only a small amount of the work and save some money? Yes! How? Limited Scope Representation.
Limited scope representation (or unbundled legal service) allows a lawyer and client to agree that responsibility for certain parts of a case will be distributed between the lawyer and client. For example, the lawyer may draft a divorce complaint or provide legal advice before the client attends a hearing, while the client is responsible for the remaining aspects of the case. Some prices just to show you what it would cost in a divorce action:
|Divorce Complaint, Summons, and Coversheet – no kids||$125.00||Service and filing fee|
|Divorce Complaint, Summons, Coversheet, and Confidential Information Sheet – with kids||$150.00||Service and filing fee|
|Waiver of Service||$50.00|
|Decree with no kids and no property||$150.00|
|Decree with kids and no property||$250.00|
|Decree with kids and property||$350.00|
|Attend Uncontested Hearing||$200.00||Mileage|
Clients seeking limited scope representation receive pricing that reflects exactly the scope of work they require. Perhaps you need help filing a case, or would like legal advice before responding to a letter or signing a contract. Maybe you just need an attorney to show up for a hearing?
In each instance, the work is well-defined and a specific price is paid for THAT step in the process. While the price of these steps will reflect the attorney’s effort, they are generally (often significantly) less expensive than the usual full-service attorney arrangement. You, remain in control, you may only need help in one or more phases of your matter and you retain the option to expand representation at any time. Perhaps you only need help at points 1, 3 and 6 in a 6-step process? Wouldn’t you prefer to pay for only 3 steps?
Even better, your matter may not require court action at all. More than a few issues have been resolved when a an unrepresented party receives a letter from an attorney’s office. Paying a flat fee for a “mean lawyer letter” just might avoid a painful, long-term process.
Self-represented parties (“pro se” litigants) often proceed haphazardly through the legal process, assuming one party knows how to start the process. One or both parties may be unclear how to proceed, unaware of the proper documents to file or how to react if the other side seeks legal advice.
We all know court dockets are full and judges are busy. Providing well-drafted, correct documents and understanding how to proceed through a matter can significantly improve efficiency, reduce everyone’s frustration and be the difference in a successful and timely outcome.
The following Arkansas Rules of Civil Procedure were amended on December 14, 2017 by the Arkansas Supreme Court (opinion):
Rule 11 Signing of Pleadings, Motions, and Other Papers; Sanctions.
Part (c) now allows
Rule 64. Addition and Withdrawal of Counsel.
(a) When additional counsel is employed to represent any party in a case, said counsel shall immediately cause the clerk to enter his or her name as an attorney of record in the case and shall also immediately notify the court and opposing counsel that he or she has been employed in the case.
(b) Except as provided in Rule 87 of these rules, a lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing counsel (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.
Rule 87. Limited Scope Representation.
(a) Permitted. In accordance with Rule 1.2(c) of the Arkansas Rules of Professional Conduct, an attorney may provide limited scope representation to a person involved in a court proceeding.
(b) Notice. An attorney’s role may be limited as set forth in a notice of limited scope representation filed and served prior to or simultaneously with the initiation of a proceeding or initiation of representation, as applicable. Such notice shall not be required in matters where an attorney’s representation consists solely of the drafting of pleadings, motions, or other papers for an otherwise self-represented person as provided in subdivision (c) of this rule.
(c) Drafting of Pleadings, Motions, and Other Papers.
(1) An attorney may draft or help to draft a pleading, motion, or other paper filed by an otherwise self-represented person. The attorney shall include a notation at the end of the prepared document stating: “This document was prepared with the assistance of [insert name of attorney], a licensed Arkansas lawyer, pursuant to Arkansas Rule of Professional Conduct 1.2(c).” The attorney need not sign that pleading, motion, or other paper.
(2) An attorney who provides drafting assistance to an otherwise self-represented person may rely on the self-represented person’s representation of facts, unless the attorney has reason to believe that such a representation is false or materially insufficient.
(d) Termination. The attorney’s role terminates without the necessity of leave of court upon the attorney’s filing a notice of completion of limited scope representation with a certification of service on the client.
(e) Service. Service on an attorney providing limited scope representation is required only for matters within the scope of the representation as set forth in the notice.