What Does It Mean to be “Driving”?

This is the second post in our “Arkansas DWI Answers” series. (For the first post, go here.) Our goal with this series is simple: We want you to understand Arkansas DWI and DUI laws so that you can make informed decisions. (For example, you’ll be able to make the informed decision to hire us to handle your DWI or DUI issue.)

Shameless marketing aside, we know that Arkansas DWI laws can be intimidating and confusing (and absurd, to be honest). There’s also a lot of bad information out there. (Your cousin Harold, for instance, who I’m sure has good intentions, may not be the best person to ask.) Today we’ll take some time to work through what it means to be “driving” for the purposes of “driving while intoxicated.”

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This question actually breaks into three separate parts, but they’re close enough to only require one blog:

1. What does it mean to be “driving” while intoxicated?

2. What is a “motor vehicle”?

3. Where can you receive a DWI?

What Does it Mean to Be “Driving” While Intoxicated?

According to the text of the Arkansas DWI law, you may receive a DWI for either operating a motor vehicle or being in physical control of a motor vehicle.

First thing’s first: You do not have to be driving to be charged with driving while intoxicated. (If you are not a lawyer, it may surprise you to know that most things in the law don’t make much sense, such as the fact that you don’t have to be driving to get a DWI. But “OOBIPCOAMVWI” (Operating or Being in Physical Control of a Motor Vehicle While Intoxicated) is, I’ll admit, a little difficult to pronounce.

There’s not a bright line here, but one thing makes a big difference as to whether you’re in physical control of a vehicle: The keys. If the keys are in the ignition and you’re in the car, you’re almost certainly in physical control. If the keys are not in the ignition and you’re in the car, you’re probably not in physical control.

The issue is how easily you will be able to take control of your vehicle because, of course, that’s when someone becomes a danger. (As a practical matter, then, if you decide to get drunk and fall asleep in your car, make sure you take the keys out of the ignition and put them in, say, the glove compartment.)

What is a “Motor Vehicle”?

The definition of a motor vehicle for DWI is the same as it is for car registration purposes: “[E]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.” Ark. Code Ann. § 27-14-207(6). And a “vehicle” is “every device in, upon, or by which any person or property is, or may be, transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.” Ark. Code Ann. § 27-14-207(8).

There aren’t many cases on what the definition of a vehicle is, although there is actually a case that says you can receive a DWI for driving an A.T.V. while drunk. (On that note, check out Justice Corbin’s delightfully contrarian dissent in this case—Fitch v. State, 313 Ark. 122. You will not be disappointed.)

Where can you receive a DWI?

You can basically receive a DWI anywhere in the State of Arkansas. It doesn’t matter if it’s a highway, public roadway, private roadway, or even a roadway at all. If you’re in control of a motor vehicle, you’re fair game.

The Takeaway

As should be clear from these points, you don’t fight an Arkansas DWI on the issue of whether you’re driving or whether what you’re driving is a motor vehicle. Arkansas DWI law defines both of these things broadly, so the fight is almost always on whether you’re actually intoxicated.

Under Arkansas DWI law, then, you could conceivably be given a DWI for standing on the back of a commercial walk-behind mower in the middle of the woods. It is, after all, a motor vehicle. Tractors, riding mowers, golf carts, and go-carts are an even tighter case.

Drink at home. If you find yourself in a bind, call us.

Estate Planning for a Patriarch

The concept of stewardship is at the heart of our estate planning practice here at Wilson & Haubert. When someone works hard for their stuff, we like for them to be able to keep it for as long as possible. And when they can’t keep it any longer, we want to put it where it should go. We want to help people take care of their assets because the assets are ultimately a gift from God. And God is honored when we treat his good gifts with respect. genesis-25-abraham

While reading in Genesis 25 this week, I was struck by Abraham’s stewardship of his assets. In fact, some of Abraham’s decisions closely mimic the very steps or advice that we might use in our estate planning. None of this is prescriptive, obviously, and I have some taken some liberties with the text. But the fact remains: good stewardship looks the same across cultures and eras. I suppose it shouldn’t surprise us that Abraham’s division of his assets is strikingly similar to what we might have done.

Here are some examples of best practices in Genesis 25:

 

1. Giving your assets away before you die

Abraham gave his stuff away while he was around to make sure that it went down as he intended. He gave his inheritance to Isaac and gifts (apparently substantial ones) to his other children. (As an aside, this would have allowed Abraham’s family to avoid probate. Unfortunately, however, Abraham would have penalized for Medicaid purposes).

2. Understanding the problems with second or blended families

This account is a good reminder that family has always been complicated. There could only be one child of promise according to God’s plan, so only one son could receive the inheritance. Abraham knew that this would likely create jealousy among his children and thus gave his sons both enough money to establish their own life and do it somewhere else.

3. Including everyone

Abraham could have excluded the sons that he had with Hagar and Keturah, but he instead gave them enough to start their own lives. Nothing can ruin an otherwise-solid estate plan like a scorned family member.

What Does it Mean to be “Intoxicated”?

This is the first post in what we hope to be an ongoing (and informative!) series: Arkansas DWI Answers. As Arkansas DWI attorneys, our goal is simply to answer the most common questions about Arkansas DWI and DUI in plain English so you can understand your options. (And hire us, of course, but first you need to know what you’re dealing with.)

Arkansas-DWI

If you or someone you know has received an Arkansas DWI or Arkansas DUI, you know that it is frightening. It can also be confusing because normal words like “intoxicated,” “driving,” and “vehicle,” can have different meanings. This short post is designed to help you understand what the term “intoxication” means.

What Does It Mean to Be “Intoxicated”?

This is the official DWI definition of “intoxicated”:

“influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.”

Ark. Code Ann. § 5-65-102(2) (Repl. 2005).

As you can tell, the definition of “intoxicated” is broad. Virtually anything can be an intoxicant if it impairs your ability to drive. It does not matter if you have been prescribed the intoxicant, either. So yes, that means you need to be careful with that Hydrocodone you got after getting your wisdom teeth out. And that Ambien you take once-a-month when you can’t sleep. And that Benadryl you take when you mow your yard. (Maybe you can just wear a mask.)

This definition is important because there are two ways you can be charged with an Arkansas DWI. The law that most people know about has to do with BAC, or blood alcohol content. Under Arkansas law, you can be charged with a DWI if your BAC is .08 or above—proof that you’re intoxicated. But you can also be charged with an Arkansas DWI if you are driving a vehicle while intoxicated, regardless of your BAC.

So if you’ve taken something that impairs your ability to drive, you are legally intoxicated—whether alcohol, illegal drugs, or legal drugs. If you get pulled over while intoxicated, you are at risk of being charged with a DWI.

For more information about Arkansas DWI’s (and many other riveting legal topics), please click around our intoxicatingly good website (zing!). We want you to be informed.

And if you (or someone you know) has been charged with a DWI, you need to contact an experienced, aggressive Arkansas DWI lawyer. That’s us. (But calling anyone is better than nothing. Seriously, you need to get out in front of this thing.)

Entertaining Criminals of July 2014

Robs the place; returns for lunch

A man suspected of burglarizing an El Pollo Loco in Costa Mesa, California, has been arrested after he returned to the restaurant for a meal a few hours after the robbery. Daniel Lee Warn, 28, was arrested Wednesday when he tried to order food at the restaurant, because employees recognized him from the security footage of the robbery.

Breaks in and Falls Asleep

A New Mexico man faces charges after authorities say a couple found him naked and sleeping in their bed. Investigators say 30-year-old Freddy Shelby of Albuquerque was arrested Sunday after the homeowners called police to report their unwanted mystery guest.

Oklahoma woman calls police to complain that her meth was ‘laced’

An Oklahoma woman wasn’t satisfied with the purity of her methamphetamine, so she decided to do something about it. Unfortunately for Lynette Rae Sampson, the course of action she chose ended up leaving her with felony drug charges. The 54-year-old allegedly called police because she thought her “ice” was laced with something. When an officer arrived to check it out, Sampson reportedly said, “I’m glad you came.”

Police bust bank robber wearing shirt with his name on it

A Colorado man made it very easy for law enforcement officials to earn their paychecks after allegedly robbing a bank while wearing a shirt with his name on it. According to police, John David Martinez went to a Wells Fargo branch in Denver wearing a personalized polo shirt bearing his name. The suspect approached a teller and said, “This is a robbery, give me the money.” To make it even easier for police, the suspect also allegedly drove his own Honda to the bank so investigators were able to use the license plate to track down Martinez.

Licensed revoked at court – gets in car and drives away

Kieron Pemberton, 29, of Wigan, had his licence taken away for 14 months for failing to provide a breath sample. But upon leaving court, an eagle-eyed police officer who had been present at the hearing saw the motorist get into his car and start to drive away. He was pulled over and arrested.

The Quick, Easy, and Cheap Arkansas Divorce

I talk to a lot of people who need divorces. Everyone wants them to be quick and easy, and most want them to be cheap. To that end, many of these people don’t have much money and want advice about whether they can complete their divorce without an attorney. As it turns out, many of them, frankly, don’t need me (or any other lawyer, for that matter). It just depends on how complicated the divorce is going to be.

easy quick cheap arkansas divorce

And although no two divorces are the exactly the same, it always seems to be the same issues that make them more complicated:

1. Whether your spouse likes to fight

2. Kids

3. Stuff

(Those are roughly in order of importance.)

Each of these things will make your divorce more complicated. If you have kids, it’s more complicated. If you own a bunch of stuff together, it’s more complicated. And if your spouse is immature or simply wants to fight, it’s more complicated. Any one of these might require you to hire a family lawyer; if more than one of these is true, it’s almost certain that you need a lawyer.

But if you don’t, go here: Quick, Easy, and Cheap Arkansas Divorce. A good friend of mine built this divorce packet, and it is very helpful for the person who has an uncontested divorce and wants a divorce that is quick, easy, and cheap.

It is hard to know whether the divorce packet is for you—whether you can complete your divorce yourself. On one hand, a lawyer is expensive. (Most people don’t have a lawyer fund sitting around.) But on the other hand, everyone has something to lose in a divorce—usually more than they realize. A good family lawyer can protect what’s important to you.

Grandparent Visitation in Arkansas

 

If you want to understand the law, you have to understand this: It’s about striking a balance between competing interests (or rights, as the case may be). The law surrounding grandparent visitation in Arkansas is an excellent example of how this balance works—and why achieving this balance can be so difficult.

On one hand, you have parents and their rights. Everyone pretty much agrees that parents should be able to make the decisions that affect their kids—unless, of course, the parents are unfit. Under normal circumstances, mommies and daddies don’t like the courts telling them what’s best for their kids. Subject to certain limitations, parents have a fundamental right to parent; as the word “fundamental” suggests, you don’t mess with that right unless you have a good reason—and sometimes grandparent visitation is not a good enough reason.arkansas-grandparent-visitation

Grandparents, however, don’t have a fundamental right to act as grandparents. But they do have some rights, especially in our society, where grandparents play an increasingly important role in raising children. (As an aside, let me encourage any Arkansas grandparents who are currently helping to raise their grandchildren: Thank You!).

The law about grandparent visitation in Arkansas is built to balance these two interests—a parent’s right to parent and the right that a grandparent has to keeping a good relationship with his or her grandchild.

A grandparent can get court-ordered grandparent visitation if the following conditions are met:

1. The marriage between the parents of the child has ended due to divorce, death, or legal separation. (Or the grandparent is one of the mom’s parents or one of the dad’s parents and paternity has been established.

2. The grandparent can show a significant and viable relationship with the child and that the grandparent visitation is in the child’s best interest.

The requirements for a significant and viable relationship are set forth in the statute (Arkansas Code Annotated § 9-13-103), as are the requirements for what is in the best interest of the child.

If you’re a grandparent and you think that you can meet these requirements, please contact us today to schedule a complimentary consultation with an experienced family lawyer. We can help you decide what the next step should be.

July 2014 MEE Subjects

July 2014 MEE Subjects

In the spirit of ongoing generosity (and remembering how incredibly stressful that studying for the Bar was), here are my predictions for the MEE section of the July 2014 Bar:

1) a Civ Pro question (surprise there always is);

2) I’m 50/50 on Family Law, and Contracts;

3) Wills (No Trusts);

4)  Commercial Paper (No Secured Transactions);

5) No Constitutional or Criminal Law;

6) There will be a couple between Conflicts, Property, Torts, and Evidence.

This is all a kind of educated guess. Here is a link to a PDF of the history of questions. Blue means they were asked and grey means it was a mixed question. Also, it looks as if mixed questions are becoming more popular.

On the subject of mixed questions: For those who took the July 2013 Bar, they’ll remember the crazy Con Law/Family Law question. It was terrible. Don’t pigeonhole your answer because you think the question is only drawing on one subject.

One last thing: The Bar exam is not like law school exams. If you’ve put in the time, be encouraged: you’ll almost certainly pass.

Good luck on the July 2014 Bar Exam.

Bowen Law School Makes “Best Value” List

As a recent graduate of UALR’s William H. Bowen School of Law, I feel comfortable saying that Bowen students aren’t usually excited about law school rankings. Until someone decides to publish a list that ranks something like “Proximity to Malvern, Arkansas,” “Likelihood to be Attacked by a Goose,” or “Weirdest Yard Sculpture,” Bowen is unlikely to rank anywhere near the top of a list.

So I was pleasantly surprised to see that Bowen made this list published by the National Jurist of the “Best Value Law Schools.”

Unfortunately, we’ll have to wait until the September print issue to know whether Bowen scored an A, A-, or B+. Apparently National Jurist does not understand that Bowen no longer recognizes the validity (or existence) of letter grades.

Common Law Marriage in Arkansas?

One of the worst parts of my job is that I often have to be the bearer of bad news. Recently, a woman called my office for information about receiving some of her partner’s retirement benefits. She was convinced that because she had lived with her partner for nineteen years, she had a “common law marriage” and should be treated like any other spouse. Her partner recently died and she needed help.

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Unfortunately, however, Arkansas does not recognize “common law marriage.” In fact, Arkansas has never recognized “common law marriage.” This news was devastating to her because it meant that those nineteen years she lived with her partner meant nothing—she had no more rights to those retirement benefits than I did.

The State of Arkansas does recognize “common law marriages” if the parties gained that status in another state. So, for instance, if a couple lived in Texas (which allows common law marriages) and had done all the things to establish a valid common law marriage there, Arkansas would recognize that marriage just as if it were a “normal” marriage. But it is impossible—no matter if a couple acts like they are married for 60 years—to get married in Arkansas without going through the formal process.

The woman had made a costly mistake by simply assuming that she had a legal marriage.

Common Law Marriage in Arkansas

How to Establish Paternity

Dad-Paternity

I talk to a lot of dads—many of whom have fathered children outside of marriage. When they ask about their rights (How to set up visitation, Can I keep the mother from moving away, etc.), they are inevitably surprised to learn that they have virtually no rights. Until they go to court and establish paternity, they are about as important as any other dude walking down the street. But you don’t have to take my word for it:

“When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches eighteen (18) years of age unless a court of competent jurisdiction enters an order placing the child in the custody of another party.”

Ark. Code Ann. § 9-10-113(a)

How do you establish Paternity?

A father must sue to establish paternity before he has any rights in the eyes of the State of Arkansas. It is not only a father who can bring a paternity suit: the biological mother, putative (probable) father, the parent or grandparent of a deceased putative father, or child support enforcement. If the mother brings suit, a father can simply sign an acknowledgement of paternity, which pretty much settles the issue. (A father can rescind (or take back) this acknowledgment if he does does so before the court date or within 60 days, whichever is sooner.

If the guy doesn’t think he’s the father (or mom doesn’t think he’s the father), a party can request a scientific paternity test. Dad might also request a paternity test if he’s signed the birth certificate or put his name on the putative father registry, but dad will then bear the burden of proof to show that he’s not actually the father. (This burden can be overcome with a paternity test.)

What happens after Dad establishes Paternity?

After dad establishes paternity, he will be expected to pay child support and will have the right to regular visitation. Dad also has the right to seek custody of the children, but dad must show that he is fit, that he has provided for the child (or children), and it is in their best interest to be in Dad’s custody. Practically speaking, Mom is usually going to be able to keep custody unless Dad is able to show that Mom isn’t a good parent.

Establishing paternity is not a difficult process, but you will need help to make sure your rights are protected. Contact us today for a free consultation.