Boise Criminal Attorney - Idaho Criminal Defense Lawyers - Medical Marijuana

If you have been arrested for possession of marijuana or any other crime in Idaho and need to speak to a Boise Criminal Attorney or an Idaho Criminal Defense Lawyer, please call (208) 472-2383.

Recently in the news, in news magazines and blogs all over the web there have been articles, essays and reports about various states enacting medical marijuana legislation.  There have been pleas to stop the insanity, demands to "just legalize it already" and the rare non-biased news report simply illuminating the facts about medical marijuana.

Over the weekend I had the opportunity to meet a gentleman from Colorado and to see first hand the much talked about medical marijuana card.  The gentleman posed an interesting question to me regarding medical marijuana.  His question was, if he has a valid medical marijuana prescription from Colorado and he brings his "medicine" into Idaho can he be charged with possession here?  Sounds like an easy question right?  Wrong.

Article VI, Section 1 of the United States Constitution states that "Full Faith and Credit shall be given in each State to the public acts, records, and judicial proceedings of every other State".  This is supposed to mean that each state in the United States will recognize the validity of the laws of a sister state even if their laws are different or contradictory to their own.  Think, for example, if the laws of one state were not recognized by another.  If I was married by common law in Idaho before 1996 and I move to a state that does not recognize common law marriage, would I suddenly be a single person?  No, of course not.  My marriage would be honored and recognized because of Full Faith and Credit.  Likewise, if I get a divorce in Idaho and my property is split according to community property laws and I move to another state that does not recognize community property law, that state will still acknowledge my ownership as determined by community property pursuant to my Idaho divorce decree.

Some people argue that because it is a criminal law issue, Full Faith and Credit does not apply to medical marijuana.  This is simply absurd.  A state court in one jurisdiction can enforce an order of a court from another jurisdiction even if it is a criminal matter.  Domestic Violence orders across state lines are not ignored simply because they are of a criminal nature.

So what about medical marijuana? Is it a crime to possess marijuana in Idaho that was prescribed pursuant to law by a Colorado doctor, after the State of Colorado passed the law allowing possession of marijuana for medical use?  The Supreme Court  of the United States has clearly held that every state must give judgments from other states “the same credit, validity, and effect” that would be given to the judgment in the state that rendered it. (Williams v. North Carolina, 317 U.S. 287, 293-94 (1942) (Williams I)).  So it shouldn't be a crime right? Well,  even though the Supreme Court has said in so many words that it shouldn't be, like a lot of issues in the law, it is as clear as mud.

Even though the Constitution of the United States says Full Faith and Credit must be given, it is routinely denied.  Think of gay marriage.  Just because Massachusetts allows a gay couple to get married does not mean Idaho will recognize that marriage, and in fact, Idaho does not recognize gay marriages from other states.  Where is the Full Faith and Credit there?  Oh, yeah, its called the ever-present "public policy" exception.  The irony of that?  If that same Massachusetts couple adopts a child within their marriage in Massachusetts, even though their marriage won't be recognized in Idaho, the adoption and the status of the gay couple as parents is recognized.  Can you see now how a proclamation from the Supreme Court, such as the validity of Full Faith and Credit, gets murky depending upon the issues involved?

As far as medical marijuana is concerned, it is a terribly unclear area because the Idaho Supreme Court has yet to take up the issue.  In March of this year, however, a woman from Humbolt County, California who had a medical marijuana license was arrested in Freemont County, Idaho for possession of marijuana and possession of paraphernalia. She was charged, because according to the Freemont County prosecuting attorney, "Idaho does not honor marijuana certificates from California and other states".  This, presumably, is based upon that old Public Policy exception. This case, however, won't be taken up to the Supreme Court because the woman plead guilty, but it is likely that eventually someone will be up for the challenge.

So the long and short answer to the gentlemen from Colorado - there is no final answer - yet.  All states are wrestling with the issue of medicinal marijuana because it is a new law, and one that does not yet have all the bugs worked out.  My advice to the man from Colorado?  Don't get caught, but if you do, make certain you have a darn good Boise Criminal Lawyer to either get you a good plea or to help you set the precedent in Idaho.

If you have been charged with possession of marijuana or any other crime in Idaho, including DUI, and you need to speak to a Boise Criminal Attorney, please call (208) 472-2383.

Boise Divorce Attorney - Idaho Attorneys and Lawyers - Common Law Marriage

Boise Divorce Attorney and Custody Lawyers in Boise, Idaho call (208) 472-2383.
As a Boise Divorce Attorney I work frequently within the world of the Idaho Family Law Statute.  Idaho Code Chapter 32 deals with Domestic Relations.  It covers everything from marriage, illegal marriage, divorce and the grounds for divorce to the parent child relationship in terms of custody and visitation as well as community property.

The Family Law Statute has changed over time.  One specific example of this change has to do with common law marriage. At one point in Idaho history, the state recognized common law marriage.  Common Law marriage put simply was two people decided to get married and they acted as though they were married.  In the eyes of the law, for all intents and purposes, they were married.  As of January 1, 1996, however, Idaho no longer recognizes any common law marriage begun after that date.  If you were common law married before that date, meaning you put yourself out as a married couple a court would still consider you married and you could file for divorce and custody in Idaho.

What does it mean to put yourself out there as being married?  A Boise Divorce Lawyer would present evidence to the court that showed you treated your relationship as one of a marriage, not just co-habitation.  Examples of evidence an attorney might use to prove this might be filing joint tax returns, being claimed as a spouse on health insurance, purchasing a home together or telling people that you were married.  However, having children together and co-habitating do not necessarily reach the level of evidence needed to prove marriage.

Why would your divorce lawyer want to prove that you were married?  That family law statute that I mentioned above provides  protection for married couples called community property.  If you were living together, but were not married and one party worked and the other stayed home and the one that worked used their money to pay for the house and to pay for the car and all the other goodies, if they ever split up the person who paid for everything would get it all.  Now that may be fine for the person who worked but the person who stayed home and took care of the house and the kids would get nothing.

Community property recognizes that it is a community effort to build the community and therefore it rewards each individual equally in terms of value.

If there were children to the common law marriage how custody and visitation would be determined for those children would be the same whether it was ultimately decided that a common law marriage did or did not exist.  The parties would be ordered to mediation and if they could not agree on a custody arrangement both divorce lawyers would present evidence to show why their client is the party best suited to be the custodial parent or why it would be in the best interest of the child to have primary physical custody with one parent or the other.  Ultimately, using requirements outlined in that family law statutes I spoke about above, an Idaho judge would determine what is in the best interest of the child.

Ultimately, if you are married and are going through divorce in Idaho or you are going through divorce in Idaho and have children or simply have children together in Idaho and are splitting up, you too will enter the world of the family law statute.

If you  need to speak to a Boise Divorce Attorney, please call (208)472-2383

Boise DUI Attorneys - Idaho Criminal Lawyer - Accuracy of Field Sobriety Tests

Boise DUI Attorneys - Criminal Lawyer in Idaho - DUI, DWP, Criminal Defense, call (208) 472-2383 free consultation.

Boise DUI Attorneys are always asked what the standard field sobriety tests are and if they are valid.  The National Highway Traffic Safety Administration (NHTSA) developed three standardized tests to determine if there is probable cause to arrest an individual suspected of DUI.  Standardizing the tests ensures consistency.

The three standardized tests are the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT) and the One Leg Stand (OLS).  These tests are used once an officer has probable cause to pull an individual over on suspicion of DUI.  Once pulled over the officer administers the three standardized tests which provide the evidence for probable cause to make a DUI arrest and administer a breathalyzer test.

Boise Criminal Lawyers may challenge probable cause for the initial pulling over as well as the probable cause based on the results of the field sobriety tests.  Attorneys use challenges to probable cause to exclude evidence.  Once the evidence is excluded the prosecuting attorney, the state's lawyer, may or may not have enough evidence to go forward to charge an individual with DUI.

The Horizontal Gaze Nystagmus works on the principle of eye muscle control.  An individual who has not been drinking will show rapid eye jerking when the eyes are elevated to the maximum level. An individual who is intoxicated will show these jerking movements at less elevated levels as well as will have difficulty tracking with their eyes.

The Walk and Turn test requires an individual who is suspected of drinking and driving to walk nine steps from heel to toe and turn on one foot.  The officer looks for clues as the suspect performs the tests.  Such clues are inability to balance while listening to the directions, inability to walk heel to toe, inability to maintain walking in a straight line and failure to turn on one foot on the ninth step.  As a Boise DUI attorney I see people fail this test all the time, but I might suggest that even a non intoxicated individual may have difficulty performing this one.

The One Leg Stand test requires an individual who is suspected of drinking and driving to stand with one foot elevated about 6 inches above the ground and count by thousands for thirty seconds.  As the suspect counts, one-thousand one, one-thousand two etc, the officer looks for wobbling, swaying, hopping or putting your foot down.  Two or more of these indicators, according to the NHTSA, suggests the individual has an 83% chance of having over a .08 BAC.  Again, as a Boise Criminal Lawyer I see individuals charged with DUI failing this test regularly.  And, again, I would suggest that most people, especially the older you get, will fail this test.

DUI officers are trained to look at the three tests individually and as a whole.  When looking at the results of all three tests they get what is known as a Combined Measures.  With this they look at all three tests and evaluate the likelihood that the failures of the individual tests equal a DUI.

So, these are the standardized tests to establish probable cause for arrest on DUI.  The two most frequent questions Boise Criminal Lawyers get are, "Are they effective  and Can they be challenged?".

According to the NHTSA, when comparing percentage of those actually found to have a BAC of greater than the legal limit from 1981 v. 1998, the accuracy of the tests due to training increased substantially.  In 1981, when the legal limit for driving under the influence was .1, the accuracy for field sobriety tests were:  HGN - 77%, WAT - 8% and the OLS - 65%.  The Combined Measures resulted in an 81% accuracy arrest for DUI.  In 1998, when the legal limit had been reduced to .08, the results were:  HGN - 88%, WAT - 79%, and OLS - 83%.  This translates into a Combined Measure accuracy of 91%.

In light of the NHTSA accuracy statistics can a DUI Attorney still challenge the results.  Absolutely.  There are many factors which can go into failing a field sobriety test.  Some examples of this are medical conditions such as vertigo or eye disease.  Medications which have not legally impaired your ability to drive may make your balance on one leg questionable or cause you to have light sensitivity which could effect the HGN.  Criminal Lawyers will ask an individual charged with driving under the influence if they have any conditions which might impair their ability to take a standardized field sobriety test, but if you are pulled over on the suspicion of DUI and have a condition which might effect you performance, you should always let the officer know.

If you have been charged with DUI in Idaho and need to speak to a Boise DUI Attorney or an Idaho Criminal Lawyer, please call (208) 472-2383.

In addition to DUI and Criminal Law, Kershisnik Law offers representation in a variety of areas including divorce, custody, family law, probate, wills, estate planning, small business law, personal injury and employment law.  If you need to speak to a Boise Divorce Attorney, a Boise Probate Attorney, or an Idaho Personal Injury Lawyer, Employment Lawyer or Small Business Attorney, give us a call and see what we can do for you.

Boise Divorce Attorney -Idaho Family Law Lawyers - Boise Custody Attorneys

Kershisnik Law, (208) 472-2383, Boise Divorce Attorney, Idaho Family Law Lawyers, divorce, custody, modification, child support, family law.

As a Boise Divorce Attorney I often get calls concerning child support. There are many issues surrounding child support. They can be pursuant to a divorce or a custody proceeding or any other variety of scenarios. A frequent situation that I am involved in regard to Medicaid or other state assistance.

When a parent is receiving state funds or insurance through TAFI, or aid to needy families, there are certain rules that apply to child support. If you are receiving aid you are required to assign your right to child support payments to the state. Any monies you are owed pursuant to a divorce, custody or paternity order must be paid to the state in exchange for the support they are providing you in relation to TAFI.

This is an important point because as a Boise Divorce Attorney I often hear disparaging comments from people insinuating that a party is receiving child support from them and Medicaid or food stamps or the like. This simply is not the case.

If you need to speak to a Boise Divorce Attorney or an Idaho Family Law Lawyer, please call (208) 472-2383. You can also visit our website and fill out the quick contact form and one of our attorneys will get right back to you. There you can tell our lawyers how you would like them to contact you.

Boise Probate Attorneys, Family Law Lawyers, Boise Divorce Attorneys

Boise Probate Attorneys, Family Law Lawyers and Boise Divorce Attorneys, call (208) 472-2383

As a Boise Probate Attorney I am always preaching about the importance and the benefits of writing a will.  A will, along with an estate plan, helps you to distribute your property and your wealth the way you want upon your death.

As a Boise Divorce Attorney, I am also always reminding people that they need to change their wills if they get a divorce.

Settling your estate in probate after a divorce can get complicated and expensive for your heirs if the will is not cleaned up after divorce.  Failure to remove property that you no longer own or failure to remove your ex spouse's name and include your new spouse leaves your estate open to attack.  In probate, the will of the testator is an important factor, but there is nothing more clear than removing your ex spouse's name from the will.

Take the advice of a Boise Divorce Attorney, before you need a Boise Probate Attorney.  Always change your will if you have gotten a divorce.

If you need to speak to a Boise Divorce Attorney or a Boise Probate Attorney, please call (208) 472-2383.  You can also visit our website for helpful information concerning divorce and probate.  Here you will find a quick contact form.  You can fill out the form and one of our attorneys will get right back to you.

Boise Divorce Attorney - Boise Family Law Lawyers - Idaho Criminal Attorneys - Family Lawyer - Criminal Lawyer

Boise Divorce Attorney Lawyers, Boise Custody Attorneys Lawyers, Boise Criminal Lawyer, Idaho Family Law, call (208) 472-2383, divorce, custody, family law including modification, visitation, child support, termination, adoption and domestic violence and all crime in Idaho.

As a Boise Divorce Attorney I regularly get calls about domestic violence and crime effecting the marital state.  These crimes often revolve around divorce.  There are two categories of violence effecting the marital state.  The first is domestic violence.  Boise Divorce Lawyers see this as a regular part of their divorce practices.  In the case of domestic violence a party or their lawyer will file for a temporary restraining order.  Attorneys file for an ex parte hearing.  What this does is allows the person who is alleging abuse to get an expedited hearing and the restraining order in place before any harm or before further harm is done.  These are often used in the divorce context because the marital union is breaking down.  They often also involve custody disputes.  Judges, and Boise Divorce Attorneys, however, do not like it when these are used in an attempt to keep the other partner away out of spite, rather than for true threat of violence.

Once a temporary restraining order has been put in place, the party against whom the order is issued is given an expedited hearing so that they or their divorce lawyer can present evidence why the order should not stand.  If the judge finds there are no grounds for the temporary order he or she will dismiss it.  If the judge, however, finds grounds a no-contact order will be issued.  This means that the parties are to have no contact, except through their attorneys for necessary things like those things pertaining to the divorce or custody.

Another situation where crime enters the marital union and where it may be necessary to have a Boise Criminal Lawyer in addition to your Boise Divorce Attorney, is malicious injury to marital property.  This is a fancy name for intentional and malicious destruction of community property assets.  This is a crime in Idaho and the penalty depends upon the value of the property, or the aggregate value of the properties destroyed.  If the value is $1,000 or less, the penalty carries up to a 1 year jail sentence, a $1,000 fine or both.  This is a misdemeanor charge.  If the value of the property is greater than $1,000 there is a minimum 1 year but up to 5 years in prison, up to a $1,000 fine and the crime is a felony.

If this issue is raised in the divorce context within the divorce court, a judge may deal with it there. Boise Divorce Attorneys often see destruction of property as an issue in divorce court.  The issue will be dealt with as a criminal law issue in criminal court if a criminal complaint is filed.  Filing the criminal complaint will require contacting the police and filing a report.  If the complaint is warranted, the police will forward the complaint to the prosecuting attorney, the state's lawyers, and charges will be filed. 

If you need to speak to a Boise Divorce Attorney or a Boise Criminal Lawyer, please call (208) 472-2383 or visit our website.  At our website you will find a quick contact form.  If you fill it out, one of our attorneys will get right back to you.  Please be sure to tell our lawyers the best way to contact you.

Boise Probate Attorneys - Idaho Estate Planning Lawyers - Boise, Idaho Law Firm - Durable Power of Attorney

Boise Probate Attorneys, Idaho Estate Planning Lawyers, Probate, Wills, Estates and Trusts, call today  (208) 472-2383 or visit www.kershisniklaw.com   Free Consultation

As a Boise Probate Attorney I often get calls from people wanting to know what they can do if they have property in the jurisdiction that needs to be tended to while they are out of the state.  Or, another form of this question Boise Probate Attorneys hear is what do you do when you leave your children in the jurisdiction with a babysitter while you leave the country?

These types of issues can easily be handled with a Power of Attorney.  A Power of Attorney gives someone you choose, your authority to handle your personal matters while you are away or incapable (having surgery, for example).

Idaho has specific requirements for Powers of Attorney.   If it is in the proper form and properly executed the Power of Attorney has the same effect as if it were you handling your affairs.  So, for example, if you are planning on going to Europe and you are leaving your young children at home with a babysitter you would want to execute your Power of Attorney, designating the babysitter or another trusted adult as the your agent.  This would allow the babysitter or the adult to take the child to the doctor or the hospital and authorize medical care, or to call the child in sick from school or the like.  If you don't leave a Power of Attorney the doctor or the hospital could deny the child care because you would lack authorization to get the care.  The same goes for your financial affairs.  If you have a  piece of property listed for sale but you find that you will be out of the country and the property might sell before you return, you would execute a Power of Attorney authorizing your agent to sign the sale documents for you.

A Power of Attorney can limit the attorney in fact's power to a specific transaction or it can be a general power in case something uncontemplated arises. 

Why is a Power of Attorney something  Probate or Estate Planning Lawyers deal with?  The law governing Powers of Attorney falls under the Idaho Uniform Probate Code.  The Idaho Probate Code deals with Estates, Wills, Trusts and Probate and so Probate Lawyers are very familiar with Powers of Attorney.

What happens if you execute a Power of Attorney and someone refuses to accept it?  If it is in the proper form and properly executed, anyone with whom you would deal with in person must accept the Power of Attorney and the actions of your designated attorney in fact.  If they don't, unless they have a justifiable reason as outlined in the Idaho Probate Code, they will be ordered by an Idaho Court to accept it and will be ordered to pay your attorneys fees associated with having to hire a lawyer and going to court to make them accept it.

What happens if your attorney in fact makes a decision that you as the principal would not have made?  The down side of a Power of Attorney is that you are bound by their decision, just as if you had made the decision yourself.   It is important to choose your attorney in fact carefully and it goes without saying that it should be someone you trust.

There are numerous other situations where you could use a Power of Attorney, but these two examples give a idea of what an effective tool they can be.

If you need a Power of Attorney, need to speak with a Boise Probate Attorney or a Boise Estate Planning Lawyer, please call, (208) 472-2383.

Boise Probate Attorneys - Idaho Estate Planning Lawyers - Non Probate Transfers

Boise Probate Attorneys, Idaho Estate Planning Lawyers, Probate, Wills, Trusts and Estate Planning, call (208) 472-2383 or visit www.kershisniklaw.com or www.lawboiseid.com - Free consultation.

Boise Probate Attorneys are often asked what, if anything, is a non probate transfer and why would someone want something to be transferred outside of a will?  Firstly, you can avoid potential inheritance tax for your heirs if you transfer property outside of a will.  Secondly, there are many ways to transfer property or income outside of your estate resulting in a non probate transfer. 

Common ways Idaho Estate Planning Lawyers by-pass the testamentary transfer of property is through non probate transfers.  Examples of these are trusts that are created during the lifetime of an individual.  Idaho Estate Planning lawyers create a inter-vivos trust where the individual transfers all their property to the trust, but they retain control of the property during their lifetime.  The trust names beneficiaries and upon the death of the individual the property passes to the beneficiaries without the need to go through probate. 

Estate Planning Attorneys also often have their clients use life insurance as a way to pass income outside a testamentary devise.  The insurance policy can potentially transfer a much larger sum of money than the individual paid in, and the proceeds from the life insurance policy transfer outside of the estate making a non probate transfer. 

Another way to pass income outside of probate is through the use of bank accounts.  If you have a joint account and one of the parties dies, the balance in the account becomes the property of the other party named on the account.  Another bank account method to by-pass probate is the "Totten Trust"  A Totten Trust is basically a P.O.D. account.  By designating a bank account as a Totten Trust, payable on death to named beneficiaries, Probate Attorneys are able to help their clients create a trust to pass money outside of probate.

For other ways to create non probate transfers or if you need to speak to a Boise Probate Attorney or an Idaho Estate Planning Lawyer, please call (208) 472-2383.

Boise Probate Attorneys - Idaho Estate Lawyers - Where to File Probate

Boise Probate Attorneys, Idaho Estate Lawyers, Wills, Estates and Trusts, call (208) 472-2383 or visit www.kershisniklaw.com, Kershisnik Law, PLLC

As a Probate Attorney one of the most frequently asked questions I hear is, "where do you file probate?"  Idaho Uniform Probate Code says that probate should be filed in the county where the deceased person was domiciled at the time of death.  That works fine and well if the decedent lived in Idaho at the time of their death.  This leads to the second most frequent question I hear as a Probate Lawyer, "if Uncle Joe didn't live in Idaho, but had property here can we probate the will in Idaho?"  The answer to that question is, yes.  The Idaho Uniform Probate Code says that a will can go through probate in an Idaho Court if the decedent did not live in Idaho at the time of death but has property located here.

What Idaho Code 15-3-201 does as a practical matter is it uses domicile, or if their is not domicile, property, to determine where probate will be heard.  Probate lawyers see it as a first come first serve basis.  If the decedent didn't live in Idaho at the time of death but had property in Ada County, Boise County and Idaho County, the named personal representative can choose which county to bring probate in.  If the first proceeding is an informal probate, a probate attorney can request a second formal proceeding and it is possible to transfer the probate to another county upon the finding that the other venue is more proper.  Otherwise, the probate will remain in the first county and that county will order the probate to be carried out, even if their is property in other counties.  Probate Attorneys know that domicile is always the best way to establish venue, but that is not always possible.

Boise Divorce Attorneys and Powers of Attorney for Military Deployment

As a Boise Divorce Attorney I regularly hear from military personnel who have had a divorce, have a custody and visitation schedule in place and now are being deployed.  They are often very concerned that the deployment will interfere with their custody and visitation schedule.

There are many protections for military personnel under Idaho and federal law.  One of those has to do with custody and visitation upon deployment.  Idaho law allows a soldier to delegate their custody and visitation rights with the use of a power of attorney while they are deployed.  The power of attorney is effective for up to three years.

Divorce lawyers often suggest that their clients use this tool to preserve the existing custody and visitation schedule.  It is often the best choice when the child is close with their grandparents and they would benefit from continued contact with them.  It is also often the best choice if their are step siblings in the home and continued contact with them would be beneficial.

Another option that custody attorneys use is to alter the custody and visitation schedule by mutual agreement and without prejudice.  This may be the best choice if their are no grandparents or step-sibling around.  Custody lawyers will use this option in these circumstances so that there are not multiple trips to the court for modification.

This is not to say that the other party may not hire a custody attorney and try to show that the deployment is a material change in circumstances and that it is not in the best interest of the child to have visitation with a party delegated by the soldier.  As a Boise Divorce Attorney I can tell you that Idaho and federal law protects military personnel in this circumstance.  However, it ultimately is up an Idaho Court to decide.

If you need to speak with a Boise Divorce Attorney or a Boise Custody Lawyer, please call (208) 472-2383 or for more information visit www.lawboiseid.com

Boise Attorneys

Welcome to the new blog for Boise Attorneys at Kershisnik Law.  In this blog our lawyers will discuss various issues effecting the areas of law our Boise attorneys practice.  These include divorce, custody, probate, DUI, criminal law, personal injury, employment law and small business law.  We welcome your readership and look forward to blogging with you.

If you need to speak with a lawyer in Boise, Idaho or have issues you would like to discuss with one of our attorneys, please call (208) 472-2383 or visit us at www.kershisniklaw.com or www.lawboiseid.com