Just before the frog strangling rain came Saturday evening it dawned on me that perhaps some advice on drunk driving laws was in order.  I’m not sure but perhaps our close proximity to the well stocked and popular beer booth was the inspiration for this week’s article.  Obviously, the first bit of advice is to not drive drunk!  I would go so far as to say don’t drive after having more than a few drinks as that very well might earn you a .08 BAC on the good old breathalyzer and 12 hours as a guest of the city or county.  Simple enough yet around 15,000 Alabamians are arrested each year for DUI.

 DUI’s are also an enormous pain in the rear end.  By rear end I primarily mean your wallet although there are significant jail terms possible with every DUI conviction.  Here’s what you get for your good time:

 1^st DUI – Up to 1 year in jail and/or $600 to $2,100 in fines and loss of license for 90 days.

2^nd DUI – Five days to one year in jail and $1,100 to $5,100 in fines and loss of license for one year.  The mandatory 5 days can be replaced with 30 days of community service by the Judge.

3^rd DUI – 60 days to 1 year in jail and $2,100 to $10,100 in fines and loss of license for three years.

4^th DUI – This is a Class C Felony.  One year and one day to 10 years in prison and $4,100 to $10,100 in fines.

If you had a really good time and “blow” a .15 or more all of the minimum punishments are now doubled and you lose your license for one year.  If you have a child under the age of 14 in the car with you all of the minimum punishments are doubled.

 There will also be Court Costs, attorney fees and the costs of the mandatory court referral program that all add up to thousands of more dollars.  In the City of Helena the court costs for a DUI are currently $540.50 and for a first time DUI in Helena I charge $1,000.00.  You can see where this adds up very quickly.

 On September 1^st the new ignition interlock device laws will go into effect in Alabama and those that are convicted of a second or subsequent DUI, “blow” over .15, or have someone under 14 with them they will get the fun privilege of periodically blowing into a tube to keep their car cranked and running.   I will write specifically on the new law in a later blog.

Lastly, there are a lot of myths out there about DUI’s.  They are almost all false.  You can get a DUI for alcohol, prescription medication, narcotics or even medicines such as cough syrup and Benadryl.  If you give a drunk person a lot of coffee and a cold shower you will only end up with a wired, clean, and cold drunk.  Pennies, mints, mouthwash, and all the other assorted things people put in their mouths to try and throw off the breathalyzer don’t work and could get swallowed (referring again to pain in the rear end).  The only thing that brings sobriety is time.

 The rule of thumb for an average person is to make sure you eat before consuming alcohol and only consume one beer or mixed drink per hour.  I strongly advise waiting at least one hour after your last drink before driving if someone else cannot drive.  There are few crimes that Courts and prosecutors have lower regard for than DUI.  You are not only endangering yourself but everyone man, woman and child on the road with you.  MADD’s slogan is simple and true … “Don’t Drink and Drive”.

Answer PART 2:  In Answer Part 1, I addressed the overall process of filing a claim.  In Part 2, I will now address whether you qualify or not.  Without knowing the facts or your particular claim I cannot respond directly.  Each claim has its own merits but all claims are evaluated under the same rules.  The Social Security Administration and/or the Administrative Law Judge reviewing the claim at a hearing will apply a five-step process.  Your claim must pass each step, in order, to be successful.  In simple, lay terms, the steps are:

Step 1:  Do you work and earn less than $1,010.00 per month?  If yes, go to Step 2.

Step 2:  Do all of your diagnosed impairments combined cause you to be unable to perform basic work activities for at least twelve months or, alternatively, are your impairments going to kill you?  Yes, if you are going to die they are supposed to approve you.

Step 3:  Do your impairments meet the government’s rules as written in “the listings” to be considered disabling?  If yes, congratulations you qualify.  However, the criteria in “the listings” are so outrageous that few meet them.  So, we go on to the 4^th Step.

Step 4:  Are you unable to do any of the work you have done in the past 15 years?  If yes, proceed to Step 5.

Step 5:  Are you unable to do any other kind of job?  By “any” job I mean any job.  If you can think of a job and you can do it you likely don’t qualify.

Of course, there are legal exceptions and a multitude of rules and regulations at each step affecting each claim.  It is important that you hire a knowledgeable attorney who can navigate these issues and prepare evidence to prove your claim at the hearing.  All attorneys must, by law, represent you on not more than a 25% contingency fee basis and the fee is capped at $5,300.00.  By law, if they lose they don’t get paid for their services.  This is not some grand favor they are doing for you as suggested by the “TV” lawyers.  If you have questions, please feel free to contact me at www. Davidsonlawoffice.com.

 Answer PART 1:  I will address this question in two separate posts due to the length.  I have been representing disabled individuals in claims for Social Security benefits for over fifteen years.  The process is time consuming for most claimants.  On average, you can expect a wait of two years from the time you first apply and the time you receive a favorable decision from an Administrative Law Judge.  You may be qualified to receive two kinds of Social Security benefits.  If you have worked and paid your Federal taxes for a sufficient period of time you will qualify for Disability benefits.  If you do not qualify for Disability but are disabled you may qualify for Supplemental Security Income (SSI) if you meet certain asset criteria.  In some cases you may qualify to receive both Disability and SSI.

Here are the steps in a nutshell:

1.         Go to www. ssa.gov.  Complete the online application for Disability and/or SSI benefits.  The process is fairly simple.  A telephone appointment with SSA will be scheduled after your online application is filed.

2.         You will either be approved or denied usually within the next three months.  Expect to be contacted by Disability Determination Services (DDS).  They may even send you to a medical professional for a consultative examination.

3.         When you are denied, and close to 90% of applicants are denied, you only have sixty days from the decision to file an appeal.

4.         Retain an experienced Social Security lawyer immediately!

5.         File the appeal called a Request for Hearing Before an Administrative Law Judge (ALJ) and the other forms required.  This became an online process earlier this year.  In fact, all attorneys must file the appeal online.

6.         You will have a hearing usually within the next 12-17 months where you may present evidence and testimony to an ALJ.  It is the ALJ’s job to determine if the SSA’s denial was correct.

7.         If you lose, you can appeal to the Appeals Council located in Falls Church, Virginia.  It will take approximately two years for a decision.  If you lose this appeal you may then appeal by filing suit in Federal Court against the SSA.

 I hope this is very helpful.  The process is lengthy and I highly recommend that you retain legal counsel after your initial denial.  In my opinion, there is not a whole lot at the initial application stage that an attorney can effectively do to assist you.  However, as soon as you receive your denial you should immediately hire an attorney who practices this type of law.   If you have any questions, please do not hesitate contact the Davidson Law Firm.

I have received several questions regarding child support recently so I will address those this week.   My office handles all types of domestic law cases so give me a call if you need help or have question.

Question:  I am considering a divorce but my husband says he won’t pay me any child support.  Is this true?

Answer:   This is a pretty big issue that I see often in my practice and is something that many people do not understand.  A divorce is between you and your spouse.  Child support has nothing at all to do with the problems between you and your spouse.  Let me say that once more for those of you steaming mad at your ex or soon to be ex: child support has nothing to do with whatever is going on between you and your spouse.  Child support is about taking care of your children.  The law very clearly states that a non-custodial parent must take care of its obligations to support its children through the payment of child support.   A judge cannot let the non-custodial party not pay child support unless there is really, really, really good reason.   So, the short answer is no that is not true.  If you would like to know about how much you will receive just contact my office and I will be happy to calculate the number for you or you can look at the information at http://www.alacourt.gov/ChildSupportInfo.aspx for links to the guidelines.

Question:  My former spouse has not paid child support in over a year.  What do I do?

Answer:  The answer depends on which Court awarded child support.  Since you said former “spouse” I will assume it was the Circuit Court that rendered a judgment of divorce.  The Court that issued your divorce retains jurisdiction over the matters in the order, particularly child support.  My first recommendation is to hire an attorney immediately to represent you in the enforcement of the Order because you will need to file a Motion for Rule Nisi.  This is lawyer speak for asking the Court to hold the other side in contempt of court for failing to obey the order.  The court can hold a contemptuous (read, deadbeat) party in either civil or criminal contempt and force it to pay what it owes (called purging), award you attorney’s fees, and even throw them in the slammer (hooscow, pokey, clink) for up to five days per violation.  Yes, that’s five days in jail for each month he or she has not paid.  You would be surprised how money suddenly becomes available when they are looking at two months as a guest of the County.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

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Question:  I got a traffic ticket the other day.  What should I do?

Answer:  First, make sure you mark the date for your court appearance on your calendar so that you do not miss your court appearance.  A failure to appear can lead to the issuance of a warrant for your arrest and additional fines and court costs.  The citation will tell you the date, time and location of your court appearance.  Citations issued by State Troopers and Sheriff’s Deputies are heard in the District Court of the County of issuance.  Citations issued by police officers are heard in the Municipal Court of the city of issuance.  Do not miss your court appearance for any reason!

Almost all courts; including Helena, Pelham, Alabaster, and Hoover, allow first time traffic offenders the option to attend a defensive driving school class. The court upon completion of the class will dismiss the citation.  This means that you will not incur points on your license and your insurance provider will not raise your premiums.  Simply go to your court date and request defensive driving school or follow the Judge’s directions usually given at the beginning of the session.  The class is usually 2-4 hours long depending on the jurisdiction.

If it is not your first offense you can always elect to pay the traffic citation either by mail or in person.  This is an admission of guilt and will result in points added to your license and likely higher insurance premiums.  However, you will save the payment of court costs and the time involved with going to court.  This is your best option if you are going to plead guilty at court.

If it is not your first offense and you want to dispute your citation you may have a trial where you may offer evidence and witness testimony.  You should contact a local attorney familiar with that court to represent you for any court proceeding especially trials.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

It’s time for Lawyer Thursdays! Submit your legal questions to cbdavidson@davidsonlawoffice.com any time.  Please put “Lawyer Thursdays” in the subject line as I also receive many emails through my website at www. Davidsonlawoffice.com.  You may also call Davidson Law Firm at 685-4822 or come by the office located in Old Towne Helena.  This week I will be addressing a very good question regarding the carrying of pistols in Alabama.

Question:  Can you please explain my rights regarding the carrying of a pistol in the State of Alabama?  Am I allowed to “open carry” a pistol in Alabama?

Answer:   I am a very strong advocate of our Constitutional rights including our rights to keep and bear arms under the 2^nd Amendment.  However, there are restrictions to that right that are in the general interests of public safety and welfare.  I think most would agree that we don’t need just anyone strolling around the streets with submachine guns, juggling grenades or towing artillery pieces behind their SUV.  Alabama does have a concealed pistol law requiring you to obtain from the Sheriff’s Department an annual permit to carry a pistol concealed on your person or in your vehicle.  To obtain a permit you must fill out a form, have a valid reason to carry a concealed pistol (i.e. self defense) and pay the fee.  However, the right to carry a pistol/firearm even with a concealed pistol permit isn’t applicable to everyone who wants to pack heat.

Private citizens may not possess a pistol (or firearm) at all …

1.)  in, at or within 1,000 feet of a demonstration at a public place.

2.)  if you have been convicted of a violent crime.

3.)  if you are an addict or drunkard.

4.) on public school property with the intent to do harm.

The question of the legality of “open carry” or “open holster” is always the subject of debate and confusion even among law enforcement.  You may carry an unconcealed pistol on your person so long as you are,

1.) on your own property, or

2.) on public property, and

3.) on foot, and

4.) not intentionally or recklessly acting in a threatening manner.

You can legally take a stroll down the sidewalks of Helena like Wyatt Earp with your hand cannon strapped to your side.  You are far better off obtaining a concealed pistol permit and covering that hog leg with your jacket.  The second you step onto private property you are subject to arrest for carrying a pistol and your permit only applies to a concealed pistol.  In addition, the aggravation of dealing with the inevitable alarmed citizen will not be worth the convenience of carrying “open holster”.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

http://www.ehow.com/how_7456286_calculate-workman_s-comp-benefits.html

Welcome back to Lawyer Thursdays!  Last week went over so well, Hewy is going to allow me to continue to answer your legal questions each week! You can submit your legal question to cbdavidson@davidsonlawoffice.com any time.  You don’t have to have specific problem or issue.  I will be happy to answer those legal questions that you may have been wondering about for years!  Please put “Lawyer Thursdays” in the subject line as I also receive many emails through my website at www. Davidsonlawoffice.com.  You may also call Davidson Law Firm at 685-4822 or come by the office located in Old Towne Helena.

Question: My next-door neighbor is a hoarder.  Does Helena have any restrictions for such activity?

Answer: That depends on what your neighbor is hoarding and where.  Helena does have an ordinance restricting junk, trash, and debris from your yard.  If the hoarding activity is inside the residence then the issue becomes more difficult and diverse.  Helena cannot do anything about what’s inside your residence (outside of illegal activity) unless it either becomes a public nuisance or a fire hazard.  For example, 28 dogs barking all hours of the day and night would be a public nuisance while hoarding of stacks of newspaper and magazines would be a fire hazard.  If the hoarding activity is creating a health hazard then your recourse is through the Shelby County Health Department.

Question:  Why is it that every time I want to buy something they make me sign a paper that says I can’t take them to court but instead I have to go a mediator?  Is this just a State of Alabama thing or does this occur in other states?

Answer:   I could write a whole book on this issue.  What you are referring to are arbitration agreements that exist nationwide and really started to encroach into our daily lives in the mid to late 1980’s.  Arbitration is legally binding mediation where the parties submit their arguments and evidence to a mutually agreed upon or Court appointed Arbitrator (who you have to pay in whole or in part) who will then decide the case.  There are no rights to appeal and there are no requirements that the Arbitrator even has to apply the law.

The Federal Arbitration Act was first passed by Congress in 1925 to encourage and allow businesses to agree to resolve disputes without the Court system.  However, as we all know, arbitration has now creeped into every aspect of consumer transactions and now employment agreements as well.  In essence, in exchange for the privilege of purchasing that car, house, motorcycle, boat, mobile home, mouse trap, or pack of gum you are also agreeing to the waiver of your rights under the Seventh Amendment of the United States Constitution which states,

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The legislature of Alabama specifically prohibits arbitration. Ala. Code § 8-1-41(3) (1975).  However, the Federal Arbitration Act preempts our State law in almost every circumstance thanks to the U.S. Supreme Court’s decision expanding the scope of the Commerce Clause in Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265 (1995).  Under Dobson, there doesn’t seem to be any activity or transaction that does not affect interstate commerce bringing in the preemptive Federal laws.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

Question: My neighbor’s across the street have visitors who park on the sidewalk next to my house.  They drive across my yard at the edge of the street where the sidewalk ends leaving ruts.  What can I do?

Answer:  Parking on the street is a violation of Helena’s Municipal Ordinances and is a typical ordinance violation in most municipalities.  A simple call to the Helena Police Department (663-6499 – do not call 911 for this type of problem) will get the offender a citation and a date with us at Municipal Court.  I would have to check our ordinances to be sure but parking on and/or blocking a sidewalk is most likely not legal either.  There are several other legal options at your disposal as well.  Damaging your property is actionable both civilly and criminally.  The civil action would be a Small Claims Court case for the cost to repair the damage.  Criminal actions would include trespass and destruction of property.  You should write down a description of the vehicle(s) and the tag number(s).  My suggestion is that you place a large, decorative stone, planter or tree at the corner of your property so that they cannot drive across the edge of your lawn.

Question:  Are online, do-it-yourself wills a good thing?  Will they hold up in Court?

Answer:  No, I do not believe that online, do-it-yourself wills or any other do-it-yourself legal documents are good ideas.  They might hold up in Court.  Then again, it is far better sit down with a local, knowledgeable attorney to draft that document and be certain that it meets all of the legal requirements and all of your legal needs? The online legal documents that I have seen (as well as the $200.00 divorces) have been in the context of litigation to either invalidate the document or to fix the document.  That $70.00 will you did suddenly becomes a $10,000.00 will contest for your heirs because the legal requirements were not met or it was not executed properly.  That $200.00 uncontested divorce now becomes a $10,000.00 fight because the original decree didn’t adequately address all of the issues that will eventually arise.  It is far better to pay the $300.00 for a professionally drafted will or $750.00 (at the Davidson Law Firm) for that uncontested divorce than to pay the price in the end.

Question: I would like to know how to get our Helena subdivision that is located in Jefferson County annexed into Shelby County.

Answer: Counties cannot annex land of the county next door as that property already falls within the legal domain of another county.  Similarly, Helena could not annex the rest of Port South or Apache Ridge subdivisions because they are already part of Alabaster.  The Alabama Legislature has to vote to approve the very expensive redrawing of county lines and it is subject to a vote of the entire State.

Fuhrmeister seeks another term as probate judge

Published 4:27pm Thursday, January 12, 2012

FROM STAFF REPORTS

Shelby County’s current probate judge is looking for another go-round.

Jim Fuhrmeister announced Jan. 11 he is seeking the Republican nomination for probate judge in Shelby County. The primary election is March 13.

Jim Fuhrmeister

“I am proud of my accomplishments in the time I have served Shelby County, but there is much more to do,” Fuhrmeister said in a press release.

Fuhrmeister also serves as a special circuit judge, and he presides over the county’s mental health court.

He was honored with the National Alliance on Mental Illness 2011 Criminal Justice Award of the Year for his work with the mental health court.

Fuhrmeister also works with the Alabama Law Institute, serving on both the Real Estate Committee and the Collaborative Law Committee.

Probate judges across the state selected Fuhrmeister to serve on the Alabama Electronic Recording Commission, which drafts and implements standards and business practices to electronically record documents in Alabama’s probate offices.

Fuhrmeister, who is an Eagle Scout, serves on the boards of various Shelby County nonprofit organizations, such as Leadership Shelby County, Shelby Volunteers In Service, Harrison Regional Library and the J. Craig and Paige T. Smith Scholarship Foundation Inc.

He is also a member of the Shelby County Bar Association, the Alabama State Bar, the National College of Probate Judges and the Alabama Probate Judges Association.