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Stopped for DWI – Do You Blow?

Pulled Over After Drinking ………….. Do you Blow? By Lloyd Nolan.

It’s 11:00 p.m. on a Friday or Saturday night. You and your spouse enjoyed a delightful dinner at your favorite restaurant with drinks, or a bottle of wine. You are on the way home – perhaps driving a few miles over the limit – when you suddenly become aware of flashing lights and realize that you are being pulled over by the police. What do you do?

Bear in mind that, on average, it takes approximately 50 minutes for alcohol to be fully absorbed into the system and the average person would register approximately .02 % percent blood alcohol content after drinking one standard drink, (i.e. a 12 oz beer, 4 oz glass of wine, of 1 ½ oz shot of bourbon, etc.). Alcohol also dissipates at roughly the same rate, so that it takes almost an hour to eliminate the alcohol contained in one drink. Presumably, the average individual consumed only two beers, or two standard drinks, over two hours or less would have a blood alcohol content of 4%, which is less than the .08% limit set forth under the Missouri DWI statute. 577.010 RSMo. Assuming these facts, it seems equally true that the average individual who has consumed only 2 drinks should be able to “safely” take a breath test without blowing over the legal limit. There is even less “risk’ if several hours have passed

Implied Consent …..What’s that? In most states, Missouri included, all licensed drivers impliedly consent to submit to a chemical test (by blood, breath, saliva or urine) for blood alcohol content as a condition of receiving the “privilege” of operating a motor vehicle. Consequently, there are severe consequences to refusing to submit to a law enforcement officer’s request to submit to a chemical test. In Missouri, failure to submit to the chemical (usually breath) test will result in a one year revocation of driving privileges and evidence of the refusal can be used against the driver in a prosecution in a court of law. 577.020, 577.041 Revised Statutes of Missouri. Prior to requesting an individual to submit to a chemical test, a law enforcement officer is required to inform the driver that (s)he is under arrest and the consequences of refusal to submit to testing. 577.041 Revised Statutes of Missouri.

 

For your reference, 577.010 Missouri Revised Statutes defines Driving While Intoxicated
Driving while intoxicated–sentencing restrictions, Jackson County.
577.010. 1. A person commits the crime of “driving while intoxicated” if he operates a motor vehicle while in an intoxicated or drugged condition.
2. Driving while intoxicated is for the first offense, a class B misdemeanor. No person convicted of or pleading guilty to the offense of driving while intoxicated shall be granted a suspended imposition of sentence for such offense, unless such person shall be placed on probation for a minimum of two years.
3. Notwithstanding the provisions of subsection 2 of this section, in a circuit where a DWI court or docket created under section 478.007 or other court-ordered treatment program is available, no person who operated a motor vehicle with fifteen-hundredths of one percent or more by weight of alcohol in such person’s blood shall be granted a suspended imposition of sentence unless the individual participates and successfully completes a program under such DWI court or docket or other court-ordered treatment program.
4. If a person is not granted a suspended imposition of sentence for the reasons described in subsection 3 of this section for such first offense:
(1) If the individual operated the motor vehicle with fifteen-hundredths to twenty-hundredths of one percent by weight of alcohol in such person’s blood, the required term of imprisonment shall be not less than forty-eight hours;
(2) If the individual operated the motor vehicle with greater than twenty-hundredths of one percent by weight of alcohol in such person’s blood, the required term of imprisonment shall be not less than five days.
(L. 1977 S.B. 60, A.L. 1982 S.B. 513, A.L. 2010 H.B. 1695, et al.)
(2004) Section applies to the operation of motorized bicycles. State v. Laplante, 148

Dealing With Creditor Harrassment

BILL COLLECTORS MAY NOT ENGAGE IN CERTAIN PRACTICES

If you are having financial problems, you may have been contacted by bill collectors and collection agencies. It is important for you to know your rights so that you may avoid unnecessary harassment.

Federal Law prohibits Unfair Debt Collection Practices.

The Fair Debt Collections Practice Act regulates the Conduct of Debt Collectors. Third party debt collectors may not:

1. Contact you at inconvenient times or places, such as before 8 a.m. or after 9 p.m.
2. Contact you when they know you are represented by an attorney.
3. Contact you at work if they know your employer does not allow you to receive calls at work.
4. Contact you if you notify them in writing not to contact you.
5. Communicate with third parties other than to determine your location.
6. Use obscene language or threaten violence.
7. Take any action that cannot be legally taken or that it does not intend to take.
8. Threaten to have you arrested or your property seized if you do not pay the debt.

In addition the third-party collector must be able to validate the amount of the debt, the name of the creditor to whom it is owed and must advise you that it is attempting to collect a debt.

Maps & Directions To Our Office

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Bankruptcy & Chapter 13

Bankruptcy & Chapter 13

This Law Firm is a Debt Relief Agency as defined under Section 101 of the United States Bankruptcy Code. We help people file for Bankruptcy relief under the Bankruptcy Code. (Disclosure Pursuant to 11 U.S.C. 528).

Our firm has over 25 years experience providing bankruptcy services to the public. We do more than just prepare forms. We are a law firm. We render legal advice and represent you in court.  We also know how a bankruptcy can affect and impact other legal proceedings and the financial aspects of your life.  We use our expertise to help you plan an implement a bankruptcy proceeding for your maximum benefit and protection. 

You will receive personal, individualized, service. Your case will be handled by a licensed attorney, not a paralegal or legal assistant.

Click here NOW to access our Bankruptcy Questionnaire and filing requirements

A Chapter 7 or Chapter 13 Bankruptcy will enable you to:

* Avoid Foreclosure
* Stop Garnishments
* Avoid Repossession
* Recover Repossessed Property
* Discharge Credit Card and Other unsecured Debt
* Pay back delinquent taxes over an extended period without interest

CHANGES UNDER THE NEW BANKRUPTCY CODE

In 2005 Congress passed and the president signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the “BAPCPA”. This Act brought about the most extensive changes in the Bankruptcy Code since 1978 and made filing consumer bankruptcy (particularly Chapter 7) much more difficult. Although the new law has added much complexity and additional duties for debtors and their attorneys, Bankruptcy Relief is still available !

BASIC ASPECTS OF CONSUMER BANKRUPTCY

The bankruptcy laws are designed to relieve the honest debtor of the debts that he cannot repay.

“Bankrupt” refers to a state or condition where one is unable to pay his debts as they are, or become, due.” Black’s Law Dictionary.

Bankruptcy is a federal court proceeding designed to provide individuals and business with a means of addressing and managing debt. Individual consumer debtors most commonly file under Chapter 7 or Chapter 13 of the Bankruptcy Code. The objective under each of these chapters is for the debtor to obtain a Discharge, a court order relieving the debtor of his debts.

CHAPTER 7 vs. CHAPTER 13

There are essentially two basic forms of bankruptcy available to the individual consumer. 

1.  CHAPTER 7.  Chapter 7 is the liquidation Chapter of the Bankruptcy Code.   In a Chapter 7 bankruptcy the debtor is insolvent and lacks sufficient funds to pay his or her debts as they become due.  It is the consumer equivalent of  “going out of business” and selling off the assets.  This means that the bankruptcy trustee will take all of the Debtor’s non-exmpt assets, sell them, and distribute the proceeds to the creditors as directed by the court.  If you have ever played Monopoly,  you have seen the picture of the tycoon with his pockets empty indicating the he is broke.  The debtor the receives a Discharge which relieves him of any further liability to the creditors.  In other words, his debts are wiped clean and he gets a “Fresh Start.”  In practice, most debtors of modest means will not lose any of their property in Chapter 7 proceeding, since most basic items necessary for normal living are exempt from liquidation under the bankrupcty laws.  There are income restrictions within the new bankruptcy code so that a Chapter 7 discharge will only be available to debtors of modest means, which are based upon the size of the debtor’s household.

1.  CHAPTER 13.   Chapter 13 is available to almost any individual, or couple, with financial difficulties.  Chapter 13 is a form of debt reorganization which allows a person, or couple, with any form of regular income to restructure and repay debts over a period of 36-60 months.  This means that a Chapter 13 Debtor will generally keep all of his assets and will repay creditors from future earnings.  Full payment is not required.  Debts are prioritized.   Mortgage arrearages, past-due support obligations, taxes and secured debts on the debtor’s property (such as automobiles) are preferred and paid before anything trickles down to unsecured creditors (such as credit cards and medical bills).  Some debts must be paid in full, other creditors may receive only a fraction of the amount owed or, sometimes, nothing.  Upon completion of the Chapter 13 plan, the Debtor will receive a discharge and be relieved of any further liability.

Click here NOW to access our Bankruptcy Questionnaire and filing requirements

THE AUTOMATIC STAY

Immediately upon the filing of a petition in bankruptcy under Chapter 7 or Chapter 13 there is an automatic and immediate stay which operates as an injunction to prohibit the commencement or continuation of collection activity against a debtor, including lawsuits, garnishments, foreclosures, repossessions, harassing telephone calls and most collection activities against the debtor. There are exceptions to the automatic stay, several which are the result of the new bankruptcy law, which will be discussed below.

CHAPTER 7 BANKRUPTCY

Chapter 7 is commonly referred to as “liquidation” or “straight” bankruptcy. In Chapter 7, the debtor discloses and places all his or her assets under the authority of a Trustee, appointed by the Bankruptcy Court, in exchange for a Discharge, a release from or forgiveness of all his or her dischargeable debts. The trustee is charged with the task of liquidating all the debtor’s nonexempt assets, turning them into cash, and paying the claims of the creditors from the available funds. There are exemptions under law which allow the debtor to retain a minimum level of property so that the debtor of modest means will typically be able to retain most, if not all, of his or her possessions. Chapter 7 is available only to debtors whose income falls at or below median income, as determined by the United States Trustee, and to debtors who have no disposable (“leftover”) income after paying their basic (“subsistence level”) living expenses.

Chapter 7 is best suited to debtors with very low income and minimal assets.

Chapter 7 is designed to give debtors a fresh start allowing them to proceed in life without the looming specter of overwhelming debt. Although the Discharge is broad in scope, there are a number of debts which cannot be discharged in chapter 7, these include: child support and domestic support obligations, student loans, most taxes, debts based upon fraud, embezzlement, false statements in writing, criminal fines, willful or malicious injuries to persons or property, injuries associated with driving or operating a vessel while intoxicated, to name a few.

Click here NOW to access our Bankruptcy Questionnaire and filing requirements

CHAPTER 7 DISCHARGE

A discharge in bankruptcy under chapter 7 relieves the debtor of all dischargeable debts, operates to void any judgment to the extent that it is a determination of personal liability, operates as an injunction against the commencement or continuation of any action, lawsuit, or process to collect or recover a debt. However, it does not relieve the debtor of certain “non-dischargeable” debts which include student loans, most taxes, child support and most debts associated with a divorce or dissolution of marriage, debts resulting from fraud, embezzlement or criminal activity, and debts related to driving (or boating, or flying) while intoxicated.

CHAPTER 13 BANKRUPTCY

Chapter 13 is commonly referred to as a “wage earner plan” or debt adjustment plan. Chapter 13 is only available to individuals who have “regular income” from wages or other sources. In Chapter 13, the debtor typically retains all his or her property and files a plan to repay creditors in full, or in part. As in other bankruptcy proceedings, a Chapter 13 debtor must disclose all of his property, assets, income, expenses and creditors in his documents filed with the court. A Chapter 13 filing further assumes that the debtor has “disposable income” in excess of his basic living expenses. The debtor’s chapter 13 plan must pay essentially all of the “disposable income” on a monthly basis to the Chapter 13 Trustee . This monthly payment will be applied towards payment of the claims of creditors and the administrative expenses of the chapter 13 case. To be confirmed and approved by the court, a Chapter 13 Plan must provide that the debtor make his or her best efforts to repay creditors over a period of 36 months (for debtors at or below median income) and 60 months (for debtors above median income). A Chapter 13 Plan must also pay creditors as much as they would receive if the debtor filed a Chapter 7 and the debtor’s nonexempt property was sold to pay and the funds used to pay creditors. Chapter 13 is available to nearly any individual experiencing financial difficulty. Chapter 13 is designed to allow the debtor to repay what he or she can afford over the life of the plan, which is typically only a fraction of the actual debt owed. Among its other attributes, a Chapter 13 filing allows a debtor to Stop Foreclosures, Stop Repossessions, Stop Garnishments, Stop Lawsuits, Stop IRS Tax Levies, Reorganize, Adjust Debts and stretch out payments for up to Five Years.

CHAPTER 13 DISCHARGE

A discharge under Chapter 13 relieves the debtor of the same debts that are dischargeable under Chapter 7, but also provides a means to cure mortgage and auto loan arrearages and repay debts for taxes, child support and other non-dischargeable obligations over a period of up to five years.

Click here NOW to access our Bankruptcy Questionnaire and filing requirements

CHANGES UNDER THE NEW BANKRUPTCY ACT

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has brought about a number of changes for consumers filing bankruptcy, including the following:

CREDIT COUNSELING

To be eligible for bankruptcy, all individual debtors must have received credit counseling from an approved credit counseling agency within 180 days before filing. A Certificate of Completion must be filed with the petition or the case will be dismissed. Very limited exceptions apply in emergency situations. Additionally, in order to receive a discharge, all debtors in Chapter 7 and Chapter 13 must also attend a financial education course after filing. IF YOU ARE CONSIDERING FILING BANKRUPTCY WITHIN THE NEXT SIX MONTHS, YOU MUST COMPLETE THE APPROVED NONPROFIT CREDIT COUNSELING.

*** FURTHER NOTE, A DEBTOR WHO DOES NOT COMPLETE THE POST-FILING FINANCIAL EDUCATION COURSE WILL NOT RECEIVE A DISCHARGE.

MEANS TESTING

The new bankruptcy law is designed to limit and restrict the consumer’s ability to file Chapter 7 bankruptcy. Accordingly, the new code implements a “means testing” procedure to determine whether the debtor has the ability to pay back all or a part of his or her debt. If the court is convinced that a debtor has the ability to pay at least $100.00 per month to his creditors, that debtor will most likely be required to file under Chapter 13. To determine the debtor’s ability to pay, the debtor is required to produce 6 months of payroll stubs or other proof of income, so that his “ability to pay” is based upon is average income for the last six months. The debtor’s average monthly income is then compared to the average monthly income (“median income”) as determined by the US Department of Justice for households in the County where the debtor resides. If the debtor’s household income is more than the “median income” he will most likely be disqualified for chapter 7, and only chapter 13 will be available. If the debtor is above median income in chapter 13, he or she will need to pay 60 months of plan payments, as opposed to 36 month plans for those debtors at or below median income. The Department of Justice has also developed allowable spending limits (or ceilings) for household living expenses for each county in the country, which are compared to the debtor’s actual living expenses. In other words, if you are “living too high” the government will decide what your living expenses should be, and, if it appears you “should” have “disposable income” left over, then you will need to file a chapter 13 payment plan.

Click here NOW to access our Bankruptcy Questionnaire and filing requirements

CHANGES TO THE AUTOMATIC STAY

The automatic stay no longer operates to stop foreclosures where a court order allowing relief from the stay was entered in a prior bankruptcy case within the preceding two years, except under limited circumstances, the automatic stay is no longer applicable to landlords and will not stop an eviction where a judgment for possession was obtained prior to filing the bankruptcy, it does not operate as a stay of any action for dissolution of marriage, paternity, or to establish child support or collect a domestic support obligation.

PRIOR CASES

An individual or entity may not file a bankruptcy petition if the debtor has had a prior case dismissed within the past 180 days for failure to pay filing fees, appear at the 341 meeting, or comply with a court order.

EFFECT OF PRIOR DISCHARGES

A debtor may file a subsequent case but may not be entitled to a discharge in the new case if the debtor received a discharge in a prior case within a certain period of time. In chapter 7, the debtor is not entitled to a discharge if the debtor received a discharge in the previous Chapter 7 or 11 case commenced within 8 years of the new filing or if the debtor received a discharge in a previous Chapter 12 or 13 case commenced within 6 years of the new filing. In Chapter 13, the debtor is not entitled to a discharge if the debtor received a discharge in a previous Chapter 7, 11 or 12 case filed within 4 years of the new filing or if the new filing or if the debtor received a discharge I a previous Chapter 13 case filed within the last 2 years.

TAX RETURNS

Debtors must file all State and Federal Tax returns. Failure to file tax returns will result in dismissal of the debtors case. All debtors must also provide current tax returns to the trustee and, in Chapter 13, debtors must timely file future tax returns.

PENALTIES FOR FALSE STATEMENTS & INCOMPLETE DISCLOSURES

Bankruptcy schedules are signed under penalty of perjury. All information must be truthful and accurate. It is a Federal Crime to conceal assets or make false statements in a Bankruptcy Proceeding. The FBI investigates bankruptcy crimes.

Bankruptcy is a useful, but complicated and specialized, legal proceeding.

Click here NOW to access our Bankruptcy Questionnaire and filing requirements

DISCLAIMER: THE PRECEDING INFORMATION WAS OF A GENERAL NATURE AND NOT MEANT TO CONSTITUTE LEGAL ADVICE OR TO BE USED IN, OR APPLIED TO, ANY INDIVIDUAL SITUATION. THIS GENERAL INFORMATION IS APPLICABLE TO THE STATE OF MISSOURI AND MAY NOT BE VALID UNDER THE LAWS OF OTHER STATES. IF THE READER HAS SPECIFIC LEGAL QUESTIONS, HE OR SHE SHOULD CONTACT AN ATTORNEY.