August 9, 2016

DUI Q&A: Should I Take a Breathalyzer Test?

 

Q: If I am pulled over for Suspicion of Driving Under the Influence, should I take the breathalyzer test?

A: This is the most common question asked of DUI attorneys but the answer is not so black and white. First off, no one should ever be behind the wheel when they are impaired. However, sometimes these things just happen. So what should you do if this happens to you? This will depend on the person and their specific situation.

Everyone’s body will  react differently to alcohol so you can’t really predict how high your blood alcohol level  will be at a given time, unless of course you haven’t had anything to drink at all.  It is  usually safe to assume that if you have been drinking, you have a substantial risk of  blowing over the legal limit (0.08 BAC).

If you choose to take the breathalyzer test and blow over a 0.08, you will be charged with  DUI or Driving with an Unlawful Alcohol Concentration (DUAC).  This test will be used  against you as rather strong evidence of your intoxication.

Should you choose not to blow, which is your legal right, you face the potential of a six month suspension of your license and your refusal may be used against you in court.  However, there are ways in which you can likely have this suspension overturned quickly.  You may also be eligible for a route-restricted license which will allow you to drive to and from work or Court ordered classes.

The bottom line, if you have been drinking at all, while there are risk and benefits to both choices, exercising your right NOT to blow is probably the more prudent choice.  While this choice subjects you to the potential of suspension of your license, without the concrete evidence of a negative breath analysis the prosecution’s ability to convict is made more difficult.  You also avoid the risk of scoring above a 1.4 blood/alcohol reading which carries with it a mandatory, more difficult to reverse, immediate suspension of license.

September 2, 2015

ESTATE PLANNNING: SIMPLE WILL VS. LIVING TRUST

 

Estate-PlanningEstate Planning Series

Part III: Simple Will vs. Living Trust

One of the most common questions estate planning clients ask is whether or not they need a Trust or a Will. As with most client legal questions, of course, the typical “lawyer” answer still applies: it depends.

Every individual and family has a different set of facts and circumstances. For some, having a Revocable Living Trust Agreement as the cornerstone of their estate plan, paired with a Pourover Will, might best suit their needs. For others, a simple Will can accomplish everything you want.
Before we get into the pros and cons, it is important to understand a basic definition of each:

A Will is a document that takes effect when an individual dies and it dictates how to distribute that individual’s property. It essentially provides a set of instructions for administration of your estate to the probate court.
A Living Trust is a document dictating how you want your property distributed for your benefit when you are unable to care for yourself, and how you want your property distributed upon your death.

WILL

Advantages:
• Simplicity
• Less expensive to create than a Living Trust

Disadvantages:
• Does not avoid Probate, which can be…
o Costly, depending on the value of probate assets;
o Time-consuming, generally taking a minimum of one year for estate administration
o Public (the Will and all related documents filed with the Court are public record)
• Easily contested (when compared to a Living Trust)

LIVING TRUST

Advantages:
• Flexibility
o An individual has much more post-death control over their assets, such as dictating requirements for beneficiaries to receive certain benefits.
• Certainty
o Since a Trust is created and funded during your lifetime, it is much more difficult to assert upon your death that the terms of the Trust do not express your desires.
• Sharing of Enjoyment
o Trusts allow for lifetime use and enjoyment for one beneficiary, with the remainder passing to others after the first beneficiary’s death.
• Probate Avoidance
o If an individual has multiple parcels of real property, deeding that land to the Trust can avoid the necessity of probate in another state.
o Assets titled and owned by the trust become non-probate assets, and bring down the costs of probate – often avoiding the process altogether.
o The terms of a Trust do not have to be recorded or filed of record, providing privacy and confidentiality to the drafter.

Disadvantages:
• Complexity
o Paperwork on the front end (transferring properties, accounts, etc.) can often make the creation of a Trust more burdensome and complex
o Management of assets by a Trustee (both before and after the death)
• More expensive to create than a simple Will

While it may seem that Living Trust-based planning offers more advantages than Will-based planning, in reality, everything depends on an individual client’s circumstances, wants and needs. It is also important to remember that a Living Trust is not the only avenue for probate avoidance. Titling real property, bank accounts, vehicles, and other assets with survivorship rights or paid-on-death beneficiaries allow an individual to have direct control over the distribution of those assets without probate involvement.

Additionally, if probate avoidance is not a primary goal, but an individual still wishes to have gifts to others, young children for example, held in trust after the individual’s death, a testamentary trust can be created in the Will itself.
Regardless of your circumstances, having a plan in place is essential. A conversation with a South Carolina licensed attorney is the perfect place to start in determining what documents are best suited to your needs.