DO I NEED A WILL?

DO I NEED A WILL?

If you wish to designate how your estate is disbursed upon your death, you probably need a will.

Your estate is generally considered to be your money, property and other possessions.

The laws vary considerably from state to state and if you die without a will, the state may decide who gets what, without regard to your wishes or your heirs’ needs.

A will is a legal document that sets forth your wishes regarding the distribution of your property upon your death. Wills are also the best way to transfer guardianship of minors. A will can also be used to inform people about any other special wishes you would like carried out upon your death.

Also, in your will, you can name your executor, the person who you are designating to make sure that your wishes are carried out as outlined in your will.

You need for a will depends upon your specific circumstances. If you are a young person with no minor children and no assets, a will may not be beneficial to you. If you have minor children and extensive assets, a will may be beneficial to you and also your beneficiaries when you pass away.

If you have a small family with very few assets and you want to leave everything to them, creating a will is to meet your needs is fairly simple. If your situation is more complicated you’ll need to plan more carefully. A will can help make sure that what you leave behind passes to the people you intended.

To maximize the likelihood that your wishes are carried out, you want a will that is set forth in writing, and signed by you and your witnesses with your executor named.

As the laws do vary state by state, you may want to use an attorney to prepare your will to make sure it is legally valid and meets all the requirements set forth by the laws of your state.

mcdonald law firm

DWI Warrantless Drug Testing

Drivers now have the right to refuse warrantless DWI blood testing!!!!!

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Most states have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. A test is required to determine whether a driver’s BAC is over the legal limit. Prior to a recent U.S. Supreme Court decision, under Arkansas law, a driver could be required to take one or more tests, which include breath, blood and urine, without the necessity of a search warrant.

squad-carBecause drivers often refuse to take the test, Arkansas has passed what is known as the “implied consent law” which makes it a crime to refuse the test. The law imposes a criminal penalty on any motorist who refuses to undergo testing when there is sufficient reason to believe the motorist is violating the State’s drunk-driving laws. The dilemma faced by such person is real. If the person takes the test, the risk is a conviction for driving while intoxicated. If the person refuses the test, the risk is convictions for both driving while intoxicated and for the refusal to submit to the test. Many legal practitioners have long believed that those implied consent laws violate the right, guaranteed by the Fourth Amendment to the US Constitution, to be free from an unreasonable search and seizure.

In Birchfield v. North Dakota, the US Supreme Court decided to address the question of whether a state may criminally punish a motorist who refuses to submit to breath or blood tests for purposes of determining blood alcohol content. The matter of the enforceability of the implied consent laws came before the High Court in the two separate contexts of breath and blood.

The Court decided that a State may legally require a motorist to submit to a BREATH TEST, without the necessity of a search warrant, and to punish those motorists who refuse to take the breath test. Conversely, the Court decided that a State may not require a motorist to submit to a BLOOD TEST, without a search warrant, and thereafter punish those motorists who refuse to submit to the warrantless blood draw.

The Fourth Amendment is alive and well!!!

Submit any questions that you may have to Gary McDonald. gary@garymcdonald.net

Do I Need A Will

DO I NEED A WILL?

If you wish to designate how your estate is disbursed upon your death, you probably need a will. Your estate is generally considered to be your money, property and other possessions.

The laws vary considerably from state to state and if you die without a will, the state may decide who gets what, without regard to your wishes or your heirs’ needs.

A will is a legal document that sets forth your wishes regarding the distribution of your property upon your death.  Wills are also the best way to transfer guardianship of minors. A will can also be used to inform people about any other special wishes you would like carried out upon your death.

Also, in your will, you can name your executor, the person who you are designating to make sure that your wishes are carried out as outlined in your will.

You need for a will depends upon your specific circumstances. If you are a young person with no minor children and no assets, a will may not be beneficial to you. If you have minor children and extensive assets, a will may be beneficial to you and also your beneficiaries when you pass away.

If you have a small family with very few assets and you want to leave everything to them, creating a will is to meet your needs is fairly simple. If your situation is more complicated you’ll need to plan more carefully. A will can help make sure that what you leave behind passes to the people you intended.

To maximize the likelihood that your wishes are carried out, you want a will that is set forth in writing, and signed by you and your witnesses with your executor named.

As the laws do vary state by state, you may want to use an attorney to prepare your will to make sure it is legally valid and meets all the requirements set forth by the laws of your state.

 

Endangering the Welfare of a Minor

Endangering the Welfare of a Minor

Drivers who operate a vehicle with minor children as occupants should beware. An old law is being applied in a new manner and could have far reaching effects.

          The Arkansas Legislature passed law decades ago concerning the endangerment of the welfare of a minor or child.  That law, codified as Arkansas Code Annotated, Section 5-27-205, has rarely resulted in arrests.  The law in pertinent part provides that:

(a) A person commits the offense of endangering the welfare of a minor in the first degree if, being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely:

(1) Engages in conduct creating a substantial risk of death or serious physical injury to a minor;”

(b) Endangering the welfare of a minor in the first degree is a Class D felony.”

          As one can readily conclude, the law is very broad in nature and can be literally construed to cover a large number of activities.  I have been retained recently in two separate cases, each of which involves a young parent who was operating a vehicle while his or her young child was a passenger. In each of those cases, the Arkansas State Police have interpreted an old law to apply to new factual situations.

          In the first of those cases, the young parent was driving 95 miles per hour in 55 miles per hour speed zone.  An Arkansas State Policeman made a traffic stop and thereafter issued multiple citations for alleged illegal activities.  One of those charges was for the offense of endangering the welfare of a minor in the first degree. 

          In the second of those cases, the young parent had been to a party at a neighbor’s house.  When the parent left the party to travel a very short distance to their home, a young child was correctly secured in a child restraint device/seat.  While enroute home, the vehicle passed through a DWI checkpoint.  The driver was ultimately charged with DWI and endangering the welfare of a minor in the first degree.

In each of those cases, the young parent faces up to 6 years in the penitentiary, if convicted.   The legal issue in both cases is whether the parent/driver was engaging in conduct that created a substantial risk of death or serious physical injury to a minor.  Stated differently, does driving while impaired or driving at an excess speed constitute conduct that in and of itself creates a substantial risk of death or serious physical injury to the minor occupant.  The appellate courts of Arkansas have yet to consider that question.

          Until just recently, I was unaware of the law having been applied to motorists who were driving with minor children in the vehicle.  The referenced arrests were made within a thirty-day period of time by separate officers.  I firmly believe that we will be seeing many more arrests of motorists on felony charges of endangering the welfare of minor passengers. 

Whether those arrests will lead to convictions is yet to be determined.  I suspect that most motorists would never dream that he or she could be sentenced to the penitentiary for speeding or for driving under the influence of alcohol/drugs.  Drivers should beware that the combination of minor children occupants and driving at a speed greatly in excess of the posted speed limit and/or driving while under the influence of drugs and alcohol can be considered as irresponsible driving.  Those same drivers should beware that irresponsible driving may result in the filing of felony charges.