Are You a Victim of Identity Theft?

Are You a Victim of Identity Theft?

idenity3Approximately 15 million United States residents are victims of identity theft. Their identities are used fraudulently with financial losses each year totaling upwards of $50 billion.*

On a case-by-case basis, that means approximately 7% of all adults have their identities misused with each instance resulting in approximately $3,500 in losses.

According to the Federal Trade Commission Identity theft is the fastest growing crime in America. The number of identity theft incidents has reached 9.9 million a year.  Every minute about 19 people fall victim to identity theft.

And according to Wikipedia the Free online Encyclopedia, identity theft is a form of stealing someone’s identity in which someone pretends to be someone else by assuming that person’s identity, usually as a method to gain access to resources or obtain credit and other benefits in that person’s name.

The victim of identity theft (here meaning the person whose identity has been assumed by the identity thief) can suffer adverse consequences if they are held responsible for the perpetrator’s actions.

Identity theft occurs when someone uses another’s personally identifying information, like their name, identifying number, or credit card number, without their permission, to commit fraud or other crimes such as when someone uses your personal information and Social Security number to set up new accounts that they can control and use to make purchases, or to even get a tax refund.

If you believe you are a victim of identity theft, you may need to take several steps to recover from it. The federal government has a one-stop resource to help you report and recover from identity theft at www.identitytheft.gov

The site provides step-by-step advice and helpful resources like checklists and sample letters to use in your recovery process.

Warning Signs of Identity Theft

Once identity thieves have your personal information, they can drain your bank account, run up charges on your credit cards, open new utility accounts, or get medical treatment on your health insurance. An identity thief can file a tax refund in your name and get your refund. In some extreme cases, a thief might even give your name to the police during an arrest.

Some warnings signs of Identity Theft are:

  • You see withdrawals from your bank account that you can’t explain.
  • You don’t get your bills or other mail.
  • Merchants refuse your checks.
  • Debt collectors call you about debts that aren’t yours.
  • You find unfamiliar accounts or charges on your credit report.
  • Medical providers bill you for services you didn’t use.
  • Your health plan rejects your legitimate medical claim because the records show you’ve reached your benefits limit.
  • A health plan won’t cover you because your medical records show a condition you don’t have.
  • The IRS notifies you that more than one tax return was filed in your name, or that you have income from an employer you don’t work for.
  • You get notice that your information was compromised by a data breach at a company where you do business or have an account.

If your wallet, Social Security number, or other personal information is lost or stolen, there are to help protect yourself from identity theft.

See the checklist at https://www.identitytheft.gov/

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.

STANDARDIZED FIELD SOBRIETY TESTS

STANDARDIZED FIELD SOBRIETY TESTS

A client once referred to the standardized field sobriety tests as “those silly tests that the cops make drivers perform on the side of the highway”. The implication of that statement is that the tests have no rational basis. However, if the tests are performed correctly, judges accept the results as evidence of impairment.

Thanks to organizations like the National Highway Traffic Safety Agency (“NHTSA”) and Mothers Against Drunk Drivers (“MADD”), law officers nationwide are on the lookout for drivers who are impaired by alcohol and other drugs. NHTSA has provided the training to catch and prosecute impaired drivers. MADD has mounted a nationwide movement to assure that impaired drivers are not only caught but are also punished.

NHTSA mounted a systematic approach to the identification of impaired drivers in the mid-1970s. At that time, law enforcement officers across the nation used an ad hoc basis for determining whether a given driver was impaired by alcohol. At that time there were a number of tests that were administered to drivers who were believed to have been driving while impaired by alcohol.

As one such test, the officer would drop a number of coins on the street and direct the driver to pick up the coins. It was believed that an impaired driver would not have the dexterity to retrieve the coins without stumbling or fumbling.

Another test required the driver to attempt to draw a circle on a piece of paper with a pen. The lack of symmetry of the circle was believed to demonstrate impairment.

Another test required the driver to recite backwards from a certain specified odd number to another specified odd number. It was believed that alcohol impairment would be demonstrated by the driver’s inability to concentrate and thus count incorrectly.

A further approach was to require a driver to recite the abc’s from a given letter other than “a” and ending with a letter other than “z”. A further approach required the driver to stand with eyes closed, with head tilted backward and attempt to touch the driver’s nose with the tip of his or her finger.

Other common tests for impairment included the horizontal gaze nystagmus, the walk and turn and the one leg stand tests.

NHTSA set out to determine whether any or all of such tests would consistently and accurately demonstrate impairment. It funded research for three specific studies in an attempt to validate a method to accurately judge a driver for impairment. When those tests yielded positive results, it funded additional tests in the 1990’s.

After spending a great deal of money, NHTSA concluded that there were only three tests that validly, consistently and accurately demonstrated driver impairment, those being the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. After reaching that conclusion, NHTSA set out to standardize the procedures by which those tests should be performed, to standardize the “clues” that demonstrated impairment and to standardize how the test was to be graded.

Those validated tests are generically referred to as the “standardized field sobriety tests”. As the name suggests, standardization requires that the tests be administered, judged and graded in a specific manner and order. Standardization requires the officer to administer the horizontal nystagmus test first, the walk and turn test next and the one leg stand test last.

Horizontal Gaze Nystagmus. Alcohol and other central nervous system depressants cause a condition known as “horizontal nystagmus”. Horizontal Nystagmus is defined as the involuntary jerking of the eyes as they gaze toward the side of the head. Nystagmus cannot be controlled and is capable of clearly demonstrating impairment.

To administer the horizontal gaze nystagmus (“HGN”) test, the officer will instruct the driver to stand up straight with heels together while looking forward. The officer will then position an object such as a pen or pen light directly in front of the driver’s nose and slightly above the driver’s eye level. The officer will instruct the driver to follow the tip of the pen or pen light with only the eyes while keeping the head still.

The officer will first view the driver’s eyes to determine whether pupil are the same size and whether the eyes jerk while looking forward. If those conditions are not present, the officer will then make two complete passes of the pen or pen light from its starting position in the middle of the face toward the driver’s left, then toward the driver’s right. The officer will be checking to determine whether the eyes tract equally.

The officer is looking for three clues: lack of smooth pursuit; distinct and sustained nystagmus at maximum deviation; and, onset of nystagmus prior to 45 degrees. Each eye may demonstrate none or all three of the clues. Each eye will be checked twice and separately for the presence of each clue.

Lack of smooth pursuit. The officer will then make two complete passes of the pen or pen light from its starting position in the middle of the face toward the driver’s left, then toward the driver’s right. The officer will then repeat the movement (two passes) to check to determine whether the driver’s eyes smoothly pursue the pen or pen light.

Distinct and sustained nystagmus at maximum deviation. The officer will then make two additional passes to determine whether the driver’s eyes jerk horizontally while looking toward the side as far as the eyes will turn. Officers are trying to determine if horizontal nystagmus (sideway jerking) exists at the maximum deviation (looking to side as far as physically possible) after the eyes have held that position for a minimum of four seconds.

Onset of nystagmus prior to 45 degrees. Finally, the officer will attempt to determine whether the jerking begins prior to the point where the eyes are turned sideways to 45 degrees.

The officer is looking for the presence of those three clues in each eye. Each eye may demonstrate none or all three of the clues. A driver who is judged to have four clues will be considered impaired.

Although it is easy to recite the procedures that must be followed, courtroom experience has taught that only officers with a great deal of experience in administering the HGN test can administer the test proficiently. In many jurisdictions, officers receive very little if any training and thus do not administer the test correctly. When questioned about the results of the HGN test, a poorly trained officer will be able to recite the three clues but will not be able to demonstrate the proper administration of the test.

A HGN test that is improperly administered is not a good indicator of impairment. However, a HGN test properly administered will provide test results that correctly identify impairment approximately 88% of the time. However, many judges give little or no credence to testimony from officers concerning the results of the HGN test. Perhaps this reflects an attitude that the officers are not sufficiently trained to administer and judge the results of the test.

Walk and Turn. Standardization requires the walk and turn test to be administered next. There are two stages of this test, the instruction stage and the walking stage. During the instruction stage, the driver will be advised: To assume a heel to toe stance with the right foot being the front foot; To place arms at the sides; Do not start until told to start; Imagine a straight line; To take nine heel to toe steps on the imaginary line beginning with the left foot, turn around by taking a series of small steps with the right foot and take nine heel to toe steps back; To keep watching his or her feet; To keep his or her arms to the side; To count steps out loud; and, Do not stop walking until the test is completed. The next stage is the walking stage and begins when the office advises the driver to start.

There are eight clues of impairment. The first two clues may occur during the instruction stage. Those clues are observed when the driver cannot maintain his or her balance while in the heel to toe stance and when the driver starts walking prior to be told to do so. The remaining six clues may occur during the walking stage of the test. Those clues are observed when the driver stops walking prior to finishing the test, when the driver misses a heel to toe step, when the driver steps completely off the line, when the driver raises both arms six inches or more from his side, when the driver makes an improper turn, and when the driver takes an incorrect number of steps.

The studies performed by NHTSA determined that 79% of the drivers who exhibited two or more clues during this test were impaired. Most judges give a great deal of credence to the testimony of officers concerning the walk and turn test. Perhaps one reason is that quite often the test is captured on electronic media and thus can be readily seen by the judge.

One leg stand. Standardization requires the one leg test to be administered next. There are two stages of this test, the instruction stage and the balancing and counting stage. During the instruction stage, the driver will be advised to: Stand straight; place feet together; keep arms at side; and, Maintain position until told otherwise. During the balancing and counting stage, the driver will be advised to: Raise either leg; Keep the raised foot approximately 6 inches off the ground; Keep both legs straight and arms at his or her side; Keep eyes on the raised foot; Count out loud in the following manner, one thousand one, one thousand two and so on until told to stop. The officer will then time the driver for 30 seconds.

There are four clues of impairment concerning the one leg stand test. Those clues are demonstrated when the driver puts his foot down prior to be instructed to do so by the officer, when the driver uses his arms to balance, when the driver sways during his performance and when the driver hops to keep from putting his foot down.

The studies performed by NHTSA determined that 83% of the drivers who exhibited two or more clues during this test were impaired. Most judges give a great deal of credence to the testimony of officers concerning the one leg stand test. As with the walk and turn test, perhaps one reason is that quite often the one leg stand test is captured on electronic media and thus can be readily observed by the judge.

McDonald Law Firm
Offices Located in Simmons First Bank Plaza
100 West Grove Suite 308 El Dorado AR
PHONE (870) 862-1498 FAX (870) 862-4071
E-Mail: gary@garymcdonald.net

Have you been arrested for DWI?

Have you been arrested for DWI – DRIVING WHILE INTOXICATED?

It is against the laws of the State of Arkansas for a person to drive or to be in actual physical control of a vehicle while intoxicated. A person is presumed to be intoxicated if he has a blood alcohol concentration in his breath, blood or urine of eight-hundredths (0.08) or more.

It is against the law for an individual to drink and drive in the state of Arkansas. But, just because a person is stopped by law enforcement personnel and arrested for driving under the influence that does not mean that person is guilty under /Arkansas Law.

Criminal and drunk driving convictions in Arkansas carry severe penalties.

If you have been arrested for a DWI, remember under Arkansas Law, you are innocent until proven guilty. You have to be convicted by the court to incur these penalties.

Just because you have been arrested does not mean you are automatically guilty. You have rights, but you must stand up for them. A DWI conviction can be devastating to you financially and personally.

Certain tests, steps and procedures must be followed and performed by the arresting officer when arresting a person for DWI to determine whether the individual is driving under the influence of alcohol or drugs.

If the arresting officer is not properly trained in how to perform these tests and procedures, it may result in a person being wrongfully arrested for DWI.

It is possible to successfully defend a “driving while intoxicated” charge. The State of Arkansas has the burden of proving beyond a reasonable doubt that the driver was intoxicated and was operating or in actual physical control of the vehicle at the time immediately prior to time of the investigation.

The U. S. Department of Transportation, through the National Highway Transportation Safety Administration, has compiled numerous “clues” which provide the investigating police officer with evidence on the question of intoxication. A well trained officer begins to collect those clues at the moment that he or she first observes you and/or the vehicle. The number of clues collected or observed will be presented to the trial court as a basis for a conviction.

Many police officers in this state are well trained and thus know how to identify, observe and report those clues. Others are not so well trained.

Successful trial lawyers will know those clues well. No attempt will be made herein to express those clues. A good trial lawyer will make an independent investigation to discover all of the information which the police officer had at the time of the arrest in order to make an independent determination whether the facts will support a conviction.

It is more difficult for the prosecuting attorney to obtain a conviction in those situations where the driver refuses to aid and assist in the gathering of those clues. Successful defenses often arise in those situations where the driver refuses to take field sobriety tests and/or refuses to submit to testing for blood alcohol content.

All too often, a driver who has had a “few” drinks will try to talk himself or herself out of the ticket. Such effort usually has the opposite effect of proving the investigating officer with evidence needed to support a conviction.

A person who is found guilty of driving while intoxicated will be subject to a fine, sentenced to a jail term or incarceration within the county jail wherein the conviction was rendered, and suffer additional penalties. The convicted driver will also suffer a suspension of driver’s license. Any person who is found guilty of driving while intoxicated by any district court has the automatic right to appeal the decision to a circuit court.

If you have been arrested on a driving under the influence charge take steps to protect your rights.

For a FREE case evaluation, call Garry MC Donald at the McDonald Law Firm. 870 862-1498

Offices Located in Simmons First Bank Plaza
100 West Grove Suite 308 El Dorado AR
PHONE (870) 862-1498 FAX (870) 862-4071
E-Mail: gary@garymcdonald.net

Fines & Penalties for Arkansas DWI.

Jail Time for Driving While Intoxicated – DWI?

Gary McDonald Attorney at Law

Gary McDonald is a general practitioner who actively began practicing law in 1979.

 

gary-mcdonald-el-dorado-ar

His practice has included a multitude of subject areas which has resulted in a broad range of experience. He can proudly proclaim a good working knowledge of many areas of the law.

Mr. McDonald is no stranger to the courtroom, having successfully tried cases in the District, Circuit, Appeals and Supreme Courts of Arkansas as well as the U.S. District Courts of
Arkansas and the U.S. Court of Appeals for the Eight Circuit.

Mr. McDonald strives to provide high quality services in a timely manner. He works both on an hourly and contingent fee basis as is allowed by state rule. Mr. McDonald’s regular practice includes the areas of Civil, Personal Injury, Criminal Defense, and Planning For Life, Last Illness & Death.

 

 

Education:
Southern State College, Bachelor of Science, 1975;
University of Arkansas, Juris Doctor, 1978;
Southern Methodist University, Master of Laws., 1979.

Admitted:
1979, Arkansas and U.S. District Court, Western District of Arkansas; 1984.

Memberships:
Union County, Arkansas and American Bar Associations.
American Association of Justice (Formerly the American Trial Lawyers Association)

Martindell Hubbell Peer Rating: Excellent

Mr. McDonald does not charge for an initial fifteen minute consultation.
This consultation will be used to determine if his office can be of service and the best way to proceed.

Mr. McDonald’s goal is to provide the highest quality of legal services in a timely manner.
He welcomes the opportunity to discuss how his office may be of service.

Offices Located in Simmons First Bank Plaza
100 West Grove Suite 308 El Dorado AR
PHONE (870) 862-1498 FAX (870) 862-4071
E-Mail: gary@garymcdonald.net