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  • Bonds, Pretrial Release & Sentencing Guidelines – The Many Differences Between State and Federal Court

    5/15/20128:48:42 PM Link 0 comments | Add comment

    arrest, attorney, bail, bond, criminal, Criminal Defense Lawyer, criminal law, criminal procedure, federal court, felony, pretrial release, Prosecution

     

    Although the general concepts and theories for prosecuting or defending a criminal case are the same, criminal procedure in federal court is significantly different than in state court.  There are different rules on case progression, different rules regarding pretrial release and more restrictive guidelines for criminal sentencing.

    Every state has both state courts and their local federal court.  Often times there are overlap between the jurisdictions.  In other words, it is possible to be prosecuted in both state and federal court for the same criminal act.  This is one of the most difficult things to explain to a new client, as most people have an incorrect understanding of what double jeopardy is in a criminal case. 

    The states that make up the United States of America are all sovereign states; they have complete power over their own state matters, and thus control over prosecutions for criminal offenses which occur within their borders.  The exception to this is when the crime committed is a violation of federal law.  In this situation, it is possible for there to be criminal consequences at both the state and federal level.  The reason punishment for criminal conduct can take place in both state and federal court without triggering the double jeopardy clause is because state governments and the federal government are considered to be separate sovereigns, having separate sovereign powers.

    Another misconception is that federal court trumps state court, or that federal court is more serious.  State court prosecutions are just as serious as federal court prosecutions.  In fact, most murder cases are tried in state court, as most homicides do not involve an issue of federal law.  You see most of the overlap between state and federal prosecutions in cases involving gun charges or drug charges.

    Pretrial release is also a way in which federal court differs from Nebraska state court.  Typically, if someone is charged with an offense in state court, a bond will be set at their first court appearance.  If the individual is able to post bond, then that person will be released pending litigation of their criminal charges.  In other words, the person gets to live at home while they are being prosecuted.  In federal court there is pretrial release; however, there are no bonds.  Either you get pretrial release or you don’t.  Instead of a bond setting hearing, in federal court there is a detention hearing.  The magistrate judge either authorizes pretrial release or he doesn’t.

    It is true that the federal sentencing guidelines often result in harsher punishments being given out at the federal level, but felony charges are serious whether charged in state or federal court.  When facing criminal prosecution, it is important to take into account potential consequences at both the state and federal level, as well as discuss all options with your attorney. 

     

  • New DUI/DWI Laws in Nebraska

    2/8/20129:58:59 PM Link 0 comments | Add comment

    attorney, Driving Under the Influence, DUI, DUI Lawyer, DWI, Interlock, license revocation

     

    Beginning January 1, 2012, new laws relating to prosecutions for Driving Under the Influence (DUI, DWI, OMWI) went into effect.  Many of the old rules still apply; however, significant changes were made regarding license revocations and the use of the Interlock Device.

    Probably the four most important changes relating to DUI's that took place were:

    1. Any DUI conviction within 15 years will qualify as a valid conviction for purposes of enhancing a DUI charge to a subsequent offense (i.e. if you were convicted of DUI in 1998 and are now pulled over for DUI in 2012, you will be charged with a 2nd offense DUI=prior to 2012, the lookback period was only 12 years);

    2. If you do not request an administrative hearing with the DMV (ALR Hearing), you will be allowed to receive the Interlock prior to going to court (immediately on 1st offense DUI cases and following a 45 day no driving period on a subsequent DUI offense);

    3. First offense administrative license revocations (ALR Revocations) with the Nebraska Department of Motor Vehicles are 6 months (previously it was 90 days); and

    4. The Interlock Device is now mandatory for persons convicted of a First Offense DUI charge in Nebraska.

     

  • Wills and Other Estate Plan Documents

    1/18/201210:35:22 PM Link 0 comments | Add comment

    attorney, estate plan, lawyer, living will, power of attorney, will

     

    Our law office is a personal injury and criminal defense law firm; however, we still get many questions regarding other areas of law.  One topic that pops up from time to time is the topic of Wills, or a Last Will and Testament.  Most people feel they should have a will, but are not exactly sure why or how to go about it.  Again, we are a firm that specializes in providing attorney services for persons injured in car/truck accidents or arrested on criminal charges such as DUI, so I am not about to delve into detail on the topic of estate planning.  What I will do is briefly describe what some of the most important documents are that usually accompany a standard estate plan. 

    While it is not a bad idea for everyone to be prepared for the worst; if you are single, have no children and do not own any assets, drafting a will probably does not need to be on the top of your list of things to do.  On the other hand, you may still want to make sure you have the proper documents in place should something happen and you are unable to make your own financial or healthcare decisions.  If you have significant assets it’s a good idea to have a will or a trust in place; and if you have minor children, you should definitely have a will in place, if for no other reason than to determine who will take over guardianship of your children should something happen to you.

    There are various documents that often accompany a will or trust when an estate plan is prepared.  The main documents you will want to make sure are included with your estate plan are Powers of Attorney.  Other documents that are often included as well are Advanced Directives and Living Wills.  Advanced directives and living wills state what medical care you would like to receive should you become incapacitated, and they direct your physicians on how to handle your care in certain scenarios.  Powers of Attorney appoint a representative to take control and make decisions on your behalf should you become incapable of making the decisions yourself.  A financial power of attorney states who will have control of your finances and make financial decisions on your behalf, whereas a healthcare power of attorney appoints an individual to make decisions concerning your healthcare should you end up in a state where you are unable to do so on your own.

    The bottom line is if you have kids or have accumulated significant assets, take the time to have a will drafted.  Simple estate plans do not take too much time to prepare and are relatively inexpensive considering the peace of mind they provide and the conflict they often prevent between family and loved ones.

     

  • No Contest Plea vs. Guilty Plea Revisited

    12/30/20112:08:27 PM Link 0 comments | Add comment

    accident, attorney, car accident, civil, claim, Criminal Defense, criminal law, criminal procedure, guilty plea, no contest

     

    We have discussed this topic before; however, lately our office has received multiple emails on the subject so we are going to revisit it.

    In a criminal case there are typically four options for the defendant when entering their plea to the charges in the information filed by the prosecution: (1) Not Guilty, (2) Guilty, (3) No Contest and (4) Not Guilty by Reason of Insanity.

    The Not Guilty plea is pretty self explanatory; if you plead not guilty you are saying you did not commit the criminal offenses alleged and that you wish to have your case heard at trial.

    The Guilty plea is also pretty straight forward.  If you plead guilty, you are stating that you are guilty of the offenses charged; that you do not wish to have your case heard by a judge or jury at trial; and that you are ready to receive your punishment.

    The No Contest or Nolo Contendere plea is where most people get confused.  A No Contest plea is treated the same as a Guilty plea for purposes of sentencing.  In other words, if you plead No Contest, the judge will treat you as if you have pled Guilty.  The only difference is that a No Contest Plea cannot be used against you in a separate proceeding, such as a civil lawsuit based on the same set of facts.  You most often see No Contest pleas when there is an issue of restitution in the case, such as damage to property, payment of medical bills, etc. 

    For example, if someone is charged with Willful Reckless Driving, and there was a car accident that resulted from the alleged criminal conduct, the person is not only facing criminal prosecution for the driving offense, but also potential civil liability from the person(s) who was/were harmed (i.e. the person they hit might sue them for money).  This is where the individual’s criminal defense lawyer will advise their client to plead No Contest instead of Guilty, if a plea agreement is reached.  The reason is that later on if their client is sued by the injured party who was hit during the accident, the injured party will not be able to use the No Contest plea against the individual they are suing for damages.

     

     

  • Semi Truck Accidents in the U.S.

    12/9/20118:18:05 AM Link 0 comments | Add comment

    accident, Accident Injury, attorney, car accident, injury, injury claim, insurance, semi truck accident

     

    Millions of motor vehicle accidents occur every year in the United States.  The majority of those accidents do not involve commercial vehicles or semi trucks.  In fact, only roughly 500,000 accidents involve semi truck trailers.  The problem; however, is that when car accidents do involve a semi truck, or other large commercial vehicle, the accident is extremely more likely to result in serious injury and/or death to one or more of the people involved. 

     

    In information released by the U.S. Department of Transportation, one out of every eight car accident fatalities is the result of a serious trucking accident.  There are roughly 5,000 deaths caused by semi truck accidents every year in the United States.  Tractor trailers weigh in excess of 10,000 lbs resulting in most of the truck accident deaths being the individuals riding in the passenger vehicle. 

     

    We have all experienced driving down the interstate in adverse conditions when a semi truck comes barreling by 10 to 20 miles over the posted speed limit, kicking up snow or spraying water onto your windshield.  Be leery when driving close to a semi truck and do not hesitate to contact authorities if you see a truck clearly being driven in a reckless manner.  You never know who that truck may run into down the road.

     

    If you or a loved one is unfortunate enough to be the victim of a trucking accident, contact a truck accident injury attorney in your city sooner versus later to discuss your options.

     

    Truck Accident Injury Claim Information

     

    Commercial Vehicle Regulations from the DOT Website

     

     

  • My medical bills from my accident are piling up. What should I do?

    11/8/20119:29:00 PM Link 0 comments | Add comment

    accident, Accident Injury, attorney, car accident, injury claim, insurance claim, medical bills, Personal Injury Attorney, subrogation

     

    After being injured in a car accident the last thing someone wants to deal with are the hundreds of different bills from medical providers, hospitals, health care providers and collection agencies.  Most people do not realize that more often than not you can negotiate the amounts you pay back for treatment received for injuries that were caused as a result of an accident.  Beyond the fact that many providers will accept lesser amounts when the bill is paid in one lump sum, injured parties are also entitled to other fee reductions as a matter of law.  There are reductions for attorney's fees if you have an injury lawyer handling your case; there are statutory requirements as to the amount that may be collected by a treatment provider when the injured party is covered by health insurance; and there are rules regarding an insurance company's subrogation rights when being reimbursed by their insured.  Receiving medical bills is always a pain, but at least you can take some comfort in that you will likely not be paying the full amount that you have been billed.

     

  • Do I Need a DUI Lawyer for a First Offense DUI in Nebraska?

    10/10/201110:46:13 AM Link 0 comments | Add comment

    ALR, attorney, Criminal Defense Lawyer, diversion, Driving Under the Influence, DUI

     

    It depends.  It depends on the facts surrounding your DUI and the county in which you were arrested.  If you have a typical first offense DUI with no accident and a normal blood alcohol level, it comes down to where you are arrested and how big of a gambler you are.  In most counties, you will receive probation for a first offense DUI unless you have a history of substance abuse or there are bad facts surrounding your arrest.  However, with that said, judges and lawmakers are cracking down more and more each year.  If you want to make sure you receive the best result possible, you are always better off with legal representation.

     

    In Sarpy County, the prosecutor's office typically offers Diversion for first offense DUI's as long as the defendant did not refuse the breath test.  So, if you are arrested for your first DUI in Sarpy County, Nebraska, you likely do not need a lawyer unless you caused an accident or you refused to cooperate with the police during your arrest.

     

    In other counties, including Douglas County (Omaha), Diversion is NOT allowed for any DUI offenses.  If you have been charged with Driving Under the Influence in Omaha, Nebraska, you are better off hiring a lawyer.  As mentioned above, assuming you do not have a history of alcohol abuse, and assuming you did not cause an accident, you will likely receive probation on a first offense DUI.  What a lawyer will do is make sure that you receive the best plea agreement possible and help walk you though the process.  Depending on why your vehicle was stopped and witness cooperation, a DUI attorney can sometimes even negotiate a reduced charge of Reckless Driving.

     

    If you do not have the money to hire your own attorney, request one from the Court.  Driving Under the Influence is a serious offense, and it is best to at least consult with an attorney before entering a guilty plea in a DUI case.

     

     

  • Speeding Tickets and The S.T.O.P. Class

    9/21/20114:46:11 PM Link 0 comments | Add comment

    attorney, Auto, criminal, criminal defense, Criminal Defense Lawyer, DMV, license, speeding, STOP class, ticket

     

     

    STOP Class.  Pretty much everyone has heard of STOP class.  You take it if you receive a traffic ticket and are eligible, and completion of the class keeps the ticket off of your driving record.  STOP class is a good idea when available because not only does it end up in dismissal of your ticket, it keeps points off of your driver's license.  Every traffic offense results in a specified amount of points on your license (i.e. a DUI conviction is 6, speeding tickets are usually 1-3, etc.).  If you receive 12 or more points in a two-year time frame, your license gets revoked by the DMV.  What many people don't realize is that STOP class can be given as part of your sentence by the judge regardless of whether you have recently taken it or not.  And, anytime you take the class, the points from the traffic infraction are not assessed on your license.  If you are someone who has a terrible driving record and is at risk of accumulating 12 or more points, you should speak to your attorney about the STOP class as an option at sentencing.

     

  • Alternative Dispute Resolution and Mediation

    9/20/20119:21:12 PM Link 0 comments | Add comment

    accident, Accident Injury, alternative dispute resolution, arbitration, attorney, car accident, injury, injury claim, Insurance, mediation, Personal Injury, trial

     

    Most people have heard the term arbitration, but few people truly understand what alternative dispute resolution entails and what options are out there.  Arbitration is typically a word you hear mentioned in the news or you see when rapidly scrolling through a contract on itunes.   The truth is many civil cases, including car accident injury cases, are resolved through alternative dispute resolution. 

     

    The two most common types of alternative dispute resolution (ADR) are arbitration and mediation.  The main difference between the two is that arbitration is usually binding on the parties, whereas mediation is typically nonbinding and less formal.  Mediation can be a great tool for reaching settlement in inury cases where the parties have reached a stalemate.  During mediation a nonbiased person (mediator) serves as a go-between for the parties.  The mediator is usually trained in mediation practices and is often an attorney with experience in the area from which the dispute arises.

     

    Every mediation is different, and different mediators have different styles and different ways of doing things.  Many mediators use caucusing during their mediations.  Caucusing is where the parties to the mediation are separated and the mediator goes back and forth between the parties in an attempt to facilitate discussion and further negotiation.  The mediator will try to give an unbiased opinion as to how he or she views the case, and will carry information back and forth between the parties.  

     

    Mediation is a great tool for resolving legal disputes without trial  Having a knowledgeable unbiased party available to facilitate discussion and provide insight, combined with having both parties together at the same time to discuss settlement often times yields better results than the more adversarial trial process.  Furthermore, one of the best things about mediation is that it is nonbinding, and if either party is dissatisfied they can walk away at any time.

     

     

     

  • Medical Records and Medical Release Forms

    8/1/20119:24:00 PM Link 0 comments | Add comment

    accident, Accident Injury, attorney, Auto, bills, car accident, injury claim, insurance, medical information, Personal Injury Lawyer, records

     

    We have discussed medical release forms before, but this is a topic that comes up over and over again when discussing accident injury cases.  Because of current privacy laws protecting personal medical information, medical record release forms must be signed before a treatment provider will release records and/or billing statements to an insurance company or law office. 

     

    Often times, the other driver's insurance company will send you medical release forms immediately following your accident.  You are NOT required to sign these forms just because the insurance company asks you to.  Many insurance medical record release forms are unrestricted and give the company access to pretty much any and all of your medical information, whether it relates to your car accident or not.  If you are injured in a accident, speak to an injury lawyer before blindly signing any forms requested by any insurance companies.

     

    Now sometimes you are placing an injury claim with your own auto insurance carrier.  In this situation, you ARE required to provided medical release forms.  The reason for the difference is because of the direct contractual relationship that exists with your own auto insurance company. 

     

     

  • I accidentally missed my court date. What should I do?

    8/1/20119:14:04 PM Link 0 comments | Add comment

    attorney, civil, court, criminal, failure to appear, lawyer, trial

     

    It is not uncommon for people to miss court dates.  It is not advised, but nevertheless not uncommon.  It depends what type of hearing you missed (criminal, civil, arraignment, trial, etc.), but regardless, the first thing you should do is call your lawyer.  If you missed a hearing for a criminal or traffic proceeding, there is likely a capias (bench warrant) for your arrest.  You will need to have your case brought back into court so the judge who ordered the arrest warrant can cancel it.  If you missed a prove-up hearing on a civil matter, there is a good chance the judge ruled against you.  The worst thing you can do after missing court it put it off.  If you missed court, get your rear end to your atorney's office and have he or she get you in front of a judge as soon as possible.

     

     

  • How long do I have to pursue my car accident injury claim?

    7/27/20119:42:48 PM Link 0 comments | Add comment

    accident, Accident Injury, attorney, Auto, car accident, injury claim, Personal Injury Lawyer

     

    Typically, in Nebraska you have four years from the time of your accident to pursue your injury claim.  This time period can be significantly less, however, if the person who caused the accident is some type of government employee and was on duty at the time of the accident.  For example, if your car accident was caused by a negligent police officer you have one year to properly put the city on notice of your claim and two years to file your lawsuit.  There are certain requirements that must be met to preserve your car accident injury claim, so if you have been in an accident it is always better to consult with a lawyer in your city sooner versus later.

     

  • I Received a DUI. How Will My Insurance Rates be Affected?

    7/26/201110:31:49 PM Link 0 comments | Add comment

    attorney, Criminal Defense Lawyer, DMV, Driving Under the Influence, DUI, insurance

     

    The short answer is your rates will go up.  When your insurance rates go up depends on when the insurance company finds out that you were arrested for Driving Under the Influence.  Most insurance companies run checks every so often, but even without the insurance company running a check on your driving record, they will often find out because you will be forced to tell them.  In Nebraska, once your license is revoked by the Court for a DUI conviction, you are required to obtain SR-22 insurance before you are eligible for reinstatement.  SR-22 insurance is actually not insurance, but rather a filing whereby your auto insurance carrier supplies the state with proof that you have insurance on your vehicle.  Following your DUI license revocation in Nebraska, you will typically be required to carry SR-22 insurance for three years following your license revocation.  If you have any questions about license revocations and SR-22 requirements ask your lawyer or contact the Department of Motor Vehicles.

  • I was ticketed, and when I went to court I was charged with something else? Can a misdemeanor be changed to a felony?

    7/11/20118:41:19 PM Link 0 comments | Add comment

    arrest, attorney, citation, Criminal Defense Lawyer, misdemeanor

     

    Any time you are given a citation or booked into jail on criminal charges, the charges you were arrested on may change by the time you get in front of a judge.  It is the police officer’s job to determine whether it is likely that you committed an offense (probable cause).  The officer then either gives you a ticket or books you into jail on the offenses he or she believes you have committed.  The citation or booking sheet; however, is just a recommendation of what to charge you with. 

     

    The actual decision is up to the prosecutor.  The prosecuting attorney is sent the citation or booking sheet, along with the corresponding police reports.  The prosecutor will decide what to charge you with based on what he or she believes they can prove beyond a reasonable doubt.  Often times, the prosecutor will either add charges that were not included when you were first apprehended by law enforcement; or the lawyer prosecuting your case may decide there is not sufficient evidence to prosecute and dismiss some, or all, of the criminal charges against you.  Because of this, a misdemeanor can turn into a felony; and a felony can turn into a misdemeanor. 

     

    In Omaha, Nebraska, the Douglas County Attorney’s Office is responsible for prosecuting all felony offenses (i.e. robbery, drug possession, felony theft, murder, etc.) and crimes involving domestic violence.  The Omaha City Prosecutor’s Office is responsible for prosecuting all misdemeanor offenses (i.e. DUI’s, traffic tickets, misdemeanor shoplifting, etc.) except for misdemeanors involving domestic violence. 

     

     

  • What is Diversion? How do I keep a conviction off of my record?

    7/2/201110:29:35 PM Link 0 comments | Add comment

    arrest, attorney, Criminal Defense, Criminal Defense Attorney, Criminal Defense Lawyer, criminal law, diversion, drug court, felony, misdemeanor

     

    We have already discussed expungements, pardons and set-asides; however, what’s even better is keeping the conviction off your record in the first place.  Aside from not getting arrested or winning at trial, there are generally two ways of keeping a conviction off your record: (1) some type of pretrial diversion program or (2) some type of post-plea diversion program.  In Omaha, NE, the two most popular programs for keeping a conviction off your record are Diversion and Drug Court.

     

    In order to be eligible for Diversion, you must meet certain requirements.  You cannot have a significant prior record and the crime(s) you are alleged to have committed must not involve violence.  You will not be allowed into a diversionary program if you are charged with violent offenses such as robbery, assault or murder; however, if you are charged with less serious offenses such as shoplifting, drug possession or damage to property, you may be a candidate.  Each person in the Diversion program has requirements that are specifically tailored to that person’s circumstances.  Requirements for Diversion can include restitution, community service, finding employment, finishing a degree, anger management, etc.  If you are allowed into the Diversion program, and you complete the terms of your program successfully, the State will dismiss all charges against you.  If you do not complete the terms of your program, or if you get into additional trouble, you will be kicked out of the program and the State will proceed with your prosecution.

     

    The Drug Court program is very similar to Diversion; however Drug Court occurs post-plea and centers on substance abuse.  Post-plea means that you begin the program after you enter a plea of guilty to the crimes you are charged with.  If you complete the program successfully, you are allowed to withdraw your plea of guilty and the State then dismisses the charges against you.  Drug Court generally is more intensive than general Diversion.  Drug Court participants have meetings once a week at the courthouse.  Participants in the program must stay sober and are required to follow-through with their specific treatment program.  For the most part, participants are not kicked out for relapsing; although, there are sanctions for misconduct and serious consequences for lying and/or reoffending.  Because Drug Court is post-plea, the judge can sentence you on your underlying charges at anytime should you not hold up your end of the bargain. 

     

    If you have been charged with a criminal offense in Nebraska, and you do not have a lengthy record and/or your problems revolve around substance abuse, make sure to speak with your criminal defense lawyer about the possibility of a Diversion or Drug Court program. 

     

     

  • Do I need a Personal Injury Lawyer?

    6/22/201110:08:59 PM Link 0 comments | Add comment

    Accident Injury, attorney, car accident, insurance claim, lawyer, personal injury, Personal Injury Attorney, Personal Injury Lawyer

     

    The terms "personal injury lawyer" or "accident injury attorney" can be a bit misleading.  For the most part, the only people who know exactly what a personal injury lawyer is are other attorneys, or people who have previously been injured in an accident.  The only time you need an accident injury lawyer is when you or a member of your family are the ones who are injured in the accident.  This could be most any type of accident.  For instance, my injury practice focuses on car accident injury and dog bite cases; however, personal injury lawyers handle cases involving all types of accidents: car accidents, dog bites, slip & falls, medical malpractice, workers compensation, etc.  I am often asked if someone needs an injury lawyer after they cause an accident which causes damage or results in injury to another person.  The short answer is no; not because the at-fault paerson does not need legal representation, but because they need a defense attorney, not an injury attorney. 

     

    When someone is injured in an accident, and that accident was caused by someone else (even another family member), they need an "injury lawyer".  In that situation their attorney will help them with the claims process and file a formal lawsuit when necessary.  The insurance claim is based on a negligence action that could be filed against the person who caused the accident or based on other insurance coverages that may exist under the injured party's own insurance coverage.  There are usually multiple insurance policies and issues that come into play when handling an auto injury claim.

     

    On the other hand, someone who causes an accident would be in need of a defense attorney(s).  If you are involved in an accident that is your fault, you will want to contact your insurance company and speak with an attorney who handles defense of criminal and traffic charges.  You may need two lawyers depending on whether you are sued by the person you injured or not.  Causing an accident presents two separate issues: (1) a potential criminal/traffic court issue prosecuted by the State and based on any citation you were issued by police (this is especially serious if you were arrested for DUI and/or if the other person was seriously injured) and (2) a potential civil negligence lawsuit filed by the person you injured.  Your auto insurance carrier will provide representation for you on the negligence claim; however, you are responsible for hiring your own counsel for any proceeding invloving the criminal court system.

     

    Many attorneys offer free consultations, and when in doubt it is always a good idea to seek counsel before progressing with any situation that could have legal consequences.

     

  • I was in a car accident, and now I have tons of medical bills. What now?

    6/1/201110:43:26 PM Link 0 comments | Add comment

    accident injury, attorney, car accident, injury, injury claim, medical bills, Personal Injury Lawyer

     

    There has been a lot of discussion regarding the healthcare industry over the past couple of years, and it is no mystery that medical billing can be confusing as all get out.  When you have an accident injury that was sustained in a car accident, your medical treatment is enough to worry about without having to worry about organizing your medical bills.  One trip to the emergency room for one person injured in an auto accident can result in a multitude of medical bills.  There is a facility charge for the hospital itself; there is a fee for the emergency room doctors; if x-rays are taken, there is an additional fee for the radiologist; and if you were transported by ambulance, there is a fee charged for the ambulance ride.  For ONE trip to the ER, a person will often times receive five different bills from five different places.

     

    If you are in this situation, an accident injury lawyer can help you organize your bills and create a plan for paying them with the help of insurance money.  An injury attorney will also be aware of applicable laws and regulations that may affect how you pay bills and what bills need to be paid when.  If you have been injured in an accident, consider contacting an accident injury lawyer in your area for a free consultation.  Often times, at the very least, your attorney can help negotiate reductions in the amounts you are required to pay back. 

     

  • How do I get something off my record? – Expungements, Pardons and Set-Asides in Criminal Cases

    5/23/201111:24:22 AM Link 0 comments | Add comment

    attorney, criminal, criminal defense, DUI, expungement, guilty plea, lawyer, pardon, set-aside

     

    Typically, a record showing past contact with law enforcement is not good for employment purposes. Often, people at some point in time are in the wrong place at the wrong time or have a brief error in judgment which results in a criminal conviction on their permanent record. Most people who fall into this category are dealing with an offense that in some way involves drugs or alcohol, such as a DUI, MIP or Possession of Marijuana. Unfortunately, in Nebraska there are only three ways to have something removed from your criminal record: an expungement, pardon or set-aside.

     

    For some reason expungement is the first word that comes to mind for most people when seeking to have something removed from their criminal record. However, expungements are governed by Neb. Rev. Stat. § 29-3523, and are only applicable when no conviction was ever received. An expungment only removes an entry on your criminal history, not a conviction. In other words if your DUI lawyer or criminal defense lawyer was able to get your charges dismissed or have you entered into a diversion program which resulted in your DUI charges or criminal charges being dismissed, then you may be eligible for an expungment. In fact, in most of the previously mentioned scenarios the criminal entry on your record should automatically be removed by law.

     

    The next term that is commonly tossed around is pardon. A pardon is when the Governor or Mayor (depending on whether the crime was based on a state statute vs. a city ordinance) decides to “pardon” your crime, thus restoring a certain status and various civil liberties. For most serious offenses, pardons are controlled by the State of Nebraska Board of Pardons. To receive a pardon you must file an application with the appropriate office, and you must have a pretty compelling argument for the Nebraska Board of Pardons. Pardons are not often given. They can take significant time and can be quite expensive.

     

    The last term, which you do not hear very often, is set-aside. Conviction set asides are governed by Neb. Rev. State. § 29-2264, and are the most common way of having a criminal entry on your record disposed of. In English, a set aside is when after you have been convicted of a criminal offense, your criminal attorney takes your case back in front of the judge who sentenced you and requests that your conviction be “set aside”. The way a set aside shows up on your record is just that; your record will show that you were convicted of a criminal offense such as Driving Under the Influence and then later that the conviction was “set aside”. In order to be eligible for a set-aside, you cannot have served any jail time as part of your sentence, and you must have completed all terms of probation successfully and/or paid any fines and costs in full. A set aside can be extremely helpful when seeking new employment; however, it is not a magic wand which erases the conviction completely from your criminal record. Once a conviction has been “set aside”, you are not required to list that conviction on a job application; but employers who do extensive enough background checks will still see the relevant entries on your criminal history report. It is always a judgment call, but often times the best way to use a set aside is to help explain a situation, rather than hide it. If you have a past run-in with law enforcement that is currently haunting you or making it difficult to find work, consult with a criminal defense attorney nearby to decide whether any of the above options are a good idea for you.

     

     

  • Sprains, Strains and Automobiles – A story of car accidents, soft tissue injuries & insurance claims

    5/2/20119:24:31 PM Link 0 comments | Add comment

    attorney, back strain, car accident, injury, injury claim, insurance, neck strain, soft tissue

     

    Many times when someone is injured in a car accident they are diagnosed with having a “soft tissue injury”.  A soft tissue injury is an injury involving muscles, ligaments or tendons.  Sprains and strains typically fall into the soft tissue category.  Whiplash, probably the most common injury suffered from a car accident, is a soft tissue injury. 

     

    One of the biggest problems with soft tissue injuries is they tend to get lumped together as all being the same, when in fact there are many different kinds and degrees.  The reason that strains and sprains typically all get judged the same is because they are difficult to objectively evaluate.  Take a broken leg for example.  When someone breaks their leg, it is usually pretty clear that a bone within the leg is broken.  We know this because we can see the broken bone on an x-ray, and in extreme cases we can see the bone without an x-ray.  On the other hand, a soft tissue injury such as a neck strain presents more of a problem because you cannot see a neck strain on an x-ray or MRI. 

     

    Because of this, auto insurance companies often times do not take soft tissue injuries such as neck strains and back sprains seriously.  This attitude can be extremely frustrating, especially if you happen to be one of the people plagued with lower back pain that was caused in a car accident and still bothers you after years of physical therapy, spinal injections and massage therapy.  Physical therapy and chiropractic treatment are probably the most common treatments for soft tissue injuries; however, depending on the nature and location of your injury, there may be other options available.  Other types of treatment often seen in patients dealing with more serious soft tissue neck or back injuries are pain injections and/or radiofrequency treatments.

     

    If you have been injured in a car accident, there is a good chance you are suffering from some type of soft tissue injury.  If so, be ready for a battle with the insurance company handling your claim.

     

     

  • Jury Trial vs. Bench Trial

    1/13/20118:50:32 PM Link 0 comments | Add comment

    attorney, criminal, criminal procedure, jury, lawyer, trial

     

    Am I entitled to a Jury Trial?
    When you are charged with a criminal offense, you typically have two options, trial or plea. You can either proclaim your innocence and take your chances at trial; or your criminal lawyer can work a plea agreement with the prosecution, and you can enter a plea of guilty or no contest in accordance with the plea agreement. If you are charged with a criminal offense which is punishable by more than six months in jail, you are entitled to a trial by jury. 
     
     
    What is a Bench Trial?
    The alternative to a jury trial is a bench trial. A bench trial is a trial to the judge. In a jury trial the judge will determine any questions of law and the jury will decide all issues of fact. In other words, the judge decides what evidence is allowed at trial and the jury decides whether or not you are guilty. 
    In a bench trial, there is no jury. It is the judge’s job to decide all issues. In a bench trial the judge still decides issues of law such as evidence and procedure; however, the judge also makes all factual determinations. There are some situations in which there is no right to a jury trial (i.e. misdemeanor crimes that are not punishable by more than six months in jail, juvenile proceedings, etc.).
     
     
    Should I Have a Jury Trial?
    Whether or not you should exercise your right to a jury trial depends greatly on the facts of your criminal case. There can be advantages to having a judge determine your guilt in a criminal trial; however, in most situations a jury trial is preferred when available. One reason for this is that jury verdicts in criminal trials must be unanimous (for a guilty verdict to be entered every single juror must agree that you are guilty). It is usually easier to convince one person out of twelve, or one person out of six, that you are not guilty rather than one person out of one.  Either way, if you are currently facing criminal charges, discuss your options with your defense lawyer.  Whether you are on trial for a serious assault, drug charges or a DUI; whether or not it is in your best interests to proceed with a jury trial is something that should definitely be discussed with your lawyer.
     

  • Finding a Good Lawyer

    1/1/20112:56:26 PM Link 0 comments | Add comment

    attorney, Criminal Defense, DUI, Lawyer, lawyer search, Personal Injury

    Finding a Lawyer

    Unfortunately for most people, but fortunately for our office, most people need a lawyer in some form or fashion many times throughout their life.  This helps explain why sometimes it seems like one out of every three people you meet are some type of attorney.  When searching for a lawyer it is important to keep in mind why it is you need help in the first place, as well as what exactly you want your attorney to help you with.  Some lawyers will offer services that you do not need or want.  In the alternative, maybe you would like additional help than what is being offered.  Make sure when meeting with prospective legal counsel to voice these requests so you know exactly what services are being offered.  My practice focuses almost entirely on car accident injury cases, criminal cases and DUI defense; therefore any examples used in this post will likely refer to one of those three areas.

    Budget
    It is always good to keep a budget in mind; sometimes you get what you pay for, but other times you simply pay for what you got.  Now, this is not applicable to personal injury cases (i.e. car accidents, truck accidents, motorcycle accidents), where most cases are taken on a contingency fee basis.  However, when hiring a criminal lawyer or dui attorney, the harsh reality is not everyone has the same resources, and thus, not everyone can pay for the same legal services.  Unlike other major purchases in life, most people do not plan ahead for attorney fees.  In other words, more money does not always mean a better product or better service.  And again, make sure you know what you are paying for.  As an example, say you hire an attorney to represent you because you were arrested for DUI.  You and the lawyer agree that in return for representation on your DUI, you will pay a flat fee of $1,000.00 up front (relatively standard fee for a DUI first offense in Omaha, NE).  Does this fee cover all hearings?  What are “all hearings”?  Does the fee include representation for your Administrative License Revocation (ALR) hearing with the DMV?  Does the fee include showing up for additional hearings while you are on probation, such as show cause hearings and probation checks?  If you choose to be a knucklehead and violate your probation, does the fee include services for representation on the your probation violation charge?  These are all the types of questions you need to ask when looking to hire a lawyer.  Obviously, not these exact questions, unless you were recently cited for DUI, but you get the idea.  Often, you can negotiate exactly what services you would like.  This could mean an increase in fee if the services negotiated for are outside the ordinary; or it could mean a reduction in fee, if there are certain tasks you do not wish your lawyer to perform, but usually come standard.  The bottom line is that in most situations it is important to discuss both fees and services in detail before officially forming an attorney-client relationship.

    Where do I Begin?
    The first place most people will look when they are in need of legal counsel is to their family and friends.  Not everyone has an attorney in his or her family, but most people have at least had some experience with one, and if the experience was good, that lawyer may serve as at least a good starting place in your lawyer search.  Whether you are shopping for a lawyer or any other type of service provider, using the people you know as a starting point is always a good idea.  And remember, if you are looking for a criminal lawyer or personal injury attorney, but only are familiar with an estate planning attorney, give that person a call.  Most likely he or she will know other lawyer who practice in the areas of law you are looking for, and most times he or she will be willing to give you some referrals to serve as a starting point in your lawyer search.

    The next place people will often go is the Internet.  Most prefer the Internet over the phone book for obvious reasons.  Online websites and lawyer profiles typically offer a person more insight into the law office they are researching.  Where ads in the yellow pages are usually overwhelming in number, as well as limited in information; online resources are able to provide pictures, background information and client reviews or testimonials.  

    The last place people will go, usually because they feel they have nowhere else to go, is the phonebook.  Even when using the phonebook or an online lawyer directory, it is a good idea to visit websites and review client reviews before setting up any intial consultations.

    How do I Decide?
    Well, it’s not easy.  Again, as mentioned above the most important thing is to be comfortable with the person who will be representing you.  You need to feel confident that you can trust your attorney, and that you understand exactly what it is your attorney is going to try to do for you.  A few suggestions to take into account when interviewing prospective lawyers are referenced above; however, there are endless other issues to keep in mind depending on what is important to you; things as basic as location, office hours, direct access, support staff, size of the firm, and so on.  Searching for the right attorney does not have to be as complicated and daunting as some make it out to be.  The key is to do a little preparation ahead of time and make sure that you have a specific plan of action.

     

     

     

     

  • Medical Payment Coverage (Medpay) What is it? How is it used?

    9/26/20109:28:53 AM Link 0 comments | Add comment

    attorney, car accident, injury, insurance, lawyer, medpay

     

    Okay, you have been injured in a car accident. You have many questions such as – How does the insurance work?   Do I need to file a claim with my own insurance company? Who will pay for my medical bills? Will my health insurance pay for my injuries from the car accident? Do I need an injury lawyer? How much does an injury attorney cost? And the list goes on.
    Well, I am not going to answer every question you have with this blog post; however we will discuss payment of medical bills using medpay. If you are injured in a car accident in Omaha, Nebraska, you will be negotiating a lump sum settlement with the insurance company representing the driver who caused the car accident. In most circumstances, this means your car accident injury lawyer will be negotiating one settlement that will include money for medical bills, pain & suffering, lost wages, inconvenience, etc. If you and your car accident attorney are unable to reach an agreement with the at-fault person’s insurance company, the next step will be to file a lawsuit. 
    Now, you should not attempt to negotiate your insurance settlement until your injuries have healed completely, or you have reached your maximum medical improvement (MMI). Often times it takes months, or even years, before a person injured in a car accident is released from care by their treating physicians. In the meantime, the bills keep coming. One way an injured person can pay for their medical bills is by using medical payment coverage or “medpay”. Not everyone has medpay. Medpay is additional coverage that you can contract for when purchasing car insurance. Usually, if you carry higher than the minimum liability coverage and/or collision coverage for your vehicle, some amount of medpay will be included within your insurance policy. If you are injured in a car accident, you can use your medpay money to help pay for medical bills whether the car accident was your fault or not; however, if the accident was someone else’s fault, the medpay insurance provider may be entitled to subrogation (reimbursement from settlement) of amounts paid.
    Medpay can be paid directly to a treatment provider (i.e. doctor, physical therapist, chiropractor, etc.), or the injured person can submit receipts for their own reimbursement. Just because you have medical payment coverage does not mean you should not give treatment providers your health insurance information. First of all, medical payment coverage is capped at whatever amount you contracted for. Typically, a medpay policy will provide somewhere between $1,000.00 to $10,000.00 in coverage; however, many policies have no medical payment coverage at all and some have as much as $50,000.00. Again, it depends on what you purchase from your auto insurance company. Second, if possible, your attorney will attempt to have all medical bills first go through your health insurance before taking advantage of any medical payment coverage with an auto carrier.  The reason for wanting bills to first go through health insurance is that health insurance companies have contracted for reduced rates with almost all healthcare treatment providers. For example, if you have a doctor’s bill that is $1,000.00, your health insurance company will likely pay somewhere between $600.00 and $800.00, instead of the full $1,000.00 charged by the doctor’s office. This means at the end of your case if you have to pay an insurance company back (subrogate) with proceeds received from your injury settlement; you will only have to pay back $660 or $800, instead of $1,000.00. 
    Long story short, make sure to find out whether you have medical payment coverage as part of your current car insurance policy and, if so, how much coverage you have. Medical payment coverage is a great thing to include in your policy when purchasing automobile insurance coverage; and, in the event of a car accident, medpay can help pay for bills not covered by your health insurance, such as reimbursement of deductibles and co-pays. With that said, this post is a brief overview of medical payment coverage. If you have recently been injured in an accident, you should contact an injury attorney immediately to discuss your situation.

     

  • Criminal Procedure Continued--Felony Case Progression in Nebraska

    9/21/20103:42:25 PM Link 0 comments | Add comment

    arrest, attorney, criminal, felony, lawyer

     

    As mentioned in the previous post discussing criminal cases in Nebraska; one of the biggest differences between the Nebraska criminal process for felonies when compared to the process for misdemeanors, is which court you are prosecuted in. In Douglas County, NE, all cases typically begin in county court. Felonies, however, are transferred to district court for further prosecution and, if necessary, trial; whereas a misdemeanor offense, such as a first or second offense Driving Under the Influence (DUI), will stay in county court for all phases of the case. 
     
    Arraignment/Bond Setting—similar to a misdemeanor case, when you are facing felony criminal charges, the first court hearing you have will be an advisement of your rights, as well as a hearing to set bond. As mentioned above, in Nebraska, your case will begin in county court unless the prosecuting attorney files what is called a direct information. This means your case begins in the same place it would were you charged with a misdemeanor crime. During your initial appearance on a felony charge, you can either request a preliminary hearing or waive your right to a preliminary hearing. If you request a preliminary hearing, the judge will set a date for hearing and then take up the matter of your bond. If you waive your right to a preliminary hearing, your case will be “bound over” to the District Court and then the judge will determine your bond. You should always hire a criminal lawyer before appearing in court on a criminal offense; however if you have not had the opportunity to hire an attorney before your first appearance, often times there will be a lawyer appointed by the court there to represent you for that hearing.
     
    Preliminary Hearing—a preliminary hearing is a hearing to establish whether the prosecution has enough evidence to proceed with their case. The burden of proof for a preliminary hearing is much less than that of a criminal trial. The prosecuting lawyer only needs to show “probable cause” for every element of the crime(s) charged. In other words, the prosecutor needs to prove to the court that you, the defendant, “likely” were involved in the criminal conduct alleged in the complaint. If the prosecution meets their burden (wins), then the case is “bound over” (transferred) to the district court. A new judge will be assigned, and the next hearing will take place at the district court level. Often times defendants will waive their right to a preliminary hearing for one reason or another; waiving your right to a preliminary hearing is not an admission of guilt and only waives rights you may have in regard to that specific hearing. If you win your preliminary hearing your case is dismissed by the court; however, the prosecution is allowed to refile the same criminal action, in which case, the entire process starts over. Double Jeopardy does not apply to cases that have not been fully disposed of either at trial or by the defendant entering a form of guilty plea. 
     
    Pretrial Hearing—same as a misdemeanor pretrial hearing, at this hearing motions are filed and progression of the case is discussed between all parties. Often times plea agreements are reached and cases are disposed of. 
     
    Hearings on Motions—again, for most motions filed by either your attorney or the prosecuting lawyer, there will be an opportunity for a hearing. In criminal cases, probably the most popular motion that is heard by the court is a motion to suppress evidence.
     
    Trial—both sides get to present evidence in support of their side of the case. The prosecution goes first. You are entitled to a trial by jury on all felony cases.
     
    Sentencing—if you plead guilty or no contest, or if you are found guilty at trial, you ultimately will be sentenced by the Court (i.e. judge). Sentencing is when you receive your punishment. Punishment for criminal offenses most often includes: jail, probation, fines, restitution or some combination of all of the above. On felony cases, a pretrial investigation (P.S.I.) will almost always be ordered by the court prior to sentencing. A P.S.I. is an investigation done by the probation office into the facts surrounding the case, as well as the background of the defendant. Ultimately, the probation office will usually make a recommendation on whether they believe the defendant is a good candidate for probation; however the judge is not bound by these recommendations or any other recommendations made to the court.
                                                                  

  • Misdemeanor Criminal Procedure Timeline

    9/10/20103:21:17 PM Link 0 comments | Add comment

    attorney, citation, criminal, defense, misdemeanor

     

    Most people who are charged with criminal offenses such as drug charges, theft or driving under the influence have no idea how a case progresses through the criminal court system.  General procedure is the same, or at least similar, from jurisdiction to jurisdiction; however details in how things are handled vary greatly between federal court and state court, as well as between different states and sometimes even different counties.  I have listed below a basic outline of what happens within county courts in the state of Nebraska. The following information relates mainly to misdemeanor offenses. Nebraska’s court system is divided into two separate courts: County Court and District Court. In general, misdemeanor crimes are dealt with in County Court and felony crimes are handled at the District Court level.
     
    (1)   Arraignment/Bond Setting—this is your first criminal court hearing once you have been cited or arrested on a criminal offense.  At arraignment, the judge will read you your rights, and you will enter your first plea in the case.  Your choices of pleas are: guilty, not guilty, no contest and not guilty by reason of insanity.  If you stand mute the judge will enter a plea of not guilty for you.
     
    If you are still in jail, the judge will also typically set a bond at this hearing.
     
    If you plead guilty or no contest at arraignment, your case is essentially over. If you plead guilty/no contest to a misdemeanor, you will either be sentenced immediately, or the judge may order a presentence investigation (PSI). If the judge orders a PSI, you will be sentenced at a later date. 
     
    *On felony cases, you are typically not allowed to enter a guilty plea at your first arraignment in county court.
     
    (2)   Pretrial Hearing—at this hearing progression of the case is discussed between all parties. Often times plea agreements are reached and cases are disposed of at the pretrial hearing/conference. There are only pretrial conferences for misdemeanor cases that are set for jury trial. If you are charged with an offense that does not make you eligible for a jury trial, or you have waived your right to a jury trial, there will usually not be a pretrial conference on your case.
     
    (3)   Hearings on Motions—for most motions filed by either you or the prosecution, there will be an opportunity for a hearing. In criminal cases, probably the most popular motion that is heard by the court, is a motion to suppress evidence.
     
    (4)   Trial—you know what this is. Both sides get to present evidence in support of their side of the case. The prosecution goes first.
     
    (5)   Sentencing—if you plead guilty or no contest, or if you are found guilty at trial, you ultimately will be sentenced by the Court (i.e. judge). Sentencing is when you receive your punishment. Punishment for a criminal offense most often includes: jail, probation, fines, restitution or some combination of all of the above.
     

  • Misdemeanor Criminal Procedure Timeline

    9/10/20103:21:17 PM Link 0 comments | Add comment

    attorney, citation, criminal, defense, misdemeanor

     

    Most people who are charged with criminal offenses such as drug charges, theft or driving under the influence have no idea how a case progresses through the criminal court system.  General procedure is the same, or at least similar, from jurisdiction to jurisdiction; however details in how things are handled vary greatly between federal court and state court, as well as between different states and sometimes even different counties.  I have listed below a basic outline of what happens within county courts in the state of Nebraska. The following information relates mainly to misdemeanor offenses. Nebraska’s court system is divided into two separate courts: County Court and District Court. In general, misdemeanor crimes are dealt with in County Court and felony crimes are handled at the District Court level.
     
    (1)   Arraignment/Bond Setting—this is your first criminal court hearing once you have been cited or arrested on a criminal offense.  At arraignment, the judge will read you your rights, and you will enter your first plea in the case.  Your choices of pleas are: guilty, not guilty, no contest and not guilty by reason of insanity.  If you stand mute the judge will enter a plea of not guilty for you.
     
    If you are still in jail, the judge will also typically set a bond at this hearing.
     
    If you plead guilty or no contest at arraignment, your case is essentially over. If you plead guilty/no contest to a misdemeanor, you will either be sentenced immediately, or the judge may order a presentence investigation (PSI). If the judge orders a PSI, you will be sentenced at a later date. 
     
    *On felony cases, you are typically not allowed to enter a guilty plea at your first arraignment in county court.
     
    (2)   Pretrial Hearing—at this hearing progression of the case is discussed between all parties. Often times plea agreements are reached and cases are disposed of at the pretrial hearing/conference. There are only pretrial conferences for misdemeanor cases that are set for jury trial. If you are charged with an offense that does not make you eligible for a jury trial, or you have waived your right to a jury trial, there will usually not be a pretrial conference on your case.
     
    (3)   Hearings on Motions—for most motions filed by either you or the prosecution, there will be an opportunity for a hearing. In criminal cases, probably the most popular motion that is heard by the court, is a motion to suppress evidence.
     
    (4)   Trial—you know what this is. Both sides get to present evidence in support of their side of the case. The prosecution goes first.
     
    (5)   Sentencing—if you plead guilty or no contest, or if you are found guilty at trial, you ultimately will be sentenced by the Court (i.e. judge). Sentencing is when you receive your punishment. Punishment for a criminal offense most often includes: jail, probation, fines, restitution or some combination of all of the above.
     

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