License Suspension for a DUI in Idaho.

If the police have arrested you for a DUI charge, you will very likely face a license suspension.  There are three instances where this may occur; failure of a breath test, refusal of a breath test, or a conviction for a DUI.

License Suspension when you are arrested

The first possible time that you may lose your license will be when the police first arrest you.  At this time your license may be suspended either for refusing to take a test of your blood, breath or urine for an intoxicating substance, or for your failure of the same.  If you refuse to take the test or fail, the arresting officer will notify you in writing of the license suspension.  A common problem with this notice is that most people are indeed intoxicated. They do not realize, remember, or understand that the officer notified them.

Suspension for Failing Test

Failure of the test will cause the Idaho Department of Transportation (DOT) to suspend your license. This suspension is an administrative sanction from DOT, not the courts.   You have seven days to appeal the arresting officer’s decision to suspend your license.  If you fail to appeal, or if you lose, your license suspension will begin 30 days after your arrest.  The first time you fail this test DOT will suspend your license for 90 days. The initial 30 days will be absolute, which means you cannot drive at all.  After the first 30 days, you can apply for a restricted permit from the department for work, school or medical reasons.

Suspension for Refusing Test

Refusal to submit to any one of the tests that the arresting officer asks you to take will result in the officer charging you with refusal.  This matter goes before the magistrate court as a civil matter.  It will be a separate case from your criminal DUI case.  

As was the case with DOT, you will be required to file an appeal within seven days.  If you fail to do so or lose, the suspension will go into effect 30 days after your initial arrest.  

Absolute Suspension

The difference between the DOT suspension and the refusal suspension is that the refusal suspension is for 365 days absolute. Absolute means you will be unable to operate a motor vehicle on public roads for an entire year.  There are no exceptions to this, other than an exception for participants of DUI court.  Many counties do not have DUI courts, and so this will not be an option.

License Suspension after conviction

The other time your license will be suspended is if you plead guilty to or are found guilty of a DUI charge.  Different DUI charges carry different license suspensions.  A first time regular DUI conviction carries a 90-180 day license suspension.  The initial 30 days are absolute, while you should be able to get a work or school permit for the remaining days.  A second time DUI conviction, and a first time excessive DUI conviction both carry a 365-day absolute driver’s license suspension. ‘Absolute’ means you cannot drive at all for any reason for 365 days.  And if the court convicts you of a felony DUI, then your license will be suspended for at least one year absolute, and up to 5 years.

Miscellaneous License Suspension Topics

Work or School Permit

Before you can apply for a work or school permit, you must pay the reinstatement fees. Also, your insurance must be current and valid. You must fill out an application with the DOT or the Court.  If the court has not yet convicted you of the DUI charge and you need a permit, then you will apply with the DOT.  If the court has sentenced you, then you will apply only to the court.

Suspension of Commercial Driver’s License (CDL)

If you have a CDL, DOT will suspend your license for an entire year. This suspension will happen regardless of whether you were driving a Commercial Class vehicle or not.  You will be unable to operate a commercial class vehicle for a year after any DUI conviction.

Backdating License Suspension

The Court may allow your DUI suspension to be backdated to when the DOT suspension started.  What this means is that you will not have two consecutive license suspensions. The two suspensions will run concurrently.  So if your DOT license suspension began on May 1st, then the court will start your DUI suspension on May 1st as well.  In other words, if the DOT suspended you for 90 days beginning May 1st, and the court suspends your license for 180 days on July 1st, the court can still order that its suspension starts on May 1st. That will give you two full months of credit towards your DUI suspension, leaving you only 120 days remaining.

SR-22 Proof of Financial Responsibility

DOT also requires you to carry an SR-22 after a DUI conviction.  An SR-22 is a document from your insurance company sent to the DOT as ‘proof of financial responsibility.’ Idaho law requires this document after a DUI conviction.  The problem is, when an insurance company agrees to provide this documentation for you, they consider you a high-risk driver.  Consequently, your rates will go up if the insurance company decides to cover you at all.  Idaho Code requires you to carry an SR-22 for three years after your license suspension ends.  However, if the court granted you a withheld judgment and your probationary period ends, and the court grants a dismissal, you no longer will be required to carry an SR-22.

Probation. What does it mean for a DUI case?

Probation
Probation

When the court convicts you of a DUI or a misdemeanor, it will most often place you on a period of probation as part of the penalty.

What is probation?

Probation is a period in which the court suspends a jail sentence, and maintains jurisdiction over your case for a time.  For example, the court may sentence you to 90 days of jail, but they suspend 85 of those days.  You serve five days, but the court suspends the other 85 days and places you on probation for a year.  If you violate your terms, then you may have to serve any number of those 85 remaining days.

What are the terms of probation?

There are many terms of probation that a judge may order.  A judge may order any condition that is reasonably calculated to protect the community and aid in your rehabilitation.  For example, the court may order you to refrain from intoxicating substances without a valid prescription. The court may order you to submit to random urinalysis tests to test your blood, breath, or urine for intoxicating substances.  Or, the court may allow the probation officer to search your place of residence, or your automobile, or person, without notice to you.  Also, the court may order you not to have contact with certain individuals.  There are many terms that the court may order.  Violation of any of them could be cause for the court to revoke your probation and impose the suspended time.

What is supervised and unsupervised probation?

Probation comes in two forms, supervised and unsupervised.  Supervised probation means that you have an assigned probation officer (PO) to which you must report.  A PO will make sure that you are complying with the court’s orders.  He may have some terms of his own that he may impose.  He is sometimes given authority to search your place of residence, your car, or your person. You will be required to submit monthly reports to your PO, and have occasional meetings with them.  Unsupervised means that you do not have a PO.  So, you still may have some of the same terms, but there will not be a PO to keep tabs on you.

What happens if you violate probation?

If you violate any of your terms of probation, a warrant may issue for your arrest.  If the court determines that you have violated any of the terms, it may revoke your probation. Then it may impose some or all of the suspended jail time.  When you are on supervised probation, this will typically occur if the PO files a petition for probation violation with the court.  If you are on unsupervised probation, the state will only violate you if you complete some court order.  They may also violate you if the police charge you with a new crime.  If you had a withheld judgment in your case, the judge will revoke the withheld judgment and enter a judgment of conviction.

At the disposition hearing, the court has many options.  It may impose all of your suspended sentence.  It may impose some of your suspended sentence, but place you back on probation and defer the remainder of the sentence.  The court may just put you back on probation without imposing any of the jail.  Or it may merely commute your sentence, impose whatever amount of the suspended sentence it decides, and not place you back on probation.

Penalties in a misdemeanor DUI case in Idaho.

Court Penalties
Court Penalties

You have been found guilty or pled guilty to a misdemeanor DUI charge. The court has set the matter for a sentencing hearing. Now you want to know what possible penalties you face on a misdemeanor DUI charge in Idaho.

DUI cases are among the most severe charges you may face in Idaho and come with some pretty hefty penalties as a consequence.  Among these possible penalties are jail, fines, court costs, restitution, substance abuse evaluation, victim’s panel, license suspension, and an interlock device.

Jail Penalty

The penalty that most defendants fear the most is the jail sentence.  Of course having your freedom stripped, and sent to sit in a cold cell for months on end, is a terrifying prospect.  However, in many misdemeanor DUI cases, this isn’t what occurs.  If this is a first time DUI, and there are no serious aggravating factors in your case, then you are likely to get what are called ‘options’ on your jail.  Options, in most places in Idaho, include community service, sheriff’s inmate labor detail, work release, and in rare circumstances, house arrest.

Community Service

You will generally set up your community service through the Sheriff’s office. However, in some circumstances, the court will let you complete the community service on your own. You will be required to provide the proof by a specific date.

Sheriff’s Inmate Labor Detail (SILD)

Sometimes a defendant will not qualify for community service, due to risk factors or length of sentence. In those circumstances, they may still be eligible for the sheriff’s inmate labor detail, or SILD for short.  SILD is a program where you spend an eight hour day picking up garbage on the highway or other similar activities.  Each eight hour day counts as one day of jail.

Work Release

In more severe DUI cases, the judge may sentence you to incarceration.  Even in those cases though, there is still a chance that the judge may allow for work release.  Work release means you can go to work.  You must report back to the jail at the end of your workday.  At least this way you do not lose your job and can continue making a living.

House Arrest

In rare circumstances, such as a severe medical condition, the court may order you to finish your jail as house arrest.  House arrest is a rare option to serve your jail though. The medical condition will have to be a seriously debilitating one before the judge considers it.

Straight Time (in custody)

If you do not qualify for any of the above options, then you will have to serve your jail in custody.  This is not common in a first time DUI case, Even with excessive DUI cases, and second DUI cases, you may still qualify for some of these options.

Fines

Money makes the world go round. The courts will not usually let you go without paying some monetary penalty.  The maximum court fine for a first time DUI is $1000, for an excessive or second DUI the maximum fine is $2000.

Court Costs

Fines are not the only monetary penalty.  There are also court costs.  Not to worry though, this isn’t going to be as much as the fines.  Court costs are set by statute and usually range anywhere from $150-$250.

Restitution

If there was any damage caused by you when driving under the influence, you might be required to pay restitution to any victim.  Even if you were insured, and your insurance covered the damage to the victim’s vehicle, you may have to pay the insurance company back for the damage you caused.  The court will allow you to pay this restitution in payments, but if you decide not to pay your restitution it could result in a probation violation and a stiff jail sentence.

Substance Abuse Evaluation

The court is required by statute to order an alcohol evaluation or a substance abuse evaluation.  There are DUI evaluators that have been approved by the Idaho Supreme Court.  You must go to an approved evaluator.  The evaluator will recommend classes. You must comply with the evaluator’s recommendations and complete the courses during your period of probation.  The number of hours you must complete range anywhere from eight hours, up to thirty-two hours, and possibly beyond.  In some cases, you may be required to enter inpatient treatment, but this is rare in misdemeanor DUI cases.

Victim’s Panel

The court is required to order you to complete a ‘victim’s panel.’  This is not as involved as the classes from your DUI evaluation will be.  It’s typically a one night class.  It is to educate you on the danger’s of driving under the influence, and how it has impacted others who have been victims of DUI crashes.

License Suspension

The Court is also required to suspend your license as a penalty.  The length and limits of the suspension vary depending on your charge and circumstances.  A first time DUI suspension can be anywhere between 90-180 days.  The first 30 days must be absolute. This means you cannot drive at all for any purpose.  After the 30 days, you may qualify for a work permit.  Also, courts usually order the 180-day suspension, rather than the 90-day suspension. On a second DUI or excessive DUI, the court is required to suspend your license for an entire year, with the whole year being absolute. This means no way of getting a work permit.  The only exception is if the county has a DUI court program that includes the possibility of getting a work permit, but most counties do not have this.

Interlock Device

In DUI Second cases the court is required to order an interlock device as a penalty, and in DUI Excessive cases the court is permitted to order an interlock device.  An interlock device is a device that is installed on your car, that you have to blow into so it can read your breath alcohol before the car will start.  If it detects alcohol, your car will not start, and it will notify your probation officer of the attempt.

SR-22 Insurance

One penalty that is not imposed by the Court, but is a penalty imposed by the Department of Transportation, is the SR-22 requirement.  SR-22 is a high-risk insurance policy. You must carry this policy if the court has convicted you of a DUI.  If this is your first DUI, and you use a ‘Withheld Judgment‘, then you will no longer be required to carry SR-22 insurance after the court dismisses your case.  If you fail to carry SR-22 insurance as expected, the department will suspend your license, and if a police officer stops you while you are driving, you will receive a misdemeanor driving without privileges charge.

Temporary Custody Orders

Temporary Custody Orders
Temporary Child Custody Orders

What are Temporary Custody Orders? 

Temporary custody orders govern custody sharing between the filing of the custody case and the time that the court finalizes the case.  Typically, the court issues them after a hearing.  If a parent refuses to obey the order, the court can hold the parent in contempt.

Why Temporary Custody Orders?

It is typical for a custody case to last for several months before the court holds a trial or the parties negotiate a resolution.  In Idaho, these proceedings often take 6-9 months.  Often one parent is disadvantaged during that period.  One parent frequently prevents another parent from having a fair chance to access the children and to parent the children.  That situation leads to conflict and frustrations between the parents.  The children suffer without being able to spend time with both parents.  Temporary orders may help lessen the conflict between the parents.  Temporary Orders promote the best interests of the children by allowing the children to spend time with both parents.

How Temporary Custody Orders Work?

In Idaho, several court rules and statutes govern Temporary Custody Orders.  In particular, Idaho Rule of Famly Law Procedure 504 and Idaho Code § 32-717.  Generally, Temporary Custody Orders are obtained by filing a Motion for Temporary Orders and filing Affidavits in support of Motion for Temporary Orders.  There are strict rules regarding the number of affidavits that a party can file.  There is also a page limitation for the affidavits. The time limits for the filing of any Motions or an Affidavits are critical. Generally, Idaho Rule of Family Law Procedure 501 governs these limitations.  

The Motion for Temporary Orders must set on the court’s calendar.  The Motion and the Affidavits must be filed and served on the opposing party so that they are received at least 14 days before the hearing.  The affidavits must be very detailed and accurate.  Motions for Temporary Orders are almost always decided ONLY on the Affidavits filed.  The judge will likely refuse to accept evidence other than the affidavits already filed.  An experienced attorney can help your case by preparing the affidavits that contain all of the relevant information without exceeding the page limits imposed by the Rule 504.

Sentencing hearings in a misdemeanor DUI case.

sentencing hearing
sentencing hearing

You have either pled guilty to a DUI according to a plea agreement, or were found guilty at a trial, and now the matter has been set for a ‘sentencing hearing,’ but what is a ‘sentencing hearing?’

What is a sentencing hearing?

A sentencing hearing is where the judge will hear evidence and argument from the attorneys. The Court will decide should happen to the defendant now that the court has convicted him of a criminal charge.  The court will decide which penalties to impose as a result of the conviction.

Possible Penalties

Potential penalties in a DUI case include jail, fines, court costs, restitution, DUI evaluation, victim’s panel, license suspension, interlock device, supervised or unsupervised probation, and other terms an conditions of probation that a judge may issue.

How does the judge decide the sentence?

At the hearing, a court will consider aggravating and mitigating circumstances.  The Court has many factors it must consider when deciding on an appropriate sentence.  In Idaho, the court’s chief concerns are the protection of society, deterrence of the individual and the public generally, possibility of rehabilitation, and punishment or retribution for wrongdoing.

The prosecutor will likely present evidence and argument that for the protection of society the defendant should be severely punished for his wrongdoing.  If there is a victim, the prosecutor will request the court to allow them to make a statement.

The defendant’s attorney will present evidence that the court system can rehabilitate the defendant.  The defense will argue and present evidence that the defendant is not in need of severe punishment. He will cite things like lack of criminal history, steady employment, family considerations, and other similar factors.

The court will finally give the defendant an opportunity to speak if he wishes.  If the defendant does not want to talk, the court will not hold that against the defendant, since the defendant has a right to remain silent.

The court will then craft, what it deems to be an appropriate sentence.  The court will consider the evidence and argument from the attorneys, and any statements made by the defendant.

How you should prepare for your sentencing hearing.

You should provide your attorney with any information or evidence that demonstrates the mitigating factors discussed previously.  This kind of material can be support letters, psychological evaluations, DUI evaluations, letters from medical providers, etc.  Sometimes live testimony from a witness at the hearing can help, but only in some circumstances.  If you are going to speak at the hearing, then talk to your attorney about what you are planning to say.

What is a ‘pretrial conference’ in a DUI case?

Pretrial Conference
Pretrial Conference

You have pled ‘not guilty’ to the charge of DUI. The court has notified you that your next court date is a ‘pretrial conference.’  Sometimes this makes people very nervous because it sounds awfully like a trial.  It is not a trial.

The Pretrial Conference

The pretrial conference is a hearing that the court sets for the parties before the trial.  It is a time for the attorneys to discuss the case amongst themselves. It is also a time to discuss the matter with the judge.  At the pretrial conference, the judge will want to know whether the case is ready for trial. He will ask whether the parties have completed discovery and whether the court needs to hear any pretrial legal motions before the trial.

Plea Agreement

Often, the attorneys can work out a settlement agreement at this time, and the case is taken care of through some plea agreement.  A plea agreement stops the case from going forward to trial, and there is a sentencing hearing instead.  

No resolution

If a plea agreement does not resolve the matter, then the case is set for trial.  Some judges may set a status conference before the trial to address any last minute issues. This will also give the attorneys one more opportunity to resolve the case before it goes to trial.  Also, sometimes the matter will be continued for a second pretrial conference. The court will do this if any issues could help bring the matter to a close. Or if, for any reason, the case is not quite ready for trial.

Should I plead guilty to a DUI?

You were arrested for DUI, and now you have a citation that tells you to appear between two dates in court.  For example, it may say to appear between September 12th and September 24th.  When you appear at the courthouse, you are directed to the clerk’s office.  The clerk will ask you how you want to plead, guilty or not guilty?

Should you plead guilty or not guilty?  At this stage, unless an attorney has advised you otherwise, you should always plead not guilty.  Some people think this is a bad idea because it will appear you are not accepting responsibility for your behavior, and the court will hold this against you.  While courts do consider acceptance of responsibility when determining an appropriate sentence, they will not hold it against you that you plead not guilty initially. The reason for this is that the judges know that it is routine to do this initially in a case before an attorney has requested discovery, negotiated with the prosecutor, or discussed the matter with his client.  It would be malpractice for an attorney to merely enter a guilty plea for their client before doing this investigative work.  In other words, pleading not guilty is simply a formality to get a case started.

Once you enter a not guilty plea, the court will set the matter for a “pretrial conference”.  All of the procedures mentioned above will be completed before the pretrial conference date, and then you may be able to resolve the case on the time of the pretrial conference.  The court will not bring up the fact that you plead not guilty when you appeared before the court clerk, and your attorney can still argue that you are accepting responsibility.

Do not enter a guilty plea to a DUI at any point without consulting with an attorney.  You may have legal defenses to the charge, or the government’s case may have a defect, or there may be room to negotiate with the prosecutor before entering a plea.  It is always important to consult with an attorney before entering a guilty plea.

How can the State charge me if there is no proof?

Can the State charge me without proof?

So someone has accused you of wrong doing, but has not presented any evidence, what now?  How can the State charge you with a crime when it is just one person’s word against yours?  Don’t they need evidence?  Isn’t what they say about me ‘hearsay’?

I get these questions a lot from clients and prospective clients.  These issues demonstrate a misunderstanding of what ‘evidence’ is.

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Ten Steps of a Divorce Case in Idaho

Steps of a Divorce Case1. Breakdown In The Relationship

It may come as a surprise to you, but chances are that something went wrong in the relationship long before you or your spouse asked for a divorce. Typically we see a pattern of gradual emotional distancing and erosion of trust between the spouses. Often the allegations of infidelity (either real or imagined) follow. All of this leads to a complete breakdown in communication.

2. Lawyering Up

One side usually starts talking with family and friends about the failing relationship. Once the big “D” word (divorce) is finally out in the open, all sorts of advice is offered. Family members and friends give solicited or unsolicited opinions on what to do and how to choose a divorce attorney. When deciding on an attorney, it is often the result of random selection from a myriad of names thrown out by loved ones.

3. Filing the Divorce Case

The plaintiff files the Complaint and Summons with the court and serves a copy on the opposing party (the defendant). The party initiating the divorce case is the plaintiff. The other party is the defendant. In the Complaint, the party filing for divorce makes a list of claims against the defendant. It will request that the court grant the divorce, custody and support, and divide the marital property. Filing the Complaint starts the process, forcing the other side to act or risk defaulting. If it defaults, the Plaintiff gets everything asked for in the complaint.

Idaho law requires that prior to filing a complaint, one or both spouses must be living in Idaho for a minimum of six weeks. The complaint must be filed in the District Court of the county where you or your spouse lives. Idaho allows for both fault-based and no-fault divorce. A no-fault complaint doesn’t require you to list the reasons for divorce. Instead you simply state that irreconcilable differences make it impossible for the relationship to continue. Choosing a fault-based complaint requires you to specify the grounds for divorce. The following grounds are allowed by Idaho law: adultery, willful neglect, willful desertion, extreme cruelty, permanent insanity, felony conviction, or after a separation of at least five continuous years.

4. Answering the Complaint

A person served with the divorce complaint is not required by law to respond to the complaint. Even though it is not required, it is best to file an answer. See here.

5. Discovery Process

Making reasoned and practical decisions about custody and property issues is impossible without first gathering all the information available. The old saying that “knowledge is power” holds true here. This hunt for information is called the discovery process. Both sides will routinely file requests for information in the form of interrogatories, requests for admission, requests for production of documents and depositions.

6. Mediation

Idaho courts in divorce cases will regularly order the parties to complete a minimum of three hours of mediation in hopes of resolving the case. If resolution is not met, the courts hope to at least have the remaining issues narrowed for the upcoming trial. See here. The mediation will be presided over by a professional mediator.

The simplest route is an uncontested divorce where you and your spouse
reach a marital settlement agreement. This includes child custody
arrangements, property division, and any alimony agreements. These
documents are copied for you and your spouse, and filed with the court. A
judge will make sure that all the paperwork is in order at your court
hearing, ask some questions, and enter your Decree of Divorce.

7. Attorney Negotiations

Aside from the mediation process, the opposing attorneys are also communicating back and forth. They are trying to resolve a variety of legal issues having to do with discovery, potential legal motions and any issues that may have to do with the upcoming trial. The attorneys are also trying to facilitate the mediation process between the parties, while addressing any other remaining contentious issues.

In a divorce case, the judge may consider the following factors when determining child custody: the child’s adjustment to school, home and community, wishes of the child, wishes of each party, the need to provide stability and continuity in the child’s life, the child’s relationships with family, character of all involved, any domestic violence if applicable, and any other factors that are relevant. A decision must also be made on how the child will be supported financially. If you have children age 18 or younger, Idaho law requires you and your spouse to complete a Child Support Worksheet, and exchange an Affidavit of Income. These documents will be used by the court to calculate child support according to state guidelines.

8. Trial

If the parties cannot resolve the divorce case in the mediation process, a trial will be necessary. In a trial, the judge has the final word on any remaining issues of child custody and property division. The trial is a formal process whereby the two adversarial parties present their case to the judge. The judge will make a decision that is legally binding on both parties in accordance with the law.

When it comes to property division, you will generally be able to keep any property you owned before getting married. This includes property acquired from a gift or inheritance, and any proceeds from those separate properties. Community property, which includes all other property acquired, and the debts incurred, will generally be divided equally. The judge may take a look at the following factors when deciding how to divide any community property: duration of marriage, prenuptial agreements, each party’s needs and other factors (including age, occupation, health, employability, liabilities, vocational skills, source and amount of income, potential and present earning capability, and retirement benefits, including social security.

In Idaho, alimony is called maintenance. Maintenance is awarded if the seeking party does not have income to be self-supporting or sufficient property. Idaho divorce law states that a judge may consider the following when determining the amount and duration of maintenance: time necessary for sufficient education and training in order to find employment, financial resources of the seeking party, ability to meet needs independently, emotional condition, physical condition, age, tax consequences to each party, ability of maintenance payer to meet their own needs while paying maintenance, fault of either party, and any other relevant factors involved in the case.

9. Divorce Decree

A Decree of Divorce is a document that includes the specific rights and responsibilities of both parties in your divorce case. This carries the force of the law behind it.

10. Enforcement of the Divorce Decree

Having the binding decree is one thing. Enforcing its terms is quite another. Many divorcees discover to their disappointment that it is sometimes difficult to enforce the decree. The other party might not live up to their obligations. Such situations often require separate actions to enforce the existing legal rights established in the divorce process.  For example, motions for contempt of court.