The “0.08%” suspension
Blood-alcohol over 0.15%
Blood-alcohol over 0.20%
Possible Sentence Enhancements
- (1) Be confined in the county jail for at least 96 hours, but not more than one year. A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served non-consecutively.
Fourth or subsequent offense
Installation of Ignition Interlock—First Offense
- (A) “Except when the Court has ordered installation of a functioning, certified ignition interlock device pursuant to Section 23575.3, the department shall advise the person … may apply to the department for a restricted drivers license if the person meets the following requirements:
- i. The underlying conviction was not only for the use of drugs …
- ii. The person … provides to the department … subsequent to the violation date of the current underlying conviction, enrollment in a DUI program …
- iii. The person agree, as a condition of the restriction, to continue … participation in the program …
- iv. The person does both the following:
- a. Submits the Verification of Installation form …
- b. Agrees to maintain the functioning, certified ignition interlock device.
v. The person provides proof of financial responsibility …
vi. The person pays all … fees …
vii. The person pays to the department a fee sufficient to cover the reasonable costs of administering …
- i. The underlying conviction was not only for the use of drugs …
(B) The restrictions described in this paragraph shall remain in effect …” as provided in subdivision (e) which provides until all requirements for reinstatement are met … (i.e., completion of the DUI program and an SR22)
Please Note—At the time of this printing, Matthew Klotzbach Mandatory Ignition Interlock for DUI Offender Act of 2019., 2019 Bill Text CA S.B. 545, was introduced on February 22, 2019 and would make it mandatory for all first offenders to install the IID instead of giving them the option to forego it by getting a restricted license.
• This bill would require, instead of authorize, the court, upon the first criminal conviction of a person for driving under the influence, to order the person to install and maintain an IID for a specified period of time. The bill would delete those provisions authorizing a restricted license in lieu of an IID for first offenders.
• The bill would require the department to credit any time that a person maintained a functioning IID during the period of that person’s restricted licensure, but prior to the criminal conviction, toward any term of maintaining such a device, required by law upon conviction or ordered by the court pursuant to the above-described statute.
• The bill would, however, require that if a person submits a failing breath sample within the last two months of their mandatory term of maintaining an IID, the person will not receive credit for the previous two months.
• The bill would also extend the operation of the law requiring IIDs until January 1, 2027, and make conforming changes to related reporting requirements.
• This bill would declare that it is to take effect immediately as an urgency statute.
First DUI Offense
For a first offense within 10 years, the applicable sections depend upon whether probation is granted. If probation is not granted, CVC § 23536 requires a minimum jail sentence of four days and a minimum fine of $390 (mandatory fees and assessments, total fees are likely to exceed $2,000.00). At least 48 hours of the incarceration must be continuous, but the time can be served when the defendant is not working.
- (1) Submit proof satisfactory to the department of either of the following:
- (A) Enrollment in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as described in subdivision (b) of Section 23538 of this code.
- (B) Enrollment in a program described in subdivision (b) of Section 23542, if the court has ordered the person to enroll in, participate in, and complete either program described in that section, in which case the person shall not be required to provide proof of the enrollment described in subparagraph (A).
- (2) Submits proof of financial responsibility, as defined in Section 16430.
- (3) Pays all applicable reinstatement or reissue fees and any restriction fee required by the department.
- 1. Probation for three to five years;
- 2. No driving with “any measurable amount of alcohol” in the defendant’s blood;
- 3. If arrested for drunk driving, the defendant “shall not refuse to submit to a chemical test”;
- 4. Commit no criminal offenses.
When people hear the words estate plan, will, trust, or probate, they may have no idea what those concepts actually mean, but they know they deal with death, which is a difficult topic. No one wants to think about the death of a loved one or their own death. Often people are years into their retirement before they actually sit down to plan for what happens to their assets when they die. An estate plan is something everyone needs, no matter what age, medical condition, or net worth. It is a set of instructions on what their last wishes would be.
Probate– So just what happens when someone dies? If the person dies with or without a will, there is a legal process to collect and give the person’s things to their heirs, after paying off their debts. That legal process is called probate. In California, there is a special section of the local county courts that only deal with probate cases. Typically, a case is filed in the courts by an attorney familiar with how the process works and the courts oversee the collection and distribution of assets, along with payment of any liabilities. The process is just like any court case. It can take a few months to a few years to finish and close the case.
Costs of Probate– The current cost of probate just for the attorney to handle the case in California (as of March 2014) are:
Size of Estate Compensation
First $100,000 4%
Next $100,000 3%
Next $800,000 2%
Next $9 million 1%
Next $15 million 1/2%
Excess over $25 million “Reasonable amount to be determined by the court”
The size of estate is determined by the gross asset value. This means that there is no deduction for the debts owed. For example, someone with a home valued at $200,000 would get an estate value of $200,000 and compensation would automatically be awarded of $7,000, even if the home had a mortgage of $180,000 that would have to be paid off.
These amounts are automatic and set by law. If there is a personal representative in addition to the attorney, the amount would double. Also, the out of pocket expenses for any appraisals, filing fees, or other costs would be taken out of the estate as well.
Dying Without a Will– Someone who dies without a valid will in place is said to die “intestate.” Since there are no instructions on what to do with their stuff, the laws of the state decide what happens. They are the default instructions on what to do. So, if you wanted to give everything to only one son because the other son was foolish with money, you would be out of luck. You have no say in what happens to your things. That could mean things like a former spouse getting your money if the divorce was never finalized or some distant relative you hate getting everything when you would rather give your money to charity. Your case would still go through a probate court to determine what happens to your things, so there is the time and expense of going through the court process.
Dying with a Will– If you have a will, it must be valid and would be submitted to the court through probate. The will tells the court what you want done with your assets. For example, you may want to give a specific gift of some valuable jewelry to your daughter or give 10% of your assets to a local church. The process and validity of wills is set by state law, but generally, it must be in writing, signed by the deceased, and witnessed in some fashion, sometimes by two or more witnesses and sometimes by a notary. It also complicates things if there are more than one version of a will and no one knows which is the correct version or if the people signing as witnesses are also getting the bulk of the assets. It is always best to have independent witnesses so there are no claims that the witness signature is not valid.
Alternatives to Probate– There are a number of ways to avoid probate courts. The best way to avoid probate is to set out all of your wishes in a trust. This is a written document similar to a will, but stays private and does not need to go through a probate process.
There are other ways to avoid probate for certain small estates, for transfers of property through joint tenancy or community property laws, or to beneficiaries automatically for things like life insurance.
The key advantages to consider about whether to get a will:
- State your wishes to avoid assets going to unwanted people
- Avoid fighting between family members after you die
- Appoint a personal representative or administrator of your will to keep some level of control outside of the courts
- Set terms on distributions to those below certain age or appoint trustee to oversee distributions and avoid mismanagement by the person receiving the money
Additional considerations to use a trust over a will:
- Keep terms of the trust and its distributions private forever (a will goes into probate and gets entered into a court record)
- Avoid probate process, time, and costs
- Allows maximum flexibility and can be used with other asset protection
Asset protection planning is the method of preparing for the possibility of future lawsuits by rearranging the ownership of assets so that they are beyond the reach of potential third party creditors. It can act as a form of supplementary insurance in an overall strategy to protect you from the risks associated with your industry, businesses and professions, however, insurance policies have limits and exclusions.
FAMILY ASSET PROTECTION
- Simple and complex will creation
- Establishment of revocable, irrevocable and charitable trusts
- Structure of family limited partnerships
- Estate and gift tax review
- Estate and probate administration
- Estate and trust litigation
- Limited liability entities
- Asset protection trusts
- Off-shore trusts
INDIVIDUAL ASSET PROTECTION
- Pre- and post-marital agreements
- Property ownership, contract drafting and review
- Retirement planning (pension, profit sharing, employee stock option, 401(k) and individual retirement accounts)
- Living trusts, special needs trusts, and other disability planning
- Medical powers of attorney, durable powers of attorney and medical directives
- Guardianship alternatives
BUSINESS ASSET PROTECTION
We provide businesses of every size with legal advice and assistance in order to help them organize and grow successfully.
A trust is basically a written contract that tells people what to do with your things and appoints someone (trustee) to follow those instructions. There are many different forms of trusts. They are usually divided into two categories, revocable, and irrevocable.
Revocable Trust– These are trusts that can be revoked. In other words, the trust can be changed, modified, terminated, or amended, usually by the people who setup the trust (in some cases referred to as trustor, settlor, or grantor). This allows the people who are putting assets into a trust to have control to be able to change the trust and who gets those assets during their lifetime if circumstances or their wishes change.
Inter-vivos revocable (living) trust– This is most commonly referred to as a “family trust.” It is basically a trust that can be revoked or changed at any time during the life (inter-vivos) of the person or people who set them up. This is the most common form of trust used in estate planning since it is very flexible and can be changed. The terms of the trust become certain and require action only upon death of the person or people who set up the trust. Many times these trusts become irrevocable trusts or create other irrevocable trusts for the beneficiary of the trust. The most common form would be a couple with a trust for their family assets that puts all assets into an irrevocable trust if they both died for the benefit of their kids, who may still be minors. The trustee would oversee distributions of the assets to the minor children to be sure the money isn’t wasted and applied properly. Although put into the trust, the assets are still controlled by the person who put them into the trust.
Irrevocable Trust– This is just the general category of trust that cannot be changed, amended, or revoked at any time after it is signed, even by the person who created the trust. There are some legal ways to revoke or amend a trust of this type, but require many steps to be taken to do this properly.
One of the biggest benefits of irrevocable trusts are their use in tax, gift, and asset protection planning. They can be used to make gifts during a person’s lifetime of an asset into a trust for a beneficiary to have the gift be effective now, but not be given to the person until a later time. For example, someone could put a home or large sum of money into an irrevocable trust that would only be distributed to their kids after a certain period of time, like when they reach the age of 25. Even though the gift would be effective now and could not be taken back, the kids wouldn’t have access to the asset until certain conditions are met.
There are many forms of these trusts and have many different uses, but the main drawback is the fact that once formed and assets are put into them, the trust terms cannot be changed and assets cannot be taken out, except in very limited circumstances. This makes them inflexible for general estate planning and are usually only for very specific cases or certain assets. Since they cannot be changed. you lose control over the assets and they are technically owned by the trust, which becomes a separate legal entity. This can prove very useful for asset protection purposes because they are then outside of the hands of any creditors. For example, if you put a rental home into an irrevocable trust for your kids benefit and you later get a judgment against you, the creditor could not come after that rental home since you no longer own it. It is the property of the trust.
Although there are many different forms, here are some of the other types of specific trusts:
Martial Deduction Trust- QTIP (Qualified Terminable Interest Property)- This trust is used to maximize the martial deduction and avoid estate taxes.
Charitable Remainder Trust–
Charitable Lead Trust–
Charitable Remainder Annuity Trust (CRAT)
Charitable Remainder Unitrust (CRUT)
Bypass Trust (Credit Shelter Trust)-
Generation-Skipping Trust (Dynasty Trust)-
Intentionally Defective Grantor Trust (IDGT)-
Grantor Retained Annuity Trust (GRAT)-
Grantor Retained Interest Trust (GRIT)-
Qualified Personal Residence Trust (QPRT)- Used to hold someone’s primary residence to protect it from creditors and still allow grantor to live in the house for a period of time, then transfer to beneficiary.
Domestic Asset Protection Trust– Sometimes called “Spendthrift Trust” or classified as discretionary trust, support trust, personal trust, or shifting trust
Offshore Asset Protection Trust- Non-US irrevocable trust
Irrevocable Life Insurance Trust (ILIT)- used to hold life insurance policy and proceeds to distribute upon death for estate, tax, and asset protection purposes.
Testamentary Trust– This is usually a trust that is created by a will upon death to hold certain assets and distribute them over time.