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Saturday, February 25, 2012

What to Expect When Arrested

A rather bleak topic, but one that I encounter from time to time -- and an honest question. What happens? The good news is that for the most part, the system is on auto-pilot. Booking, and intake is largely routine; and few individuals are really questioned for misdemeanors or petty crimes. It goes without saying -- however, I'll say it anyway -- be respectful, cooperative, and considerate to the arresting officers. A combative nature only puts you at higher risk. And, surprisingly, many police officers are just as anxious making an arrest as you are being arrested. Do your part to lower tensions and let the process play out.

Once you are "booked" (slang term for being photographed and entered into the police tracking system), you will be place in the "tank" -- a holding area. If you have not been taken before a magistrate, that will happen immediately before being placed in the tank, or very shortly after being held. The magistrate will listen to the arresting officer, and either release you on your own recognizance (meaning you have to come back for your court date, but no bond is pending), or assign a bond amount.

If bond is set, you are returned to the tank. At this point, you have the opportunity to contact a relative or bail-bonding company to post bond and go home. You will have to return for your preliminary hearing, usually about a week after your initial arrest. If you cannot afford bond, you will be held until your preliminary hearing, unless you can make a cogent argument why release is critical.

When you get home, you obviously need to contact an attorney. But what does the lawyer do?

In most misdemeanor cases, research is minimal. An attorney will review your case, determine if there are any non-normative events that need further investigation. He/she will also contact the arresting officer, and determine if a specific district attorney has been assigned to your case (this is not common, but does occasionally happen). The attorney will interview you and discuss the options for plea bargain and what the potential consequences of a conviction might be. It is extremely important that you tell your attorney if there are any special situations that need to be considered (single parent with no other support structure for your children, security clearances, work issues, etc.) when sentencing. The court will entertain exigent circumstances, if it can. However, if the lawyer does not know to ask....

Felonies are a little different, as a lot more research is required (in the form of investigation and legal precedent).

At the day of the trial, your attorney will arrive with you to court. He/she will seek out the prosecuting attorney and attempt to strike a deal before the trial. Neither judges nor prosecuting attorneys want to sit through myriad trials. The more cases that can be settled prior to trial, the better for the entire system (i.e. the cases can actually be disposed of). This works in the accused favor (most of the time!) as it allows a good defense attorney to attempt to bargain for better terms when the accused is actually guilty.

There are certain times when there is little a defense attorney can do -- mandatory sentencing is an example. Can't bargain out of that - requires a fight, and if convicted, there is little room for negotiation.

However, for many misdemeanors, it's more a matter of aggressive posturing on the part of the defense attorney that gets the accused a better deal.

Generally, a 1st class misdemeanor runs about $1200 - $2200 to defend, depending on the nature of the charge (assualts generally cost more than minor drug and alcohol arrests).

Have you been arrested? Do you have a legal question? Call and ask us (703-402-2723)! We're happy to help, and your first call is always free.

Sean R. Hanover, Esq Contact Us

Friday, February 17, 2012

Really? An unbelieveable linked in invite...

So here I am, meandering the great labyrinth of the Internet, when I receive a notice from LinkedIN (Sean Hanover) about an individual who wants to "link" with my profile. For those who are unaware of what this means, essentially, once "linked" we can view each others' full profiles and it shows that we are -- you got it! -- linked! Very useful for networking and blitz emailing. Also helpful for my IT operations, as it keeps me in contact with contractors and potential business leads. Handy. I digress, however.

I'm not that popular, so the occasional request for "linking" causes a raised eyebrow. This link request include an explanation as to why they wanted to link (remember, I'm an attorney here):

You asked for humor when connecting and I appreciate your honesty, but isn't a honest lawyer an oxymoron? (followed by other information on how he purported to know me)

What the heck!?

Why would anyone write that to a practicing lawyer, let alone a person they don't even know. However, I did respond, and I think it is a great topic to expand upon in this blog. My answer was as follows:

You would ask if an honest lawyer is an oxymoron -- and address that to a lawyer? Truly spoken by one who has never depended on the success of their lawyer to stay out of jail -- or bankruptcy.

Like any specialist industry, a starving lawyer is a dangerous thing; however, a good lawyer puts principal and "justice" above personal gain in civil matters, and his/her cient's every legal option before "quick exit" in criminal cases.

Defend a rapist, and then tell me about 'oxymoron's. Every accused deserves his/her day in court. If it were you -- would you not want the most vigorous defense? Vigorous, is also a mandate of our professional code of ethics -- but that has nothing to do with dishonest.

It is worth understanding that most attorneys are not after "your money" -- they are in business like anyone else, and they sell a service. That price is controlled by the market and the demand for the services being offered by the litigator. However, absent the few bad eggs, and the starving lawyers that have to close a deal in order to pay their mortgage (true in any profession, I fear), lawyers have a duty, and most discharge it, to turn down cases where he/she is being hired to nonsensical legal posturing, or harassing lawsuits. We have a responsibility to speak plainly and clearly in non-legal jargon to clients so they can understand their position, and always attempt to resolve issues without resorting to court action unless absolutely needed.

So why the frequent, unbridled hatred of law? Having studied this for some time, I have concluded it is the result of of two items: power and fear. The law is a terrifying thing. You can, in a matter of one hearing, be sent to jail for life, be stripped of your positions, lose all your money, and essentially be totally destroyed by one judge (or a jury) presiding over your case -- and you are powerless to stop it. As a result of this tremendous fear, a strong dislike is engendered for the entire legal process, and a fierce desire to "stay away" from the organization and "group" that can so hurt you. Lawyers not only represent the outward face of that "group" (the judiciary), but also are the only avenue available to the average individual to protect themselves. This harbors a monopoly, and generates tremendous ill will.

Very, very few laymen have any idea of the work and preparation that goes into even writing a basic contract and researching facts for a case. The time, effort, and solemnity of the task is missed -- all because the client often blames "the law and the courts" for "requiring such nonesense." Fear.

Very few of us are truly dishonest. Those that are, are sought out quickly and removed from practice. Your (as a client) welfare is far too important to trust in the hands of a lawyer who is corrupt or not giving the appropriate due to your wants and needs.

Do you have a legal question? Call and ask us (703-402-2723)! We're happy to help, and your first call is always free.

Sean R. Hanover, Esq Contact Us

Tuesday, February 14, 2012

Are They Crazy!?

I usually take a fairly tempered view of news articles about legal events, but this most recent posting from the New York Times (see Hutaree Militia) just baffles me. In truth, it makes me jealous. This would be a lot of fun to defend. Everyone deserves a fair trial, and a good defense -- I should know! I'm a defense attorney. But even I have to raise an eyebrow at the shenanigans our fellow "patriots" can pull. To be clear -- I use the term loosely.

The case centers around a homegrown vigilante group called "Hutaree" who, living in the backwoods of Lenawee County, Michigan, seem to have confused Star Wars and reality. In their effort to "strike back" against the evil oppressive empire (err...US), they snuck around in ghillie suits and amassed over 140,000 rounds of ammunition. That might explain why there was no room in the trailer for the leader, Mr. David Stone's, massive accumulation of junk (conveniently located in his front yard for easy access). Can you image sleeping in a tiny trailer with that much ordinance? Tread carefully, Mr. Stone! Or..Ms. Stone, as the case may be. Mr. Stone is currently in a rather confined area of considerably smaller dimensions.

These folks should have the defense of "innocent by reason of stupidity" -- apparently the final "straw" occurred when Mr. Stone announced it was "go time". And then nothing. He did nothing. Days went by. Then the authorities decided to step in. Apparently, "go time" had to wait for Federal Officers to decide to notice. Thankfully, no one was hurt, but as their defense attorney, I would have a picnic with the delay in arrest as well as the plausible entrapment theory (the Federal government embedded an agent in the group). Not sure...but I still think it would be a fun case.

Makes you wonder if their attorneys are being paid in used washer parts from the front yard...I call the vent hose!

Do you have question about legal documents? Call and ask us (703-402-2723)! We're happy to help, and your first call is always free.

Sean R. Hanover, Esq Contact Us

Difference Between Jurats and Acknowledgments

Near my home is a Navy Federal Credit Union branch. Being a member, I availed myself of their convenient location; this last weekend I had several documents for the Virginia Bar notarized. While standing in line, I had an opportunity to chat with another customer who was curious about what, exactly, a notary does. I thought I would explain the basics of notary lore, and remind you that our VA office provides notary service, too!

The two main duties of a notary (but by no means the only ones) are the taking of jurats and acknowledgments.

A jurat is an oath, administered by the notary, stating that the individual making the oath "swears or affirms" the truth of the matter asserted in the document. Note, it is not the notary swearing the document is truthful; it is the individual who gives the oath to the notary. A jurat has legally binding power, but requires that the affiant have actual knowledge of the information they are affirming, and that they have the capacity to swear an oath. Essentially -- someone swearing an oath or "affirming" a document is making a legally binding declaration that the information they are validating is truthful and they can be held liable if it is not.

An acknowledgement is a certification by the notary that the person who signed a document or performed some act was really who he/she said he/she was. In effect, a signer "acknowledges" his/her signature in the presence of the notary. The signer bears no legal responsibility for the content of the document; and no promises or "oaths" are given as to the truthfulness of anything contained in the document. When an acknowledgement is given, it is the notary that has a legal duty to verify the identity of the signer. Each state has its own requirements for this, but most expect valid state identification such as a driver's license as sufficient proof of identity upon which a notary may rely.

Other than wills, and certain specific legal documents that the state specifies require witnesses (attestation) to be valid, acknowledgements may be used on any document.

Generally, acknowledgments are used when proof of who has ordered the execution of something is required. An oath is required when proof of content (fact, history, etc.) or completed action is required.

"Go! Launch all the ship!" -- General (acknowledgment) "Sir! I have launched all the ships!" -- Lieutenant (jurat)

Do you have question about legal documents? Call and ask us (703-402-2723)! We're happy to help, and your first call is always free.

Sean R. Hanover, Esq Contact Us

Friday, February 10, 2012

New Immigration Rules Proposed

Things just got a little easier -- maybe! Proposed rule changes by Alejandro Mayorkas, the Director of US Customs and Immigration Services, would make it easier for an illegal immigrant married to a US citizen spouse to leave the country and return legally to the US. This is a major change he is proposing, and worth understanding a little better. As it stands today, a major source of frustration for illegals and attorneys alike is the 3/10 rule. Essentially, if you are in the country illegally for over 180 days, but under one year, you have to be out of the country for three years before you may apply to re-enter legally. If you have been in the country over one year, you have to wait 10 years before you are eligible to re-enter the US.

As you might imagine, this presents a serious problem to married couples (and families). There are numerous ways to attempt to overcome this base regulation. However, one of the more common, and legally accepted methods, involves the US Citizen spouse claiming extreme hardship if her illegal husband/wife had to actually wait the 3/10 years. Important notice here: it is not the hardship of the illegal alien that is considered by the USCIS. Rather it is the difficulties inflicted on the US Citizen spouse that are controlling.

The problem is that both the State Department (consulates and embassies -- as well as security officers) and the USCIS (immigrations and visas) must approve the waiver and the entrance, and conduct background verification. The coordination between these two branches of government is...mildly stated...perplexing and prone to time delay, lost files, incorrect information, and bureaucratic bungling. Long delays are common, even if the waiver is approved.

Heretofore, filing a waiver was only possible from outside of the US (i.e. from a consular office). However, with the new proposed regulations, the review window for a provisional hardship waiver is is lessened, and the form and paperwork may be filed from within the United States.

Mayorkas summarized it by explaining:
"The proposal as contemplated now is that the spouse or son or daughter of the United States citizen could apply for a waiver before departing the United States if the only ground of inadmissibility is unlawful presence. USCIS will adjudicate that waiver, and if that waiver is granted, if we determine that the ground of inadmissibility is unlawful presence and the separation between that individual and a United States citizen would serve an extreme hardship on the United States citizen relative, we would grant a provisional waiver. The individual, the relative, would then depart the United States for their visa interview. The Department of State would confirm that the only ground of inadmissibility is unlawful presence, and if indeed that was confirmed and there was no other deterrence to admission, such as the commission of fraud, then the provisional waiver would be finalized and the individual would be admitted to the United States. And so the period of separation is significantly reduced because the time that it takes USCIS to adjudicate the waiver would be accomplished before the individual has departed the United States."

In terms of a processing timeline, the Director indicated that while the actual time for investigation and issuance of a provisional Hardship Visa is not changed (approximately 6-12 months), once the provisional Visa is issued, and the illegal leaves the country to re-enter legally, that procession should take a much abbreviated time:
"...[S]o we are going to be working very closely with the Department of State to ensure that that time of separation, the time when an individual has already departed the United States with a provisional waiver, the time it takes for that provisional waiver to become final, the visa to be issued, and the person to be admitted, our goal is to reduce that time. And it will not be months. It will be days or weeks. That is our goal."

A few interesting points. This would be the first visa that can be issued to an illegal alien while they are in unlawfully present status. Secondly, this would effectively stop proceedings against the illegal immigrant while the hardship visa was being investigated -- or would it? This is an excellent new tool in the litigators box. The Director seemed to indicate that allowing the illegal immigrant to remain in the country while the review process was undertaken by USCIS was intentional and designed to reduce the hardship of the US Citizen spouse.
"That time period is six months on average, but sometimes more. We’re always, of course, interested in improving our processing times, but those are our processing times currently. And we don’t anticipate an acceleration of that processing time. However, under this new process we will be adjudicating that waiver before the individual has to depart the United States. And what - the time that really will be reduced is the time of separation between the family member whose waiver has been granted and the United States citizen who would suffer extreme hardship by virtue of that separation. So that’s the critical time period that current law, as it exists now, is designed to avoid. "

If you are in the US illegally, and have a US Citizen spouse (note --> LPR status is NOT eligible to apply for this. Must be a US Citizen spouse), contact us immediately to discuss how this proposed rule can effect your actions. The Director anticipated the regulations changing before the end of this year. Get working on this now so you are ready.

Sean R. Hanover, Esq

Do you have a legal question? Let us help! Contact Us

Tuesday, February 7, 2012

Immigration Laws Get Nasty in VA

My practice manager brought a series of recent develops to my attention today that I thought would make a good blog post -- illegal aliens in the state of Virginia pay heed. If you are not legal, you need to contact a good law firm immediately (let me recommend Hanover Law PC). The Washington Post and many other online resources reported several new measures that recently passed in the VA House of Delegates. While these are not yet law, they will almost assuredly pass and be signed into law within the next 90-180 days.

(This list is from NumberUSA, a blog site tracking immigration issues)

HB 1430:
would require sheriffs to inquire into the legal presence of anyone arrested, independent of whether they were taken into custody at a jail, and require federal immigration queries on self-professed non-citizens. It passed 72-to-27.

would require state colleges and universities to adopt written policies that prohibits the admission of known illegal aliens. The bill passed 75-to-24.

HB 1468:
would require state agencies that issue social services to verify that anyone seeking those services is in the country legally. The bill also authorizes the Governor to withhold funding of any agency found to be issuing social services to illegal aliens. The bill does not indicate a specific verification tool that can be used by state agencies, but does indicate that applicants must present a valid social security number that will be verified through the Social Security Administration.The bill passed 83-to-16.

HB 1651:
would require the Department of Motor Vehicles to cancel any license, permit, or state ID of an individual who is known to be in the country illegally. The bill was passed unanimously.

The most critically important potential law from the above list is HB1430. This allows the police to question anyone who is arrested as to their legal status. Another interesting potential law that was passed in the House of Delegates (but not listed above) was one authorizing police to exercise certain Federal investigatory prerogatives related to immigration. The law would allow the police to inquire into the legal status of anyone they stop for any other legitimate reason (for example, a simple traffic stop), even if there is no arrest. I don't believe that law will pass; however, the climate in the state of Virginia is not good for immigrants who do not have proper documentation!

What can you do if you do not have proper documents? Contact us immediately! Let us help you get back on to the proper footing. There are many programs available to assist individuals get "legal", and even when there are not, understanding the law, and what steps need to be taken to protect yourself, is critical.

Sean R. Hanover, Esq

Do you have a legal question? Let us help! Contact Us

Wednesday, February 1, 2012

When Should you Sue your Boss? Your Employee?

Angry employees, and for that matter, angry bosses, are not at all rare at work. But when does an outrage rise to the level of warranting litigation? This is a tricky question balanced on both pride, cost, and potential degree of injury.

The hardest aspect for most would-be litigants to understand is that in order to be successful, the plaintiff (he or she who is suing) must do much more than just feel slighted. Unfortunately, most courts are not persuaded by the desire, passion or feelings of the plaintiff. It requires that awful word...proof!

So what exactly is "proof"? Well, from a strictly legal standpoint, it is evidence that can be corroborated or authenticated in a courtroom setting. This requires witnesses to working conditions and hours, independent verification of work performed and pay rates (must be brought to court and authenticated)and in the case of the employer, often expert testimony validating the discipline or action taken by the company. in response to employee conduct, was both reasonable and appropriate.

While a plaintiff may have a strong case, litigation is not cheap. A great deal of thought must be put in to the legal equation before a person commits to court. A basic wage and hour case can run thousands of dollars.

So what can you do?

Litigation should always be a last resort. The first recourse is engaging a good lawyer who can help you contact the employer/employee and resolve the differences between the two parties. Settlements and discussions on fair treatment can go a long way in helping to put the issue behind the plaintiff. Why a lawyer? Bluntly, often one side or the other will not take an action seriously unless the threat of litigation is real. A good attorney, will always choose litigation as a last resort if only to preserve the pocket-book of the plaintiff (or defendant, as the case may be).

Sean R. Hanover, Esq

Do you have a legal question? Let us help! Contact Us