Old Pueblo Legal Observer

Is Your Home Subject To A Bank Break-In?

Marian Abram, Esq.

According to an article in the Wednesday, December 22, 2010 edition of The New York Times, banks are claiming that a clause in most mortgages allows banks that service the loan to enter an abandoned home and secure the home if the mortgage is in default, i.e., the mortgage payment is 45 to 60 days late. 

In Arizona, residential mortgage liens are secured by a document called a Deed of Trust. It is not unusual for the terms of a Deed of Trust to allow the lender access to the house if it is abandoned or if there is waste (destruction) in process. However, absent such circumstances, any such entry by the lender to secure the house may amount to a trespass and a cause of action against the lender may exist.

The New York Times article can be found by clicking this link: http://www.nytimes.com/2010/12/22/business/22lockout.html?ref=business&pagewanted=al

 

 

The Holidays and DUI Stops

 

By Greg Foster

 

As we reach the height of the holiday season, many of us will find ourselves at an office party, family gathering or New Year's Eve celebration. Invariably, our hosts will select locations miles from our homes and, graciously, serve refreshments that may not be totally free of alcohol.

It is well understood that impaired driving should be strictly avoided. Failure to do so may result in grave physical injury, severe criminal penalties and career-ending public records.

What may not be so well understood is what a driver, returning from a holiday soiree, might do when contacted by an officer.

Have You Had Anything to Drink Tonight?

While a driver is searching for creased and coffee-stained copies of registration and proof of insurance documents requested by an officer and buried under several layers of long-forgotten, expired registration and insurance documents, he might hear the question: "Sir, have you had anything to drink tonight?" In fact, should the investigation proceed, the driver may be asked many other questions including, but not limited to:

~ What have you been drinking?

~ How many drinks have you had?

~ When did you start drinking?

~ When was your last drink?

~ Do you believe the drinks you've had have affected your driving to the slightest degree?

Does the driver have to answer these questions? While it is a good idea to remain courteous throughout this contact, the driver has the right to remain silent and decline to answer questions posed by the officer and is well advised to invoke that right.

Do You Mind If I Look Into Your Eyes?

The officer may ask the driver to exit his car and the driver should do so, keeping in mind that the officer is evaluating his balance, responsiveness, speech, clothing and breath, among other things.

Next, the officer may ask the driver whether he can take a look at the driver's eyes. This is, very often, actually a request that the driver allow an officer to administer a field sobriety exercise called the Horizontal Gaze Nystagmus Test. During this exercise, an officer purportedly generates information about neurologic disfunction, one cause of which may be alcohol. He does so by shifting a pen back and forth in front of the driver's face. I have yet to meet a DUI officer who is also a neurologist.

The officer may also ask the driver to participate in other field sobriety exercises known as the Walk and Turn test and the One Leg Stand test. One exercise involves the driver walking, heel to toe, along a line and the other mandates that the driver balance on one foot for approximately 30 seconds.

In Arizona, a driver may decline to participate in any of these exercises. If the driver participates in the exercises, observations made by the officer are admissible at trial. If the driver refuses to participate in these exercises, an officer may testify that the driver refused to take the tests.

Will You Consent To The Specified Blood or Breath Test?

Although a driver may (and should) decline to answer questions and participate in Field Sobriety Tests, refusal to consent to a blood or breath test requested by an officer following an arrest for DUI will subject the driver to serious consequences. In Arizona, a driver impliedly consents to a blood or breath test when an officer has reasonable grounds to believe that the driver is under the influence of alcohol. Refusal to take the test will result in a 12 month suspension of the driver's license (24 months if there is a prior refusal in the last 84 months). Additionally, an officer will likely obtain a search warrant to draw the driver's blood even if the driver refuses to consent to a blood or breath test. In that case, insult is added to injury; the blood is drawn and the driver's license is suspended for a year.

The driver does have a right to an independent blood test. If the driver is released after an arrest, he may obtain a blood test on his own. If the driver is taken to jail, law enforcement must give the driver an opportunity to obtain an independent blood test. Because blood alcohol levels change over time, it is important to obtain an independent blood test close in time to the arrest.

I Want To Speak To An Attorney.

A driver may request an opportunity to speak with an attorney during a DUI investigation.

Hopefully, the holiday season will bring only good cheer. If it also brings a Court date, please don't hesitate to give us a call. Attorneys at Karp and Weiss have provided aggressive defense of drivers accused of DUI in Courts throughout southern Arizona.

 

The Tax Cut Compromise: Whither the Estate Tax?

 

Elizabeth Spilotro, Esq.

 

Within President Obama’s somewhat surprising tax cut compromise reached with Republican leadership late Monday is an especially surprising proposal regarding the estate tax: a reintroduction of the temporarily-dormant tax with a $5MM per person exemption and a 35% tax rate on estates exceeding that amount.

Under EGTRRA, the Bush-era economic stimulus bill that ushered in our current, controversial reduced income tax structure, the estate tax was also “reformed”, with an exemption that progressively increased to $3.5MM in 2009 (with a 45% tax rate on amounts exceeding this threshold) until temporary full repeal of the estate tax in 2010. In 2011, the estate tax regime is scheduled to return to pre-2001 structure, with a $1MM exemption and a 47% marginal tax rate absent legislative intervention.

Conventional wisdom has held that the revisited estate tax would most likely resume the 2009 structure ($3.5MM exemption; 45% marginal rate), so President Obama’s compromise is a generous surprise clearly designed to placate Republican leadership. The compromise is likely to spark division among Democrats, many of whom support an expanded estate tax while others bitterly oppose it on policy grounds.

In his comments regarding the compromise, President Obama indicated that, like other aspects of the deal, the expanded estate tax package will be in place for a temporary two-year period. It’s not clear whether that period will begin 1/1/11, or be imposed retroactive to 1/1/10 as has been speculated. Quite possibly executors of 2010 estates will be given the choice to apply either the 2010 or 2011 tax law; because the 2010 “repealed” tax code imposes an unwieldy carryover-tax-basis rule to assets being transferred at death, for many estates the 2011 estate tax provisions may in fact be more tax-advantageous in the long run.

Editor's Note

Gregory J. Foster

Welcome to the Old Pueblo Legal Observer. The Observer, published by the attorneys at Karp and Weiss, is designed to provide timely and useful information about legal issues, our attorneys and our involvement in the community. Karp and Weiss attorneys practice in the areas of personal injury, family law, criminal defense / DUI, business law, alternative dispute resolution and estate planing, among others.

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