How a Real Estate Lawyer Can Help You

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Whether you are looking to buy your first “starter home,” the ski chalet of your dreams, or a multi-million dollar commercial property, contacting a real estate lawyer can be the single best decision you make. Not all real estate transactions require legal representation, but all real estate transactions can benefit from it.

Real estate lawyers can also help with transactions that don’t involve purchases and sales, such as refinancing an existing property, and renting/leasing a home or commercial property. Real estate lawyers may represent buyers or sellers, and landlords or lessees. If you have questions about how to proceed with any type of real estate transaction, it is in your best interest to contact a real estate lawyer in your area.

Reviewing and Drafting Real Estate Documents

Buying and selling a home is essentially a business transaction; as such, it comes with a lot of paperwork. From deeds and title insurance policies to seller disclosures and home inspection reports, the paperwork can be overwhelming.

Unless you have a background in real estate or real estate law, making sense of the industry jargon and legal language can be difficult, if not impossible. And this is a problem for many reasons; namely, buying a home can be the biggest purchase you will ever make, and not understanding the finer details of this investment can have devastating financial consequences. An experienced real estate lawyer can review and draft documents on your behalf, ensuring that your rights and best interests are protected throughout the entire process.

Conducting Title Searches and Resolving Real Estate Encumbrances

When buying a home, you want to make sure the title is clear of liens or other real estate encumbrances. If a third party has legal interest in the property, that interest may be passed on to you if the previous owner doesn’t resolve it prior to your purchase. For example, if there is a lien against the house as collateral for a debt incurred by the previous owner, the holder of that lien may be able to sell the property to repay the debt, even if you are now the owner. Without the help of a real estate attorney, such a situation can quickly escalate into a serious, and expensive, problem. As such, it is important to have legal counsel from the beginning; your lawyer can check for any real estate encumbrances and advise you about how to proceed if any exist.

Protecting Your Interests and Negotiating for the Best Deal

Your real estate lawyer can also counsel you about potential purchases and sales. While a real estate agent simply wants to ensure that you buy a house or find a buyer, both of which translate to a large commission check, a real estate lawyer wants to protect your interests and make sure you buy the right house or sell to the right buyer. In addition to helping you through the purchase and sales process, your attorney can help you beforehand—ensuring that you stick to your budget, find a home in the right location, avoid bad deals, and negotiate for the best purchase or sale price.

In addition to being one of the biggest investments you will ever make, purchasing a home can also be a very emotional experience. Having the perspective of your attorney, who is looking out for your best interests and free of any emotional attachment to the prospective home, can be invaluable.

Just as we often overlook potential red flags at the beginning of a new and exciting relationship, we tend to gloss over red flags when we fall in love with a particular home. If, despite the advice of your lawyer, you insist on purchasing a home with problematic real estate encumbrances or other issues, your lawyer may be able to negotiate a better deal on your behalf.

Bargaining Power

Just having a real estate lawyer by your side can have a positive impact on the deals you are being offered in the purchase or sale of a home. When sellers know that you have legal counsel, they may be less inclined to go back and forth on your offer, knowing that the stated amount is backed by professional research and a deep understanding of the market. As a result, the seller’s agent is more likely to accept the initial terms, or terms that they may have otherwise advised the seller to counter. Likewise, a buyer’s agent who knows that the seller has legal counsel will be less likely to encourage the buyer to keep going back with low-ball offers, knowing that the seller’s attorney will advise against any offer that is not in their best interest.

Seek Real Estate Law Assistance

Although many states require a real estate lawyer at closing, Florida among them, you can benefit from the counsel of a real estate attorney from Hoyt & Bryan,  during all real estate transactions, leasing and rental agreements included. If you have questions about buying, selling, refinancing, or renting a property, contact an experienced real estate attorney today.

January 25, 2021 · Tim Kevan · Comments Closed
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What is a Peace Bond and How Can it Help Me?

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When someone has a reasonable fear of harm at the hand’s of another, that person may be able to obtain a peace bond as protection against this potential harm. If the Court believes the defendant is likely to commit a crime against the person(s) making the request but no crime has been committed, section 810 of the Criminal Code offers one mode of protection in the form of a peace bond. If approved, the named defendant has no choice but to obey the orders imposed by the peace bond.

On the other hand, if a defendant is being charged with a crime, the Crown might offer a peace bond in exchange for a dismissal of, or reduction in, charges. For example, if the defendant has been charged with assaulting his girlfriend, a peace bond may be offered in lieu of a conviction, jail time, and a criminal record. At first glance, this might sound like a wonderful deal for the defendant. But whether or not you should accept a peace bond, if one is offered to you, depends on multiple factors.

Peace Bond in Exchange for a Criminal Record

One of the primary factors affecting an accused’s decision to accept a peace bond in exchange for lighter sentencing is the strength of the Crown’s case against them. This is why it is so important to obtain legal counsel if you have been charged with a criminal offence or are being offered a peace bond; your lawyer can advise you about your rights and how to proceed. If the case against you is weak, accepting a peace bond may not be in your best interest. Every case is different, and an experienced lawyer can evaluate the details of your unique situation to determine the most appropriate legal strategy.

Peace Bond by Application

To apply for a peace bond as protection from another person, outside of a criminal case, the person fearing bodily harm must make an application with the Court. If approved, the defendant will be prohibited from engaging in certain acts, depending on the particulars of the case. For example, the Court may impose a condition that the defendant is not permitted on the grounds of his daughter’s school, if there is reasonable suspicion that he will kidnap his daughter.

The defendant must obey the peace bond’s conditions, or face criminal charges. In Canada, a peace bond can remain in effect for up to one year, and its conditions can be enforced anywhere within the country. If the concern of harm continues beyond the peace bond’s expiration date, the person(s) receiving its protection can apply to the Court for a renewal.

It is important to note that a peace bond is not intended for emergency situations; obtaining this legal document can take upwards of several weeks, and sometimes even months. An emergency situation requires emergency action. Call 911 if you believe that you, your children, or any loved ones are at risk of imminent bodily harm.

The Anatomy of a Peace Bond

A peace bond is intended to protect the safety and well-being of the public, or the person(s) named within. It can also be obtained if there is  reasonable concern that the defendant will cause serious damage to another’s property.

Each peace bond is unique to the situation, defendant, and people it’s designed to protect. After reviewing the application, the Court will impose certain conditions. Some of the most common conditions of a peace bond require the defendant to:

  • Remain on good behavior;
  • Avoid contacting the person who requested the peace bond, as well as his/her partner and children;
  • Avoid visiting the named people;
  • Avoid calling, texting, or writing the named people;
  • Abstain from use of alcohol or illicit drugs;
  • Provide blood or urine tests to ensure compliance with alcohol/drug restrictions;
  • Not possess weapons; and
  • Pay a surety bond to the Court, which will be forfeited if the defendant breaches the peace bond’s conditions.

If a defendant breaches any of the conditions imposed by the peace bond, not only will they forfeit their surety bond, they will also be charged with a criminal offence. As it stands, the penalty for such a conviction is up to four years in prison.

A peace bond is generally effective at preventing a defendant from harming those it serves to protect because of the consequences involved in violating its conditions. The conditions are strict, and even a minor violation can immediately result in the loss of bond money, a criminal record, hefty fines, and time behind bars. If there is a peace bond against you, it is in your best interest to obey the imposed conditions. An experienced criminal defence lawyer can help you understand your rights and options if you are facing any type of criminal charge.

Contact a Defence Lawyer

If you are being offered a peace bond in exchange for a lesser sentence, it is crucial to speak with a lawyer before accepting any type of deal. Agreeing to a peace bond is not the same thing as pleading guilty, but it will remain on your criminal record while it is in effect. There are also certain criminal record searches that may show an expired peace bond. Regardless of your specific situation, it is in your best interest to obtain legal counsel, such as the team at Oykhman Criminal Defence, if you are facing a peace bond or charges for a criminal offence.

January 25, 2021 · Tim Kevan · Comments Closed
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Monday morning with Alex Williams’ cartoons

qccartoon

This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email info@qccartoon.com.

January 25, 2021 · Tim Kevan · Comments Closed
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Monday morning with Alex Williams’ cartoons

qccartoon

This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email info@qccartoon.com.

January 18, 2021 · Tim Kevan · Comments Closed
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Defining Emergency Protection Orders

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Emergency Protection Orders are orders issued by the court to protect the child from imminent or ongoing risk of emotional, mental, or physical harm that warrants the exercise of emergency action. Emergency Protection Orders can last for a maximum of eight days, save for certain exceptional circumstances.

Anyone can initiate the filing of an emergency protection order if they know that a specific child is in imminent danger. Say, for instance, any family member who is worried that his niece is abused by her mother. That person could file a petition for the issuance of an emergency protection order. The local authorities usually make a vast majority of these applications. However, this doesn’t bar the NSPCC or police from applying. 

When the petition is launched, the applicant is tasked to notify the child’s parents a day before the actual petition filing. Such notice is immaterial and is dispensed of when the child is in a difficult situation. These instances include where the child is under threat, or there’s a high chance that the parent will flee without permission with the child. The EPO gives authority to the applicant to take the child away from his home, or stop his removal from a medical facility or any safe place. 

What will happen if the EPO is issued?

When the court grants the EPO issuance, they may also allow the local authorities or police to enter the child’s home and search for him. Aside from this, the court can also issue a warrant directing the police supporting social services to assist when the local authorities are refused access to the child or entry to his home. Anyone who will prevent the police or local authorities from carrying out the order and their functions will be held liable. 

If you’re the parent who received the notice of the petition for an EPO, or if your child is the subject of an EPO, you should seek help from a lawyer the soonest time possible. If your child is not a victim of abuse, or if he’s not in clear and imminent danger, it’s right that you quash the EPO application as soon as it’s lodged. 

How can legal aid solicitors help you in this case?

When social services are applying for the issuance of an emergency protection order to protect a child, legal aid is mostly automatic. This service is also available for the child’s family member, but the case’s strength and means of the applicant’s family member will still be checked before they are granted legal aid. 

Once the legal aid Solicitors take over your case, they’ll be the ones responsible for representing you in all the aspects of the EPO issuance and enforcement. They will ensure that the law is observed and that the child’s interest and safety are secured. 

If you need help in securing or quashing an Emergency Protection Order, the best course of action is to work with a seasoned and expert Solicitor. You’re not just legally represented with them, but you’re also assured that your version of the story is heard. 

January 18, 2021 · Tim Kevan · Comments Closed
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How to File a Personal Injury Claim in Canada

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If you have been injured by another’s negligent, reckless, or careless actions, you may be entitled to compensation for any resulting injuries and property damage. The steps you should take immediately following the accident vary, depending on the type of accident and the severity of your injuries. But whatever type of accident you are in, it is essential to file a personal injury claim as quickly as possible.

The Limitations Act prevents injury victims from suing after a certain amount of time. In Alberta, this window of opportunity opens on the day of the accident in question, and closes exactly two years later. Although there are some exceptions to this rule, they are rare. In most cases, if you fail to file an injury claim within the two-year window, you will be unable to recover any damages. On occasion, the discovery rule creates an exception to the start date imposed by the Limitations Act.

Generally speaking, the two-year  timeframe within which to file a claim begins on the date of the accident, as this is the date that any resulting injuries are discovered. However, some injuries may not present symptoms for days, weeks, or even months.

Consider the following scenario: Georgina is injured when she slips on ice in a store parking lot. She hits her head but chooses not to bring a claim because no serious injuries are apparent. Two weeks later, Georgina goes to the doctor complaining of migraine headaches. A brain scan shows that she suffered a traumatic brain injury (TBI). In this case, the injury was discovered two weeks after Georgina’s accident, not on the day it occurred. Due to the discovery rule, the two-year time clock begins ticking on the day her TBI is diagnosed.

Do I Have a Personal Injury Claim?

Personal injury law encompasses any injury caused by the negligence of another. The at-fault party may be a driver who crashes his car into yours because he’s distracted, a store owner whose walkway you slip on because she failed to shovel snow, or the manufacturer of a defective toy that injures your child. For a personal injury claim to result in compensation, however, you have to prove that negligence caused your injury and that you suffered actual damages. If these elements are present, you likely have a valid claim.

Taking immediate action by contacting an injury lawyer is the single best step you can take toward recovering the compensation you deserve. Although the type and amount of damages available to you will vary depending on the particulars of your case, common damages in personal injury cases include:

  • Medical expenses, including hospitalization, visits to the doctor, medications, surgery, rehab/therapy, and medical equipment;
  • Future medical expenses, if the condition is likely to be long-term or permanent;
  • Lost income;
  • Loss of earning potential, if the victim is unlikely to return to work for an extended period of time or permanently;
  • Emotional pain and suffering; and
  • Property damage.

Actions to Take Immediately Following a Personal Injury

If another’s negligence has caused you harm, take action. The tips below will help you obtain the compensation you deserve.

Document the accident.

The more evidence you have, the better. In addition to obtaining the name and contact information of anyone present, it is always a good idea to use your phone to take pictures. If you have any visible injuries, photograph them immediately; bruises heal quickly. Also take pictures of property damage and anything that may have contributed to the accident, such as a spill on the grocery store floor, or the skid marks leading to the car that crashed into you.

Speaking of motor vehicle accidents, if you are involved in a collision, make sure to get the other driver’s insurance information, and call 911 immediately. In addition to ensuring everyone’s safety, having police on the scene will result in the creation of an official police report. This can be invaluable to a personal injury lawsuit.

It’s also important to document details after the accident—keep a journal or log and make notes of your doctor appointments, car repairs, medical recovery, and any related expenses. Memories fade quickly, but writing everything down ensures that this important evidence is preserved and protected if you decide to file a personal injury claim or lawsuit.

Contact a personal injury lawyer.

The last thing you should be worried about after a serious accident is paperwork, dealing with other involved parties, and negotiating with insurance companies. In addition to shouldering this burden for you, an experienced injury lawyer will know how to obtain the maximum compensation you deserve. Insurance companies are notorious for offering as little as possible to injury victims. They know that most people desperately need the money to cover medical bills and lost wages, and they take advantage of this need by offering a pittance.

Whatever you do, never make a written or verbal statement to any insurance company before consulting with legal counsel. A good personal injury lawyer, such as the team at Vogel Verjee, will analyze your case, calculate the amount of compensation you deserve, and negotiate with the insurance company for a fair settlement. The goal should always be to settle outside of court, but be sure that your chosen lawyer is prepared to go to trial if a reasonable settlement cannot be reached.

January 12, 2021 · Tim Kevan · Comments Closed
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What Are My Available Divorce Options?

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Few things in life are as unpleasant and stressful as divorce. Most couples enter into a marriage with the hope of spending the rest of their lives together; for this reason, divorce can feel like the ultimate failure. When either or both spouses decide to end the marriage, it is often after years of unresolved conflicts, financial difficulties, and even severe emotional trauma. The stakes are often higher when children are involved.

Whether your divorce is destined to be straightforward and amicable, or complicated and contentious, it is in your best interest to seek the representation of an experienced divorce lawyer. Do not be misled into thinking that you will save time and money with a do-it-yourself divorce. This almost never happens.

In fact, those who attempt to divorce without legal counsel often end up spending significantly more money. If the slightest issue arises, a disagreement can quickly escalate into costly conflict. This is true of even the most amicable splits. So, do yourself a favor and seek legal counsel if you are considering divorce.

Uncontested vs. Contested Divorce

If your divorce is fairly straightforward and you are on good terms with your soon-to-be ex, you will most likely proceed with an uncontested divorce. When both parties are in agreement with major issues, such as child custody and support and the split of assets and debts, an uncontested divorce is usually the quickest, smoothest, and most cost effective way to dissolve the marriage. It should be noted, however, that it is not uncommon for uncontested divorces to become contested somewhere along the way. This is yet another reason it is so important to have an experienced divorce attorney by your side.

Some divorces are a bit more complicated, and some are downright messy. When there are disagreements about any major issues—or serious concern that disagreements will arise—your lawyer will likely proceed with a contested divorce. One spouse is served with a divorce petition and has 30 days within which to respond. Following this response, the case moves into the discovery phase, during which information about income, assets, and debts is collected, and depositions may be made.

Decisions, Decisions

Whether your divorce is uncontested or contested, you will have to make some important decisions about joint property, assets and debts, and any marital children. Some of the most common considerations in any divorce include:

Splitting Assets and Debts

Division of assets and debts is necessary if you own a home together and have any other assets or debts, including retirement accounts, bank accounts, or vehicles. This can be one of the most stressful and contentious parts of any divorce, especially if assets/debts are significant. Calculating a fair and equitable split is rarely easy. This part of the process can become even more challenging, and emotional, when the family home is on the line and neither spouse wants to vacate/relocate.

Negotiating Child Custody and Child Support

Custody is more than just physical; it is a legal term encompassing everything from where the children live and how much time each parents gets to spend with them, to who makes decisions about their education, health care, and finances. Protecting your rights as a parent, and ensuring that the outcome is in the best interest of your children, is likely the most important aspect of your divorce. Furthermore, agreeing on a fair child support arrangement is integral to the ability of both parents to provide a safe and secure environment in which the children can thrive. Support payments are calculated based on a variety of factors, such as who has the greater share of physical custody, and each parent’s income.

Spousal Support

Depending on multiple factors, one spouse may have to pay support to the other spouse, but not all divorces involve spousal support, also known as alimony. To determine if alimony is necessary, and how much should be paid, the court will consider each spouse’s income and earning capacity, the length of the marriage, each spouse’s age, each spouse’s role in the relationship, and how those roles impacted their ability to earn income.

What About Mediation?

In both uncontested and contested divorces, a lawyer represents one party to the divorce, looking out for their best interests. In mediation, the mediator doesn’t represent either party. Instead of giving confidential advice to one spouse, a mediator is neutral, helping both parties reach an agreement. Mediation is often recommended during a contested divorce when conflict arises. In an uncontested divorce, mediation is rarely necessary; it’s often quicker and cheaper to hire an attorney.

Seek Legal Counsel

When emotions are high, it can be extremely difficult to sift through the finer details, such as tax implications of certain actions. But these considerations can have a major impact on the outcome of your divorce. An experienced divorce lawyer, such as the team at New Mexico Legal Group, can help you protect your legal rights and ensure that every decision is made with your best interests in mind. With legal counsel firmly by your side, you can also prevent minor issues from escalating into major conflicts, protect the rights and well-being of any children, and save yourself significant costs and stress in the long run.

January 12, 2021 · Tim Kevan · Comments Closed
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How Long Does a DWI Last?

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Driving while intoxicated (DWI) is not just a criminal offense, it’s a public health hazard. In 2019, 28 percent of all auto accident fatalities in the United States involved an intoxicated driver. While this percentage has been steadily dropping, it’s still alarmingly high. And when you consider that many of these fatalities were the sober drivers or passengers, it’s clear that communities should be concerned. 

With so many people losing their lives to drunk driving every year, the consequences for this offense are quite severe. Across the nation, each state decides the penalties for DWI offenses, as well as the legal limits for blood-alcohol concentration (BAC) that are considered safe for driving. Although the amount of time a DWI will remain on your driving record also varies from state to state, the average is five to 10 years. It will remain on your criminal record for life. 

What Is a DWI? 

If someone operates a motor vehicle while impaired by drugs or alcohol, that person is “driving while intoxicated.” DWI is the name for the resulting criminal offense. It is one of the most common crimes in the US, and contributing factors include a high rate of addiction, drinking culture, and misunderstandings about what “impaired” really means. The best thing you can do to avoid a DWI is to never drive after you’ve imbibed any amount of alcohol or taken any type of mind-altering substance. 

What Are the Laws Around DWIs?

As mentioned above, the laws vary from state to state. If you are unsure about your state’s impaired driving laws, be sure to check your RMV’s website or consult a qualified DWI lawyer. If you understand the limits, it is much easier to make informed, responsible, and safe decisions about whether or not to have that drink before heading out on the road. 

DWI Penalties

The federal BAC limit is 0.08 percent. All states adhere to this limit, but each state has different penalties for DWIs. Most have even harsher penalties for drivers under the age of 21 and “aggravated DWIs.” A standard DWI becomes aggravated if certain factors are present. For example, one type of aggravated DWI occurs when the intoxicated driver has a minor younger than 14 years old in the car at the time of the incident.

If you are charged with DWI, the court will decide your punishment based on state guidelines. Your sentence will depend on multiple factors, including the circumstances of your arrest, whether you have prior DWI convictions, and/or if anyone was seriously injured or killed in the accident. 

Texas Penalties

Let’s consider Texas, as an example. Texas penalizes a standard (non-aggravated) DWI as follows:

First offense: Between 72 hours and six months jail time, a maximum

$2000 fine, and a license suspension between 90 days and one year. 

Second offense: 30 days to one year jail time, a maximum $4,000 fine,

a license suspension between 180 days and two years, and one year

with an Ignition Interlock Device (IID) installed*  

Third offense: Two to 10 years jail time, a maximum $10,000 fine, a

license suspension between 180 days and two years, and one year with

an IID installed*

(*IID installed if the offense occurred within five years of your last

conviction)

In addition, Texas law requires that any driver who is arrested for DWI take a blood or breathalyzer test. If the driver refuses, they could risk a license suspension. This law is called “implied consent” and exists in many other states as well. It’s also important to note that a police officer can still arrest someone who refuses to submit to a test if the officer reasonably believes that the driver is impaired. 

How Will a DWI Impact My Life?

DWIs have far-reaching consequences in both the short and long term. A DWI conviction will end up on both your criminal record and your driving record. Some of the most common consequences include:

  • If you need to pass a background check for a job and the employer finds a DWI on your record, you may be denied employment.
  • A license suspension limits your freedom of movement and your commute options for work.
  • DWIs significantly increase car insurance premiums. How much you’ll have to pay depends on the state you live in—in Kansas the average increase is about 38 percent, compared to the national average of 65 percent. In Massachusetts, on the other hand, the average increase is 76 percent. This can be a difference of hundreds or thousands, but either way, it’s costly. 
  • DWI is a criminal offense and a conviction means that you now have a criminal record.

In every state, DWIs remain on your driving record for at least five years. Many states have lengthier timeframes, even up to a lifetime. And a DWI will remain on your criminal record permanently unless you have it sealed or expunged. Eligibility for sealing or expunging your criminal record depends on the nature of the offense and if it was a repeat offense, among other factors. Many states make it difficult to get a DWI expunged from your criminal record, but it’s not impossible, especially if it was your first offense. If you’ve been convicted of DWI, it’s in your best interest to speak with a DWI lawyer about your options for sealing or expunging your record.

DWIs for Underage Drivers

In all states, the DWI penalties for drivers younger than 21 are more severe. It’s an attempt to dissuade young drivers from driving under the influence, and for good reason: drivers between 16 and 24 account for a disproportionately large percentage of DWI charges each year. Many states have a “zero-tolerance policy” towards underage intoxicated driving, with lower legal BAC limits and lengthier license suspension periods.

That being said, juvenile criminal records can be easier to seal or expunge. Speak with an attorney, like the team at Trey Porter Law, if you or your dependent has a DWI juvenile criminal record.

January 12, 2021 · Tim Kevan · Comments Closed
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What are the Penalties for Sexual Assault in Texas?

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Sexual assault is a serious crime in any state and should be taken seriously by law enforcement officials and the community at large. Sexual assault loosely refers to any intimate contact, from kissing to intercourse, for which not all participants have given their consent.

Whether or not consent was given in a situation can be murky, and the law seeks to clarify this ambiguity. For example, sexual contact initiated by one person who is in a position of power over the other can be dubiously consensual (e.g., a residential care worker and a resident of the facility). Even if the resident says that they consented to the act, the nature of their preexisting relationship with the residential care worker could have influenced their decision to consent. 

Because proving consent relies heavily on each case’s unique circumstances, it’s crucial to involve an attorney early on if you are building a case, either as an accuser or the accused. A qualified sex crime lawyer will listen to the details of your case and advise you on how to proceed.

What Is Sexual Assault in Texas?

As stated above, sexual assault is any unwanted sexual contact between one person and another. Texas distinguishes between sexual assault and aggravated sexual assault. 

Sexual assault involves any of the following acts (among others) when they occur without consent:

  • Kissing, fondling, or groping;

  • Insertion of fingers, foreign objects, or sexual organs into another person’s mouth, anus, or vagina;

  • Forced masturbation; and/or

  • Rape or attempted rape (forced sexual intercourse).

In Texas, sexual assault becomes aggravated when:

  • The perpetrator threatens violence, death, or other substantial harm in order to coerce the victim into complying with the sexual act;

  • The victim is younger than 14 (Child Sexual Assault);

  • The victim is elderly or disabled;

  • The perpetrator used a deadly weapon while carrying out the crime, whether to harm or to threaten;

  • The perpetrator caused or attempted serious bodily harm to the victim;

  • The perpetrator carried out the crime with another individual; and/or

  • The perpetrator used a “date rape” drug (e.g. rohypnol) to subdue the victim.

Both charges are extremely serious, and the state punishes aggravated sexual assault even more severely. In some cases, the state elevates rape or non-consensual insertion to aggravated sexual assault. 

Also, Texas law specifies that a perpetrator of sexual assault carries out the act “intentionally and knowingly,” including in situations when the perpetrator “knows or should reasonably believe” that the other party would not want said contact (Texas Penal Code, Title 5, Chapter 22). A good example is marital rape: if a person pressures their partner into sex after their partner has already said no, until their partner relents and says yes, that could still be considered sexual assault. The person knew that their partner did not want to have sex and coerced their partner into it, despite an initial refusal. 

How Does Texas Punish Sexual Assault?

Texas considers sexual assault to be a second degree felony. A second degree felony usually warrants a state prison sentence of two to 20 years, and potentially a fine of up to $10,000. If the sexual assault was aggravated, the state elevates it to a first degree felony. A first degree felony carries a more serious sentence of between five and 99 years in state prison and potentially a fine of up to $10,000. This wide range accounts for the different types of aggravation, many of which carry their own minimums. For example, child sexual assault of a minor under 14 carries a minimum state prison sentence of 25 years. 

The age of the accused and the accuser, as well as their difference in age, also impacts the type of conviction the accused may face. This is called the close-in-age exception: a person may have consensual sex with a minor as long as that minor is 14 or older and the age difference is at most three years apart. So, even though Texas law defines a child as someone younger than 17, an 18 year old (an adult) who has a sexual encounter with a 15 year old (a child) may not be convicted of Child Sexual Assault. The 18 year old may be accused of Sexual Assault if it is proven that the encounter was non-consensual, however. 

If you are convicted of sexual assault, the court may also require you to register as a sex offender. The amount of time you must remain as a registered sex offender depends on the severity and type of crime. 

Sex Offender Registration in Texas

Perhaps the most feared consequence of a sexual assault conviction is the requirement to register as a sex offender. Being a registered sex offender can severely restrict your life, limiting your options of housing, travel, socialization, and employment. It can even prohibit you from voting for however long you remain on the registry. The amount of time you must stay registered as a sex offender depends on the severity and type of crime, and is up to the sentencing judge to determine.

The combination of legal restrictions and community ostracization usually means that sex offenders cannot assimilate into their communities, and many experience isolation and serious life disruption as a result. If you are a registered sex offender in Texas, it’s critical to understand your rights and responsibilities under the law. It’s also important that you stay informed on changes to sex offense laws. They could impact how long you must stay registered, or require you to re-register even if your conviction is decades old. 

Seek Legal Counsel Immediately

If you have been accused of sexual assault in Texas, a sex crime defense lawyer can help. An experienced attorney, such as the team at Hancock Criminal Defense, can examine the facts of your case, determine how to proceed, and position you for the correct outcome. When it comes to sex crimes, skilled legal counsel is essential.

January 12, 2021 · Tim Kevan · Comments Closed
Posted in: Uncategorized

What Is the Alternative Measures Program in Canada?

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If you have been charged with a minor crime in Canada, you may be eligible for the Alternative Measures Program. The Alternative Measures Program (AMP) is an opportunity for non-violent offenders to repair the damage they have done, rather than undergo a criminal trial. If the offender completes their AMP satisfactorily, the offence will not be entered onto their criminal record. 

What Are the Benefits of the Alternative Measures Program?

As the name suggests, the AMP give you an “alternative” option to defending yourself in court after being charged with a minor crime. It also clears up the judicial pipeline of small-time offenders who are willing to participate in restorative justice, and reduces prison overcrowding. Perhaps most importantly, an individual who successfully completes their AMP will not incur the offence on their criminal record. 

Having a clean criminal record allows you more options for housing, employment, and freedom of movement. Even one small offence from several years ago can follow a person for the rest of their life, prohibiting them from moving in a positive direction, no matter how much they may regret their past actions. The AMP seeks to remedy this disparity so that minor and one-time offenders can move on with their lives. 

Who Qualifies for the Alternative Measures Program?

The Public Prosecution Service of Canada specifies that the Alternative Measures Program should be reserved for people who have committed minor offences, and who are unlikely to repeat their mistake. As with any judicial process, eligibility for the AMP depends entirely on the particulars of your case. The Crown is the sole determiner of who enters the Alternative Measures Program. However, a police officer or good criminal defence lawyer can recommend you to the program, which can improve your chances. 

You may be eligible for the Alternative Measures Program if:

  • You have been convicted of less than two prior offences;

  • You have not participated in an AMP in the past two years;

  • You are charged with a minor offence that did not cause serious harm or damage; and

  • You demonstrate remorse for your actions.

What Does the Alternative Measures Program Look Like?

The requirements for successful completion of an AMP will look different for every participant and will depend on several factors, such as the type of crime they committed and the willingness of any victims to participate in reconciliation. For example, if someone stole another’s property, but has expressed willingness and means to return the property or otherwise compensate the victim, that action may be part of the offender’s AMP. If that person stole property in order to buy illicit substances, due to an unmanaged addiction, Crown prosecutors could also refer them to an addiction treatment program and require that they participate for a certain amount of time. The Crown will also schedule follow-up dates to check on the participant’s progress and ensure that they are completing the AMP as agreed. 

Upon satisfactory completion of an AMP, the Crown will withdraw all charges, and the participant will walk away without a criminal record. With few exceptions, only the court is privy to an individual’s participation in an AMP. It will not show up on background checks run by employers, banks, or landlords. However, the court will take a past AMP into consideration if an individual commits a repeat offence. 

If an offender does not complete their AMP satisfactorily, Canadian law advises Crown prosecutors to continue with traditional criminal proceedings. Failing to complete an AMP will reflect poorly on a defendant, and will significantly lower their chances of admission to an AMP in the future. 

Explicit Exceptions to Participation

Certain types of crimes, even if committed for the first time and without a prior criminal record, can prohibit someone from participating in an AMP. These include:

  • Domestic violence;

  • Sexual assault;

  • Using, or threatening to use, extreme violence or weapons;

  • Trafficking Schedule I drugs (e.g. heroin) or highly controlled substances, especially near schools or other public places frequented by children;

  • Committing a drug offence with the intention of profit; and

  • A premeditated act that required a high degree of planning (for example, a bank robbery as part of an organized criminal faction).

Alternative Measures vs. Extrajudicial Measures

Many people wonder if offenders younger than 18 can participate in the alternative measures program. After all, young people often make careless mistakes, or submit to pressure from older friends or adults. While the alternative measures program is only for adult offenders, young people who commit minor crimes can take advantage of extrajudicial measures instead. Extrajudicial measures function very similarly to alternative measures. However, they are broader, less formal, and more lenient than an AMP, due to the young age of the offender. Canadian law strongly encourages police officers and prosecutors to employ extrajudicial measures before moving forward with traditional juvenile criminal proceedings. 

Can a Criminal Defence Lawyer Help?

If you have recently been charged with a minor crime in Canada, reach out to a local criminal defence lawyer, like the team from Oykhman Criminal Defence, and ask them if you might qualify for your province’s Alternative Measures Program. If you feel remorse for your actions and believe your crime was a one-time mistake, you might be a good candidate, and can avoid the limitations that even a small criminal record can impose. A compassionate and qualified criminal defence lawyer will listen to your story, advise you on your next steps, and may even recommend you to the program. Don’t let shame over one bad decision stop you from getting legal help.

January 12, 2021 · Tim Kevan · Comments Closed
Posted in: Uncategorized