--Kayla Mahoney, Legal Intern
Beginning August 9, 2017, it will be legal to use force in order to rescue animals or people from dangerous cars. However, there are a few things to know in order to be immune from criminal or civil liability. Who is Protected? CRS 13-21-108.4 protects “at-risk persons” which are at risk adults, at risk adults with an intellectual or developmental disability, at risk elders (people over the age of 70), or at risk juveniles (people with a disability under the age of 18). Dogs and cats are also protected; livestock is explicitly not protected under the new law. Prior to Breaking a Window First, you must have a reasonable belief that the at-risk person or animal is in “imminent danger of death or suffering serious bodily harm.” Second, you must make a reasonable effort to find the owner or person driving the car. Third, you have to ensure the car is locked and that the only way to enter is by force. Fourth, you have to contact law enforcement (fire department, animal control, or 9-1-1) prior to breaking a window. Make sure to document and report to law enforcement the color, make, model, license plate, and location of the car. Breaking a Window If you need to use force to rescue, do not use any more force than is necessary. For example, if breaking one window will suffice, don’t break all the windows. After Breaking a Window You must remain with the person or animal near the vehicle until law enforcement arrives and not interfere with their official duties. If you have to leave before law enforcement arrives, you must (1) place a note on the windshield of the car and include your name and contact information and (2) inform law enforcement that you must leave, include your name and contact information. It is important to note that this applies even if you are leaving to take the person or animal to seek medical help. If that is the case, you must also leave the name and contact information of the place you are taking the injured on the note left on the driver’s windshield and also provide the information to law enforcement. Things to Remember about Rending Emergency Services
In Conclusion Although the new law may provide some protection if an animal is in danger, we do not recommend breaking windows. Utilizing the new law should be an absolute last resort and may not protect a person from being charged with a crime. The Sixth Judicial District Best Practices Court Team sponsored a CLE on March 17, 2017. Beth Padilla is the co-chair of the Best Practices Court Team and organized the presentation. The CLE included presenters from the State of Colorado Department of Human Services, Archuleta County Department of Human Services, Authentic Solutions Counseling, and Honorable Judge William Herringer. The CLE was attended by more than twenty five individuals.--Paul E. Padilla On June 20, 2016, the U.S. Supreme Court issued a ruling in Utah v. Strieff that allows the police to use evidence in a criminal case, even when the police collect the evidence unconstitutionally. The general rule is that if the police violate your constitutional rights when collecting evidence, they are not allowed to use that evidence to prosecute you in a criminal case. Although there are exceptions to this rule, it is a right created by the 4th Amendment of the U.S. Constitution. In short, the police cannot benefit from breaking the rules. In Utah v. Strieff, the Supreme Court expanded one of the exceptions to the rule, which will allow the police to use evidence against you, even if the evidence is collected illegally. In this case, the police were watching a house where they thought drugs were being sold. They saw a man walk out of the house and down the street. The police had no evidence that the man had committed any crime. The police stopped the man and demanded his ID. When the man gave the police his ID, they learned that he had an arrest warrant from a completely different crime, so they arrested him. As they arrested him, they discovered methamphetamine in his pocket, which was used against him at trial. When the police first stopped the man, it was an illegal stop because the police did not have any evidence to believe that the man had committed a crime. Before this case, the drugs found in the man’s pocket could not have been used in his prosecution because the police violated his constitutional rights. But, this case now allows the police to use the evidence in prosecution, even if the original stop was illegal. The Supreme Court expanded a rule called the “attenuation doctrine” so a court will now consider three factors to decide if the police can use the evidence:
This test is very dangerous for ordinary citizens, because it gives the police an incentive to conduct illegal searches with the possibility of finding very bad evidence. For example, the police could pull over a car for no reason, with the hope that the driver has an arrest warrant, past due child support, or drugs in the car. Essentially, it will reward the police for making illegal stops, as long as the illegal activity is minor (stopping you on the street or pulling your car over) and does not relate to the reason for the illegal search (they stop you while driving, but find that you have bail violations for other crimes). The Court's full decision is below: Guardianship of a Minor Child-- Beth Padilla
Many families are faced with difficult situations where a parent is not able to care for his or her child. In that situation, it is not uncommon for a grandparent, aunt, uncle, or other relative to step in to care for the child until the parent is able to do so. It is important to ensure the caregiver relative has the appropriate legal documentation in place to care for the child. For example, in an informal arrangement, the caregiver may not be able to enroll the child in school or seek routine medical attention for the child. Some caregivers will choose to petition the Court for guardianship. In Colorado, we have three types of guardianship: (1) emergency guardianship, (2) temporary guardianship, and (3) guardianship. The Court may appoint an emergency guardian pursuant to C.R.S. 15-14-204(5) when the normal procedures for appointment of a guardian will “likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor.” An emergency guardianship cannot last for more than sixty (60) days. Another option is for the caregiver to file for temporary guardianship. The Court may appoint a temporary guardian pursuant to C.R.S. 15-14-204(4) “upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor.” A temporary guardianship cannot last for more than six (6) months. The final option would be to seek a full guardianship. A guardianship will last until the child reaches eighteen (18) years of age. There are many considerations when deciding whether to petition the Court for a guardianship. It is important to remember that every situation is different and this brief explanation of guardianship is only one part of a very complex legal situation. Beth Padilla was recently selected for membership into The National Advocates: Top 40 Under 40. The National Advocates: Top 40 Under 40 is a professional organization comprised of America's top attorneys 40 years of age and under in the areas of Matrimonial and Family Law, Bankruptcy Law, Social Security Disability Law, Employment Law, Immigration Law, and Wills, Trusts, and Estate Law.
-- Beth Padilla What are your options if you need a lawyer’s advice but you cannot pay a retainer? This is a common situation. One solution is to hire an attorney to provide unbundled legal services. Unbundled legal services can operate in many different ways depending on a client’s needs. For example, if a client is involved in a dissolution of marriage (divorce) case and needs an attorney to advise him on how to create a reasonable parenting plan, the client might be able to hire the attorney for that specific purpose. Often, when an attorney is providing unbundled legal services, the attorney will not attend Court proceedings with the client, but will provide advice and can help draft documents. A major advantage to unbundled legal services is that it allows a client to seek an attorney’s advice and to limit the scope of the attorney’s representation. This type of legal service is generally less expensive than hiring an attorney to represent a client throughout an entire case. Importantly, unbundled legal services are not always the right answer. If a client has a very complex case, it is likely more appropriate to hire an attorney for the entire matter. Our firm routinely provides unbundled legal services and is happy to discuss whether this is appropriate for your case. Keywords: lawyers in Durango, Cortez, Pagosa Springs, Cortez lawyer, Durango lawyer, Durango mediation -- Paul Padilla
Recently, many clients have asked about creating revocable trusts for estate planning, rather than a traditional Will. They have heard that probate is a horrible thing, and that a trust is a smart and easy alternative. However, the truth is that whether a Will, a trust, or another alternative is appropriate for you will depend on your personal circumstances. Wills Using a Will, you can give specific gifts, limit the use of property, or create sophisticated instructions, so that your wishes are carried out after you have passed away. But, a Will generally has to be probated, which means the Will is submitted to the court and a legal process must be followed. Historically, the probate process was very formal and cumbersome. However, in the past few decades, most courts have modified the probate process to be much more efficient and cost-effective. Significant costs and time can be required when there is a dispute in the family or a significant amount of property with very detailed instructions to follow. But, depending on what kind of property the person has when they pass away, and how the family interacts with each other, probating a Will can be a fairly easy process. Revocable Trusts Both revocable and irrevocable trusts have become very popular for estate planning, because they can avoid probate (meaning you don’t have to file anything with a court), and there can be major tax benefits (and consequences). For this blog, I will only discuss revocable trusts, because irrevocable trusts have much more serious tax consequences (and I am not a tax attorney). The main benefits of a revocable trust are that 1) you can avoid probate, which may be expensive, and 2) you can actively manage the trust while you are alive to adapt to changed circumstances and family dynamics. But, the main downsides to creating a revocable trust for estate planning are 1) trusts are generally more expensive than Wills to create and fund properly (i.e. the cost is upfront, rather than after you pass away), and 2) you have to transfer your property into the trust, which can create unintended consequences. Because the trust is revocable, you can transfer the property back to yourself, if necessary, but that will un-do the benefit of creating the trust. Trusts may also require much more active management and accounting to maintain. In comparison, once a Will is created, it essentially sits on a shelf (or in a fire-proof safe) until a person dies and the probate process begins. A trust can also be a very useful tool for parents who have children under the age of 18. If property is held in trust and the parents die, a successor (or second) trustee can be nominated and the property can be held and managed for the children until they are old enough to get it. This is one of the primary reasons my clients ask me to create trusts. However, the parents need to understand that major items, such as your home, need to be transferred into the trust right away for the benefits of the trust to work. Transferring property into the trust raises issues with deeds, titles, insurance, and several other factors, which may negate the benefit of setting up the trust in the first place. Other Alternatives Depending on the kind of property you have and how much instruction you want to provide following your death, there are several alternatives to both Wills and trusts. For example, if you do not own any real estate and have minimal personal property (generally less than $60,000), your property can be collected and distributed by affidavit, and will not require probate. Similarly, if your home or other real property is held in joint tenancy with another person, title to the property will transfer to the other person the instant that you pass away, and no probate is necessary. Many investment accounts and other financial instruments also have pay-on-death or beneficiary designations, which will give the investments to the beneficiary once you pass away (again without probate). So, depending on who you are, what you own, and what you want to do, there may be several other options available for your estate planning. A Will may be a simple and straightforward tool for you; a trust may meet the complexity you are looking for; or, a combination of real estate, investment, and health care plans can also meet your needs. Paul Padilla Represents Global 500 Company
Paul Padilla recently represented a Global 500 company in a civil litigation in Cortez, Colorado. Mr. Padilla successfully represented the company and came to a swift settlement for his client. Beth Padilla Chosen as Rising Star by Super Lawyers 2015 Beth Padilla was chosen as a Rising Star 2015 by Super Lawyers magazine. The 2015 publication of Super Lawyers magazine was released in March, 2015. -- Beth Padilla Jurisdiction is defined as "[t]he power and authority constitutionally conferred upon a court or judge to pronounce the sentence of the law." Black's Law Dictionary. A court must have jurisdiction (i.e. authority) to issue a decision in a case. In general, a Colorado court will only have jurisdiction in a family law case involving children if Colorado is the children's home state. But, what is a home state? A child's home state is defined as "the state in which a child lived with a parent . . . for at least one hundred eighty-two consecutive days immediately before the commencement of a child-custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period." C.R.S. 14-13-102(7). Here is an example: John and Sally are married, have a son, and live in Colorado. John and Sally decide to get divorced and John moves to New Mexico. Sally remains in Colorado with their son. Although John lives in New Mexico, Colorado is the appropriate state to hear the divorce case. It can get very complicated when families move often or when the child does not have a home state. Filing a case in the wrong state can be costly and stressful. Like many areas of the law, jurisdiction in family law cases can be complicated. This brief explanation is not intended to be legal advice, but is intended to point out the importance of filing a case in the right state. |
Padilla Law, P.C.
First Draft is a collaborative effort between Beth and Paul Padilla, both equity partners in the firm, and is intended to give you a brief overview of current legal topics and let you know what effects those issues may have in your life. Archives
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