In 2008, a Florida couple was driving through Miami when they were struck by a 17-year old driver; the wife was killed in the accident while the husband sustained substantial injuries. Phone records were used at trial to prove that the 17-year old Defendant was texting mere moments before the collision. It was shown that the Defendant sent a text to his girlfriend at 8:19pm the night of the accident and at 8:21pm the paramedics were called.
While the Defendant was charged hefty fines and lost his license for speeding and reckless driving, he was never charged with vehicular homicide nor were there any criminal penalties for his texting while driving. Florida, like South Carolina, currently has no distracted driving laws regulating cell phone usage while driving. Although there are no laws directly regulating distracted driving, South Carolina does record crash data by including a distracted/inattention attribute under contributing factors.
An expert at trial, Dr. David Strayer from the University of Utah, author of the study Driven to Distraction, testified that drunk drivers are four times more likely to get in an accident, while texting drivers are eight times more likely; other studies tend to show an even greater likelihood for texting drivers.
Distracted driving regulation is becoming a hot topic among legislators as the number of cellphone-related car accidents steadily increases. According to the South Carolina Department of Public Safety, as of January 25, 2012, South Carolina Subway franchise restaurants have kicked off a “W8 2 TX” Campaign to encourage people to wait to send text messages- or W8 2 TXT- until they are not driving.
Although South Carolina does not currently have distracted driving laws, they do appear to be on the horizon and will likely follow in the wake of drunk driving laws with harsh penalties. The $8.8 Million jury verdict in this Florida case indicates that this is a serious public concern.
If you have questions regarding traffic laws or are involved in a car accident, please call The Floyd Law Firm PC in Surfside Beach, South Carolina.
Written by: Brittney J. Farish and Collin R. Jewell
]]>While the United States Supreme Court previously OK’d the drug dog sniffs in other major cases, the cases dealt with dogs that detected drugs during routine traffic stops, airport luggage and a package in transit. The main difference in this case is that it involved a private residence.
On December 5, 2006, Miami Police detectives and their counterparts at the U.S. Drug Enforcement Administration set up surveillance outside a house south of Miami, after getting an anonymous tip that it might contain a marijuana grow operation. When Franky arrived on the scene with his handler, the pair walked up to the base of the front door and Franky sat down, meaning he detected drugs. The sniff was used to get a search warrant from a judge to search the house. The house was searched and Police found more than $700,000.00 worth of marijuana. The occupant of the house was arrested and charged with drug trafficking.
The Court has not yet decided this case, but yesterday, the Court published its unanimous opinion in United States v. Jones, wherein it ruled that placing a GPS device on a car without a warrant violates the 4th Amendment. While the facts of each case play an important role in determining the outcome of a search and seizure case, the Court seems to believe firmly in a citizen’s right to privacy.
If you feel like your right to privacy has been violated and you are charged with a crime, contact the Floyd Law Firm PC in Surfside Beach, SC.
Written by: Collin R. Jewell and Brittney J. Farish
]]>It’s likely that the family court judge will be sanctioned for his failure to disclose the donation to both parties and failure to recuse himself. In South Carolina, full financial disclosure is required for approval of any settlement agreement and parties are required to complete the state-mandated financial declaration form. Additionally, parties are required to attend mediation prior to any litigation and must attempt to come to a fair and equitable resolution as to the division of marital property.
Contact The Floyd Law Firm PC if you are considering divorce and live in Myrtle Beach, South Carolina.
Written by: Collin R. Jewell and Brittney J. Farish
]]>Don Thompson – Associated Press
]]>Although bankruptcy is one of the most important alternatives available for relieving financial distress, it is a serious legal procedure with long-term consequences. Before considering bankruptcy, you first should learn about how bankruptcy works, explore other options with a credit counselor, and only then decide which course of action is best for you.
Many people in financial trouble can improve their situations simply by contacting and negotiating directly with their creditors. Others may get help from reputable local financial counseling programs or reputable consumer credit counseling services that have experience negotiating with creditors and establishing repayment plans. For example, a creditor might be willing to settle its claim in exchange for a partial cash payment, or it might be willing to stretch out the term of its loan and reduce the size of the payments you owe each month. By allowing you to pay off your debt by making smaller payments over a longer period of time, the creditor would eventually receive full payment. If you pursue this option, however, make sure you don’t end up paying too much interest!
You should also determine if you are judgment proof, in which case you may not need to file for bankruptcy to protect your property and wages. Judgment proof simply means that you have so little money, income, and property that you would be unable to pay a court judgment entered against you even without filing for bankruptcy. Under state and federal exemption laws, creditors are not allowed to seize certain income—such as Social Security income, wages below certain levels, and certain personal property—from judgment-proof debtors. If there’s no point in creditors going after you in court, there may be less reason for you to declare bankruptcy. If you believe that you may be judgment proof, discuss your situation with a lawyer or a credit counselor.
Keep in mind, however, that if you don’t declare bankruptcy, you won’t be eligible for certain protections that bankruptcy can provide, including possibly preventing foreclosure on your home, stopping a repossession of your car, and preventing further collection efforts. Without bankruptcy protection, creditors often will be able to enforce court judgments against you if your financial situation one day improves.
Steps to Take…
If you are struggling to pay your bills and handle your debt, you should take a variety of steps you should take before turning to bankruptcy.
1. Learn What You Owe
A good first step is to assess your debt level as compared to your income. Before you can make a plan about your financial future, you need to determine what debts you owe and whether you can live within a strict budget. Many people can reduce their debt significantly simply by living within a self- imposed budget and not spending money on unnecessary items. For others, bankruptcy might be the only realistic option. But you can’t make this decision until you figure out and carefully examine your income and debt.
2. Contact Your Creditors
If you are behind on your payments, debt collectors for each of your creditors may already be calling or writing you. You might be more successful if you phone each creditor, ask for the credit department, explain your sincere intent to repay the account, and express your need to stretch out the number of monthly payments and reduce the dollar amount of each payment. Make sure you always ask for and write down the name of each person you talk with.
3. Consolidating Debt
Occasionally, you may buy time and avoid bankruptcy by consolidating your debts— that is, by taking out a big loan to pay off a number of your smaller debts. However, the primary danger of consolidation is that you may then find it very easy to use your credit cards to borrow more money, which could leave you with even more total debt and no additional income to make the monthly payments. Indeed, if you have taken a second mortgage on your home to get a consolidation loan, failure to make payments on the loan could put you at risk for losing your home. You should also thoroughly analyze the interest rates and up-front fees on such consolidation loans: Make sure the loan’s interest rate is lower than that of your credit cards.
If you ultimately decide to seek bankruptcy relief, make sure you hire a lawyer who is familiar with the federal bankruptcy laws and the laws applicable in your state, and who is staying abreast of any recent changes in the law. Even if you aren’t ready to declare bankruptcy and are merely interested in looking at your options, you should consider working with an attorney. Many people are intimidated by the legal system or lawyers, but you shouldn’t be. A good lawyer can be your best advocate as you navigate a most difficult time for you and your family.
]]>lawsuit at the same time. One easy way to avoid most legal liability related to the hiring process
is to maintain a clear focus on the position’s job skills, qualifications, and expectations. This places the emphasis where it should be—on filling the job. And to the extent that your hiring decisions are based on job-related criteria, you should avoid most legal pitfalls. Decide what qualifications are required for the job, put those qualifications in a written job description, and focus your hiring efforts on addressing these qualifications as objectively as possible.
State and federal laws prohibit certain types of discrimination in the hiring process. For example, some states have passed laws protecting applicants from discrimination because of sexual orientation, marital status, arrest or conviction records, off-duty use of tobacco products, political party affiliation, and personal appearance. You need to be aware of the employment laws of your state. Since these laws vary from state to state, you shouldn’t hesitate to talk to your attorney if you have any questions.
In order to avoid any claims of discrimination or illegal hiring practices, make the whole hiring process as objective as possible. Don’t stereotype applicants in any way. Instead, focus on what the job requires and how each particular applicant matches up.
Advertisements. Don’t state, directly or indirectly, that a job is for one gender or the other (no “Gal Fridays wanted”); don’t engage in age stereotyping by saying you’re looking for a “recent college grad.” Make sure your ads will be seen by a wide segment of the population.
Checklists. Go into interviews with a series of questions that focus on the specific requirements of the job. Try to ask all applicants the same questions.
Avoid questions that suggest stereotyping. For example, you may want some assurance that an employee will be with you for at least a few years. Don’t ask a female applicant, “Do you plan toget married?” “Do you plan to have children?” or “Is there a chance your husband will be transferred?” Instead, keep the focus on the job. Ask, “Is there any reason you might not stay with us for the next few years?” or “Where do you see yourself in five years?” If you want to know if an applicant can work late from time to time, don’t ask, “Do you have to be home to make the kids dinner?” Instead, simply ask, “Is there any reason you wouldn’t be available to work late at certain times?” And, of course, ask the same questions of all applicants.
Ask only what you need to know. If filling the job doesn’t require you to ask certain questions, then don’t ask them. Do you have to know the applicant’s marital status? Number of children? Religion? Age? Financial status? If not, then don’t ask the question.
Even after you’ve written the job posting and drafted your interview questions, you should still realize that you can’t make every demand of each applicant that you might want to make. For example, although the law does not regulate requests for employment references, if you unnecessarily pry into private personal information or use unreasonable methods to gather data, you may open yourself to tort liability for invasion of privacy. In other words, you might face a personal injury lawsuit from an applicant. You will generally be safe, however, if you limit your background or reference checks to issues relating to the performance of the job in question.
The law does limit the types of tests you can use to screen out unqualified applicants. To be on the safe side, any test you administer should measure an applicant’s ability to perform the specific job. Tests that are not job-related and that screen out disproportionate numbers of minorities or women have been held to violate antidiscrimination laws.
The Americans with Disabilities Act forbids requiring medical tests of applicants unless you’ve offered to hire the person and you require all employees who hold the job in question to take such a test. Any information obtained as a result of the test must be kept confidential, in a file separate from the applicant’s personnel file, and cannot be used to discriminate against the applicant because of the result or because of any disability disclosed by the test.
Hiring employees should be an exciting and optimistic time in your business development.
Make sure you take the necessary precautions to protect your business. The last thing you want is an unintended (and possibly costly) lawsuit.
Examples of Illegal Employment Discrimination
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remaining $500,000.In addition, the law eliminates the so-called stepped-up basis for inherited property in 2010. The basis of property is the value from which the gain or loss is determined when the property is sold. Among other things, this value is used to establish the capital gains tax. Prior to 2010, the basis of most property owned by the decedent was “stepped up” to the value at the time of death. For instance, if the decedent paid $100,000 for a home worth $200,000 at the time of death, the beneficiary’s basis in the home was $200,000. This had the result of reducing the tax on capital gains when the home was sold. In 2010, the automatic step-up in basis is eliminated with special rules to allow a change in basis of $1.3 million on all assets and possibly an additional $3 million for assets going to the surviving spouse or marital trust.
Congress attempted to pass a new estate tax law to address this situation last year but was unsuccessful. Congressional leaders have stated Congress will amend the law this year, but the details of the new amendments are still up in the air at this time, and it is impossible to predict what the amendments, if enacted, will provide.
In light of the uncertainty, we recommend that all estate planning clients consider having their wills and other estate planning documents reviewed to see if changes should be made. It may be necessary to update your estate planning documents to address such issues as the estate tax deduction and marital deduction. Also, changes may be necessary to explore opportunities to change the tax basis of property at death. In addition, it may be advisable to take into consideration the possibility of a reinstated estate tax with the $1 million exemption.
We stand ready to assist you in reviewing your wills to see if changes should be made. Please contact Dalton B. Floyd, Jr. or Terrence R. Real at 843-238-5141 to set up an appointment.
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The fact is that the vast majority of disputes are resolved before they ever get to trial and many are resolved through what is called alternative dispute resolution (ADR), which includes mediation and arbitration.
In mediation a trained mediator helps you and your opponent resolve your disagreement by identifying, defining and discussing the things about which you disagree, in an effort to help you reach a mutual agreement. This is an informal, cooperative problem-solving process, and does not necessarily require you to know the law or to hire a lawyer, although often the parties find it useful to do so.
Arbitration on the other hand, is a more formal proceeding in which you and your opponent are asked to present evidence and witnesses to an arbitrator, who issues a decision, usually in writing, to resolve the dispute. Arbitration may be binding or nonbinding. If the parties agree to a binding arbitration, it means they must accept the arbitrator’s decision as final.
In some cases, decisions reached through binding arbitration can bevacated or disqualified (meaning overturned). However, these circumstances are very limited. According to the Federal Arbitration Act, parties may be able to have binding arbitration decisions vacated if they can prove, within three months of the decision being rendered, that:
Cases can get into ADR through a variety of methods. You could elect to take a dispute to ADR. For example, if you have a dispute with your neighbor over a bush that straddles both of your property lines, you both might agree that this issue is better resolved if you work things out informally, preserving a civil relationship and keeping everyone out of court. On the other hand, ADR is sometimes required by a court order or contract. Prior to trial, in order to encourage settlement, courts will sometimes order parties into nonbinding mediation or negotiations. Other times a contract might state that all disputes concerning the contract must be resolved through binding arbitration. Common examples of contracts that include arbitration clauses include credit card agreements, insurance policies, and bank loans.
If you are about to enter ADR, you shouldn’t hesitate to contact your attorney if you have any questions or concerns. If you are unsure about whether to bring your attorney into the mix, here are some questions to consider: First, how important is the issue? If the dollar amount is low and no other important matters are at issue, a lawyer’s help may not be necessary. However, if the dispute involves substantial money or an important matter such as custody of your children, a lawyer’s help is very important. Second, how certain are you that you understand the issue and your rights? Lastly, how emotionally involved are you? A key factor in deciding whether to represent yourself should be your level of emotional involvement and your ability to assume a detached view of the controversy. And when in doubt, the old adage may apply: “A person who represents himself has a fool for a client.”
Mediation might be appropriate if:
Mediation might not be appropriate if: