by Tom Hogan
A breathalyzer test is sometimes used by police to confirm whether or not an individual was driving under the influence of alcohol. The results are often used as evidence at a DUI trial. However, many people question how reliable these tests really are.
A breathalyzer measures and detects molecules in breath alcohol, which is a vapor that escapes the body through breath after a person consumes alcohol. As with any test, there are factors that make it susceptible to error.
- All breathalyzers have a margin of error. For example, a machine may measure breath alcohol at .08% but the actual percentage could be anywhere from .07% to .09%.
- Instead of measuring blood alcohol concentration (BAC) directly, breathalyzers estimate BAC by breath alcohol levels, which can result in an incorrect result.
- Radio frequency interference (RFI) from a police radio can also cause a breathalyzer to perform erroneously.
- In order for a breathalyzer device to function properly, it must be calibrated regularly.
- Mouth-alcohol contamination is also something to be considered. For instance, if a person burps or vomits shortly before testing, the breathalyzer might detect alcohol that is lingering in the mouth or stomach in addition to breath alcohol.
- It is also possible for a test to be contaminated with the mouth-alcohol from a prior subject or atmospheric fumes.
The Law Office of Thomas Hogan is a DUI/DWI Law Specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help. Call (209) 214-6600 to speak with our Modesto California Attorneys.
by Tom Hogan
Although a registered domestic partnership (RDP) in California grants both parties all the rights, benefits and obligations as parties in a valid marriage, there are still many differences. For example, federal law and many other states do not acknowledge domestic partnerships. Consequently, what are the disadvantages in choosing a domestic partnership over marriage?
- Because RDPs are not federally recognized, they are unable to take advantage of over 1130 rights and benefits afforded exclusively to married couples.
- RDPs are frequently looked down upon and do not receive the same honor, respect and privileges as married couples.
- In an emergency, RDPs may not be permitted to make important medical decisions for their incapable partners.
- Since the federal government does not recognize RDPs, they would not be provided the same tax benefits as legally married couples.
- A court order regarding support for a current/former domestic partner is not recognized federally like one for a current/former marriage mate is.
The Law Office of Thomas Hogan is a family law specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help. Call (209) 214-6600 to speak with our Modesto California Attorneys.
by Tom Hogan
Cannabis is now legal for medical use in 26 states and recreational use in eight. In 1991, 78% of Americans opposed marijuana legalization. A national poll conducted in February 2017 by Quinnipiac University finds 59 percent of adults surveyed favored the legalization of marijuana use in the United States, and 93 percent supported allowing adults to legally use medical marijuana if their doctor prescribes it. This support is growing yearly, even monthly. The marijuana industry seems to be booming, but business owners may disagree. Even if state law permits sale, federal law does not. However, I.R.C. §61(a) does not differentiate between income from legal sources and income from illegal sources. Therefore, marijuana businesses are still required to pay federal income tax on taxable income.
Although I.R.C. §162 allows businesses to deduct ordinary and necessary expenses such as wages, rent, supplies, etc., businesses trafficking marijuana are excluded due to I.R.C. §280E. This code states that no deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business consists of trafficking in controlled substances. Marijuana used for any purpose is a controlled substance. Therefore, marijuana businesses are required to report all income while, at the same time, restricted to deduct the aforementioned ordinary and necessary expenses.
One provision available for marijuana businesses is to deduct cost of goods sold (COGS). These are costs directly related to the production of goods. This would include the cost of the marijuana itself, the means to transport it, etc. On January 23, 2015, the IRS released a memorandum to clarify how marijuana businesses are to determine COGS. Under I.R.C. §263A, certain costs associated with purchasing, handling and storage are not eligible for deduction. See the specific guidelines on cannabis tax laws.
The Law Office of Thomas Hogan is a Cannabis Tax Law Specialist in Modesto, California. We are prepared to help in your time of need. Feel free to contact our Modesto California Attorneys at (209) 214-6600.
by Tom Hogan
Everyone has an estate. Your estate consists of everything you own – your home, car, personal possessions, bank accounts and any other assets. Because you are unable to keep these things forever, it is important to ensure they are allocated to the people and/or organizations of your choosing. This requires providing instructions stating whom you want to receive any assets, what they are to receive and when they are to receive it. That is the definition of estate planning.
Though estate planning may sound feasible for most people to do themselves, assistance from an attorney is recommended in order to assure costly mistakes are avoided. Knowing that your family’s future is secure will also help you have peace of mind.
Most people use a will to list how they would like their assets distributed. While this is a great start in estate planning, certain financial assets such as IRAs and 401(k)s may require additional documentation. Once you have taken an inventory of all of your financial assets, it is recommended to ask your attorney to help you obtain and complete the necessary documents.
It is also important to remember that an estate plan or will may need to be updated from time to time. Significant life events such as moving, the birth of a child, divorce or even acquiring an inheritance may trigger the need for changes to be made to an existing estate plan. Amended state and federal laws may also bring about the need to amend an estate plan. It is imperative to occasionally review your plan and keep it current.
In the case that a person becomes ill or disabled, it is important to include an advanced healthcare directive or durable power of attorney in the estate plan. If the situation arises that you are unable to communicate your healthcare wishes yourself, an advance healthcare directive will communicate them for you. A durable power of attorney allows another person to make medical and financial decisions in the event you are not able to so yourself. Including these documents in your estate plan will ensure your personal decisions in these matters are clearly outlined and respected.
The Law Office of Thomas Hogan is an Estate Planning specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with Wills or Estate Planning in Modesto CA. Call (209) 214-6600 to speak with our Modesto California Attorneys.
by Tom Hogan
National Tax Day has come and gone, but tax season is far from over. Now is the time when taxpayers realize they may have missed an important credit or deduction, or worse, failed to report a source of income when they originally filed their income tax return. Don’t worry. Amending a federal income tax return is more common than you may think.
In order to make changes to a tax return that has already been filed, you must file an amended return using a 1040X Form. This form is used to correct previously filed Forms 1040, 1040A or 1040EZ. An amended return must be filed within three years from the date you filed your original return or within two years from the date you paid the tax, whichever is later.
It is not necessary to file an amended return if you forgot to attach W-2s, schedules or other tax forms. The IRS will send a letter requesting these items later. They will also correct simple math errors you may have made, so there is no need to make the corrections and file again.
The Law Office of Thomas Hogan is a tax specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with filing an amended return or any other issues with the IRS. Call (209) 214-6600 to speak with our Modesto California Attorneys.
by Tom Hogan
For those who have little or no money for attorney fees, or have run out of funds to pay attorney fees, a solution for the attorneys and the client, where the client has equity in a community residence, a family law attorney’s real property lien (FLARPL).
Pursuant to Family Code 2033, either party may lien his or her interest in community real property to pay reasonable attorney fees. The lien attaches only to the encumbering party’s interest in the community real property and is voidable and unenforceable to the extent it encumbers a nonconsenting spouse’s interest.
What attorneys must keep in mind and the client as well, is that in order to enforce the lien certain procedures must be followed. Notice of the lien must be personally served on the other party or his or her attorney of record at least 15 days before recordation of the encumbrance. The notice must contain a full description of the property; the encumbering party’s belief as to fair market value; encumbrances on the property; list of community assets and liabilities (PDD’s); the amount of the family law attorney’s lien.
The other party has a right to object by an ex parte motion. The court may deny the family law attorney’s real property lien based on a finding the encumbrance would likely result in an unequal division of property because it would impair the encumbering party’s ability to meet his or her fair share of the community obligations or would otherwise be unjust under the circumstances.
by Tom Hogan
A new form of statutory deed entitled Revocable Transfer on Death Deed (TOD) has been established by the legislature. A TOD deed is a non-probate deed whereby the homeowner may deed his or her home to a name beneficiary and the transfer becomes operative on the homeowner’s death, but will remain revocable until he or she dies.
Why is this of importance to seniors? The TOD was created to allow single seniors or widows to escape probate without the need to draft a trust. Some parents add their children on the deed to the home as joint tenants for the sole purpose of avoiding probate. The problem with doing this is that the children immediately own part of the house, which may subject the house to the children’s creditors.
The beneficiary of a TOD effectuates the transfer when the homeowner dies by recording an affidavit of the transferor’s death certificate and also notifies Medi-Cal of the death.
This new law tries to combat elderly financial abuse by adding a 120 day rule and revocability of the deed. So that if you find out that Mother has transferred her home to her new boyfriend using a TOD deed and Mother is alive, you can simply have mom revoke it. But is mom is dead, you have 120 days to file a lawsuit against the boyfriend and record a lis pendens on the property so that new boyfriend is not able to sell the home.
One catch, If the beneficiary listed on the TOD deed dies before the granter, then the TOD deed is worthless and the property would be probated.
Also, one of the major disadvantages of the TOD deed is that the home will be subject to Medi-Cal recovery. While the legislature intended this new law to help low income seniors who can not afford to pay the legal fees required to draft estate planning documents, it is the low income seniors who are most likely to use Medi-Cal and perhaps lose their homes to a Medi-Cal lien.
As to married people, the best way to avoid probate on a home is to hold title as joint tenants or community property with right of survivor.
So while the TOD deed provides a possible solution for estate planning purposes for low income seniors, it leaves them open to folks who can and will commit fraud and abuse against the elderly. So please use this tool wisely.
The Law Office of Thomas Hogan is an Estate Planning specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with Wills, TOD, or Estate Planning in Modesto CA. Call (209) 214-6600 to speak with our Modesto California Attorneys.
by Tom Hogan
If child support or spousal support is not paid, parties often ask their attorney to being a Contempt Action. The actions themselves are not as simple as one might think. Often the result is frustrating for the petitioner as the support due is not readily paid by filing a Contempt Action.
In order to be to successful in filing for contempt(s), one must strictly adhere to rule of procedural due process and the set forth the required elements of proof. As such, there must be a valid underlying order which is clear and unambiguous and it must be in writing; the defendant or citee must have knowledge of the court order; the defendant or citee must have the ability to comply with the court order; the citee must have willfully intended to violate the order; declarations must be provided to outline the issues; the Contempt Action once filed must be personally served; the citee must be arraigned; an arraignment and plea are conducted and a trial if held is subject to strict time limitations. Specific findings must be made at trial as to the facts upon which the court finds the citee guilty of contempt. The court must make a finding that the citee had the ability to comply with the underlying order.
What happens more often than not is that the court imposes purge terms as the citee is not able to pay or has limitations on bringing the outstanding support current. This is the frustrating part for those expecting to receive support is that what is collected to due to be collected is a fraction of what is owed. So the take away, is be careful on filing contempts and to be judicious, because one may well be out attorney fees with little to show for the efforts. Family Law court, despite the wishes of one filing the contempts, will not throw a party in jail for failure to comply.
Thomas Hogan is a Family Law specialist who is prepared to help. Feel free to contact us if you are considering filing for contempt in Modesto CA. Our attorney is a Family Law Specialist in Stanislaus County and is also a licensed Certified Public Accountant (CPA). Call (209) 214-6600 to speak with our Modesto California Family Attorneys.
by Tom Hogan
Spouses who are seeking spousal support as well as spouses who become obligated to pay support, must keep in mind issues of domestic violence (ie any history of domestic violence between the parties or against either party’s child) is a factor under Family Code 4320 in determining spousal support.
Under Family Code 4320 a court must consider a variety of specified circumstances in making an order for spousal support. Among these is documented evidence of any history of domestic violence, as defined in Family Code 6211, between the parties or perpetrated by either party against either party’s child.
Under new legislation, even if one pleas out as “no contest”, this is considered and included as documented evidence of domestic violence.
The Law Office of Thomas Hogan in Modesto CA is here to help. Feel free to contact us if you are considering a divorce from your spouse or legal separation. Thomas P. Hogan is a Family Law Specialist in Modesto California, don’t settle for anyone when determining your rights. Call (209) 214-6600.
by Tom Hogan
We get many calls about annulment of a marriage. There has been fairly recent case authority on this matter in Ceja V Rudolph & Sletten, Inc (2013) 56 C4th 1113. So if you want to annul your marriage only the party who believed in good faith that the marriage was valid will be declared a putative spouse, where the court will divide property only on the request of a party who the court has deemed is a putative spouse. On what constitutes a good faith belief in the validity of the marriage, one must present evidence under the subjective standard (ie duration of marriage; children; sharing property and accounts; public communication of marital status; wages of each party used for the benefit of the community).