DeWoskin Law Firm

DUI – WHAT IS THE TEN (10) DAY RULE?

Daniel DeWoskin — Thu, 02 Feb 2012 04:33:09 +0000

DUI – WHAT IS THE TEN (10) DAY RULE? www.atlantatrial.com

Arrested for DUI? Be aware of the “10 day rule”!

It could affect your ability to drive in the state of Georgia.

The “Ten Day Rule,” as it is sometimes called, refers to the requirement that a driver who is notified that his/her license is being suspended for either a.) Submitting to a state administered breath test that resulted in a blood alcohol content of 0.08 (Georgia legal limit) or higher OR b.) refusing to submit to a state breath test has ONLY TEN DAYS to appeal the suspension of his/her Georgia drivers license.

If an appeal and a request for a hearing is not timely filed, along with a filing fee of $150.00, the driver’s license is suspended after the expiration of thirty (30) days.

Depending on whether the person submitted to the breath test, there may be ways in which the person can avoid the suspension of his/her privileges for a full year. Simply put, whenever a person is arrested and charged with DUI, it is extremely important to seek the advice of qualified counsel at the earliest possible moment. Even taking a few days to decompress or form a game plan can compromise the driver’s case in very serious ways.

Daniel DeWoskin Trial Attorney Decatur Georgia Daniel DeWoskin Trial Attorney Decatur Georgia - Personal Injury, Consumer Debt Collection Lawsuit Defense, Criminal Defense DeWoskin Law Firm, LLC 309 Sycamore St Decatur, GA 30030 (404) 987-0026
http://www.atlantatrial.com Daniel E. DeWoskin, trial attorney serving the DeKalb, Gwinnett, Fulton and Atlanta metro areas. Handling cases including but not limited to personal injury, car wrecks, automobile collisions, insurance bad faith claims, debt collection lawsuit defense, and criminal defense.

DUI – Refusing the Breath Test

Daniel DeWoskin — Thu, 02 Feb 2012 04:18:17 +0000

DUI – Refusing the Breath Test www.atlantatrial.com

DUI – WHAT HAPPENS IF I REFUSE TO SUBMIT TO A BREATH TEST?

You’ve been pulled over in a routine traffic stop. The officer suspects you may be under the influence of alcohol and asks you if you will submit to a breathe test. This is among the most difficult decisions that my clients and other drivers must make when asked by a law enforcement officer on the side of the road. One of the most common questions that I am asked in regards to my DUI defense cases is what happens when my clients decide not to submit to the breath test.

To begin, there are two distinct types of breath tests. There is what is often called a preliminary breath test, or PBT, which is only admissible in court to show that there was a presence of alcohol in a driver’s system. This is often redundant for the officer when the driver admits to having had two drinks, or admits to having drank any alcohol. The other test is the state administered breathalyzer test, which is a much more complicated piece of machinery that requires state certification and training to operate.

In order for the officer to ask for a driver to submit to this breathalyzer test, several conditions must be met. There must be probable cause for the stop of the driver. The driver must be under arrest. The driver must be read what is called “implied consent,” which is a very specific notification advising the driver on what might occur if he/she refuses to submit to the test. There are other requirements as well. If these conditions are not met, the officer risks that the results of the test may be inadmissible as evidence at a later trial.

Many drivers, when faced with the question of whether or not to submit to the test, are not in the best position to make an informed choice. These drivers are most often in an extremely high-stress situation. They are terrified about what is happening and unsure about what will happen next. They may not know how long they will be in custody and are thinking about what they will tell their spouses, their bosses, their parents, or whomever else may be expecting them next. The drivers are almost uniformly denied the opportunity to consult a lawyer and ask what they should do. Thus, many agree to submit to the test out of fear of the consequences if they refuse.

The consequences for refusal are significant. If a driver refuses to submit to the state administered test and the officer has met the precondition requirements, the driver’s license to drive can be suspended for one year. This suspension is different from the suspension that would take place upon a conviction for DUI and does not come in as evidence in the criminal case. In fact, this suspension is the subject of a separate court and civil hearing, if the driver files the appropriate paperwork and appeals the officer’s notice of suspension for failure to consent to the test.

If this sounds complicated, it is because there are a lot of moving parts and considerations that must be made within a specific time frame. In certain cases, it may be in the driver’s best interests to refuse the test, endure a license suspension, and maintain a better chance of success in taking the case to trial. If the driver submits and there is a test result of 0.08 or higher, the prosecution’s case against the driver is often much, much stronger. This is true because regardless of how well a driver appears to handle field sobriety evaluations on a police car video, the jury is authorized to convict a driver of DUI when he/she has an unlawful blood alcohol content, or BAC.

So, while it is difficult to say whether or not the suspension will stick or be upheld in court, the most serious consequence for a refusal to submit to the state administered test is a one year suspension of the person’s driving privileges. These considerations impact how the criminal aspects of the case should be handled and typically change the strategy on handling the case depending on the jurisdiction.

Avoid the Trap with Time-Barred Debts

Daniel DeWoskin — Thu, 02 Feb 2012 03:43:34 +0000

Avoid the Trap with Time-Barred Debts www.atlantatrial.com

Just Because the Statute of Limitations has passed on debt it doesnt mean debt collectors will stop trying to get you to pay!

Time-barred debts are debts for which the statute of limitations has passed. What this means is that a lawsuit cannot legally be filed against you if the debt is too old and the collector has failed to file a lawsuit in time. This does not mean, by any stretch of the imagination, that debt buyers and collectors will not still pursue you. If they do so, depending on the manner in which they go about their collection efforts, they may be in flagrant violation of the law.

In Georgia, the Statute of Limitations for debts, generally, is four years for actions on an account and six years for actions on a contract.

It is up to you as the consumer to ask the right questions, to request the right documentation, and to take the appropriate action when you are contacted by a debt collector. Do not trust the collector to have accurate information and never, NEVER, take their word for it without seeing records of the account or debt. These debt collectors know that it is much easier to get consumers to pay when they put you in fear of being sued, jailed, or some other frightening situation. Unfortunately, when debt collectors act within the boundaries of the law, they know that their job of collecting is much more difficult. People don’t tend to pay just because the debt collectors shame them or simply ask.

If the consumer does try to pay something or perhaps generates some new activity on the account or debt, the statute of limitations may start all over. This is a big risk and has given rise to clever new ways for collectors to engage consumers in their collection efforts. Not to mention, the debt collector now knows you’ll pay and may ramp up efforts to increase those payments.

As a general rule, never speak with a debt collector if they are unwilling to provide documentation of the validity or verification of the debt. When you ask questions and they respond with statements like, “We’ve given you plenty of time” or “We’ve already sent you those documents,” tell them to resend them and hang up the phone. Always document who is calling, what company they work for, and what account number goes with the debt they are seeking payment for.

You will find that they are often completely unwilling to provide some or all of this information. They may become more aggressive in their tone or language as you demand this information. However, this does not mean that their case is strong, but is instead a clear indication that there is something wrong with the debt. Either they cannot prove the debt or it may be time-barred. In fact, they may resort to wishing you luck in court, telling you they are going to forward it to the “legal department,” or suggesting some other action which would be in clear violation of federal law including the Fair Debt Collection Practices Act (FDCPA).

Sometimes they might send you documents titled “Bill of Sale” or “Assignment”. Be wary of documents that do not reference your name or debt specifically. It is also not uncommon for these debt collectors to put affidavits with these documents of one of their employees who swears they are personally familiar with the account records. Sometimes the debt collector’s own documents produced to you clearly show they are suing you on a time barred debt.

Occasionally when these collection efforts cross the line, the companies responsible are held accountable for their actions. A recent situation cost Asset Acceptance, a large debt buyer company, $2.5 million dollars. See the Federal Trade Commission’s Recent Press Release on Asset Acceptance (January 31, 2012).

You may wonder why they continue to conduct themselves this way and the answer is simple. It works. They make lots of money by engaging in illegal collection activities and preying on consumers. They make so much money that it is well worth the risk of getting caught. Think of criminals who rob banks, stores, and people. Sometimes they get caught and it gets on the news. Sometimes they go to prison. Still, just as sure as the sun will come up tomorrow and the day after, someone will try to rob a bank or a store.

Finally, as always, knowledge is power. Don’t be intimidated by a debt collector. Debt collectors hate it when consumers are knowledgeable and diligent in asking for proper documentation of the debt. Gather all the information you can. Do your own research as best you can, and then do not be afraid to speak to a consumer attorney if you think you are being victimized by illegal collection activities.

Debt Collector Portfolio Recovery Associates Named in top 10 Call Spammers of 2011

Jill — Fri, 20 Jan 2012 03:01:08 +0000

Debt Collector Portfolio Recovery Associates Named in top 10 Call Spammers of 2011 www.atlantatrial.com

Portfolio Recovery Associates was named one of the top ten most aggressive call spammers of 2011 according to a December 2011 article by White Pages. Portfolio Recovery Associates is a junk debt buyer who calls, mails, and sues consumers across the country usually for charged-off or old credit card debts. According to the article, the numbers most frequently associated with this company are (757) 275-8578, (757) 506-0177 and (731) 256-7106.

Nothing is more annoying or embarrassing than getting constant unwanted debt collection phone calls. No one deserves to be harassed by debt collectors. If you are being harassed by Portfolio Recovery Associates or being sued by Portfolio Recovery Associates, contact us today. You may have a case, legal defenses or counterclaims against Portfolio Recovery Associates for violations of the Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), Georgia Fair Business Practices Act, or Telephone Consumer Protection Act (TCPA).

See full article: WhitePages Identifies the Ten Most Aggressive “Call Spammers” of 2011 (December 22, 2011)

Consumer Debt Collection Resources

Jill — Fri, 16 Dec 2011 02:52:16 +0000

Consumer Debt Collection Resources www.atlantatrial.com

Become an Informed Consumer, Debt Collectors hate it….

Debt collectors hate informed consumers – they are the ones that can document violations and hold them accountable for their actions. Unfortunately, the vast majority of consumers are not aware of the consumer laws in place to protect them and aren’t able to recognize those violations being committed by debt collectors. The following are resources from the Federal Trade Commission discussing different aspects of consumer debt collection.

The Fair Debt Collection Practices Act [Download PDF]
Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration, Federal Trade Commission, (July, 2010). [Download PDF]
Collecting Consumer Debts: The Challenges of Change, Federal Trade Commission, (2009). [Download PDF]
2009 Workshop Report: Collecting Consumer Debt, Federal Trade Commission, (2009). [Download PDF]
Report to Congress on administering and enforcing the FDCPA, Federal Trade Commission, (2010). [Download PDF]
Amicus Brief in U.S. District Court Opposing Proposed Class Action Settlement with Debt Buyer Midland Funding LLC, Federal Trade Commission, (June 23, 2011). [Download PDF]
Debt Collection FAQs: A Guide for Consumers, Federal Trade Commission. [Website]
Time-Barred Debts, Federal Trade Commission. [Website]
Debt Collection Workshop 2.0, Federal Trade Commission, (April 28, 2011). [Download PDF]
Final Policy Statement on Collecting Debts of the Deceased, Federal Trade Commission, (July 21, 2011). [Website]
Fair Debt Collection Practices Report to Congress, Federal Trade Commission, (March 21, 2011). [Website]
FCRA Direct Dispute Rule and FDCPA cease communication requests, Federal Trade Commission, (June 23, 2009). [Download PDF]