Answering Your Frequently Asked Questions
At the Jon Louis Wilson Law Office, we believe that helping our clients find their way through complex legal matters is the most important part of any case. Below are answers to frequently asked questions that may help to answer your legal questions.* However, every case is unique and we strongly recommend that you schedule an appointment to consult with one of our attorneys to ensure that every option is explored.
You can reach our Lockport office online or by phone at 716-302-0027 to arrange a consultation.
When am I too drunk to drive?
New York state now observes a lower threshold for intoxication of .08% blood alcohol content. If your blood alcohol content is .08% or more, then you are considered to be intoxicated and too drunk to drive. However, even one drink may impair your ability to drive, particularly if you are ill or taking medication. Separate rules apply for individuals less than 21 years of age whose blood alcohol content is less than .08%.
What are the consequences of submitting to a chemical test to determine my blood alcohol level?
If the chemical test results of your blood alcohol level are .08% or more, then your license to operate a motor vehicle will be suspended upon your arraignment regardless of whether you plead guilty to a criminal charge or have been previously convicted of an alcohol-related driving violation. This suspension will be in effect during the pendency of the alcohol-related driving charges filed against you, although you may be eligible for a conditional license after the first 30 days.
You may also be eligible for a hardship exemption under certain circumstances. If you refuse to submit to a chemical test, your license can be immediately suspended, and following a hearing, which must be scheduled within 15 days, it may thereafter be revoked. You cannot apply for a new license sooner than six months after such revocation.
If I suffer personal injury in an automobile accident or other mishap, will I have to pay an attorney to pursue a claim for my injuries?
Payment of an attorney for legal services in connection with a personal injury claim is based upon a contingency fee. This means that the attorney will charge a fee only upon the successful conclusion of your claim. The contingency fee is based upon a percentage of the amount the attorney obtains for you, and that percentage varies depending upon the type of case. Some attorneys will advance expenses associated with the lawsuit as they are incurred, others will not.
What is ‘negligence’ and when might I have a claim in negligence against another person?
There are many different types of lawsuits or causes of action that can be sued in a court of law. A lawsuit that arises from a claim that another person’s careless or negligent conduct caused you to suffer damages (personal injury, property damage, loss of enjoyment of life, etc.) is a lawsuit based on negligence.
Four elements are necessary to establish negligence:
1. There must be a duty of care.
2. This duty of care must be violated.
3. The violation of this duty of care must be the proximate cause.
4. Of the damages suffered by the claimant. An example of negligence is an automobile collision caused by one driver running a stop sign and thereby causing property damage and/or personal injury to another motorist. The “duty” is to obey the rules of the road and the vehicle and traffic law. The “violation of duty” is the running of the stop sign. This violation of duty must be the “proximate cause” (that is a “substantial factor”) in bringing about the “damages” suffered (whether it be a smashed fender or a broken arm).
Additional requirements apply to automobile collisions, including that the claimant establish that he or she suffered a “serious injury.” Other types of negligence cases include slip-and-fall mishaps, dog bight cases, medical malpractice and products liability. Different requirements and/or time limitations may apply to different types of negligence lawsuits.
If I am arrested by the police, will I have a criminal record?
An arrest, by itself, will not result in a criminal record. You must be convicted of a crime before you will suffer a criminal record. A crime can be a felony (major crime punishable by imprisonment for more than one year), or a misdemeanor (a lesser crime, punishable by up to one-year imprisonment). A conviction for a crime cannot occur unless you either plead guilty to the crime or were found guilty after trial. A conviction for a traffic infraction (such as a speeding violation or failing to stop at a stop sign) is not a crime and hence does not result in a criminal record. Harassment, disorderly conduct, or a simple trespass are not crimes and do not result in a criminal conviction.
Remember, the arrest is simply an accusation, it is not proof of guilt and not a criminal conviction. Speaking with a knowledgeable attorney about your criminal matter can help you protect your rights and limit the impact this situation has on your future.
How does a court determine the level of child support to be paid?
Whether your case is before the Supreme Court or family court, that court will set child support based upon the parent’s income pursuant to the Child Support Standards Act (CSSA). Generally speaking, the CSSA provides for two main categories of support: the “basic child support obligation” and certain “add-ons.”
For most people, the basic child support obligation is a percentage of their adjusted gross income, depending upon the number of children involved (17% for one child; 25% for two children; 29% for three children; 31% for four children and no less than 35% for five or more children). The add-ons, which are paid in addition to the basic support obligation, may include a share of child care costs, health care expenses not covered by insurance, and educational expenses, among others.
How does a court determine which parent gets custody of our children?
Absent an appropriate agreement between the parents, a court will award “primary residential” custody (which determines the parent that the child will live with primarily) of a child based upon a determination of what is in the child’s overall best interests. This is often a very difficult undertaking because the court will weigh any and all factors it deems relevant in making this extremely important determination.
The court may even appoint a “law guardian” (an attorney that separately represents the interests of the child or children) to provide additional input, as well as to represent the children in the court proceedings. The court will also make a determination as to whether the parties should share “joint” custody or whether one parent should have “sole” custody. This pertains to whether only one or both parents will have the right to have input into the decision-making process for the more important decisions affecting the child.
Can I get a divorce based upon my spouse and I having irreconcilable differences between us?
While most divorces happen for that very reason, the state of New York does not recognize “irreconcilable differences” as a valid “ground,” or basis, for granting a judgment of divorce. The domestic relations law sets forth six different grounds upon which a divorce may be granted:
- Cruel and inhuman treatment
- Living separate and apart from your spouse pursuant to a decree or judgment of separation for a period of one year or more
- Living separate and apart from your spouse pursuant to a written separation agreement (provided it is properly signed and the terms of the agreement have been adhered to)
- Your spouse’s confinement in prison for three consecutive years or more during the marriage
I was recently hurt on the job and have not been able to work. What can I expect from workers’ compensation?
There are several different benefits available to you under the workers’ compensation law. The two most basic categories are lost wage benefits and medical coverage. Lost wage benefits are calculated based upon your “average weekly wage” (generally speaking, the weekly average that you earned for the 52-week period before you were injured) and your degree of disability.
Currently, if you are totally disabled because of your work injury, the maximum lost wage benefit you are entitled to receive is $500 (more or less depending upon the exact date of your injury) per week or two-thirds of your average weekly wage, whichever is less.
Depending upon the severity of your injury, you may also be entitled to other benefits such as an award for your loss of use of the injured body part, job re-training and other similar benefits. Generally, under the workers’ compensation law, your work injury-related medical expenses are covered 100% by workers’ compensation insurance.
What can I do if my Social Security Disability application is denied?
You generally have the right to appeal within 60 days after receiving your denial notice. However, there are some exceptions so be sure to carefully read the denial notice because it will state the timeframe within which you may appeal.
There are also several different types or levels of appeals, depending upon the particular stage of your claim (i.e. request for reconsideration, request for hearing before an administrative law judge, federal court review, etc.). The process can be quite confusing for an applicant who is unfamiliar with the framework and rules of the Social Security Administration. It may be helpful, then, to contact a lawyer to discuss your Social Security Disability concerns at this point in time.
Unsure Of Your Options? We Can Help.
Our attorneys are ready and eager to speak to you about your legal situation and help you find a path forward. We offer free initial consultations because we want you to make smart choices before you take action.
For your convenience, you can reach a skilled legal professional at our firm via our online form or by dialing 716-302-0027.
* Please note that this website is designed for general informational purposes only. The information presented on this website is not and should not be construed to be formal legal advice nor as the formation of an attorney/client relationship.