Frequently Asked Questions
FREQUENTLY ASKED QUESTIONS ABOUT CRIMINAL DEFENSE
- What is the difference between a felony and a misdemeanor?
- What is the "presumption of innocence"?
- If I am charged with a crime, will I have a trial by a jury?
- If I am innocent, can I testify in my own defense?
- Should I contact an attorney if I’m under investigation but have not been charged?
- What is an arraignment and do I need a lawyer at my arraignment?
- What types of criminal cases do you handle?
- Why should I choose your firm to represent me in a criminal case?
FREQUENTLY ASKED QUESTIONS ABOUT DWI
- What driving while intoxicated indicators do police look for?
- What signs does an officer look for after he stops me?
- Should I tell a police officer I have been drinking if he asks?
- Can I speak to an attorney before I take a field sobriety exercise?
- What should I do if I am asked to take field sobriety exercises?
- What happens if I refuse to take a chemical test ?
- What happens if I provide a breath, blood or urine sample in excess of .08?
- If the officer never gave me a Miranda warning, can I get my case dismissed?
- Do I need a lawyer?
- How much will a lawyer cost?
FREQUENTLY ASKED QUESTIONS ABOUT PERSONAL INJURY
- What should I do after an accident?
- Should I talk to police?
- What if I do not realize I’m injured until the next day?
- How soon should I call an attorney?
- Do I have a case?
- Does it cost me anything to speak to a lawyer?
- How much is my case worth?
- Should I accept an insurance company’s settlement offer?
- Can I settle without going to court?
- How long will it take to conclude my case?
- How much will the legal process cost?
FREQUENTLY ASKED QUESTIONS ABOUT ESTATE PLANNING
- What is a Durable Power of Attorney?
- What can an agent do?
- What about healthcare decisions?
- How is a power of attorney for health care different from a living will?
- What if I become incapacitated without having executed powers of attorney?
- How is a guardian appointed?
- What is probate?
- Does all property have to go through probate when a person dies?
- Who handles probate?
- What is estate planning?
- What does an estate plan include?
- How often should I review my estate plan?
- What are trusts?
FREQUENTLY ASKED QUESTIONSABOUT STARTING A BUSINESS
- Why should I consider organizing an LLC or incorporating?
- How do corporate entities and LLCs differ?
- What entity type is best for my business?
- Where should I incorporate or organize my business?
- Can I incorporate or organize an LLC on my own?
FREQUENTLY ASKED QUESTIONS ABOUT CRIMINAL DEFENSE
- What is the difference between a felony and a misdemeanor?
A misdemeanor is a crime that is punishable by up to one (1) year in the county jail and a fine up to a $1,000, or any combination thereof. Felonies are more serious crimes which are punishable by more than one (1) year in the Missouri Department of Corrections. Prison sentences on felonies range anywhere from one year all the way up to life, depending on the classification of the felony.
An infraction is punishable by a fine only, not to exceed $200 and is not considered a crime. Even with an infraction, however, hiring an attorney is advised.
- What is the "presumption of innocence"?
All people accused of a crime are legally presumed to be innocent unless and until they are proven guilty, either by a trial or as a result of a plea of guilty. This presumption means not only that the prosecutor must convince the judge or jury of the defendant's guilt beyond a reasonable doubt, but also that the defendant need not say or do anything in his own defense, if they choose not to. The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult, but not impossible, for the government to put innocent people behind bars.
- If I am charged with a crime, will I have a trial by a jury?
The U.S. Constitution gives a person accused of a crime punishable by a sentence longer than six months the right to be tried by a jury.
- If I am innocent, can I testify in my own defense?
The 5th Amendment to the U.S. Constitution gives every criminal defendant in a criminal proceeding the right not to testify, and jurors will be told that they cannot assume anything negative if the defendant decides to exercise his or her right to remain silent. A criminal defendant can testify if they choose to do so subject to certain ethical considerations.
An accused may want to remain silent at trial depending on his or her prior criminal history because a prosecutor may be able to bring this information to light on cross-examination. Jurors may harshly judge a defendant with a poor demeanor or may not believe one who is being truthful.
- Should I contact an attorney if I am under investigation but have not been charged?
Absolutely. Representation at an early stage in a case can increase the odds of no charges being filed or increase chances of charges being reduced. An attorney can also protect your rights during the investigation and offer keen insight into issues such as making a verbal or written statement to the police or other law enforcement, submitting to a lie detector test, etc.
- What is an arraignment and do I need a lawyer at my arraignment?
The arraignment is where you first appear before a judge and the judge reads the formal charges to you. Once the formal charges are read to you the judge will ask you to enter a plea of guilty or not guilty to the offense(s) charged. If you are represented by counsel, your attorney may attend your arraignment for you. If you are not represented by counsel, you must personally attend your arraignment or a warrant may issue for your arrest. Being represented by counsel should assist with protecting your rights, as well as answering any questions one may have concerning substantive or procedural matters.
- What types of criminal cases do you handle?
We handle all types of criminal charges, both felony and misdemeanor, at the state, county, and municipal level. We do not handle federal criminal charges.
- Why should I choose your firm to represent me in a criminal case?
When you contact our firm regarding the defense of criminal charges, an attorney, not a paralegal, legal assistant, or secretary, will discuss all aspects of your case with you, including the sentence for the charges(s) and the potential defenses. There is no charge for the initial consultation, which can take place either in the privacy of one of our offices or over the telephone.
We have significant criminal defense experience and work to protect the rights of our clients. We conduct a thorough investigation, present an honest assessment of your case and provide aggressive and intuitive legal representation.
FREQUENTLY ASKED QUESTIONS ABOUT DWI
- What driving while intoxicated indicators do police look for?
Police look for a wide variety of clues that a driver has been drinking. They include wide turns, crossing or straddling the center line, near collisions, weaving, swerving, driving too slowly, responding to traffic signals too slowly, stopping for no reason, following too closely, inconsistent turn signal use, driving without lights, and alternating speeds.
- What signs does an officer look for after he stops me?
Typical signs of intoxication include a flushed face; red, watery or glassy eyes; an odor of alcohol; slurred speech; fumbling for identification and insurance documents; swaggering; combative attitude; disorderly clothing; inability to understand or follow directions; and uncertainty about your location or time.
- Should I tell a police officer I have been drinking if he asks?
Police cannot force you to answer incriminating questions. Any incriminating information you give may hurt your criminal case. You may simply say you prefer to speak with an attorney before answering any questions, although you have no right to speak with an attorney at that point. Your apparent “lack of cooperation,” however, may aggravate the police officer.
- Can I speak to an attorney before I take a field sobriety exercise?
You have no right to speak to an attorney prior to deciding if you will submit to field sobriety tests.
- What should I do if I am asked to take field sobriety exercises?
You are not legally required to take any field sobriety tests. You may choose to simply say no and not offer the officer any additional evidence of intoxication. However, according to case law in Missouri, evidence of refusing to submit to standardized field sobriety tests may be introduced against you as evidence of intoxication.
Many states, including Missouri, train law enforcement officers according to the National Highway Traffic Safety Administration standardized field sobriety tests. The three tests that have been approved by NHTSA as standardized are:
- Horizontal Gaze Nystagmus test (otherwise known as the pen or finger test)
- Walk-and-Turn test (also referred to as the heel-to-toe test)
- One-Leg Stand test
Each of these tests must be administered in a precise manner according to the NHTSA standards. Each of the tests must also be scored in a precise manner according to the NHTSA standards. If the tests are not administered or scored properly, or if any of the elements of administration or scoring are altered, the validity of the tests can be compromised to the point where a court would not lend any weight to the evidence when it is introduced. Only an experienced DWI defense attorney knows the proper administration procedures required by NHTSA. Only an experienced DWI defense attorney knows how to properly cross-examine a police officer to determine if the SFSTs were properly administered and scored. Don’t trust what is arguably the most important aspect of a DWI case to just anyone - you need an experienced DWI defense attorney.
- What happens if I refuse to take a chemical test?
You face at least three (3) adverse consequences if you refuse to submit to a breath or blood test (or urine if neither is available or if drugs are suspected):
(1) Your driver’s license may be suspended for one (1) year for a first refusal. You may qualify for a hardship after ninety (90) days of the revocation has passed.
(2)Your license will be revoked for a period of one (1) year for a second refusal that occurs within five (5) years of a first alcohol related contact. You will not qualify for a hardship under a one (1) year revocation.
(3) The fact of refusing can be introduced at trial as evidence of "consciousness of guilt." Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.
Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing.
- What happens if I provide a breath, blood or urine sample in excess of .08?
Your driver's license may be suspended for thirty (30) days. For that thirty (30) days you will have no driving privilege. You may qualify for a limited driving privilege for the next sixty (60) days on a first administrative action. Your license will be revoked for a period of one (1) year for a second administrative action that occurs within five (5) years of a first alcohol related contact. You will not qualify for a hardship on a one (1) year revocation.
- If the officer never gave me a Miranda warning, can I get my case dismissed?
Not necessarily. If an officer fails to inform you of your 5th Amendment right to remain silent or a "Miranda" warning after he arrests you, prosecutors will likely not be permitted to use any statements you made following your arrest in a trial on the matter. That does not, however, mean that you cannot be prosecuted or that a dismissal will occur. A Miranda violation potentially suppresses statements, however, it does not necessarily cause an action to be dismissed.
Of more significance in most cases is an officer’s failure to advise you of the Missouri Implied Consent Law - that is, your legal obligation to take a chemical test and the consequences if you refuse. This can affect the suspension of your license.
- Do I need a lawyer?
It is possible, but not advisable, for you to represent yourself if you are charged with driving while intoxicated. DWI defense is very complex, constantly changing, and a conviction or plea of guilty comes with increasingly serious consequences. Procedural, evidentiary, constitutional, sentencing and administrative license issues can present challenges for those inexperienced in DWI defense.
A qualified DWI defense attorney can take a host of beneficial actions, including reviewing the case for defects, suppressing evidence, compelling discovery of such things as calibration and maintenance records for the breath machine, having blood samples independently analyzed, negotiating for a lesser charge or reduced sentence, obtaining expert testimony for trial, perform depositions, and contesting the administrative license suspension, among other things.
- How much will a lawyer cost?
Multiple factors can impact the cost of your case – whether your charge is a misdemeanor or felony, whether you have any prior arrests, convictions, or prior pleas of guilty, whether an expert is needed, and if the case will be resolved by plea bargain or by trial. We will provide a written estimate at your request and explain any pertinent terms to you.
FREQUENTLY ASKED QUESTIONS ABOUT PERSONAL INJURY
- What should I do after an accident?
If you are injured, seek immediate medical attention. If you are able to remain on the scene, whether it be a car accident or an accident on someone’s property, attempt to gather as much information as you can – identify witness and obtain their statements, take photos if you have a camera, and make detailed notes about what happened.
- Should I talk to police?
You are required to give a statement to police. However, you should avoid talking to a person whom might be responsible or negligent – the other driver, the owner of property where the incident took place – or their insurance representative.
- What if I do not realize I’m injured until the next day?
Some injuries do not immediately produce symptoms. As soon as you realize you have an injury related to an accident, seek medical help. It is imperative that medical records document your injury from the earliest possible date.
- How soon should I call an attorney?
You should consult an attorney as soon as possible after being injured. In most cases there are time limits for filing claims after an injury occurs, and if this deadline passes, your claim could be dismissed. In addition, finding witnesses and gathering evidence to support your case becomes more difficult the longer you wait.
- Do I have a case?
Only an experienced injury attorney can assess the facts of your case and determine if you are due compensation. Don’t hesitate to call our office for free consultation. You may have a case, even if another attorney said you did not.
- Does it cost me anything to speak to a lawyer?
No. We offer a free initial consultation, during which we will assess your case and discuss all available alternatives.
How can a personal injury attorney help me?
An attorney experienced in representing personal injury victims and negotiating with insurance companies can analyze your case and determine fair compensation for your losses, including past and future losses. Medical problems caused by an accident may not be fully recognized for months or even years after the accident. Losses from medical bills, decreased earning potential, and many other problems can raise the value of your claim. Further, dealing with medical bills and insurance company negotiations on your own can be a harrowing experience.
- How much is my case worth?
A host of factors impact the amount of your compensation, including the extent of your injuries, physical and mental pain and suffering, the amount and length of medical treatment, economic hardship or financial loss, decreased earning potential, and physical impairment and/or disfigurement. An experienced personal injury lawyer can best estimate the value of your claim.
- Should I accept an insurance company’s settlement offer?
Before accepting a settlement, it is always in your best interest to consult an attorney. Adjusters work for the insurance company, not for you. Their job is to settle the matter for the lowest possible cost to the company. An attorney will work for you and ensure that a settlement results in full compensation for your injuries, including money for unanticipated medical expenses.
- Can I settle without going to court?
Many injury claims can be settled for their full value through negotiation, mediation or arbitration, without you having to go to court. However, some complex cases, or cases the insurance company refuses to settle, may require that you participate in legal proceedings.
- How long will it take to conclude my case?
Each case is unique. Generally, your medical treatment should be complete, and all your bills accounted for before a settlement is reached. You have only one chance to settle your case, therefore, it is vital that all future medical expenses be accounted for in any settlement. This could take months or more. If a lawsuit is filed, completion could take years, depending on the complexity of the case and the court docket.
- How much will the legal process cost?
If we take your case, we work on a contingency fee basis. This means you owe us nothing unless we recover on your claim. We will be happy to provide you with a complete assessment of what each of your options might cost. This figure will depend on the facts of your case and if a fair settlement is believed possible.
FREQUENTLY ASKED QUESTIONS ABOUT ESTATE PLANNING
- What is a Durable Power of Attorney?
A power of attorney is a document you sign while competent that authorizes another person to act on your behalf. A Durable Power of Attorney allows that person, known as your agent, to act even if you later become incompetent. A durable power can take effect when you sign it or after some triggering event, such as when two physicians confirm that you are not capable of handling your affairs.
Be sure to name someone you absolutely trust to follow your wishes and handle your finances honestly.
- What can an agent do?
Your agent may be able to sign legal documents in your place, buy and sell real estate for you, pay your bills, and take other financial actions on your behalf, depending on what you specify in the document.
- What about healthcare decisions?
State law allows you to create a durable Power of Attorney for healthcare that gives your agent the authority to make health care decisions for you if and when you are unable to make them.
- How is a power of attorney for healthcare different from a living will?
A living will tells doctors your wishes regarding administering life-sustaining procedures or non-orally ingested nutrition and hydration if you have a terminal illness, an end-stage disease, or if you are in a persistent vegetative state. You may direct that such procedures be withheld or withdrawn, or you may direct that they be used to sustain your life. You also may appoint an agent to make most decisions related to your healthcare if you are unable to.
- What if I become incapacitated without having executed powers of attorney?
If you are no longer able to manage your property or care for yourself, and you have not signed a power of attorney or named a healthcare agent, any interested individual (for example, a family member, agency, or healthcare provider) may petition the court to appoint a guardian to act on your behalf. The guardian will be responsible for managing your financial assets and may perhaps be responsible for decisions related to your care as well. A single individual may serve as both guardian of the estate and person, or the court may appoint separate individuals.
- How is a guardian appointed?
Any relative, state official, or other person may ask the court appoint a guardian. If you are the person whom is alleged to be incompetent, you must be informed of the petition for appointment of a guardian and of the scheduled time for hearing. The court will appoint a guardian ad litem to interview you and others, investigate, and make a recommendation to the court as to if it is in your best interests to have a guardian. You also have the right to be represented by an attorney.
- What is probate?
Probate is a legal process that takes place after someone dies. It includes:
- Proving in court that a deceased person's will is valid (usually a routine matter)
- Identifying and inventorying the deceased person's property
- Having the property appraised
- Paying debts and taxes, and
- Distributing the remaining property as the will (or state law, if there's no will) directs.
- Does all property have to go through probate when a person dies?
No. Most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure.
Additionally, property that passes outside of your will -- say, through joint tenancy or a living trust -- is not subject to probate.
- Who handles probate?
Usually, the personal representative named in the will is responsible. If there is no will, or the will fails to name a personal representative, the probate court names an administrator to handle the process. Most often, the job goes to the closest capable relative or the person whom inherits the bulk of the deceased person's assets.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
- What is estate planning?
Estate planning helps ensure that your assets will pass to those people you designate in a manner that will give them the maximum benefits, helps reduce or eliminate the tax burden on your estate; and allows your assets to pass to your chosen beneficiaries without the inconvenience, cost and delay of probate.
- What does an estate plan include?
An estate plan may include a will or trust, a written agreement concerning the status of your assets, a directive to your physician or a durable power of attorney and final instructions.
- How often should I review my estate plan?
An estate plan should not be considered permanent. Conditions, as well as your desires, may change. Barring an important life change that warrants immediate review, an estate plan should be reviewed at least every two or three years. Life changes that might warrant review include birth, death, marriage, divorce or disability of you or a beneficiary, a substantial change in your net worth or that of your beneficiary, purchase or sale of a business or moving your residence to a different state.
- What are trusts?
A trust is a relationship in which a person called a trustor transfers an asset to another person, called a trustee. The trustee then manages and controls this asset for the benefit of a third person, called a beneficiary.
Trusts offer a number of important benefits, including:
- Probate Avoidance
- Avoidance of conservatorship
- Control of distribution and management of assets during life and after death
- Death tax avoidance or reduction
- Capital Gains Tax Savings
- Retention of privacy of family assets and finances
- Creditor protection for your beneficiaries;
FREQUENTLY ASKED QUESTIONSABOUT STARTING A BUSINESS
- Why should I consider organizing an LLC or incorporating?
A corporate structure and an LLC offer you increased protection from liability. For example, creditors may not legally pursue your personal assets to pay your business debts.
- How do corporate entities and LLCs differ?
Corporate entities have considerably more formal structures and require regular meetings; LLC structures are more informal and do not require regular meetings.
- What entity type is best for my business?
A number of factors should be considered before settling on an entity type. Our business formation attorneys will discuss your business philosophy, market conditions, and type of sector you will deal in to determine the entity that will best suit your business.
- Where should I incorporate or organize my business?
This depends on where the business will have its primary address, and where most of the business activity will take place.
- Can I incorporate or organize an LLC on my own?
Certainly, but the process can be complicated and time-consuming. Our business formation attorneys are extremely familiar with the process. We can take care of every aspect and ensure it is done correctly so you can concentrate on growing your business.
With offices in Hillsboro and Festus, Missouri, The Lowry Law Firm serves the criminal defense, personal injury, estate planning and business formation needs of Jefferson County, Washington County, Saint Francois County and Sainte Genevieve County.
