Understanding The Fifth Amendment

Understanding the Fifth Amendment

            We have all heard the expression, “I plead the Fifth”, but what does that really mean? Let’s break it down. The first step in understanding what that means is knowing that it is referring to the fifth amendment to the Constitution of the United States and part of the Bill of Rights. You may be surprised to know that “pleading the fifth” also only refers to only one portion of this amendment. The fifth amendment has a place in both civil and criminal trials. Let’s take it apart and find out what it’s saying.

            The first line states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” This lengthy statement means you can be indicted, or accused of a crime, by the grand jury before any criminal charges have actually been made. This usually occurs when the grand jury determines that there is probable cause that the crime in question has been committed and by the suspect in question.

            Next the fifth amendment says, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” To make this explanation shorter, you are protected against a Double Jeopardy, or having multiple trials for the same crime. A second trial would not be permitted for the same criminal offense whether it be after an acquittal or a conviction.

            Then it goes on to say, “nor shall be compelled in any criminal case to be a witness against himself, not be deprived of life, liberty, or property, without due process of law”. Here is the infamous statement that leads to “pleading the fifth”. This portion of the fifth amendment protects against self-incrimination. When being asked questions as a witness in court, a person can use this right if they know that the answer they are thinking about giving may cause them to appear guilty of the crime in question. This statement is also reiterated in the Miranda rights usually read to a criminal when being arrested, although in some places the times to read someone their Miranda rights has changed.

            And lastly the fifth amendment states, “nor shall private property be taken for public use, without compensation”. This part of the fifth amendment I can explain best by referring to eminent domain. Eminent domain is used when the government takes property for public use but in return the property owner is compensated fairly. Just like eminent domain, the federal government can take private property as long as they compensate the property owner justly.

            There you have a quick run-down of the fifth amendment of the Constitution of the United States. There is obviously more in depth information but at least now you’ll know what your friend means when they tell you they “plead the fifth.

 - Allison McKenzie

Sources

Mr. Ryan Strasser, Fifth Amendment LII / Legal Information Institute (2017),

            https://www.law.cornell.edu/wex/fifth_amendment (last vistited Sep 7, 2018).

Marijuana’s Effect on Drivers and Nevada DUI Laws

Marijuana’s Effect on Drivers and How That Could Lead to a DUI

            Although, Marijuana is legal in the state of Nevada, a person can still receive a DUI if they are driving while under the influence of it. An article in Clinical Chemistry, “Cannabis Effects on Driving Skills”, recently did a study in which evidence suggested that smoking marijuana increased swerving between lanes and impaired cognitive function. This can cause accidents and in turn risk the lives of other drivers. Nevada Revised Statutes (NRS) 484C.110 states that it is unlawful for a person to operate a vehicle if they have a delta 9 THC blood level of two nanograms per milliliter or 11-OH-THC blood level of five nanograms per milliliter.

According to  “Detection Times of Drugs of Abuse in Blood, Urine, and Oral Fluid” THC can stay in a person’s blood for one to two days. The time can go up to 25 days for frequent smokers. Therefore, a driver could receive a DUI even if they are not high while driving. A police officer must first have reasonable suspicion that a crime has been committed or have witnessed a driver committing a traffic violation, such as swerving between lanes. The officer will then pull the driver over and observe them closely. If the driver smells of marijuana or if their pupils are dilated, the officer can arrest the driver and have their blood tested because Nevada law NRS 484C.160 states that a driver has implied consent the moment they get behind the wheel of a vehicle.

            See Byars v. State as an example. Here Byars was pulled over for speeding. The Nevada Highway Patrol Trooper smelled marijuana and upon questioning Byars he admitted to having smoked five hours prior. The trooper performed sobriety tests and forced Byars to submit to a blood test. Byars blood test results showed 4.5 nanograms of THC per milliliter found in his blood. Byars argued that the blood test went against his fourth amendment right. The state argued that Byars consented to the blood draw the moment he chose to drive on Nevada roads per NRS 484C.160. It was also ruled to be an extenuating circumstance because waiting for a warrant would have given time for the THC to dissipate from his blood. Byars was convicted of a DUI, which was a misdemeanor and can carry penalties of two days to six months in jail or community service, a fine between $400 and $1000, a three month suspension on their driver’s license, and mandatory DUI school for a first offense.

• Yuri Morales    

Child Neglect in Nevada

How does one define child abuse in the state of Nevada? The Merriam-Webster definition of neglect is to give little attention and or respect to and or disregard.  Neglect is also defined as to leave undone and unattended to.  Now how is the definition used in correlation to child abuse in the state of Nevada? It is clearly defined under the Nevada Revised Statue 200.508 with the Nevada Revised Statue 193.130 referenced as well.

The NRS 200.508 defines child abuse as a person who cause unjustifiable physical pain or mental suffering to a child under the age of 18 and or puts a child in a situation where physical pain and or mental suffering is done to under age child.  There are subsections to the NRS that define the law more in depth and how said penalties are applied for someone in violation of the statute.

It is considered felony child abuse if a minor under the age of 14 is sexually abused and or exploited in a sexual nature. The penalty of said abuse is life with parole and parole can be reached after 15 years being served. Now if it considered a class B felony the penalty for said abuse is 2 years and no more than 20 years.

Now if the mental and or physical harm is not substantial to the child and is a class b felony the terms of penalty now differ if the person has no criminal history of child abuse and is said first offense the person in question will receive a sentence of one year and no more of six years, if said person has a history and criminal record of child neglect the penalty for a class b felony is a minimum of two years and no more than fifteen years.

If a person who is responsible for the welfare of a child and willing knows and or allows the abuse to occur there are penalties for said person. If the child is under the age of 14 and has been sexually abused and or exploited the punishment is life with the possibility of parole after ten years being served.  If the abuse is not of the sexual nature the penalty for said person is a minimum of two years and no more than twenty years.

If the person that knew of the abuse and or allowed the abuse and is not substantial to the child in question can be consider a gross misdemeanor and not a felony as long as the person has no history of said crime. If the person has a history of child abuse of this degree and has not cause substantial harm to the child then the person is guilty of a Class C Felony under NRS 193.130. The time served for a Class C felony is one year and no more than five years with a fine of up to 10,000.00 dollars imposed unless specified differently.  

Jamie Ward

Nevada Community Property Laws

An Overview of Community Property in Nevada

Community property is defined as property owned jointly by a married couple. Nevada law regarding community property is outlined in NRS 123.220-259. These laws allow for a divorce decree to accurately represent how all property should be divided among a couple filing for divorce. Typically property is divided equally among parties, however this is not always the case. Community property may include but is not limited to items such as credit card debt, loans, land and vehicles.

In the absence of written agreements, all property obtained during a marriage is considered community property, with the exception of separate property. Separate property falls in to four categories under NRS 123.130. These are: property owned before marriage, property given as a gift, property acquired through probate and property awarded in a personal injury action. When separate property is comingled with community property the court must find a compelling reason to make an unequal distribution of property.

Occasionally there will be an unequal distribution of property as seen in the case of Wolff v. Wolff. Here Ms. Wolff was originally entitled to a portion of Mr. Wolff’s retirement funds. Because Ms. Wolff was receiving social security benefits the court ordered Mr. Wolff to pay Ms. Wolff her share of spousal support less his retirement funds. In a dissent by the Judge it is stated that the courts “...divide all separate and community property equitably after considering the totality of facts, and this, of course, includes Roberta’s substantial accrued social security benefits that she will reap in the future.”

Further still there are exemptions when a spouse has “wasted” or “secreted” community assets as in Putterman v. Putterman. Here the court finds compelling reason for unequal distribution of community property because Mr. Putterman had “secreted” several thousand dollars which had to be repaid at Ms. Putterman’s expense. The case states that the funds provided by Ms. Putterman “presents the kind of financial misconduct that can form the basis for a finding of compelling reasons for unequal division.”

Under NRS 123.220 community property is defined as “all property... acquired after marriage by either spouse or both spouses, is community property...” Here we can see that there is ample room for interpretation of the law. Because of this it becomes necessary for those experienced in family law matters to oversee not only divorce decrees but also premarital agreements in order to ensure equitable division of community property for all parties.

Child Support - By The Numbers

Child support in Nevada requires both parents to cover the cost of education, support payments,

healthcare, clothing, etc. Although only one parent typically pays child support, when the

parents have joint custody, the parent with the highest income pays child support. Most of the

time there are three factors that determine how much child support costs, number of children,

monthly income of the two parents, and custody arrangement. For one child, it is 18% of you

gross monthly income that goes towards child support, for two children it is 25%, for three it is

29% for four it is 31%, and for each additional child it is 2%. The minimum amount a parent has

to pay is $100.

These child support percentages can be unfair to one parent or a child, so before a child

support order is in place, a parent can ask for the amount to be adjusted and a court will

consider these factors: cost of health insurance, child care, special education needs, age of

child, both parents’ responsibility to support other children, each parent's contribution, mother’s

pregnancy expenses, visitation expenses, the amount of time the child spends with each parent,

and lastly, income of both parents. After three years of a child support order being in place,

parents can ask the court to change their amount based on how much they currently make a

month.

Two ways that a child support order can be enforced are: one, the parent that is receiving child

support can contact the Family Support Division and fill out an application through the District

Attorney. The DA then can determine how much child support is owed. Through the DA, a

parent can also establish paternity, obtain a custody order, find a non-custodial parent, and

modify an existing child support order. Second, the parent that is recovering can file a Motion for

an Order to show Cause with the Family Court.

- Laura De La Cruz

Sources:

https://nevadalawhelp.org/es/resource/child-support

Civil vs. Criminal Law in Nevada

Civil or Criminal: Understanding the Differences

            You just were just hit by a drunk driver and the police are on their way.  Everyone is okay, but you’re sitting there wondering how this driver will be punished. Was this a civil crime or was is it a criminal act? To figure that out you must first understand the differences between Civil Law and Criminal Law.

            Let’s start with Civil Law. Civil Law refers to crimes committed against a person or persons. Examples of these crimes could be breaching a contract, using slander or threatening words, negligence, etc. The biggest thing to remember is a Civil case will always have a Plaintiff, or the person initiating the suit, and a Defendant, or the person being sued. These people could also be corporations or companies depending on what the case is about. Civil Law cases usually result in minor consequences such as fines and injunctions. These cases have verdicts of liable and not liable to determine the outcome and punishments of the parties and verdicts are often based on the preponderance of the evidence. A preponderance of the evidence means that any evidence presented will have to prove that it is more likely than not that defendant committed the act stated.

            Next, we have Criminal Law. Criminal Law refers to crimes that are committed against society or that could harm large numbers of people. Examples of Criminal Law would be murders, mass shootings, arson, burglary, etc. In a Criminal case, the defendant is the person who committed the crime and they are usually brought to court by the State or Prosecutor. These crimes have larger consequences because of the severity of the crimes being tried. Consequences include large fines, imprisonment, and in some cases, death. Unlike in a Civil case, these cases have verdicts of guilty or not guilty and has to be backed by the proof that the crime was committed beyond a reasonable doubt. Beyond a reasonable doubt means that the evidence and facts are so clear that there are no doubts that the crime was committed or not.

            Now go back to sitting on the side of the road waiting for the police. After analyzing the differences between Civil Law and Criminal Law, have you figured out the classification of the drunk driver’s case? If you are thinking Criminal, you are correct. The crime committed was negligent but could have harmed and even killed multiple people. This drunk driver was a danger to society and therefore will be a Criminal case. He will be put on trial and a verdict will be determined.

- Allison McKenzie

Firearm Laws in Nevada

In Nevada firearms fall under state and federal law. Firearms as defined under NRS 62A.130 are allowed to be owned by any Nevada citizen over the age of 18. Firearms are not allowed to be in possession of a prohibited person as defined under NRS 202.360 . If a person in ownership of firearms is found to be a prohibited person by a court ruling said person is subject to surrender their firearms under NRS 202.361. It is also illegal to sell firearms or ammunition to a prohibited person under NRS 202.362. There are no registration requirements for firearms in Nevada. No permit is needed for a resident over the age of 18 to open carry in Nevada. You must be 21 years of age or older to buy a handgun from a federally licensed dealer under federal law. You must be 21 years of age or older to obtain a Nevada concealed carry license under NRS 202.3657.

It is legal to carry handguns loaded. It is illegal to carry a rifle or shotgun loaded under NRS 503.165. It is illegal to sell firearms or ammunition to minors under NRS 202.310. Under certain circumstances children over the age of 14 can have firearms in their possession with written permission from their parents/guardians under NRS 202.300.

All purchases from a federally licensed dealer are subject to a NICS background check. Out of state and online sales must be done through a federally licensed dealer and are subject to NICS background check. Before the 2016 Nevada General Election there were no background check requirements for a private sale between Nevada citizens. Although deemed unenforceable by the Nevada Attorney General there are now background checks required for private firearm sales under NRS 202.2533. There are certain exceptions to the private transfer of firearms to immediate family members, government officials, and under certain acts under NRS 202.2541.

It is illegal to carry firearms in public buildings as defined under NRS 202.265. It is legal to carry in any other public building as defined under NRS 202.3673. Private businesses have the right to ask you to leave their public building if they have knowledge of you carrying a weapon. It is illegal to be in possession of a firearm while intoxicated with a blood alcohol content of 0.10 or over as defined under NRS 202.257.

It is illegal to discharge firearms within city limits under NRS 202.280. Discharging into a structure or vehicle, or within a structure or vehicle is illegal under NRS 202.285 and NRS 202.287.

 In order to obtain any fully automatic or select fire firearm, short barreled rifle or shotgun, firearms with silencer/muffler devices, and firearms described as other weapons in Nevada one must conform with federal law and the National Firearms Act.

Pedestrian Laws in Reno, NV

NRS 484B.280 describes the responsibilities drivers have to avoid collisions with pedestrians e.g. honking their horn if they can’t stop in time to avoid a collision.  https://www.leg.state.nv.us/NRS/NRS-484B.html#NRS484BSec280.  If a driver does not follow these rules they may be held at least partly liable for colliding with a pedestrian regardless of whether the pedestrian had the right-of-way.  As a driver it is imperative to exercise caution and care when observing a pedestrian nearby.

                  Similarly, pedestrians must also follow certain rules in order to comply with Nevada law.  NRS 484.283 describes when pedestrians have the right-of-way.  https://www.leg.state.nv.us/NRS/NRS-484B.html#NRS484BSec283.  Pedestrians must obey crosswalk signals and only walk when signaled to do so.  Id.  Intersections without marked crosswalks are still considered crosswalks and drivers must yield to pedestrians.  Id.  These intersections are referred to as “unmarked crosswalks”.  Pedestrians are not permitted to suddenly enter a crosswalk or run across it in front of oncoming traffic.  Id.

Blind pedestrians with a service animal or a white cane always have the right-of-way and drivers are required to come to a complete stop for them to cross a highway, street or road.  https://www.leg.state.nv.us/NRS/NRS-484B.html#NRS484BSec290.  Non-blind pedestrians do not have this same right.  There are some instances when pedestrians do not have the right-of-way as described in NRS 484B.287.  https://www.leg.state.nv.us/NRS/NRS-484B.html#NRS484BSec287.  Pedestrians must yield to drivers when crossing at a point in between adjacent intersections.  Id.  Similarly, when crossing a highway, pedestrians must yield to drivers if not in a marked or unmarked crosswalk.  Id. Pedestrians crossing a highway via a pedestrian tunnel or overhead crossing must yield to drivers.  Id.

Pedestrians are also governed by Nevada law when walking next to highways.  https://www.leg.state.nv.us/NRS/NRS-484B.html#NRS484BSec297.  Pedestrians must use sidewalks when available.  Id.  When sidewalks are not available next to a highway, pedestrians must walk on the left side facing oncoming traffic.  Id.  Intoxicated pedestrians are prohibited from walking within the traveled portion of a highway.  Id.  Pedestrians are not allowed to stand in the highway to solicit a ride or business from drivers.  Id.  However, the legality of hitchhiking in Nevada is unclear.  See http://hitchwiki.org/en/Nevada.

In Anderson v. Baltrusaitus, appellant was struck near an intersection by respondent causing him severe injury.  https://caselaw.findlaw.com/nv-supreme-court/1213445.html.  Here respondent was initially granted summary judgment by the district court because appellant was slightly outside of the unmarked crosswalk when he was struck.  Id.  However, upon appeal this decision was reversed due to multiple factors that proved the driver was also negligent and could have prevented the accident by exercising proper caution.  Id.  This case confirms the importance for drivers to always be careful around pedestrians as the consequences can be life-altering or fatal.

Nevada Child Support Laws

Child Support in Nevada

When parents separate, each parent has an obligation to financially support their child.

Commonly a child lives with the primary caregiver. To balance the time and effort set forth by

the primary caregiver the noncustodial parent will provide financial restitution in the form of

child support. Child support is used primarily for the health and education of the child. Child

support calculations are based on the noncustodial parent’s monthly gross income. The outlines

for obligation regarding child support may be found in the Nevada Revised Statutes (NRS)

section 125. There are always variations and exceptions that may be seen in recent case law.

In the case of

Rivero v. Rivero there was no agreement for child support in the original

divorce decree. Here we see Ms. Rivero appeal to the court for child support because she felt as

though Mr. Rivero was not spending an adequate amount of time with their child. The court

declined to modify the original agreement since there was no evidence to support Ms. Rivero’s

claims.

Additional circumstances will occasionally warrant a decision to be overturned or a child

support agreement to be amended. One example of this is if payments were not calculated using

the provisions in NRS 125B.070. In Khaldy v. Khaldy a child support agreement was changed to

adhere to the correct statutory guidelines. Here we see payments recalculated because they were

not in line with the statutory guidelines set forth.

Calculation of child support under NRS 125B.070 states: "(b) `Obligation of support'

means the amount determined according to the following schedule: (1) For one child, 18 percent

... of a parent's gross monthly income." The amount varies based on the age of the child, the

number of children requiring support and the parent’s gross monthly income. If a parent’s

circumstances change, they may file a request for review. Subsequently, child support

calculations are reviewed every three years.

Factors taken into consideration are set forth under NRS 125B.080(9). These factors are

listed as health insurance, child care, educational needs, age, the responsibility of the parents for

the support of others, services contributed by either parent, public assistance payments,

expenses related to pregnancy, transportation costs, time spent with each parent, any other

necessary expenses; and the relative income of both parents. Using these guidelines Nevada

courts calculate payments awarded to a custodial parent. Although payments are sometimes

abused it is assumed that they are being used for the best interest of the child.

- Sarah Hart 

Who Can File for Divorce in Nevada?

Many couples are drawn to Nevada when filing for divorce because it is widely known that there is no waiting period. This means that as soon as a hearing date is available, parties can appear in front of the Judge for a final decision.  That said, there are some qualifications that must be met in order for an individual to file for a contested or uncontested divorce in Nevada.

You must meet the Nevada residency requirements when filing for divorce in Nevada, which state that you or your spouse must have lived in Nevada for at least 6 weeks prior to filing. The court will require you to prove your residency by designating a co-worker, friend, or family member to sign an affidavit of resident witness. When deciding which county to file your complaint in, you can choose either the county where you reside, where your spouse resides, or where you and your spouse last lived as a married couple.  Residents of Reno can file for divorce in Washoe County's Second Judicial District Court, which offers a specific division dedicated to family court matters such as divorce and child custody.

Nevada is known as a “no fault” divorce state which means there does not have to be a reason behind your divorce.  Therefore, when filing for divorce in Nevada, parties don’t need to identify any specific reasoning for separation.  

When filing for a divorce in Nevada, it is important that the residency requirements are met.  Many parties have a positive experience filing for divorce in Nevada due to the lack of waiting period, short 6 week residency requirement, and relatively lenient requirements in terms of providing a reason behind divorcing.  

Nevada Divorce Attorney

Hiring an attorney can help you make sure all jurisdiction qualifications are met.  If you have any questions about divorce in Nevada, please call Work Law at 775-386-2226.  We specialize in Nevada divorces, and can guide you through the process of divorcing in Nevada as your legal representative.