Idaho Law Blog

Alcohol-Related Fatal Crash in Cassia County

Published on: October 10, 2016 | by Racine Olson

41 year-old Angel Martinez Pedraza died during the early morning hours on Thursday, September 29, 2016. The accident occurred on Yale Road in Cassia County and is currently under investigation.

The Magic Valley News reports the driver of a late model SUV left the roadway, over corrected and rolled the SUV. Martinez Pedraza, who was a passenger in the SUV, was not wearing a seat belt and died when he was thrown out of the SUV after it rolled. News reports indicate that the driver and occupant left a party at a relative’s house on Yale Road and crashed 10 minutes later. Charges related to this crash are pending.

The Office of Highway Safety, ITD reported 1,367 impaired driving crashes in 2015 out of which 87 were fatalities. Impaired driving is defined under Idaho law at I.C. §18-8004. Only 25% of the passengers involved in impaired driving crashes were wearing a seatbelt. Facts and figures gathered by ITD indicate that impaired driving cost Idahoans over $1 billion in 2015.

Estate Planning for a Brand New Adult

Published on: October 10, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Most states have specific laws that define when a person becomes a legal adult. The age when this happens can vary between 18 all the way through 21 depending on which state you live in. However, regardless of which state you live in at some point every person will become a legal adult. Every legal adult needs to complete their own personal estate planning. Here are the basic estate planning documents that every adult, including a brand new adult, should have.

1. POWER OF ATTORNEY (FOR BOTH FINANCES AND HEALTH CARE)

Motorcycle v Vehicle Crash – Nampa Fire Department Chief Critically Injured

Published on: October 7, 2016 | by Racine Olson

On Saturday, September 25, 2016 the Nampa Fire Department Chief Karl Malott was critically injured after a crash occurred on I-84 near the Sand Hollow exit. Chief Malott’s Harley-Davidson motorcycle rear-ended a red sedan while traveling on eastbound I-84. Malott was thrown from his Harley as a result of the impact. Malott was not wearing a helmet. Malott was flown to St. Alphonsus Regional Medical Center where he was listed in critical condition until yesterday when the local news reported that he had been moved from ICU since his condition has improved. No one in the sedan was injured in the crash.

The ITD (“Idaho Department of Transportation”) Motorcycle Operator’s Manual reports that 1 out of 5 motorcycle crashes results in head or neck injuries. Head injuries account for the majority of the serious and fatal injuries to motorcyclists. Injuries can be avoided and/or reduced by wearing a helmet. Riders wearing helmets are 3 times more likely to survive head injuries than those that who do not wear a helmet.

A major factor in motorcycle crashes is following too closely. Motorcycles need the same amount of distance as cars to stop safely. A minimum 3-second rule following distance is recommended; however, a longer distance is required for higher speeds. A longer distance also allows the rider to have a better view of any hazards on the road ahead.

Recent Idaho Case Upholds Non-Parent Visitation Right

Published on: October 7, 2016 | by Racine Olson

By Heidi Buck Morrison

While most custody cases involve disputes between the child’s biological parents, there can be circumstances when other parties can involve themselves in custody disputes. For example, grandparents and step-parents may become involved in a custody dispute.

In a recent case, Shepherd v. Shepherd, the Idaho Supreme Court affirmed a district court decision in favor of granting a step-parent visitation despite objection by the natural mother.

Screening References Through a Filter of Reality

Published on: October 7, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

According to a Society for Human Resource Management (SHRM) survey more than eight out of ten human resource professionals reported that they regularly conduct reference checks for professional (89 percent), executive (85 percent), administrative (84 percent) and technical (81 percent) positions. Regular reference checks were less likely, but still happened, for skilled-labor, part-time, temporary and seasonal positions. Information routinely provided to reference checkers by surveyed employers included: (1) dates of employment for the job applicant; (2) eligibility for rehire; (3) salary history of the job applicant; and (4) employability of the job applicant.

Even with this high number of reference checks occurring we all know that references for a job applicant should be viewed through a filter of reality. Usually a job applicant will choose only those persons who will provide glowing praise as a reference. However, even in these situations, a check of references by an employer can help to provide an objective view of the job applicant if the right approach is taken.

The Eviction Trial

Published on: October 7, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

On of the most important steps in the judicial process of an eviction is the eviction trial. In circumstances where the landlord has properly served the tenant the required Notice, and the tenant fails to appear or to file a response, the landlord will obtain a judgment by default. This is what occurs in about 90% of all cases. In the remaining 10% of cases, the eviction trial occurs.

In the eviction trial, a landlord has the burden of proving everything necessary to obtain a judgment against the tenant. In essence, a landlord must provide admissible evidence that everything claimed in his complaint is true. This is usually accomplished through the landlord’s own testimony and his presenting to the court evidentiary documents including the following:

What if a Gift Given in a Will No Longer Exists?

Published on: October 7, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

The purpose of creating a Last Will and Testament is so you can give your property away to those you choose. But the question comes up sometimes about what happens if a gift that is given in a Last Will and Testament no longer exists when the giver of the gift dies. When this happens then the gift fails because it no longer exists. The key is contained in the language used in the Last Will and Testament. The few examples will help illustrate this.

Suppose for a moment that you create your Last Will and Testament. In doing so you provide a specific gift in your Last Will and Testament of your Range Rover car to your son. Now let’s suppose that you’re actually driving the Range Rover vehicle, you get into an accident which destroys the Range Rover and which leads to your death. In this instance your gift to your son specifically is your Range Rover car. Because your Range Rover car was destroyed in the accident that took your life, there is no Range Rover car remaining to be given to your son as a gift. In this example the gift of your Range Rover car to your son fails.

The Idaho Water Supply Bank

Published on: October 6, 2016 | by Racine Olson

By: T.J. Budge

The Idaho Constitution was amended in 1964 by the people of Idaho to provide for the establishment of a “Water Resource Agency,” now known as the Idaho Water Resource Board, with “power to formulate and implement a state water plan for optimum development of water resources in the public interest.” Idaho Const. Art. XV, § 7. The Board has advanced this objective in part through development of the Idaho Water Supply Bank. The Bank is a mechanism whereby unused water rights can be temporarily deposited or “leased” into the Bank and persons needing water can withdraw or “rent” water out of the Bank.

The process of depositing and withdrawing water from the Bank is purely administrative—it all happens on paper. The Idaho Water Resource Board maintains a set of forms that must be be used to lease water into or rent water from the Bank, and employs staff to process the applications.

Attorney’s Fees. New risks in divorce or custody cases?

Published on: October 6, 2016 | by Racine Olson

By Tippi Jarman

Civil litigation can expose a losing party to paying the other party’s attorney’s fees. This is well known. However, the Idaho Supreme Court recently announced a new rule of law regarding attorney’s fees which will take effect on March 1, 2017. In the case of Hoffer v. Shappard, 2016 Ida. LEXIS 290 (September 28, 2016), the Idaho Supreme Court stated that Idaho courts will soon apply a different standard for attorney fees under Idaho Code Section 12-121. This new standard allows Idaho courts to award attorney fees under Idaho Code Section 12-121 “when justice so requires”. This is a significant change from the current standard of law under this statute. The current standard allows Idaho courts to award attorney fees under Idaho Code Section 12-121 only when the case was “brought, pursued or defended frivolously, unreasonably or without foundation”.

The good news is that the Idaho Supreme Court has long held that “where a specific statute exists for awarding attorney fees, the specific statute will control over the more general statute”. Bell v. Eagy, 2015 Ida. App. Unpub. LEXIS 18, (2015); citing First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, 154 Idaho 626, 632, 301 P.3d 632, 638 (2012). This is important in family law cases because Idaho Code Section 32-704 allows for the award of attorney fees to a party maintaining or defending a divorce or custody case. The Idaho courts take into consideration certain specific factors on whether to award fees under this more specific statute, rather than the looser standard of “when justice so requires”.

Drivers Take Heed – 129,000 Pound Truck Routes and Roadway Safety

Published on: October 6, 2016 | by Racine Olson

ITD Board to Hold Subcommittee Meeting in Pocatello on 10/3/2016

The Idaho Transportation Department (ITD) is responsible for all highways on the State Highway System, such as interstates, state highways and U.S. routes. On Monday, October 3, 2016 at 1:30 p.m., the ITD Board will hold a subcommittee meeting in Pocatello at the ITD offices located at 5151 South 5^th Avenue. This subcommittee meeting will discuss an application to allow trucks weighing up to 129,000 pounds on a section of U.S. 30 in eastern Idaho. Subcommittee meetings have been held in other parts of the state to review and analyze the request to allow the increased weight on non-interstate, state-maintained highways. The ITD and a subcommittee can reject or approve the requests for new routes. For more information regarding the request to increase truck weight, go to: http://itd.idaho.gov/129K/default.htm.

In 2003, the Idaho Legislature passed House Bill 395 to create a pilot project that would test the effect of legally increasing the weight of trucks from 105,500 pounds to 129,000 pounds on 16 specified routes in the State of Idaho. Later in 2005 and 2007, 19 routes were added. One of the tasks of this pilot project was to study this increased legal weight upon roadway safety.