Author: ScottHamblin

Hamblin

Divorce & Child Custody Settlement: Saving Money

Clients have asked over the years what they can do to save money in their divorce or child custody cases. I always have suggestions. I am sharing my most common suggestion – which also happens to be common sense. The largest expense a client incurs in a divorce and/or child custody case is the attorney fees incurred in preparing for trial and trial itself. Eliminating the trial eliminates the expense …


Criminal Law: Right to Remain Silent

Law enforcement officers provide a beneficial service to our community. I appreciate their service, especially when it involves responding to a call that I have placed requesting assistance. However, I am writing today from a different perspective; I am writing as a lawyer practicing criminal law in an effort to educate you about an individual’s right to remain silent when confronted by a law enforcement officer. You do not have …


Child Custody Cases

As a lawyer practicing in the area of family law, I am intimately familiar with the various ways that child custody can be established because it’s part of what I do for a living. People may want or need to establish child custody for a variety of different reasons. Establishing child custody must be done through the court in order to have any legal meaning. Parents and other people may …


Community Caretaker Exception to Fourth Amendment

I appeared in the United States Court of Appeals yesterday to argue an issue addressing the continuing erosion of the Fourth Amendment to the United States Constitution. The Fourth Amendment protects our rights as individuals to be free from unlawful searches and seizures by law enforcement. A search of a person’s home without a search warrant is presumed unreasonable under the Fourth Amendment. Generally, evidence obtained as a result of a …


Traffic Stop

Yesterday I served as a lecturer for a Missouri Bar continuing legal education course regarding traffic stops for lawyers. Lawyers, like most professionals, are required to obtain a set number of continuing education hours each year. The course material covered a variety of topics involving traffic stops, to include an officer’s authority to initiate a traffic stop of a vehicle, challenging the constitutionality of a traffic stop, the seizure of the driver …


Missouri Auto Stops

On October 30, 2014, I will be speaking at a Missouri Bar Continuing Legal Education Seminar concerning Missouri Auto Stops – Practical Strategy and Analysis For New and Experienced Practitioners.  This seminar will include discussion of various searches and seizures, DUI/DWI stops, drug searches, field sobriety checkpoints, and many other matters. For more information on these subjects, please contact attorney Scott Hamblin at (573) 821-4013, www.scotthamblinlaw.com or https://brydonlaw.com/. Scott Hamblin is an experienced …


Filing First for A Divorce

Is there an advantage to filing first for a divorce? This question comes up occasionally in divorce cases. The answer to the question, like most answers to legal questions,  depends on the circumstances of the divorcing couples. Venue (meaning the county where the divorce is heard) is initially established when the petition for dissolution of marriage is filed with the court. Where both husband and wife live in Missouri, a petition for …


Independence Day and the Right to a Lawyer

As we celebrate Independence Day, I want to take a moment to reflect on some of the rights established early in our country’s history which continue to exist and evolve. It wasn’t until 1791 that the first ten (10) Amendments to the United States Constitution were adopted. The Fifth Amendment to the United States Constitution has significant meaning for criminal lawyers, judges and anyone involved in the criminal justice system. Over …


Criminal Lawyer: New DWI policy in Miller County, Missouri

The Jefferson City News Tribune published an article yesterday indicating that the Miller County Prosecutor’s Office is implementing a new policy known as a “no refusal” policy for people arrested for driving while intoxicated (“DWI”). The idea for the policy is to assist law enforcement officers to obtain search warrants for blood samples to determine the level of alcohol in a person’s system where the person has refused to submit to …


Criminal Lawyer: From Felony Arrest to Dismissal of Charges

Prosecutors do not dismiss felony charges simply because the defendant wants a dismissal. Let’s be honest, who actually wants a felony conviction on their record? Every person charged with a felony would like the charge dismissed. Attempting to persuade a prosecutor to dismiss a criminal charge following a felony arrest is not easy. A good lawyer will have a strategy to negotiate for a dismissal of charges other than merely …


FROM FELONY TO MISDEMEANOR

It’s not always easy to convince a prosecutor to amend a felony charge to a misdemeanor. The prosecutor may never consider the idea. But I was again successful recently in obtaining such an amendment from the local prosecutor’s office. My client was charged with the class C felony offense of stealing. After months of meetings and discussions, the prosecutor’s office agreed to the amendment. There are several reasons why it’s important …


PROSECUTOR’S CASE IS DISMISSED BY JUDGE

Scott Hamblin, lawyer and shareholder at Brydon Swearengen & England P.C. obtained another win for his client in the circuit court of Cole County, located in Jefferson City, Missouri. The judge dismissed the criminal assault charges filed against Scott’s client at trial. The assault charges were dismissed at the close of the State’s case after Scott successfully argued that the prosecutor failed to prove its case.  The dismissal of the criminal …


Missouri Proposes New Criminal Laws

Missouri’s revised Criminal Code, Senate Bill 491, has been sent to the Governor for approval after the bill has passed in both the House and Senate. The Governor’s Office previously recommended that the General Assembly submit the bill for consideration in parts, with possibly one part of the Code being submitted for approval as a result of its size. The General Assembly ignored the recommendation. Therefore, whether the Code is …


Divorce: Another Reason to Hire Your Own Lawyer

The following hypothetical situation happens more frequently than most non-lawyers imagine, but yet husbands and wives continue to either choose not to hire their own divorce lawyer or somehow think that it’s a good idea to share a divorce attorney: Husband and Wife have been married a couple years and have one child born of their marriage.  Wife decides she wants a divorce.  Wife hires a lawyer to assist her …


Criminal Law: The Missouri Supreme Court Rules on Probation Revocation

Circuit judges have used probation as a mechanism to collect restitution and court costs from criminal defendants for years, but the Missouri Supreme Court issued its opinion yesterday clarifying the jurisdiction of courts to continue such conduct. The Missouri Supreme Court, in a consolidated hearing of two similar cases, made preliminary writs permanent finding that, in each case, the trial court did not have the authority to hold probation revocation …


Criminal Law: Don’t Flip Off the Judge

A good rule of behavior when appearing in court: don’t flip off the judge.  A Florida Judge imposed a 30 day jail sentence for contempt of court on an eighteen year old female after she gave the judge the finger and told him “F___ you.”  I am not surprised by the Judge’s conduct, but the female’s behavior? Really, what is wrong with people? The female was originally in court for …


DWI: Does a warrantless blood draw violate the Fourth Amendment?

In 2013, the United States Supreme Court heard a landmark case in Missouri v. McNeely.  In McNeely, the Supreme Court held that under typical circumstances, the Fourth Amendment prevented police from taking a blood sample without first obtaining a warrant. Prior to that case, the state of Missouri had argued that it could require people accused of driving while intoxicated to give blood samples without obtaining a warrant.  This decision was a …


Order of Protection: A man’s home is still his castle

A man’s home is still his castle. The Missouri Western District Court of Appeals determined recently that Missouri’s “castle doctrine” self-defense law applies to prevent a mother from getting an order of protection against the father of her child who pulled a gun on her when she barged into his home and attacked him. The mother sought an order of protection (also referred to as a “restraining order”) against the father, …


Divorce – Property Division – Marital Property

In an opinion from the Missouri Court of Appeals, Southern District, filed on October 4, 2012, the Court determined during a divorce proceeding that two items of real property and a business were marital property. The court found that the real estate was acquired during the marriage and the business was started during the marriage. The Husband did not present sufficient evidence to overcome the presumption that that the real estate and …


Criminal Law: Expungement of Certain Criminal Records

We frequently receive calls from people seeking to expunge past criminal convictions.  The good news is that Missouri has greatly increased the number of people who can apply for expungement and decreased the time they must wait before they can have their crimes expunged. Effective January 1, 2018, 610.140, RSMo. allows for the expungement of many misdemeanors after three years and many felonies after seven years.  There are some exceptions as …


Client Acquitted of Charges for DrivingWhile Intoxicated, Driving While Suspended and Possession of Marijuana

Law enforcement officers sometimes arrest people without sufficient evidence to support the ultimate criminal charges. Earlier this week, I represented a client at trial for the offenses of driving while intoxicated, driving with a suspended driver’s license and possession of marijuana.  The Judge found a lack of evidence to support the charges.  The Judge dismissed the charge for driving on a suspended driver’s license at the close of the prosecutor’s case following my …


CHANGES IN THE FORM 14 CHILD SUPPORT CALCULATION

The Supreme Court of Missouri entered its Order on December 7, 2011 changing, in part,  how child support is calculated. The change pertains to the amount of credit a court may award a parent in connection with exercising overnight child custody or visitation.  The Order provides that a parent may receive up to a maximum 50% adjustment for periods of overnight visitation or custody. The Order also appears to limit …


Hamblin

Hamblin Speaks on Traffic Stops & Criminal Law

Scott A. Hamblin, a shareholder at Brydon Swearengen & England P.C. recently served as a speaker for the Auto Stops Continuing Legal Education (CLE) program sponsored by the Missouri Bar. The program was designed to educate other attorneys on issues related to challenging traffic stops by law enforcement officers, including new developments in criminal law, and addressed the following topics: • When a  Defendant Has a “Privacy Interest” • Applying …


No Defense to Delayed Suspension of Driving Privileges

The Missouri Court of Appeals, Eastern District of Missouri, determined there is no statute of limitations or defense of laches that bars the Missouri Department of Revenue from administratively suspending a person’s driving privileges in connection with driving while intoxicated (“DWI”).  In Lawrence v. Director of Revenue, a motor vehicle driver was arrested on October 23, 2007, for driving while intoxicated.  Approximately 18 to 20 months later, the driver was …


HB 111 – Joint Custody Support Calculation

Missouri General Assembly HB111 became effective August 28, 2011, authorizing a court to award a parent a 50% adjustment to a presumed child support calculation in situations where the parents share joint physical child custody or have the child equal or substantially equal periods of time. However, the Missouri Supreme Court is required to make the appropriate rule changes to the Form 14 child support calculations. In simple terms, the new …


DWI Conviction Upheld, but Reversed for Re-Sentencing

A conviction for driving while intoxicated (“DWI”) and resisting arrest was upheld where the Court of Appeals determined that there was evidence that defendant was driving his vehicle while intoxicated, albeit thirty (30) minutes expired before law enforcement made contact with the driver. The evidence presented at trial revealed that the Defendant had stopped his truck in a private driveway. The owner of the home saw defendant pull into her …


Criminal law: Right to Remain Silent

A person arrested for a criminal offense, including driving offenses such as driving while intoxicated, has certain constitutional and statutory rights.  Among those rights is the right to remain silent.  A law enforcement officer is not required to advise a person of the right to remain silent unless that person is arrested or detained and questioned by the officer.  However, any statement volunteered to an officer can be used against …


Divorce: Court Ordered Sale of Marital Home

Even in this tough economy, divorce courts in Missouri continue to have the authority to order the sale of the marital home in a proceeding for dissolution of marriage.  In a recent opinion, the Court of Appeals, Western District of Missouri, held that a trial court has the authority to order the sale of the marital home in connection with a divorce so long as the judgment contains some limitation …


Divorce: Cheating Spouse

The physical and emotional betrayal inflicted by a cheating spouse is one of the main causes of divorce. The spouse suffering the extra-marital affair often desires punishment. Courts will punish the cheating spouse in certain circumstances by financially compensating the non-cheating spouse. The non-cheating spouse may also have an improved opportunity to obtain child custody. Every marriage is unique and the circumstances surrounding a person’s marital misconduct are also unique. …


Criminal law: Right to remain silent

A person arrested for a criminal offense, including driving offenses such as driving while intoxicated, has certain constitutional and statutory rights. Among those rights is the right to remain silent.  A law enforcement officer is not required to advise a person of the right to remain silent unless that person is arrested or detained and questioned by the officer. However, any statement volunteered to an officer can be used against …


Motion to Suppress

I recently obtained a favorable ruling following a hearing on a motion to suppress evidence and statements in connection with a traffic stop.  My client was arrested following a traffic stop for the criminal law violation of felony possession of a controlled substance.  I argued that the law enforcement officer violated my client’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 and 15 …


Cole County DWI Court

Cole County, Missouri has a new program for individuals arrested for driving while intoxicated (DWI) creatively named the “DWI Court.”  The DWI Court was created following enactment of law by the Missouri General Assembly. Despite the statutory provisions allowing for participation in a DWI court by first time DWI offenders, only individuals with repeat DWI offenses will qualify for Cole County’s DWI Court program, and availability is limited. The DWI …


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