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John W. Carini

John Carini’s Answers

97 total


  • Do the cops have anything to charge me with? If so is there anyway to get out of this. Can I just deny that I was there?

    I was at a music festival in Cumberland MD. Some friends and I were smoking pot when we were approached by three UC officers. There were 5 of us total; 3 males 2 females. They said they saw me smoking and confiscated the pot and paraphernalia that...

    John’s Answer

    You REALLY need to contact a MD criminal defense attorney. (Many will not charge for an initial consultation and maybe you will get lucky and find someone willing to look up the case and find out the specifics for you for little or no money. Be honest and tell them what you need/wish and ask for their help, many such lawyers want to help people and will try and accomadate you, especially if it is an easy thing to do. ) But since you now know that they were in fact cops and since the facts still sound fishy to me, you need a local criminal defense lawyer to help you any further. I certainly would advise you to be EXTREMELY CAUTIOUS before signing ANYTHING. You need help to be sure that you aren't signing an admission of guilt or something else that can be used against you. (When you sign a traffic ticket for instance, it usually notes that this is merely a promise to appear and NOT an admission of guilt). I am sorry to hear of the developments, but the original facts still sound fishy enough to me that with the help of a good lawyer, he/she may be able to help you get the charges reduced or even dismissed.

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  • Complete Injustice

    I got pulled over in pendergrass, ga on April 24th for window tint. As I explained to the officer I did not know they were illegal as I bought the car this way and this was the first I had been pulled for it. He wrote me a ticket anyway. The da...

    John’s Answer

    Glad I was able to help and very happy to hear of the results.

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  • My fiancee overstayed his visa, what should we expect?

    He was brought here by his family when he was a teenager and stayed after they left. He was convicted of theft by taking before his visa expired. His visa expired fairly recently. He was also married previously for over two years. We want to get m...

    John’s Answer

    I appreciate the additional insight provided by the second answer and I am NOT an immigration attorney, but I have seen most of these issues before, albeit usually not all at once with the same person. My concern is that the people that I know that married US citizens legitimately and had NOT yet overstayed their (generally student) visas, not only had to jump through all the procedural hoops, but I believe in every case, they were required to leave the US for either their home country or a third country for some period of time while the application was being processed. This was not because there was evidence of a fraudulent marriage, but rather was a technical requirement in the law that certain parts of the application process MUST be done from outside the US. I have seen similar references recently on a website offering jobs teaching English in South Korea. The sites note that there is often a need for a long weekend out of Korea, after arriving, while awaiting certain approvals, (they even had a joking term for these forced vacations. They were so common, that while not always depending on your application, it was so common that these companies each had long term contracts with Japanese Hotels for rooms at a discount, because so many of their teachers were forced to leave the country for a few days and they all chose Japan as the most convenient place to go, rather than say all the way back to the US. Now S. Korean law has absolutely no effect on US law, but it is a strikingly similar and common problem to what I have seen people experience. So be wary that a trip "home" may be required at some point even if things are going well. Good Luck.

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  • Does a summons required to be hand delivered or can it thrown over a locked gate in the middle of the night

    does a summons required to be hand delivered or can it thrown over a locked gate in the middle of the night?

    John’s Answer

    Sorry, I misread the first attorney's response. He did acknowledge that a party to the action can not serve the process. However, I still have issues because I don't know of any jurisdiction that allows service by mail in large claims cases without at least an attempt, (and usually more than a feeble one), at personal service first. Service by mail and or publication is usually well down on the list when other alternatives have failed. And yes, personal service upon the party is not only preferred, but usually required, (or at least an attempt is required), in most types of cases in most jurisdictions. (Sometimes attorneys will agree to accept service by mail or fax for their client or someone can directly agree to that, but they are not required to, and frankly if you are suing them, you are probably not on good terms. And what if they later deny such an agreement. Get it in writing).

    While it is true that professional process servers are usually worth the money, (around here typically about $25.00 per attempt plus mileage), the best process servers are the sheriff's dept. if your local law allows or even requires it. In Wisconsin, the cost is about the same, yet you don't have the credability issues of someone serving dozens of these, who makes minimum wage, may not care very much and certainly may not recall the details months later. And in certain types of actions, including domestic abuse restrainging orders, either by rule, statute or local judicial custom, the fee often waived to have the sheriff serve the papers, even without any showing of indegency. That's the best deal around!

    But the answer the original question is, it depends. Throwing it over a locked gate, will rarely, if ever, meet the statutory requirements, which vary by jurisdiction, but whether it can be left with someone else in the household, or dropped at the feet of the person if they refuse to accept it, or at what point it can be mailed, all depend on local law.

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  • Does a summons required to be hand delivered or can it thrown over a locked gate in the middle of the night

    does a summons required to be hand delivered or can it thrown over a locked gate in the middle of the night?

    John’s Answer

    Be careful of the first answer as in many jurisdictions the ONLY qualifications for serving process are: 1) adulthood or reaching a certain age, 2) Sometimes residency in the jurisdiction and here is the problem 3) NOT BEING A PARTY TO THE ACTION. Here in Wisconsin, essentially any adult can legal serve process, as a one time deal or for a living, the big exception is a party to the case, who is specifically prohibited from serving. You can see why, if a dispute arises as to whether process was properly served or served at all, the plaintiff, for example, has lots of incentive not to really serve and then to lie about it. Your average minimum wage worker might be lazy at times, but is not going to commit perjury to save a few steps.

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  • Contesting traffic speeding ticket received in WI

    I was in an accident on my motorcycle where I hit a large rock and was thrown off. I was wearing my helmet and protective gear and am fine though I was taken in an ambulance to a hospital. I wasn't speeding and there were no Police Officers around...

    John’s Answer

    A police officer can issue this ticket in Wisconsin without personally witnessing the offense, but obviously he or she must have SOME basis for believing the law was violated and some ability to prove it if challenged. Even if there were no cops around if there were neutral witnesses, (people you don't know), their statements will carry weight. The logic being, if they are truly neutral, then why would they lie? (Although a militant mom intent on slowing traffic on her residential street, is technically neutral but obviously not unbiased). The cops shouldn't be asking for broad opinions anyway, they should be asking, "How fast did he appear to be going." or "Did he appear to lose control of the vehicle." And if given such a statement, the cops have a lot of latitude. Obviously you'd rather the witness be someone stumbling home at bar time versus a flock of nuns on their way to mass. I wouldn't agree that the cop "had no business issuing the ticket," but most cops won't go out of their way to issue tickets in a one party accident unless there is an aggravating factor. In these types of cases you already suffered the injury and damage to your vehicle, so a ticket is really piling it on, unless you were doing something really outrageous, not merely going 10 miles over the limit. Where is that line drawn? It's initially up to the cop, then you can try and get the city attorney to amend to a lesser charge and failing that, you can take your case to the judge. (Presumably that line lies somewhere between a few miles over the limit and such serious things as DUI, leaving the scene of an injury accident or injuring someone else. But it varies.) You don't mention any of these more serious issues and if they had solid evidence you would have been charged with additional violations. Also keep in mind if the cops do think that something serious was going on they COULD call on an accident reconstruction expert to "re-create" the scene and estimate your speed from the physical evidence. Now, I have never, ever, heard of that happening in a case that didn't involve either serious injuries to a third party, DUI, or the like; since accident recontruction is an expensive undertaking. But if the cops thought that you were racing for instance and doing a100 mph+ on a sport bike, they don't care about your helmet, they would say you were endangering, other innocent lives. But from the facts that you have presented, I am somewhat puzzled. If you didn't cop an attitude when interviewed by the police and there was no evidence of racing or DUI or anything like that, but merely speeding, then in my experience it is a rare cop who will go out of his way to add to your misery.

    As to your request, of course you would prefer a non-moving violation. Everyone would. And yes, feel free to enter a not guilty plea and stress that there were no cops around. (But I bet the city attorney has some witness or evidence he finds credible or how does he plan to prove his case. Maybe he will realize he has no evidence and agree to dismiss). Will he agree to a lesser charge? Probably, unless he also thinks something really serious was going on. You usually can get SOME offer by contesting the ticket, especially with the help of an attorney. But realize that moving or non-moving, insurance companies, know what is going on. There are some moving violations for instance, that are never actually ticketed as such, but rather only pled down to. Here in Wisconsin a defective speedometer was long a favorite. No one is ever actually written up for that, but it is a common plea, and insurance companies know that. Likewise, "no license on person," is usually a plea when someone has no license period, but gets that taken care of before their court date and they plead to the minor charge. (If you really left your license at home and can prove it, it is extremely rare to get a ticket for that, and not have it later dismissed).

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  • What happens to a case after judge recused himself for lack of jurisdiction

    If a judge has recused himself for lack of jurisdiction and no other judge will take on a particular case. What happens to the case? Will it be dismissed.? And if so what does that mean to either party.

    John’s Answer

    You are confusing two separate, distinctly different issues here. A judge will recuse him or herself if they have a personal bias in or towards the parties to a case, an attorney involved in a case, or the underlying subject matter of the case. (In Wisconsin a judge was strongly reprimanded for NOT recusing herself from cases involving a bank in which her husband was an officer or director. Obviously the thought is that the judge herself could benefit from ruling one way or the other.) In addition to actual bias, usually judges are conscious about recusing themselves, or at least offering to if either party wishes, if there is a mere appearance of the potential for bias. Because that appearance is just as damaging as if there were actual bias, since only the judge would know for certain. If a judge recuses himself the case is then reassigned under local or state rules, either randomly or assigned by the chief judge, usually.

    This is distinct from a judge dismissing a case because the court does not have jurisdiction, either over one of the parties, "personal jurisdiction," or over the subject matter of the dispute, "subject matter jurisdiction." In either of those circumstances, unless the relevant statute of limitations has run out, then the plaintiff can attempt to refile the case in a court that DOES have jurisdiction over the defendant, (for instance where the defendant resides), or over the subject matter--e.g. ALL bankrupcy cases and ALL patent cases are heard in federal, not state court, pursuant to the US Constitution, (yes, it's in there). So you can not file for bankrupcy in state court, the court has no jurisdiction. But you can go to the federal courthouse for that same district and file and that court does have jurisdiction, (ceteris parabis, or "everything else being the same.")

    There are sometimes instances where there is no Court that has jurisdiction over both the defendant and the subject matter and thus, there is no remedy for the plaintiff. But that is really quite rare.

    You need to find out exactly what happened before the first judge and that will dictate how you proceed now.

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  • On what criteria would a lawyer determine to take a contingency case?

    We are preparing evidence and would like to understand what is the criteria used to determine if an attorney will take a contingency case.

    John’s Answer

    While I agree with the above answers, there are still many other possibly factors, that can vary with the indivifual attorney. Basically they can be summed up under the heading of "cost-benefit" anaylsis. Does the attorney believe that they will be able to recover enough money, (through lawsuit, arbitration or negotiation), to cover the value of the time and effort they put in. In other words, it's not just how much money, but how likely is the recovery of the money and how much work or trouble will it be. If it is an area of the law that you practice in every day and can do the preliminary steps in your sleep, even the investment of time is probably not that big a deal, versus the same number of hours burning the midnight oil at the law library researching an area of the law that is novel to you. Best example is Personal Injury lawyers. DISCLAIMER: I am not now, nor ever have been a P.I. lawyer. I don't care for that type of work nor for the type of attorney it typically tends to attract. (There are obviously always some exceptions). But the lawyers you see on late night tv saying, "If you've been in an accident, call me," typically reflect poorly on the entire legal profession. In addition, many of these attorneys are running "mills" for lack of a better word. And those are the successful ones. One, or a small number of attornies will hire many assistants, (secretaries or paralegals), and simply grind out the complaints by the hundreds. They make their money on volume, and yes, as their ads say, most of their cases do settle. (For a number of reasons, including the fact that most won't take a contingent fee case unless the liability is clear OR unless the damages are enormous. They may take the case but will insist on being paid a straight fee. Plus, they ensure that they willingly and gladly settle virtually all the cases they accept. Now some attorneys brag about that, and if you listen their ads even refer to "your settlement," not your lawsuit or your award, your "settlement." Because they settle. The cynical among us would say that may be because, they don't know another alternative. If you routine settle all of your cases and then meet with opposition in a particular case that won't play ball, what do you do if you have almost never or NEVER tried a case. You have no leverage. Also, if an attorney can get say 1/3 of $25,000 with almost no work, but would have to work very hard to increase the offer by 5 or $10,000, (of which they would get a third of as well), do you think that most would work very hard for $10,000 versus almost no work for $8,000? That is the fundamental problem with contigency fees. Proponents would have you believe that the attorney and the client have identical interests, since the more money recovered for the client, the more the attorney gets. BUT that overlooks the fact that those additional dollars may take a lot of work, (or even some work), whereas getting a first offer is usually incredibly simple and easy. That being said, please realize that there are exceptions to the above, and there are lawyers who work hard and do the best they can for their clients even with a contigency fee, also realize that not all P.I. lawyers bill that way, there is no requirement for them to do so, but the vast majority do. Lastly, realize there is no perfect system of billing, where contingency, hourly, or flat rate for a specific task. Under each of these there are people who will be happy and those that will be unhappy. There is no perfect system that I am aware of, unfortunately. So, research the attorney, asks lots of questions, ask for recommendations from friends and family and hopefully the method of compensation won't be an issue at all.

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  • Can a used car dealer who does in-house financing keep personal items that are inside of a repossessed vehicle?

    We were buying a used car from a privately owned used car dealership that does in-house financing. We were told that we didn't have to pay the down payment if we paid just a bit more per month, and the overpay would go toward the down payment. T...

    John’s Answer

    While I am not aware of the specifics of WA law, in all jurisdictions that I am familiar with, the answer is NO, they can not keep your personal items, if they are truly "personal items." The big issue tends to be things like aftermarket car stereos that are installed. The question then is are they part of the car, or are they the personal property of the user. It is a grey area, but would depend on things like, is there original car stereo still available and can it be reinstalled without visible damage to the car? If, yes, then a better chance to recover then if the answer is no. Although the past "owner" would likely have to pay for the cost of installing and uninstalling the units. But things not attached to the car, or part of the car, (like the spare tire or owner's manual), are generally personal property and unless they car seats were permanently installed, (bolted to the frame instead of merely buckled in), then I can not imagine that they are anything other than personal property. How long does the seller have to grant you access, state law may say, or it just may be within a "reasonable period of time." Calmly but firmly explain the necessity of the car seats for your children's safety and tell the seller that if he doesn't give them back pronto he will be on the hook for one of two things. either a) the cost of new seats that you were forced to buy to "mitigate" your damages and comply with the child-seat laws or b) potentialy HUGE liability if your children were hurt in an accident without their car seats. (Although the law would say you should replace them and then go after him for the cost, if you simply had no money, etc. this is a distinct possibility and should scare the heck out of him, but YOU shouldn't count on it, and besides, what good is money if your children are seriously hurt.) Consult a local consumer protection lawyer and hopefully you will get all of your property back and something extra for the violation of law in the meantime. By the way, his oral promise to never repo the car is meaningless and unenforceable if there was a written contract that said otherwise, which I am sure is the case. Good Luck.

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  • Can a used car dealer who does in-house financing keep personal items that are inside of a repossessed vehicle?

    We were buying a used car from a privately owned used car dealership that does in-house financing. We were told that we didn't have to pay the down payment if we paid just a bit more per month, and the overpay would go toward the down payment. T...

    John’s Answer

    While I am not aware of the specifics of WA law, in all jurisdictions that I am familiar with, the answer is NO, they can not keep your personal items, if they are truly "personal items." The big issue tends to be things like aftermarket car stereos that are installed. The question then is are they part of the car, or are they the personal property of the user. It is a grey area, but would depend on things like, is there original car stereo still available and can it be reinstalled without visible damage to the car? If, yes, then a better chance to recover then if the answer is no. Although the past "owner" would likely have to pay for the cost of installing and uninstalling the units. But things not attached to the car, or part of the car, (like the spare tire or owner's manual), are generally personal property and unless they car seats were permanently installed, (bolted to the frame instead of merely buckled in), then I can not imagine that they are anything other than personal property. How long does the seller have to grant you access, state law may say, or it just may be within a "reasonable period of time." Calmly but firmly explain the necessity of the car seats for your children's safety and tell the seller that if he doesn't give them back pronto he will be on the hook for one of two things. either a) the cost of new seats that you were forced to buy to "mitigate" your damages and comply with the child-seat laws or b) potentialy HUGE liability if your children were hurt in an accident without their car seats. (Although the law would say you should replace them and then go after him for the cost, if you simply had no money, etc. this is a distinct possibility and should scare the heck out of him, but YOU shouldn't count on it, and besides, what good is money if your children are seriously hurt.) Consult a local consumer protection lawyer and hopefully you will get all of your property back and something extra for the violation of law in the meantime. By the way, his oral promise to never repo the car is meaningless and unenforceable if there was a written contract that said otherwise, which I am sure is the case. Good Luck.

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