Skip to main content
Patrick Mahaney

Patrick Mahaney’s Answers

2,009 total

  • Can an attorney who represented me previously, represent against me now

    I hired an attorney in my first divorce, and now I am going through another divorce and hired a different attorney, only the person that I am divorcing now hired my previous attorney. this a conflict of interest and is it allowed?

    Patrick’s Answer

    Probably not. It certainly appears to be a conflict of interest. See, Rule 1.9 Alabama Rules of Professional Conduct which state: "A lawyer who has formerly represented a client in a matter shall not thereafter:
    (a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client consents after consultation; or (b) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known."

    Unless you signed a complete waiver, it certainly appears for an attorney who previously represented you in a prior divorce proceeding could not later represent an adverse party in a second or subsequent divorce.

    See question 
  • Will a dismissed DUI show up on my driving record?

    Arrested for a DUI but followed the court referral program to have the case dismissed. Additionally, the DMV (administrative hearing) decided not to suspend my license. My company wants to run a DMV driving record check on me. Will the dismissed D...

    Patrick’s Answer

    No, it will not. Only "convictions" are placed on the MVR, along with "chemical test refusal", "administrative removal", and all accident reports. Those are the only entries posted to an MVR. A case "dismissed" is not a conviction and you have no legal duty to report this arrest to an employer unless directly asked. If you say nothing, there is little likelihood the employer will determine there was a prior arrest for DUI. Bear in mind, of course, that a "case dismissed" is not an acquittal and is not a verdict on the facts and the evidence, but the simply the case was "dismissed", with or without prejudice.

    Under Alabama's new expungement law, a case dismissed may be expunged (all arrest records and fingerprint cards destroyed). If the case was dismissed "with prejudice", then you can apply for immediate expungement. If the case was simply dismissed, then you are required to wait out a two year period, then you may apply for expungement.

    See question 
  • I got a dui ticket and wasn't arrested will it violate my probation.

    I am on probation in my county for malicious mischief and assault on a police officer, but I don't have to report for six months. Ten days before my court date to dismiss charges I was in a wreck and was issued a dui and I postponed my court due t...

    Patrick’s Answer

    Hard to say. If you were on supervised probation, your name and driver license number is coded into a data base of active probationers, and an automatic report would have been generated to the P.O. However, you state that you are not on supervised probation. A person not on supervised probation is under no duty to report themselves to the supervising court. However, the supervising court may find out and that information may cause a "show cause" order to be generated by the supervising court. [See, Rule 27 Alabama Rules of Criminal Procedure concerning the proper notification and sanctions concerning probation violations.] A person on probation may be required to attend a probation revocation hearing. This is very serious and could result in the imposition of any suspended sentence. Your best course of action is to seek the professional services of a qualified defense attorney to assist you.

    See question 
  • Is this against the law? Aggravated Surveillance?

    I was having pictures from our Google drive account printed today online and I came across a folder where my husband has been taking inappropriate photos of me while I sleep, change clothes, etc. I have a child and I have insecurities about my bod...

    Patrick’s Answer

    What your spouse has done is indeed a crime and needs to be treated as such. Under the Code of Alabama, 1975, Section 13A-11-32.1 titled 'Aggravated criminal surveillance' that crime is defined as: "(a) A person commits the crime of aggravated criminal surveillance if he or she intentionally engages in surveillance of an individual in any place where the individual being observed has a reasonable expectation of privacy, without the prior express or implied consent of the individual being observed, for the purpose of sexual gratification.
    (b) Aggravated criminal surveillance is a Class A misdemeanor, except if a person has a prior conviction or adjudication under this section the offense is a Class C felony.
    (c) For purposes of determining prior conviction or adjudication under this section, convictions in municipal court shall be included."

    You will note there is no marital exemption or other listed exemption. If you did not consent to this "photography" then such taking of photos is a crime ipso facto. The fact that your husband is a current serving law enforcement officer is no defense and does not shield him from prosecution. I suggest that you consult a qualified criminal defense lawyer in the Montgomery area as soon as possible.

    See question 
  • I got a traffic ticket going 13 miles over the speed limit I don't have the money to pay it. I'm going to court so what happens?

    I have a job but haven't got payed yet and won't have the money in time for court

    Patrick’s Answer

    You have several options: 1) go to court on court date assigned on the U.T.T.C. and request an extension of time (in legal terms, it is called "asking for a continuance") 2) go to court on the court date assigned and ask the trial court to allow you to enroll in Traffic School and set off payment of court costs for 90 to 180 days; 3) go to court on the court date assigned, plead not guilty, and have the court give you a new court date for trial several months away. Hope like the devil on the new court date that the officer will not appear in court (a very possible result) and then request the trial court to dismiss the case for lack of the state's witness.

    See question 
  • How can l avoid points being added to my driving record?

    The police officer stopped me while I was driving and give me a speeding ticket. I wasn't aware of the speed limit. I thought that the speed limit was 35. There were no signs while I was driving. He stopped me and told me that this is a neighborho...

    Patrick’s Answer

    All residential areas in the state are posted 25 m.p.h. by the Code of Alabama. No signs are needed, but are often placed by municipal authorities as a reminder or as a warning. Both courts in the Montgomery area -the City of Montgomery Municipal Court and the District Court - offer a "Traffic School" in lieu of being found guilty of the offense. All that is needed is to appear in court on your scheduled court date and ask that you be permitted to attend Traffic School in lieu of an adjudication. There will probably be the requirement to pay court costs, but payment of court costs is not a "fine" and will not result in a conviction and no "points" will be entered or added to your MVR.

    See question 
  • Know if I can go hunting by myself at 18 if I use a handgun( a revolver big framed and large caliber such as a 44 magnum)

    I emailed Alabama fish and wilderies and they said I could go hunting by myself so long as I was on private land had written permission and a valid hunting and drivers license I would like to use a relatives revolver to hint wild hogs ( it's easie...

    Patrick’s Answer

    Technically, a person under the age of 19 is deemed a "minor" under Alabama law. See, Code of Alabama, 1975, section 28-1-1. The legal authority to carry and possess a pistol is not afforded to a minor, but that section of law has numerous exceptions. See, Code of Alabama, 1975, section 13A-11-72 which enumerates the classes of persons forbidden to possess a pistol: "Certain persons forbidden to possess pistol' which states in pertinent part: "(a) No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violent offense as listed in Section 12-25-32(15), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control. (b) No person who is a minor, except under the circumstances provided in this section, a drug addict, or an habitual drunkard shall own a pistol or have one in his or her possession or under his or her control...." However, the Code provides a mechanism for overcoming the disability of minority. In that same section, the Code states: "(f) A person shall not be in violation of Section 13A-11-57 or 13A-11-76 and a minor shall not be in violation of this section if the minor has permission to possess a pistol from a parent or legal guardian who is not prohibited from possessing a firearm under state or federal law, and any of the following are satisfied:
    (1) The minor is attending a hunter education course or a firearms safety course under the supervision of an adult who is not prohibited from possessing a firearm under state or federal law.
    (2) The minor is engaging in practice in the use of a firearm or target shooting at an established range under the supervision of an adult who is not prohibited from possessing a firearm under state or federal law.
    (3) The minor is engaging in an organized competition involving the use of a firearm or participating in or practicing for a performance by an organized group under 26 U.S.C. § 501(c)(3) which uses firearms as part of the performance.
    (4) The minor is hunting or fishing pursuant to a valid license, if required, and the person has the license in his or her possession; has written permission of the owner or legal possessor of the land on which the activities are being conducted; and the pistol, when loaded, is carried only in a manner discernible by ordinary observation.
    (5) The minor is on real property under the control of the minor's parent, legal guardian, or grandparent.
    (6) The minor is a member of the armed services or National Guard and the minor is acting in the line of duty.
    (7) The minor is traveling by motor vehicle to any of the locations or activities listed in subdivisions (1) through (6), has written permission to possess the pistol by his or her parent or legal guardian, and the pistol is unloaded, locked in a compartment or container that is in or affixed securely to the motor vehicle and is out of reach of the driver and any passenger in the motor vehicle." [Remainder of the section omitted]

    See question 
  • What sentence should I expect?

    I was arrested for possesion of marijuana and paraphernilia in Alabama, I plan on pleading guilty via youthful offender, what are the chances of me getting probation, This is my first offense and have no prior criminal record

    Patrick’s Answer

    You need an Alabama licensed criminal defense attorney to assist you in this matter. The trial court is not required to accept a petition for Youthful Offender. See, Code of Alabama, 15-19-1. The defendant who was age 18 but not yet 21 years of age at the time of the offense may enter a petition to have the court dispose of the case as a Youthful Offender, but the court is not required to accept the petition and may, based on the facts of the case, deny the petition. On the other hand, an adjudication as a Youthful Offender is not a conviction, but an adjudication, and does not carry the same legal consequences as a conviction.

    There may be alternative ways to dispose of this matter, including Pre-Trial Diversion. It is also possible there are legal defenses to this matter that only a licensed attorney would understand and be able to assert in a court of law. Your best course of action is to seek the professional legal services of a qualified criminal defense attorney. Check the Avvo listing under 'Criminal Defense' for attorneys in your area.

    See question 
  • Arraignment

    Was arrested in march 2014 for 12 counts of identity theft and 1 count of theft of property. I have bn going back and forth to court. My case was finally sent to grand jury and I now have arraignment tomorrow. I was appointed an attorney that seem...

    Patrick’s Answer

    If you have been assigned a court appointed lawyer, then you should seek legal advice and counsel from your attorney. If you are not satisfied with your attorney, you should seek professional legal counsel. Contact the Alabama State Bar 'Lawyer Referral Service' by contacting the State Bar at (334) 269-1515 and request to speak to the Lawyer Referral Service. As an alternative, you can seek legal services by checking the list of attorneys in your area by going to the Avvo 'Criminal Defense' list of attorneys who practice criminal law in your area.

    See question 
  • I know Teflon and brass coated steel ammo is illegal but is solid brass ammo illegal

    I would like use Leigh high extreme penetrators when I hunt and want to know if they are legal

    Patrick’s Answer

    See, Code of Alabama, 1975, section 13A-11-60 titled "Possession or sale of brass or steel teflon-coated handgun ammunition; applicability of section." That section of the Code states in full: "(a) Except as provided in subsection (b) of this section, the possession or sale of brass or steel teflon-coated handgun ammunition is illegal anywhere within the State of Alabama. The possession or sale of said ammunition or any ammunition of like kind designed to penetrate bullet-proof vests shall be unlawful and punishable as provided in subsection (c) of this section.
    (b) The provisions of this section shall not apply to state or local law enforcement officers; nor shall it apply to the possession or sale of teflon-coated lead or brass ammunition designed to expand upon contact.
    (c) Any person who while armed with a firearm in the commission or attempted commission of any felony, has in his or her immediate possession, teflon-coated ammunition for such firearm, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for said felony or attempted felony, shall be punished by the imposition of an additional term of three years in the penitentiary.
    (d) Any person violating the provisions of this section shall be guilty of a Class C felony as defined by Section 13A-5-3."
    (Acts 1982, No. 82-509.)

    This section of law was passed in 1982 at the height of the media frenzy created by former Congressman Baggio (D. NY) who started a sensationalist campaign against Teflon coated ammunition calling it "cop-killer bullets" although there never was one proven instance where this actually occurred. Baggio also later claimed that Glock pistols were "plastic" guns and could easily evade detection at a metal detector. Baggio's claims were mostly baloney, but they were widely circulated in the mass media as facts.

    What you are asking is probably a question of statutory construction. The words "ammunition of like kind" and the descriptive phrase "designed to penetrate bullet-proof vests" must be read together. It is a proven fact that some ammunition, such as steel core Czech 9 m/m ammo will penetrate a vest, but that was not the intent of the manufacture. As you are aware, the projectile design has as much to do with penetration as anything. For example, a soft lead semi-wadcutter is easily stopped by a vest; a 9 m/m FMJ less so, and the FN 5.7 even less so. I think the answer is no one is really going to check into your ammo so long as you are using it for a lawful purpose.

    See question