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Quick Questions, Real Answers: Busting SRPMIC Legal Myths · Asked & Answered - your community podcast for all things legal

• 0:00
  Kierstin: So this is where our stories diverge because so it's so crazy because I kinda have some similar story, and we've never shared this.
• 0:09
  Alane: We've never talked about this at all.
• 0:10
  Kierstin: Yeah. So the thing is here, what I've learned today is if you want advice about this, you send them to Alane. You don't send them to me.
• 0:23
  Alane: Hey, y'all. Welcome back to Asked and Answered. I'm Alane. And as usual, I'm here with Kierstin. And today, we are joined by a special guest.
• 0:31
  Blessing McAnlis Vasquez is joining us for a special episode, and it's special because Kierstin and I are in the hot seat this week. We are answering some questions about legal myths, so Blessing is gonna ask us some Rapid Fire Questions, and we're gonna do our best to tell you which ones are myths and which ones are facts. And maybe we'll throw in some fun facts along the way. So with that, Kierstin, anything to open us up, or are just gonna go right into questions?
• 0:58
  Kierstin: I don't know if there's going to be any facts that we're going to hear today. I think it's going to be all myths.
• 1:03
  Alane: We're going to share facts. We're going to share facts. And Blessing is going to share with us some common misconceptions maybe. We're going to give you the real truth.
• 1:13
  Blessing: Yeah, we've got a lot of different questions from a lot of different topics. So if you guys are okay, let's just dive right in.
• 1:19
  Alane: Sound Yeah, let's go.
• 1:20
  Blessing: All right. So first we're going to talk a little bit about paternity. And if your dad's name is on the birth certificate, is paternity already legally settled?
• 1:29
  Kierstin: No. You have to well one could argue that they're not the father. So then they could go to court and DNA could be required to be ordered. And so yeah, I guess the simple answer is no. Did I answer your full question?
• 1:48
  Blessing: Yeah, absolutely. Absolutely. It's rapid fire. Forget. Okay.
• 1:53
  No. No, you're good. You're good.
• 1:55
  Alane: Let's see It might be slow fire.
• 1:59
  Blessing: A parent doesn't pay child support, the other parent can stop visitation. True or false?
• 2:05
  Kierstin: Yeah. That's definitely Yeah, for sure. You can't stop parenting time just because you aren't paying your child support. Although it's something that is a very common question that we receive all the time. They're not visiting, you know, so or excuse me, they're not paying child support, so therefore they don't have to have visits.
• 2:25
  That's not true. It has to occur, especially if it's court ordered. You definitely have to make sure you're following the court order.
• 2:33
  Alane: Even I get this question. The police department will call me and they'll say, I'm at this house and this mom says that she's here to pick up the kids. But dad says, no. She can't have the kids because she doesn't pay child support, so I don't have to let her have her parenting time. And the police are sort of caught in the middle of that, but we always advise, no.
• 2:49
  You gotta go by the court order. Parenting time is a completely different topic on that parenting time order than it is like the actual visitation.
• 2:57
  Blessing: Right.
• 2:57
  Kierstin: Yeah. And also, I
• 2:58
  Kierstin: guess in that sort of piece, we're talking about like that they actually have an order, maybe they haven't even gone to court. You know, They're doing these exchanges and this money could also not even be paid by a court order and they're withholding the child in those sort of capacity. That's not allowed and they should go to court to get an order to make sure that that doesn't occur. So I guess that would be, you know, some addition there.
• 3:27
  Blessing: So let's stay on that topic just a little bit. If the parents are never married, does one parent automatically have full custody over the other? No.
• 3:36
  Kierstin: I feel like I'm saying no all the time.
• 3:39
  Alane: We get this same question to the police department too. So this is definitely a widely held myth. People definitely believe this.
• 3:48
  Kierstin: Right. And also, I mean, along those lines, a lot of people believe that mom is going to be the one that's going to receive custody. If I go to court, the court is going to give custody to mom just because she's mom. Has nothing to do facts of the case, the all the things that are going on, what the kids want and all these pieces. But it's absolutely not true.
• 4:11
  Blessing: Interesting.
• 4:12
  Alane: And Kierstin, it's I mean, maybe this is a good time to point out. It's actually pretty rare that one parent gets complete legal and physical custody with no parenting time to the other parent anyway, right?
• 4:22
  Kierstin: That's definitely true. So I would say as you know, and I don't know when this trend started, so I guess I can't really give that trend history. But at some point, the trending thing that you see within court here in Salt River and stateside is that you're going to usually start at fiftyfifty, with each parent getting 50% of custody and each parent getting 50% of parenting time. Where this changes is the facts of the case. So if you have some domestic violence or you have some concerns or issues as related to the best interests of the child, those will be taken into consideration.
• 5:04
  But a starting point is fiftyfifty and then those changes based on the facts and what the parties agreed to too because sometimes parties are my job right now I'm only going to be available to do every other weekend you know so these things just play out you know based on fact specific things. But yes, that's a great question because it does seem to be a bigger trend to have both parties getting 50% of the time.
• 5:35
  Blessing: Another question for you is once a child becomes a teenager, true
• 5:40
  Kierstin: or false, they get to choose which parent they live with? Well, I mean, I would say that is no. So again, like I said, I feel like I'm saying no to every single question. And I've been talking about it this whole time we've been having some of these questions is that it depends on the facts. So definitely your older kids can go into court and give court their opinions and what their wishes were.
• 6:10
  But again, the court is going to make those decisions based on the best interest. You know, we have things where some parents are alienating another parent from having contact with a child and we don't want to see that happen even with older kids. So some of those things are going to be, again, best interest analysis by the court. And it doesn't matter if a 17 year old goes in and says, Absolutely not. I don't want to have visits.
• 6:36
  The court needs to take into all the facts into consideration. And, you know, we all know that when we're 13 or 14, we know everything, but maybe we don't and we need to have the court sort of helping us out and making sure that there's relationships with both parents. You know, we're definitely believers making sure that both parents have relationships. Again, facts could veer that differently. Again, I talk about domestic violence and child abuse and, you know, those types of things.
• 7:11
  So of course, that would change my analysis within that.
• 7:14
  Alane: Which isn't to say that the court won't listen to a child. Right. But that would just be one of the things that they would take into account in that circumstance. Is that Correct. What I'm
• 7:23
  Blessing: Right. Right. Exactly. Let's stay on the topic of juveniles for a second, but we're gonna shift a little bit out of family. A juvenile can never be prosecuted as an adult.
• 7:34
  True or false?
• 7:35
  Alane: False. So that's false here in the community, and it's false stateside, and it's false in the federal system as well. There are certain criteria that you have to meet here in the community court to move a case from juvenile court to adult court. And the court will take lots of things into consideration, things like, you know, are we prosecuting, like, possession of marijuana, or are we prosecuting a sexual assault or something serious like that? And they also take into account what kind of rehabilitative opportunities have been given to this child before.
• 8:07
  So if you have a 15 or a 16 year old who's never been in trouble before, even if they're charged with a very serious offense, maybe the court would choose not to move that case into adult court because this child doesn't have a lot of history with the court, and maybe maybe the juvenile interventions are appropriate. But if you have a 15 or a 16 year old who maybe has a lot of delinquency history and then they get charged with a sexual assault, then maybe that is an appropriate time to think, okay. Well, this is Serious. This is a serious crime. It's a violent crime.
• 8:38
  In my time in Salt River, we have only moved to do this a handful of times. One of them was a very violent sexual offense that was committed one juvenile against another juvenile. And because of that person's history, we were able to successfully move that into adult court. It's rare. It should be rare, and it is rare, but it's possible.
• 8:58
  Interesting.
• 9:00
  Blessing: How about asking for a lawyer means you look guilty?
• 9:06
  Alane: Mean, I guess you'd have to ask the jury, but I think I think no. I think asking for a lawyer makes you smart. I think if you are confronted with a situation where you're in trouble or you might be in trouble civilly or criminally, I think getting an attorney is a smart thing to do.
• 9:23
  Kierstin: Yeah. But I definitely would say I know this is more for the criminal sort of arena, but I definitely think that people think that, right? Like, Oh, they're lawyering up. But you hear this statement all the time. And once someone makes that statement, They're lawyering up, they must have something to hide.
• 9:38
  But as an attorney and just what Alane said, I think that it's a smart thing to do.
• 9:44
  Alane: Yeah. Absolutely.
• 9:46
  Blessing: What about this one for you? Police have to read your Miranda rights to you as soon as they arrest you.
• 9:54
  Alane: Untrue. False. Miranda rights are necessary before interrogation. Interrogation isn't the same as questioning. Interrogation means you were in custody, not free to leave, and you're being asked questions about your own guilt or innocence.
• 10:10
  Kierstin: Just a question, a random question about, is this your house?
• 10:13
  Alane: It depends on if it's incriminatory or not. It depends on when so the word incriminatory means might point to your guilt. So if the question of that being like, say it's an arson case and Is this your house? It's important about whether that's your house or not. If that's incriminatory and you're in custody, then that's interrogation.
• 10:32
  But both pieces have to be there. You have to be in custody, and you have to be interrogated. So there are circumstances where if the police don't wanna ask you any questions about the crime, they never have to give you your Miranda warnings. Theoretically, I think it's probably best practice just in case you happen to say something. But it only applies when interrogation begins.
• 10:52
  And so that also means that if you're being questioned but you're not in custody, they don't have to provide you Miranda.
• 10:58
  Kierstin: And then I guess my sort of follow-up with that would be in custody. What does that mean? Does that have to be at the police station or could you be in custody when you're in the backseat of the police car?
• 11:09
  Alane: In custody means not free to leave.
• 11:11
  Kierstin: Oh, yes. You said that earlier.
• 11:13
  Alane: But it's a good thing to reiterate. So maybe you're handcuffed, maybe you're not. Maybe you're locked in a police car. Maybe you're not. Maybe you're at a police station.
• 11:20
  Maybe you're not. But if you are not free to leave or if a reasonable person the famous reasonable person that we all talk about at law school. If a reasonable person would not feel free to leave, you're in custody.
• 11:30
  Kierstin: Okay.
• 11:31
  Alane: You can also ask the police, am I free to leave? And if they say no, you're in custody. That's your hint.
• 11:36
  Kierstin: Which is one of the sort of questions you always see on the, like, TV shows.
• 11:40
  Alane: Yes. Or,
• 11:41
  Kierstin: you you know, like, am I free to leave?
• 11:42
  Alane: Can I leave? And if they say no to you or if they give you a look that makes you feel like the answer is no, or if obviously you are handcuffed to a table, you're not free to leave.
• 11:51
  Blessing: Yeah. So can they use what you say when you're not read your Miranda rights if they if they question you beforehand? Can they use that information for you later against you later, or is it only after the the rights that you're
• 12:05
  Alane: If you are not in custody, if you are free to leave and they ask you questions, yes, they can use that information. If you are in custody and they violate your Miranda rights, it can't be used in the case in chief, meaning I can't call a witness to talk about what you said as part of my initial case. But if you get on the stand and you lie, I can impeach you with those statements. So for example, the police question you. You're you're in custody.
• 12:34
  They question you. They don't give you Miranda. I'm not gonna be able to pull that out as one of my first questions. But then after I finish after after the prosecutor finishes their case and it turns to the defense side and you decide that you're gonna testify and you say something that's completely different than what you said that night in those statements, I can bring them back because you've opened the door by giving a different story. So then I can say, that's interesting because the night of, you said this, and it was different in this way or whatever.
• 13:02
  So even when police violate Miranda, there are still certain circumstances where we can bring those those statements back. But for the most part, they're gone. And I guess I should say for people who may not know what Miranda rights are, it's those rights that you always hear when you watch police procedurals. You have the right to remain silent. Anything you say can and will be used against you in a court of law.
• 13:26
  You have the right to an attorney. If you cannot afford an attorney, an attorney will be appointed for you without any cost. Those are your Miranda warnings. And they kick in, again, once you're in custody and once you're being interrogated.
• 13:39
  Blessing: So if the police ask to search your car, you have to say yes. True or false?
• 13:44
  Alane: False. You don't have to say yes.
• 13:46
  Kierstin: I was just gonna say if you don't wanna be guilty or something.
• 13:49
  Alane: You don't have to say yes. But I will tell you, there are certain circumstances, and cars are one of them, where even if you say no, the police can still search. But you can say no. You can absolutely say no.
• 14:01
  Kierstin: And and I was kidding about if you are not trying to look guilty. So that a joke.
• 14:07
  Blessing: Just to be clear, police always need a warrant to search you or your property. False.
• 14:13
  Alane: So the fallback rule is they need a warrant, but there are many warrant exceptions. One of them is exigent circumstances. That basically means an emergency. So if your house is on fire, they can run-in and help people get out without going to get a warrant to let them into your house. If you call 911, they can enter your house because they have an emergent reason to do so.
• 14:35
  Kierstin: They have a hostage situation.
• 14:37
  Alane: Hostage situation. That's an exigent circumstance. And there are others as well. But the fallback is really sure they should get a warrant, but there definitely are circumstances where they may not. Another one is evanescent evidence, which is one of my favorite phrases that I learned in law school.
• 14:53
  What does it mean? It means like, say, the police department is doing surveillance on a house where they suspect that drugs are being sold. And someone enters a house and maybe they somehow suspect that a drug deal has happened, and they want to follow that person home and they watch them walk inside with the same bag that they took out of the drug dealer's house, they can go in and get that without a warrant because theoretically, those drugs are evanescent. They could easily disappear. So you can flush them on a toilet.
• 15:24
  You can throw them into the backyard, whatever. If there's a chance that in the time that it would take for them to obtain a warrant, which can be hours Sure. The evidence could disappear. That's evanescent evidence, and that's a warrant exception. That's a few examples.
• 15:40
  Blessing: That's fascinating. Very interesting. Let's switch a little bit and talk about courtroom myths. If there is no DNA or fingerprint evidence, there can't be a conviction. True or false?
• 15:52
  Alane: False. This is what we all talk about as, the CSI effect. Right? Because everyone's gotten so used to watching CSI, so they're used to having fingerprint evidence back in forty five minutes and DNA back in an hour. Police will often look for fingerprints, and they will often look for DNA. But what that doesn't what isn't as easy to quantify is some textures retain fingerprints and or DNA easier than others.
• 16:18
  Some just don't. And also, depending on the oils that you keep on your fingers, maybe your fingerprints are easy to maintain. Maybe they're not. So at the end of the day, certainly fingerprints and DNA are evidence that we love to have. But there are all kinds of physical evidence.
• 16:35
  There are there's gunshot residue that you can look at. There's testimonial evidence, which is evidence. So eyewitness testimony. We can use license plate readers to place people in in the general vicinity of a crime. Cell towers is very common to use these days.
• 16:53
  You can have text messages that talk about planning the crime. So there are lots of ways to obtain both physical and testimonial evidence that have nothing to do with DNA and nothing to do with fingerprints. Because a lot of the time, you know, people are smart, and they wear gloves, and there is no fingerprint, and there is no DNA. And so, thankfully, there are other ways that we can help to prove crime without those two, Although it's helpful when we have it.
• 17:15
  Kierstin: Did you have a text message question?
• 17:17
  Blessing: I did. I was just gonna say. Same thing. I was like, you mentioned text messaging, so I wanna talk about that. If you delete a text message, it can't be used in court.
• 17:27
  Alane: I not true. No.
• 17:31
  What people don't know is how much of their text message history we can actually obtain with search warrants to their cell providers. So and also, if we're able to seize a person's phone and they get a warrant to process it, text messages, whether you've deleted them or not, your social media messages, your social media posts, telephones, laptops, tablets are a wealth of information. And as long as we can establish a nexus, a connection to the crime, we can get warrants to process them. Mentioned social media. Sorry.
• 18:06
  Blessing: Really quickly.
• 18:06
  Kierstin: Okay.
• 18:07
  Blessing: If your account is private, does that matter at all?
• 18:10
  Alane: No.
• 18:10
  Kierstin: Doesn't. But also what I was going to add too is that Alane's talking about like a search warrant, getting a search warrant for these text messages. But just imagine that you send this text message to another person. That person may be cooperating and may willingly provide the text message over without needing to have a search warrant. So as soon as you put it out in the universe, it's out there.
• 18:32
  And then I guess going back to the social media, the query as far as if you put it out there, again, social media is a lot bigger than the one person that you text, right? Because then there's two people or if you're on a chain, multiple people. But social media, you could have, you know, 100 friends that you posted that and you probably could find one of those friends that are willing to share that post that you posted. And even if it's private so that you don't even have to get a search warrant at those, at those pieces.
• 19:03
  Alane: You don't have to. You don't have to do it at all. We usually will. Even if we have a cooperating witness, we will just because having that information directly from the company, directly from the the social media host just proves it just helps to prove accuracy.
• 19:19
  Kierstin: Yeah.
• 19:19
  Alane: And that it wasn't edited and all that good stuff. So in the age of AI, you know?
• 19:23
  Kierstin: Right. Right. And I guess maybe the distinction is that for civil cases, I wouldn't necessarily go that far versus a criminal case beyond a reasonable doubt, my standard is different than your standard. So
• 19:35
  Alane: Sure. We when it comes to any type of physical evidence, we wanna make sure that it's completely you know, you wanna make sure that your victim or your witness can't be impeached for bias, that they're they just have something out for this person. They planned all this. They changed these text messages. They took out certain text messages to make it look like this was part of a different conversation, that sort of thing.
• 19:55
  So we always will go the extra mile whenever we can Mhmm. To get the full records from provider. But it might be a person who shares a text message or a social media post with us that gives us what we need to get the search warrant to go get it from the company.
• 20:12
  Kierstin: Right. Right.
• 20:13
  Alane: Right. That might be what gives us the probable cause that we need for that.
• 20:17
  Blessing: Right. Can we talk a little bit about relationships, maybe breakups a little bit? Dun, dun, dun. So if we live together for seven years, we're automatically common law married.
• 20:29
  Kierstin: Oh my goodness. That's something that people think. It doesn't no, it doesn't exist. It's not law within the community. It's not law within the state.
• 20:42
  And I believe, you know, I'd have to do some research, but I don't believe there are many, if any, states that still have this on
• 20:49
  Blessing: the books. Wow. Interesting. Yeah. If we bought something together, do we automatically own it fiftyfifty?
• 20:57
  Yeah, of course. It's not You
• 21:00
  Alane: own it each 100%, which is 20 more. Which presents a problem when it comes time to split it. Right? Yeah. Yeah.
• 21:08
  I mean This is Kierstin's area. Well, ultimately,
• 21:12
  Kierstin: if you well, here I'm gonna throw some curveballs on that. Did you own it and you're married and now you gotta split it? Did you own it and your boyfriend and girlfriend and now you gotta split it? So different rules for different relationships. So if you're married, then you're gonna go through a divorce and the court is gonna order how that to be divided.
• 21:33
  If you're boyfriend and girlfriend, there is no mechanism to go into court and say, I want my property to say are splitting up. Now you could make a claim against, you know, I purchased this and then you'd have to, you know, show up all that evidence. People aren't probably going to go through all those steps, so. Well, let's talk about that a
• 21:56
  Blessing: little bit. If I paid for something, it legally belongs to me. True or false? I mean, I think it's kind of what we've been talking about.
• 22:04
  Alane: I'm going to need more context.
• 22:05
  Kierstin: Yeah. Whose credit card?
• 22:07
  Alane: Don't know. There's this book that a lot of people get recommended. I was recommended to read it before I started my 1L year, my first year of law school, called Getting to Maybe. Because the joke is if you ask an attorney a question, they're gonna go, maybe. And they're going ask you 50 questions about Sure.
• 22:22
  Follow-up. Right. And so, yeah, I have a lot more questions about that before I can give you an answer. My answer to you right now is maybe.
• 22:29
  Blessing: Okay. If it's not in writing, it's not a contract. I mean, I wish. Again, that's false.
• 22:39
  Kierstin: Yeah, you could have an oral contract. You know, basically what the court is looking at there is intent. Was there an intent to reach an agreement? So if I said to Alane or Alane says, Hey, can I borrow $500 And we have a conversation that you're going to pay me back? So it's truly, I'm borrowing this money and then I give it.
• 23:01
  That was my intention was to pay her back so she could sue me for getting that money back, even though we didn't write it down.
• 23:09
  Blessing: Okay. Okay. So let's reverse that just a little bit. If I sign a contract, is there absolutely no way out of it? True or false?
• 23:17
  Kierstin: That's what the companies want you to believe.
• 23:20
  Alane: Yeah. It depends on a lot about the contract itself. So, like, for instance, unconscionable contracts are not enforceable. So the whole, like, in The Little Mermaid when Ursula the sea witch makes Ariel sign away her voice, that is, ladies and gentlemen, an unconscionable contract.
• 23:39
  Kierstin: Look how she
• 23:40
  Kierstin: brought in Disney.
• 23:41
  Blessing: I like it.
• 23:44
  Alane: And there are things like, what, coercion? Fraud. Distress. All those things that can Mistake. Mhmm.
• 23:51
  Right. That can play into whether a contract is valid or not. It's one reason why I would recommend that if you are about to sign a contract, you find yourself an attorney to look over it, to make sure that you don't make a mistake, to make sure that you do understand all of the legalities and everything that you're gonna be expected as part of that contract. But I mean, as a rule, I would say if you sign a contract intending to enter into the contract, you're gonna be held to it.
• 24:14
  Kierstin: But there could be ways to get out of it. Just like Alane said just probably five minutes ago, maybe.
• 24:20
  Alane: Sure. There could be a loophole. You never can tell.
• 24:24
  Blessing: Got it. Okay. We're going to switch back over to some arrested charges topics. If a victim doesn't want to press charges, the case has to be dropped. True or false?
• 24:35
  Alane: That's false. And in fact, this comes up a lot in our domestic violence cases. Part of the domestic violence cycle includes recanting or taking back what you said. Right. Some of that is because people realize, oh my goodness.
• 24:50
  My partner is the person who makes the money in this family, and I can't support myself. And that does happen sometimes. But part of it also is this is my husband who I love, and I got him in trouble, and now I feel bad about it. And that is a valid emotion. Part of it is sometimes offenders say, if you don't show up and tell them that you wanna drop these charges, I'm gonna kill you.
• 25:11
  That happens too. So in all of those circumstances, we tell victims, you know what? We're not gonna dismiss this case, but you can communicate to your partner that it's our fault. We're the reason that we're not gonna dismiss. It's not your fault.
• 25:24
  And we take the blame for that on us because as representatives of the community, because that is our job, we have an interest in community safety. There are ways to ensure that victims come and testify. If we send a subpoena, obviously, we tell them there are consequences if you don't obey the subpoena. We try not to do that because we don't wanna be really part of the traumatic process. But the other thing is there are other ways prove crime other than having the victim testify.
• 25:51
  So photos, medical records. Sometimes there are other witnesses who can come and testify. There are lots of other pieces of evidence that we can gather so that we can build that case even if that person isn't participating in it. So while it is something that we consider, it does not mean that we have to dismiss. Got it.
• 26:08
  And often means that does not mean that we do dismiss.
• 26:11
  Kierstin: I think that's a good question because I definitely think people wonder why it's not being dismissed. Right. And so there's some confusion within that respect.
• 26:21
  Blessing: Right. Definitely. If I ignore court papers, nothing can happen until I show up. I mean, I wish.
• 26:31
  Kierstin: The unfortunate part about that piece is that the court can enter orders against you. It's called the default process. So you got served and you've been properly noticed. The court can then move forward with the legal action that's being brought against you. So for example, if you're being sued for money and the earlier example that I was talking about, Alane, she asked me if she can borrow some money and then she doesn't pay me and now I'm going to sue her.
• 27:05
  Alane says, I got served. I don't care. Nothing can happen. I'm not going to go to court. Then I go to court, and the court said she's been served.
• 27:13
  I'm like, Okay, then I want you to enter judgment against her for the $500 she owes me. The court could issue that order, and now I can collect the money that she owes me even though she never showed up
• 27:27
  Blessing: to court. That's how warrants happen too. Is is that correct? Ish, maybe?
• 27:31
  Alane: It it so there's a couple of there's a couple of things that happen in criminal court when you don't show up. But back to Kierstin's civil point for just a second, in that scenario, like, say Kierstin forgot that I actually paid her $250 back, and I really only owe her $250. Now I'm gonna have this $500 judgment just because I didn't show up to court. Mhmm. Whereas if you show up to court, you can say, no, no.
• 27:52
  Like, I definitely owe her money. Like, okay, mea culpa, but I paid her this $250 And here I have this text message where she acknowledges it, or I have this Venmo where she acknowledges it. And Kierstin's like, oh, yeah, you're right. I did forget about that. Yeah.
• 28:05
  Or whatever the case may be. So it's in your interest to show up because at least then you can give your side of the story.
• 28:10
  Blessing: Right.
• 28:11
  Alane: In criminal court, a few things can happen. So, yes, if you are supposed to appear at court and you don't, you can get a bench warrant. But also, the court the code does include the ability for us to proceed with trial in your absence.
• 28:28
  Blessing: Oh, interesting.
• 28:29
  Alane: It's called in absentia. It's rare. We have done it before, but it's rare. And your defense attorney would be there, and the jury would be there, and the judge would be there. Everyone will be there except you.
• 28:39
  And, again, that means that everyone else gets to tell their side of the story, and you don't. So while you would have a defense attorney there, they wouldn't have the benefit of having you be sitting beside them to tell them what actually happened that day. So definitely in your interest to just show up. Because if you don't show up and a warrant gets issued, you're gonna get arrested, and you're gonna have to spend the night in jail and it's gonna be a whole thing. Just come to court.
• 29:03
  Kierstin: Yeah. And that would be if it's a criminal warrant.
• 29:05
  Alane: If it's a criminal warrant. No. If it's civil warrant, you get arrested too.
• 29:08
  Blessing: Oh, really? Okay. Well, okay. So I have a couple of probate and power of attorney questions. So here we go.
• 29:14
  A power of attorney can still make decisions after a person dies. True or false?
• 29:19
  Kierstin: So if the person has died, your power of attorney is done. I think this is a great question because this is a very common mistake. We have had clients call us and say, I got a power of attorney. My dad, for example, passed away and now the insurance company isn't talking to me or the bank account isn't talking to me and I have this power of attorney. Why isn't this power of attorney working?
• 29:47
  It's not working because the person has passed away. That power of attorney is permission from the person that is alive to act on their behalf while they're living. It does not give you the ability to act on their behalf when they're passed away.
• 30:04
  Blessing: Got it. If I have power of attorney, can I use a person's money however I want?
• 30:11
  Alane: No, don't do
• 30:12
  Kierstin: that. Could actually Don't get
• 30:13
  Blessing: in really big but I was just asking.
• 30:15
  Alane: You'll get in really big trouble if you do.
• 30:17
  Kierstin: Yeah. I mean, so you actually have a fiduciary duty is what it's called to your principal. So going back to Alane and I, if I Alane gives me permission to act as her agent and I'm supposed to manage her affairs and I'm managing her money inappropriately and or she says, Hey, need you to pay all my bills and I don't pay her bills and I go to the casino instead, then she can sue me for breaching my fiduciary. The power of attorney is like a contract, if you will, a contract between the two of us that you're going to act on my behalf and take care of these things for me.
• 31:00
  Blessing: Interesting. If you have a will, does your family not have to go through probate? Again, that's a no.
• 31:10
  Alane: You still have to go through probate.
• 31:11
  Kierstin: You still have to go through probate. You still have to have the court review the will, see if it's no one's contesting the will, and then make the orders of the probate based on the will, assuming that it is withheld or held up.
• 31:31
  Blessing: These are all fascinating. So much to learn. I have one more question and it's super random. So it's out there, Okay? If your blood alcohol content is below point zero eight, so it's below the legal right, I cannot get a DUI.
• 31:48
  True or false?
• 31:49
  Alane: Okay. That's false. And that's a very common misconception. There are two ways to commit DUI, driving under the influence, here in the community. One is to have a blood alcohol content above point zero eight.
• 32:01
  The other is to drive while impaired to the slightest degree by alcohol. So what does impaired to the slightest degree mean? Maybe it means that you're driving a little bit funny, that you ran a stop sign, that you almost ran off the road, whatever the case may be. But, yeah, if you are impaired to the slightest degree by alcohol, even if you're at a point zero four, even if you're at a point zero two. Yeah.
• 32:21
  If you are impaired and your driving is impaired by that, by alcohol, by marijuana, by whatever, you can be prosecuted for DUI even if you're below 0.08.
• 32:30
  Kierstin: So it doesn't matter how much when you blow into the test, what shows up on that test.
• 32:37
  Alane: I would just remind everyone that there is no safe amount of alcohol to drink before you drive. Driving while intoxicated, driving under the influence takes lives. It injures people. Sometimes you, sometimes the person that you hit or run into or caused to hurt off the road. Mhmm.
• 32:51
  So just don't make it a practice. Sure. Blessing, have you got one last question for us?
• 32:54
  Blessing: I got
• 32:55
  one more for you.
• 32:55
  Kierstin: Okay. Are you cutting her off?
• 32:57
  Alane: How many minutes are we at, guys? I feel like people might be tired of listening to us. I don't
• 33:01
  Blessing: why would
• 33:02
  Alane: they ever be tired of listening to us?
• 33:05
  Blessing: Oh, okay. Okay. So I'm going to circle back to the whole texting and kind of social media, all that fun stuff. So if I record a conversation because I'm a part of it, is it considered legal because I'm a part of that conversation? Well, what do you mean legal?
• 33:21
  Kierstin: Do you mean that could you use it in court? Sure.
• 33:24
  Alane: Yes.
• 33:24
  Blessing: Okay.
• 33:25
  Alane: Could you use it in court? Okay. So that is a question with several answers, and it depends on where you are when you're recording it. And it depends on where the other person is when you're recording it. So if you're on the phone and you're doing this recording, you should be extra aware.
• 33:39
  Arizona is a one party consent state. So that means that as long as one person involved in the conversation consents to it, the recording is legal. There are lots of states, New York among them, that are all party consent states, which means that every person involved in the conversation has to consent. So if you are on the phone with a person in New York, it's great like, if there's a group of you in Arizona and you're the only one who's aware in Arizona that the phone call is being recorded, you're okay in Arizona. But if the person in New York isn't aware, you're committing wire fraud theoretically.
• 34:16
  Kierstin: Oh, interesting. Yeah. That's interesting.
• 34:18
  Blessing: I didn't know that. Wow.
• 34:20
  Kierstin: She said it was a quick answer.
• 34:23
  Alane: So this is why on some police procedural shows, you will sometimes see them inform the person that they're being recorded, or they'll have the camera out super obvious to show people that they're being recorded.
• 34:35
  Blessing: Yeah.
• 34:36
  Alane: And in other states, they don't because the the person the suspect, the witness, whomever, doesn't have to be informed that they're being recorded. It just wholly depends on where you are and what you wanna use the recording for. I will remind everyone, if you are a Salt River employee, it is against administrative policy to record your fellow employees without their permission. So even if it is technically legal in Arizona, is against policy.
• 35:01
  Blessing: So I feel I'm sorry. I said it was the last one, but I have one more because we talked about it. I feel like in this world of social media, we always see people pulling out their phones immediately and recording in a public space. So if I'm in a public space and someone I feel like is mistreating me, am I allowed to use that against
• 35:18
  Alane: Of course you are. By virtue of the fact that you are holding a camera in their face, they are aware that you are recording.
• 35:23
  Blessing: Got it.
• 35:23
  Alane: Mhmm. And you are absolutely allowed to record police officers. You're allowed to record each other. You're allowed to record if you see someone being assaulted. Absolutely.
• 35:31
  You can record that.
• 35:32
  Kierstin: That's awareness. Right? Right. So it's not necessarily permission. So you don't have to have permission from
• 35:37
  Alane: the person.
• 35:37
  Kierstin: It's more of them being aware of that.
• 35:40
  Blessing: Got it. Yeah.
• 35:40
  Alane: Because they Yeah, yeah, yeah. It is sort of permission, but their permission is if they don't want to be recorded, can leave.
• 35:45
  Kierstin: Right. Right. Leave the space. Yeah.
• 35:48
  Blessing: Well, I learned a lot today, ladies. So thank you so much for fielding some of these questions from me.
• 35:53
  Alane: Before we break, I guess we should probably give our disclaimer that nothing we have said is legal advice.
• 35:59
  Kierstin: Yeah. Definitely.
• 36:00
  Alane: If you have an actual legal question about an incident or an issue in your own life, you should certainly consult your own attorney for that. But hopefully, this did give you a good place to start if you are just wondering, hey, is this even real? Is this a real thing?
• 36:15
  Kierstin: Well, also, as I was thinking Belinda, you said this. Like, you learned a lot. Like if there's something that you heard today that we talked about and you want some more information, you can definitely reach out to Legal Services office with regards to the civil arena or you can reach out to Alane's office within the criminal arena.
• 36:33
  Alane: Or the defense advocate's office too.
• 36:34
  Kierstin: Yep, for some of those deeper dives on maybe your specific issue that you have. Maybe this makes you think about some things that are going on in your own life and I want to have a query or a conversation about that. Or you can email us at asked and answered.
• 36:52
  Alane: What a great segue, Kierstin.
• 36:54
  Kierstin: Right. Askedandansweredsrpmic nsn dot gov. We appreciate everyone listening to us today and I think we're off.
• 37:05
  Alane: I think we're off. We'll catch you all next time. Bye, y'all.