Posts Tagged ‘Crime’

How To Pay Your Criminal Restitution Through A Chapter 13 Bankruptcy

Tuesday, March 20th, 2012

criminal restitution in chapter 13 bankruptcy

Today we have a guest post from Jay S. Fleischman, a great consumer bankruptcy attorney who is a member of the National Association of Consumer Advocates, a member of — and the New York co-chair of — the National Association of Consumer Bankruptcy Attorneys, and a partner in the New York law firm of Shaev & Fleischman, LLP

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Let’s say you’re convicted of a crime.  Your lawyer can get you jail time or criminal restitution, perhaps a mix of both.  Here’s how to handle that restitution order using the U.S. Bankruptcy Code.

Bankruptcy is usually thought of as a way to get out of credit card debt, stop foreclosure, and the like.  And though you can’t wipe out a criminal restitution order using the bankruptcy laws, you can leverage the system to repay that debt in a way that doesn’t interfere with your ability to earn a living.

Discharge of Criminal Restitution In Bankruptcy

Under 11 USC 523(a)(7), you cannot discharge a debt that is for a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty”.  In other words, you can’t wipe out your criminal restitution obligation in bankruptcy.  When you file for Chapter 7, which is designed to lead to a discharge of your obligations, you will still owe the criminal restitution when you complete your case.

Chapter 13 Bankruptcy As Repayment Tool

There is, however, a different type of bankruptcy case that is available to those who have regular monthly income.  Under Chapter 13 bankruptcy you can repay a portion or all of your debts over a 3-5 year period.  The amount you are required to pay each month under Chapter 13 is dictated by a combination of your income, expenses and debt, and the monthly payments go to a bankruptcy trustee for distribution to your creditors according to a legally-mandated formula.

Chapter 13 is an elegant way of reorganizing your financial life and structuring repayment in such a way as to minimize the impact on your day-to-day life.  While you’re in an active Chapter 13 case the government cannot execute against your income or assets in connection with the restitution award, so you won’t need to worry about your paycheck or bank account being seized during this period of time.

If you’re in a Chapter 13 bankruptcy, however, you’re going to need to repay that restitution award in full because, as in Chapter 7, the claim won’t be discharged at the end of the case.  That’s why it’s important to structure your Plan accordingly.

Order Of Repayment In Chapter 13

Debts get paid in a particular order under the U.S. Bankruptcy Code.  The U.S. Bankruptcy code has at its core the policy of fairness to all creditors of equal legal priority.  At the lowest priority of repayment stands the general unsecured claim, which includes credit cards and medical bills.  § 507(a) of the U.S. Bankruptcy Code lists those debts that are entitled to priority over other unsecured debts. Although the list of priority claims includes certain type of debts that would also be nondischargeable, criminal restitution claims are not among those listed.  In addition, the bankruptcy court can’t change the priority scheme established by the Bankruptcy Code.
If you file for Chapter 13, your repayment plan can’t attempt to repay your criminal restitution award before other general unsecured creditors except in extremely limited situations.  In fact, the reported cases addressing separate classification of restitution claims have uniformly denied confirmation. See, e.g., In re Crawford, 324 F.3d 539 (7th Cir. 2003)In re Bowles, 48 B.R. 502 (Bankr. E.D. Va. 1985)In re Williams, 231 B.R. 280 (Bankr. S.D. Ohio 1999)In re Limbaugh, 194 B.R. 488 (Bankr. D. Or. 1996).

The Ever-Lasting Chapter 13 Bankruptcy

If you owe money for criminal restitution, but you’re not going to be able to repay it during the course of a single Chapter 13 bankruptcy case, you may want to consider whether it makes sense to file one case, go through the entire repayment plan, and then file another one as soon as the first one is completed.  This gives you the opportunity to restructure your finances over a longer period of time than would otherwise be possible in a single bankruptcy case.
There are going to be considerations once you complete your first repayment plan, such as whether your income is higher or lower than it was when you began your case.  The second repayment plan will need to reflect your new income and expense levels, but for some it’s a valuable tool to help wrangle that restitution award into shape.

Jay S. Fleischman is a lawyer who helps people file Chapter 13 bankruptcy.  He also sues harassing bill collectors on behalf of his clients.

Image credit:  stevendepolo

What is VASAP?

Monday, August 22nd, 2011

VASAP is the Virginia Alcohol Safety Action Program.

VASAP helps police officers by assisting them to obtain state of the art alcohol identification equipment and by training the officers on the use of this equipment.

VASAP is most widely known to be the organization that provides programs and activities to educate the public on the dangers and costs of drinking and driving.

I know that I was confused about whether the name was ‘VASAP’ or just ‘ASAP’.  The ASAP programs are the local programs that are attended by the public and there are 24 local ASAP programs in Virginia.  The VASAP is the umbrella organization that oversees and evaluates the actions of the local ASAPs.  Most of the time, you can use either name to indicate the program.

It has been reported that 86% of all crimes can be somehow related to alcohol or other drugs, and there is a consensus that if we can limit the unreasonable use of alcohol or drugs, we can limit the number of crimes committed.  While there are many crimes that do not involve driving, most people today drive, and if the driver is habitually abusing either alcohol or drugs, it is very likely that he or she will eventually be given a ticket for some driving activity that can be attributed to the alcohol or drug misuse and that is one path that the state can take to get the driver into the VASAP program with the goal to eliminate, or at least minimize, the illegal use of alcohol or drugs in the future.

While most of us think of the VASAP programs as being for drivers that were found guilty of a DUI, VASAP also has programs for drug offenders and reckless drivers where the use of alcohol or drugs is not directly involved.  There is also a program for those that have been found guilty of driving on a suspended license.

The VASAP programs are funded by the fees charged to those that are ordered to take these programs.  This means that the cost of a DUI or other drug or alcohol related crime is increased by the VASAP fee.  There are usually payment plans available, but if the VASAP fees are not paid, the person’s driver’s license will generally be suspended, which can cause future problems for the driver.

You can find out more about the VASAP program at their website here.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can my criminal record be expunged?

Sunday, July 17th, 2011

I’ve had a couple of phone calls in the past few weeks from people who want to have their criminal records expunged.  One of these was for a petty larceny conviction which started as a dare to shoplift.  The person took the advice of her friends and pled guilty, got a small fine, and thought she was off the hook.

Fast forward 8  years, and this same person now wants to rent an apartment.  Surprise! The apartment manager did a criminal background check and found the petty larceny charge.

I had another call from someone who had a brush with the police over 40 years ago, when he was a teenager, and that charge is now keeping him from getting a gun permit.

And just last week I had an inquiry from someone who was found guilty of grand larceny about 12 years ago and she can’t get a job today because of her criminal record.

Bad credit stays on your credit report for 7 years.  Even a financial judgment or bankruptcy falls off eventually.  In Virginia, criminal convictions stay on your record forever!

But what about an expungement?  An expungement is a civil process by which a record of criminal conviction is destroyed or sealed, generally after the expiration of time.  Each state has its own process and time frame.  In Virginia the time frame for sealing or destroying record of a criminal conviction is NEVER.  That’s right.  In Virginia, if you are found guilty of a crime, or if you plead guilty to a crime, that criminal record will remain forever and cannot be expunged automatically.

Is there a process in Virginia to have a record expunged?  The answer to that is Yes.  If you have a criminal record you can petition the court to have the record expunged.  But the only way a criminal record can be expunged in Virginia is if the criminal arrest was not finalized by a guilty verdict in any form, or if the court finds that the dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner.

And most of the time, the court does not find that a manifest injustice exists where there was sufficient evidence to find the person guilty in the first place.  Your definition of a manifest injustice is not usually the same definition that the court uses!

As an example, people often argue that they just can’t be found guilty of reckless driving because it will affect their security clearance.  At least one Commonwealth Attorney I talked with said that they should have thought of that before they were caught going so fast!  Very different viewpoints on whether this is a manifest injustice!

So, if you were arrested but never tried; or if you were arrested and tried but found not guilty, then the expungement process might help you get that arrest off of your records.

Otherwise, there is a very, very, slim chance that the record might be expunged.

The ‘take away’ from this?  Don’t do the crime in the first place, otherwise it may follow you forever.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Improper Driving in Virginia

Sunday, June 19th, 2011

Improper Driving is not something that will be written on a ticket.  Instead it is a statutory creation found in Virginia Code section 46.2-869 that says “upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving.”

The penalty for improper driving is much less than the penalty for reckless driving.  There are only 3 points assessed by the DMV, as opposed to 6 points for reckless driving.  There is also a maximum fine of $500 instead of the max fine of $2500 for reckless driving and there is no jail or license suspension duration either.  Of course the biggest difference is that improper driving is a traffic violation while reckless driving is a crime!

How do you get your charge reduced from ‘reckless driving’ to ‘improper driving’?  It’s up to the judge.  You need to convince the judge that you really should have your charge reduced because ….

The … after the because is where you would put in your arguments to try to convince the judge that you deserve the break.  The judge can take a lot of things into consideration including whether you were cooperative with the officer, whether you have had multiple driving offenses in the past, whether you were speeding because you didn’t plan your trip correctly, or any other thing that the judge feels might make a difference.  And yes, often your demeanor in court will have an impact on the judge’s decision too.

The judge will not always agree to a reduction in the charge to improper driving, but it is usually worth it to make that request and have an explanation ready to help the judge make the decision in favor of the reduction.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Reckless Driving in Virginia

Saturday, June 11th, 2011

Have you been charged with Reckless Driving?

Reckless Driving in Virginia is more than a glorified speeding ticket.  It is a class 1 misdemeanor that can result in up to 12 months in jail and a fine of $2500!

That’s right!  Reckless Driving in Virginia is a CRIME that will remain on your record FOREVER.

The judge will probably not order the maximum penalty for a first offense Reckless Driving charge.  However, there is a really good chance of receiving a hefty fine and a suspension of your driving privileges.  Regardless of the other conditions, the part of the guilty verdict that results in the finding of guilt of a crime remains.

Why is this important?  I had a potential client call me because she was trying to rent an apartment in Florida and they did not approve her application because her name came up when they did a criminal background check.  Yep…it was the Reckless Driving ticket she got 5 years before that showed up as a ‘criminal conviction’ with really no other information explaining that it was for driving at excessive speed.  Unfortunately, there isn’t a lot we can do except try to get the records to explain that this was a speeding matter and not something that most of us think of as ‘more criminal’ in nature.  By the time we could arrange all of this, the apartment was no longer available, but at least the Potential Client has the information for the next time this happens.

So, what is Reckless Driving?  Reckless Driving is driving at any speed that is in excess of 20 miles over the posted speed limit OR driving at a speed in excess of 80 MPH (regardless of the posted speed limit) OR any driving action that is perceived by the officer to be driving in a manner so as to endanger the life, limb, or property of any person.

When they raised the speed limit on most of the interstates in Virginia to 70 MPH, they did not change the limit for Reckless Driving.  I know most people think you can go 10 miles over the speed limit and not get caught, but this is something you should really be aware of.   (As a side note, I’ve been in court when people were found guilty of going 4 miles over the posted speed limit.  After all, it was technically over the posted limit.)

The bottom line is to take a ticket for Reckless Driving very seriously.  I would suggest that you consider the ticket for Reckless Driving as being the same as being arrested for any other crime.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.