West Virginia Recent Legal Answers from Lawyers

Each chapter of bankruptcy has different costs associated with the filing.  For a list of filing fees and costs for filing visit:  http://www.wyb.uscourts.gov/fee-schedule/fee-schedule-11-1-2011. There is no specific monetary amount necessary to file.  Attorney fees and court costs should be considered against the amount of debt owed when determining whether to file.  You should contact a local attorney to determine whether to file. For more bankruptcy information visit my website: www.alsobrooklaw.com This is not intended to be legal advice, and is general in its nature. No attorney-client relationship exists or is formed by this information. Furthermore, this does not represent the views or opinions of LexisNexis or its affiliated companies.  ... Read More

I am sorry to hear about the problems you have been having.  In order to have a medical malpractice case you would need to establish if there was a violation of the standard of care.  While each state has different laws regarding malpractice cases, it is likely that you would need an affidavit from another doctor who is willing to testify that the doctor who did the spinal fusion violated the standard of care.  In order to establish such, you will need to make an appointment to see a local medical malpractice attorney in your area.  You need to request all your medical records and bills relating to this spinal fusion and bring them with you.  The attorney will want to meet with you and then review the medical records to establish such.  Please know that medical malpractice/negligence cases are very difficult and always require the hiring of an expert witness and usually takes years to litigate.  Each state has different laws so it is best that you consult a local medical malpractice/negligence attorney.  Also note that their are time limitations (statute of limitations) on these cases -- an attorney in your area can also help you with this.  I hope this helps.  NOTE:  This response is general in nature and should not be considered legal advice.  No attorney-client relationship exists or is formed by this information. ... Read More

As a general matter, employees must be paid in full for the services they render. In these circumstances, an attorney might advise you to withhold final payment pending her settlement with you of personal expenses fraudulently charged to the business. You should consult with a local attorney regarding this matter.... Read More

As a general matter, if the father is not in agreement, you'll need to petition the court to review and amend the previous order.  Upon the showing of a material change in circumstances, you'll need to prove that a change in the current custody arrangement is in your daughter's best interest and welfare.  Specific filing requirements vary from state to state.  ... Read More

Contact your lawyer handling your Chapter 13 Bankruptcy and have them contact your Bankruptcy Trustee or contact the trustee directly if you are not represented and explain situation. I have responded to your inquiry according to the laws of Massachusetts, where I practice. Laws can vary significantly from state to state and cases tend to be rather fact-specific, so you are best served by consulting with a knowledgeable attorney in weighing your options. Email messages/Online Correspondence are akin to conversations and do not reflect the level of analysis applied to formal legal opinions. Email/Online responses do not form an attorney-client relationship.   Joseph F. Botelho, Esq. BOTELHO & ASSOCIATES, LLCAttorneys At Lawwww.massachusettslawyeronline.com 126 Shove Street Unit 202 Fall River, MA 02724 Office: 888-269-0688Cell: 508-801-6747FAX: 877-475-8147 Twitter Facebook  ... Read More

West Virginia law requires automobile operators and owners to have a minimum of $20,000 in liability coverage for personal injury and $10,000 for property damages.  The at-fault driver's insurance will not settle your claim without a full release - so, you can sue personally for more money, but you will have to go to court to obtain a personal judgment.  There is no guarantee you will recover more, and you should consider the cost of going to court.  An experienced personal injury lawyer can answer your questions further.  ... Read More

Insurance rates are based on the risk to the insurance company.  Statistically, young men get into more collisions than young women.  Conversely, health insurance is usually a lower price for young men as compared to young women. You might find this link about possible future bans on gender based rates for insurance:  www.insursearchguide.com/articles/gender-based-car-insurance.html.  ... Read More

The debt would be owed by the deceased party's estate.  Your obligation on the debt was discharged (presumably) in your bankruptcy case. Mark J. Markus, Attorney at Law Handling exclusively bankruptcy law cases in California since 1991. http://www.bklaw.com/ bankruptcy blog: http://bklaw.com/bankruptcy-blog/ Follow Me on Twitter:  @bklawr ... Read More

Methadone is a controlled substance.  So is oxycontin and similar drugs, all of which are prescribed by licensed physicians for a variety of conditions.  However, all of these drugs show up on a drug test and the test can be reported as a "confirmed positive" by the Medical Review Officer.  The employer can refuse to hire you if the drug test is reported back as a "confirmed positive." ... Read More

In general, a contract does not need to be notarized or witnessed to be binding.  (Of course there are exceptions, such as those imposed for wills, for recording real estate documents, and possibly, involving divorce arrangements.)  But for most contracts, we do not generally require them to be witnessed or notarized, to be "legal."  The notary removes the issue as to the identity of the parties signing the contract.  But, it is not usually a prerequisite of a binding agreement.  Oral agreements are also generally binding (with some exceptions, such as contracts relating to the debts of another, real estate, or promises that will take over a year ro perform), but sometimes hard to prove.  It may be that as a matter of the family law in your state, the agreement must be notarized or witnessed.  Otherwise, it is up to the intent of the parties.  Your family law lawyer should help you on this.  If you don't have a lawyer helping you, I assume the amount involved with the contract doesn't really justify that expense. ... Read More

Dear Sir, Thank you for posting your question.  Unfortunately there is not a category for fiances of LPRs to receive any sort of visa under current law.  If you fiance entered the US while on tourist visa, you may see if there is a way for her to remain in US legally through another visa category.  The key is for you to become a citizen and then you could petition for her at that time.  One of the things that you must watch out for is whether your fiance entered the US to gain immigration benefits while presenting herself as a tourist.  This is a significant issue that you must take into account.  In other words, if your fiance applied for the visitor visa but her true intention was to gain immigration benefits after her entry, it might be viewed by the USCIS to have not been forthcoming which could complicate her immigration process.  I would advise you to seek consultation with an experienced immigration attorney. Please let me know if you have any questions. Gus M. Shihab, Esq. The Law Firm of Shihab & Associates, Co., LPA... Read More

I'm not completely sure I understand what happened here, but I can give you some very general information.  First, you probably can't sue the doctor's office since it seems to me they did everything they were required to do.  In many cases, an employer uses a "third party administrator" to handle FMLA and other medical leave matters.  If the "Agency" you refer to is a TPA for the employer, it looks as though the TPA did what it was required to do as well.  Under the FMLA, an employer may treat a medical absence as FMLA leave time, and your employer apparently did that.  Though you mention "being terminated," you haven't really given me enough facts to allow me to give you any guidance on that.... Read More

It appears your 2008 application is too old to receive back-pay. Look at your approval letter.  Usually, in the upper left-hand corner, it will say "Supplemental Security Income" if your case only involves SSI.  If that is the case, and your claim is only SSI -  your June 2011 application can be used to re-open an application filed June 2009 or later, not earlier.  At most, SSI regulations only allow a two-year re-opening time period.  20 C.F.R. §416.1488 Conditions for reopening. To re-open two years, you must show "good cause" (1) New and material evidence is furnished; (2) A clerical error was made; or (3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made. (b) We will not find good cause to reopen your case if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made. You do have the option to appeal the decision, but a bird in the hand is worth two in the bush.  ... Read More

In West Virginia, drug testing falls into several categories; "post-offer" testing (used to be called "preemployment" testing), random testing for people whose jobs are "safety sensitive", and "for cause" testing.  If an employer is going to test employees, it is important to have a policy which prohibits the possession, use, sale, etc. of drugs at work, and also tells employees that they will be tested.  Whether an employee can be tested depends on what the policy says and not on whether the employee is part time.    If the policy (or an employee handbook covering part time workers) requires all employees in the same category ("safety sensitive" for instance) to be tested, then all employees in that category could be tested, including part-time employees, even if a supervisor or other company representatives has told them otherwise.  The oral statements by a supervisor usually can't alter the terms and application of the policy. The West Virginia Supreme Court of Appeals held in Twigg v. Hercules Power Company, that drug testing invades an employee's right of privacy, but later cases such as Baughman v. Wal-Mart have allowed testing in a variety of circumstances. The law is pretty complex in this area.  If you believe your right of privacy has been improperly invaded you should check with your attorney for specific advice and guidance.... Read More

Laws concerning police questioning of juveniles vary from state to state. The Supreme Court has held that juveniles who are arrested, like adults, must be given their Miranda rights. It has not held that juveniles can only be questioned in the presence of their parent or guardian. Miranda rights apply to interrogations in a custodial setting -- those in which a reasonable person would not feel free to leave. Before asking questions of a detained person, police are required to tell them that they have the right to remain silent, the right to have a lawyer present during questioning, the right to appointed counsel if they cannot afford a lawyer and that if they choose to answer questions, anything they say may be used against them in court. In addition, police must advise that they can stop answering questions and ask to speak to a lawyer at any time during the questioning. State laws pertaining to questioning juveniles focus on whether a juvenile is capable of understanding and waiving their Miranda rights when being questioned in a custodial setting. For a waiver of Miranda rights to be valid, the juvenile must have the ability to understand the Miranda warnings, his or her right to remain silent and the consequences of waiving these rights. In some states, the law presumes that a juvenile may not validly waive Miranda rights if they are under a certain age or before being afforded the opportunity to consult with a parent or guardian. Examples are Iowa, Kansas, Massachusetts, Montana, New Jersey, New Mexico, and Washington. In other states, with limited exceptions, the law presumes a juvenile under a certain age cannot waive his Miranda rights unless a parent, grandparent, guardian or other adult advisor is present during questioning. These include Colorado, Indiana, North Carolina, North Dakota, Oklahoma, and Vermont. The remaining states, including your state of West Virginia, and the District of Columbia, use what is called a "totality of the circumstances" test to decide if a juvenile has validly waived his or her Miranda rights. The court considers a variety of factors to determine whether the juvenile's waiver (and any subsequent statements) were made knowingly, intelligently and voluntarily. While the factors vary from state to state, they generally include a consideration of personal characteristics, such as age, level of education and mental state, as well as whether a parent or adult representative was present and whether the child has prior experience with the legal system or police. Details of the interrogation are also considered, such as how long it lasted, whether it was accusatory in nature and what kinds of police tactics were used. After assessing these factors, the court will decide whether the juvenile's waiver was voluntary and whether the juvenile sufficiently understood both his rights and the consequences of giving them up.... Read More

The short answer is yes. If the police or prosecutor believe you committed more than the single controlled substance delivery with which you are charged, they have until the expiration of the statute of limitations to charge you for them. They also may be able to charge you with additional crimes, such as conspiracy. The statute of limitations differs from state to state. For federal drug crimes, the statute of limitations is five years. Police often urge those they arrest for drug offense to cooperate and provide information against others in exchange for them recommending either a charge or sentence concession to the prosecutor. They are within their rights to do so. However, plea bargains are only binding when made by a prosecutor. Police officers may tell you they will recommend a certain disposition to the prosecutor, but the final decision is up to the prosecutor. It is your right to reject such an offer and insist on a jury trial at which the prosecution has to prove each and every element of the charge or charges against you beyond a reasonable doubt. Before agreeing to relinquish this important constitutional right by pleading guilty and cooperating, I recommend you consult an experienced criminal defense lawyer in your jurisdiction. He or she will review the facts of your case with you and advise you as to your chances of prevailing at trial. Similarly, he or she will be able to evaluate the likelihood of additional charges being brought against you if you refuse an offer to plead to a single offense and cooperate against others, and the potential penalties for them.... Read More