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Tuesday, July 2, 2013


         Driver’s license suspension is an enforcement mechanism for various types of unpaid debts or fines.  In California, debt owing to an individual may be the basis for a license suspension.  This can occur if you have been sued, and a judgment has issued for damages (property or personal injury) caused by a car accident.  The good news is that many of these types of judgments can be discharged in a bankruptcy case.  Depending on the injury and the type of damages, a Chapter 7 case may be the solution.  Otherwise, a Chapter 13 case can be filed.  Chapter 13 allows for a greater scope of dischargeability of various types of difficult debts, and can often be the necessary step toward obtaining a release. 

        There are various legal grounds for suspension in the State of California.  California’s vehicle code section 16370 provides that an individual’s driver’s license can be suspended if the individual fails to pay a judgment within 30 days of the judgment being issued.  The judgment must be for property damage exceeding $750 or for damage in any amount on account of bodily injury to or death of any person resulting from operation of a motor vehicle on a highway in California.  Cal. Vehicle Code § 16251.

        The driver’s license will remain suspended until the judgment is satisfied (or one of the other enumerated steps have been taken).  Cal. Vehicle Code § 16371.

        Bankruptcy can, for some, be a safe harbor that will allow an individual to have a fresh start on life.  It is possible to get a driver’s license reinstated that has been suspended due to an unsatisfied judgment related to a vehicle accident in California.  To get the driver’s license released an individual must receive a bankruptcy discharge and then provide a certified copy of the discharge to the Department of Motor Vehicles. 

       However, not all individuals will be able receive a discharge of the underlying debt.  Bankruptcy Code Section 523(a)(9) provides that a debt for death or personal injury caused by the debtor’s unlawful operation of a motor vehicle while the debtor was intoxicated from using alcohol, a drug or another substance is not discharged.  Thus, a driver’s license cannot be reinstated through the bankruptcy process if it was suspended due to a judgment related to a motor vehicle accident that involved drugs or alcohol, and the driver was cited for a DUI. The specific facts of the case need to be reviewed by an experienced attorney who will research the current state of the case and statutory law, and review the judgment for the legal basis for the debt.  Often there is a loophole that can be utilized to gain a favorable outcome for the client.

       Another common basis for license suspension is non-paid child support.  The best avenue for a driver’s license release is to go to family court, with a properly noticed motion, requesting the affirmative relief, with a plausible argument regarding the current state of non-payment.  Most judges are somewhat sympathetic, and will issue a release if the proper documents are filed and noticed with the Court.

Monday, July 1, 2013


            June 26, 2013 marked a fateful day in our country's history as the U.S. Supreme Court's long awaited decisions came down on the Defense of Marriage Act ("DOMA"), and California's Proposition 8.  The effect of the Court's ruling was to strike down central portions of the DOMA act as violating the equal protection and liberty clauses of our U.S. Constitution.  The Court found that certain provisions of DOMA were enacted to harm a discrete segment of our society and were therefore unlawfully discriminatory.

            As the ripple effect of the Court's ruling on DOMA is felt, those most affected by lack of access to federal benefits, our friends in the gay and lesbian community, can now enjoy equal access to privileges previously only conferred upon a marriage between a man and a woman.

            A second opinion handed down by the U.S. Supreme Court on the landmark day of June 26, 2013, is their decision finding that the appellant proponents of California's Proposition 8, which prevented gays and lesbian's from marrying in the State of California, lacked standing to bring the action before the Court.  And, for this reason, Gov. Jerry Brown has ordered the State of California officials to immediately allow the issuing of marriage licenses to same sex couples.

            The Court's holding with respect to DOMA changes the landscape to clearly give rights where a complete lack of rights previously existed, such as areas of filing joint tax returns, probate laws with respect to the tax allocated upon death of a spouse, verses a non-spouse, social security benefits, ERISA Qualified Retirement Benefits, and other federal retirement benefits, military benefits conferred upon spouses including housing, living and death benefits.  In other areas the boundary of clarity, which may have been hazy, is now brighter.  Gays and Lesbians have been denied the equal rights in the federal bankruptcy arena.  Needlessly, thousands of dollars are spent by same sex couples, as duplicative cases are filed due to the lack of clarity the previous status of the law brought to all of us.

            Fortunately, it may be possible to recoup losses, as there may be some retroactive application of the law.  Couples should go to their tax professionals to see if amending the last 3 years of tax returns, including 2010, 2011 and 2012, can either lower any current tax obligation, or allow for a tax refund.

            For many, the outcome of the Court's decisions will be most felt in the area of healthcare, health insurance, and retirement planning.  Now, gays and lesbians can enjoy the lower cost of adding a "spouse" to their health insurance plans, and can elect to add their spouses as "surviving spouses" for the benefits conferred under any ERISA Qualified Retirement Plans.