GGrayLaw | Week 4 Q&A with Gerald Gray – A Kansas City Attorney
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Week 4 Q&A with Gerald Gray – A Kansas City Attorney

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Week 4 Q&A with Gerald Gray – A Kansas City Attorney

Q1.

I was stopped for speeding and the officer said that he thought that he smelled marijuana so
he asked to search my car.
I don’t smoke marijuana and I told the officer that there was no way that drugs were in my car.
But I allowed the officer to search my car.
Upon searching my car, he found a gun and handcuffed me.
He then started questioning me about the gun and I told the officer that the gun was not mine, but my boyfriend’s.
My boyfriend carries the gun but leaves it in the car when I take him to work.
It turns out that the gun was reported stolen?
The officer took the gun and I was taken to jail where they questioned me about my boyfriend and the gun then let me go.
Can I be charged with the gun?
Unfortunately, you can be charged.
Although the gun is not yours, it is in your possession.
You must remember that you are always responsible for everything that is in your car so be mindful of
everyone that you allow to ride in your vehicle because if they place something illegal in your car and do not own up to it, then the police can and will charge everyone in the car and then the reality of the situation is that the burden will shift to each individual to prove that the contraband in question is not theirs.
Another thing to be mindful of is consenting to a search of your car.
Never give consent to search your vehicle.
An officer must have a legal basis for searching someone’s car, otherwise anything discovered could be thrown out in Court regardless of whether it is illegal.
However, once you consent to a search, officers no longer are required to justify their actions.
If the officer could articulate that he had a reasonable belief that you were hiding illegal drugs in your vehicle, then he may have been able to search your car regard less of your consent, but once you consented, you made
the officer’s job easy.
Another thing to be mindful of is giving statements to police.
You must remember that any statement that you give can and will be used against you in the Court of law.
Therefore, if you are ultimately charged, then you may have provided the prosecution with a confession by speaking with investigators.
I know that it can be tricky because thus far, you’ve avoided prosecution by cooperating but that could change at any moment.
Your fate could depend upon whether or not you assist in the prosecution of your boyfriend if they decide to charge him.
Although, it sounds like he might be bad news if he is carrying stolen guns and getting you arrested.
Q2.
I was a contractor through a contracting agency for a company.
I worked there for almost 4 years. However, when I got pregnant and had to take maternity leave, I was not allowed to return to work?
Can the company not rehire me because I had to take off to give birth to my baby?
Well it depends.
There are laws that protect workers from discrimination such as what you’ve described.
However, many of the employment discrimination laws are aimed to protect employees, not independent contractors.
However, just because you work as a contractor does not mean that you are not an employee.
Employers oftentimes improperly classify their employees as independent contractors so that they,
the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security for example.
Since different laws may be involved in a particular situation such as a termination of employment, it
is possible that the same individual may be considered an employee for purposes of one law and an
independent contractor under another law. There is no set definition of the term “independent
contractor” and as such, one must look to the interpretations of the courts and enforcement agencies
to decide if in a particular situation a worker is an employee or independent contractor.
In determining your status, Courts would look at various factors for example:
Whether or not you were part of the company or a separate business;
Whether or not the work you performed was part of the services provided by the company or was
distinct to the contracting agency;
Whether your agency or the company owed the compute and other equipment you used to do your
job;
Whether or not you worked independently or your boss was an employee of the company; and
Your method of pay and who determines your pay.
If it is found that you are an employee, you could file a discrimination action under federal or state law.
In order to be sure, contact an attorney or your local EEOC office for guidance.
Q3.
I have joint custody of my 8-year old son.
However, I only get to see him 2 days a week on my days off.
His mom recently got a job working overnight and she takes my son over her sister’s house to spend the night and get ready for school.
I’d like her to allow him to come spend the night with me but his she said no.
Is there anything I can do?
Absolutely, a parenting plan can be changed or modified when circumstances change.
Therefore, your Ex’s new job that requires her to work nights represents a change in circumstances that would
justify a modification of the original parenting plan.
Based on the situation that you’ve described, it
does not appear that you and your Ex can agree on changing or amending the parenting plan to allow
you to be with your son while she is at work.
If you decide to file a modification with the Court, the Judge would look at several factors in making a determination such as:
home stability of the two parents;
The proximity between your home and your Ex’s (this is important to determine whether or not
you’d be able to get your son to school or if you’re proposing placing him in a new school. Therefore,
even if you don’t live close, if you have a feasible plan to present to the Court on how you propose to
make it work, the proximity may not be a big factor;
Any change to the parenting plan could and likely would reduce your child -support obligation,
although based upon the information you provided, you are more concerned about spending more
time with your son vs. paying less child support.
The Court could also impose minor changes that may not have already been in play such as “right of
first refusal” which is a concept that when the custodial parent is not available during their parenting
time because they have to work or have some other obligation, then they could be required to contact
the other parent to see if they are available and would like to watch the child before trying to secure a
babysitter or other childcare arrangements.
Even something like this could help your situation
because your Ex would then have to bring your son to you opposed to taking him to her sister’s
house.
Q4.
I’m a diabetic and I went to a nail salon that claimed to be diabetic friendly. However, I
developed a bad infection after I received a manicure and pedicure.
I have been to the doctor several times to get the infection treated and I’m worried that it could get worse.
Is there anything I can do?
Yes, you could sue the salon to recover damages you’ve incurred such as medical expenses, time missed from work and other damages including what is commonly referred to as pain and suffering.
There is more information that I think is relevant to this matter such as, whether or not
you disclosed to the spa technician that you were a diabetic.
If so, they had a duty to take extra care to make sure that this sort of thing did not happen.
Regardless of whether you disclosed your condition to them prior to receiving services, they have a duty to
maintain and provide a certain level of care.
Do you know what caused the infection?
Was it unsanitary utensils, or technician error.
See if your medical doctor can provide a medical analysis in the form of a letter that provides their
diagnosis and states that they can say with a reasonable degree of medical certainty that it was
caused by the services you received at the nail salon.
This will be very beneficial in resolving the issue of causation if this matter is ultimately resolved in Court action.
Q5.
My sister died over a year ago.
However, all she had was a car.
I’ve been driving it since she passed but it needs to be registered and I cannot get the tags updated without changing the ownership of the car. What do I need to do about this?
My condolences on the loss of your sister.
To answer your question, well, it depends.
Typically, if your sister did not make a Transfer on Death (TOD) designation on the title and registration, then a
small probate estate will likely need to be opened to legally transfer title of the car from your sister to
you.
Depending on your jurisdiction, the DMV may have a workaround to opening up a Probate estate if the only property to be transferred is a car but don’t get your hopes up.
This is unfortunate because sometimes, the cost of Probate could exceed the value of the car if it is not worth much.
It sounds like there is no other family to consider or they don’t oppose you getting the car, otherwise,
there is another issue to be resolved and the car may prove to be more trouble than it’s worth.
You should contact an attorney to discuss your options and determine what needs to occur.
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