Saturday, March 21, 2015

Suing a DUI Driver for Personal Injury

Although I represent DUI defendants, and have been successful in dismissing a DUI criminal charge, there are times when a DUI can result in an accident where there is a victim. According to Mothers Against Drunk Driving, hundreds of individuals die each year from an accident involving a drunk driver. When an individual is injured in a motor vehicle accident because of the negligence of a drunk driver, he or she can pursue a civil claim.

Typically there will be a criminal proceeding against the alleged drunk driver. A restitution hearing may even take place. But, injured parties can also initiate their own civil claims. There is no requirement to wait for the criminal case to be completed, or even filed. However, a criminal conviction could positively impact the civil case, as the burden in a civil proceeding is much lower -- proof by a preponderance of the evidence, not proof beyond a reasonable doubt.

It is important to consult with a personal injury attorney after one has been injured as the result of a DUI driver. An attorney can investigate immediately, and determine whether there are other defendants besides the driver. Negligence may be apportioned to different individuals, or entities. Sometimes the accident could have been prevented had someone exercised good judgment and prevented the intoxicated person from driving.

A negligence cause of action could also be pursued against a bar, nightclub, or restaurant. Legislators have passed laws obligating operators of drinking establishments to use reasonable judgment when serving alcohol to its patrons. When a bartender keeps serving drinks to an intoxicated person when the bartender knew or should have known that the person was intoxicated, the bar could be held liable for the actions of that intoxicated person if he or she causes an accident later.

Similarly, hosts of parties can also be held liable for the negligence of a drunk guest. A party host cannot keep serving drinks to a guest who appears inebriated. Steps need to be taken by hosts to ensure that their guests do not harm others, especially when there are so many different opportunities to prevent a drunk driving incident.

Of course the driver may be sued, and his or her own insurance will need to be notified. The important thing is that in a DUI incident resulting in injuries, there are ways to be made whole again. Vehicle repair costs, medical bills, pain and suffering, and lost wages are all damages that can be claimed. If you or someone you know has been a victim of a drunk driving incident, call an experienced attorney.

Friday, March 6, 2015

Proposition 47: Reducing Felonies to Misdemeanors

Proposition 47 passed in the last California state election and thousands, if not tens of thousands, of individuals have benefited. Voters understood that a lot was at stake. For far too long, Californians had accepted severe overcrowding in prisons. They also tolerated criminal records affecting people for a lifetime. Things have changed.

The most popular provision in Proposition 47 was the way in which drug crimes and minor theft crimes were handled. Incarcerated defendants were able to petition for release. Instead of treating every drug offender as a felon, steps were taken to acknowledge that substance abuse should be handled differently. Similarly, less violent convicts were spared from having to serve more time in state prison. So far, it has been estimated that over 2,000 non-violent inmates have been released.

Some are unaware of other relief available pursuant to Proposition 47. There is a section that deals with applications to reduce certain felonies to misdemeanors. The consequences of a reduction could positively impact a person in a number of ways.

Proposition 47 stated, in part:

"According to Section 1170.18, subdivision (f), “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.”

Again, most of the felonies eligible for reduction relief are drug crimes, and theft crimes where the value of the items did not exceed a certain amount. When an application is filed, and served to the District Attorney, it is only a matter of time before eligible applicants reap the benefits.

Employers almost always ask whether prospective employees have been convicted of a felony. If an individual qualifies for Proposition 47 reduction relief, it could change the way he or she answers that question.

Saturday, February 21, 2015

Pursuing a Homeowners Insurance Claim

There are insurance policies for almost everything. Californians know that celebrities hold insurance policies to their own body parts even. Automobile insurance is the most familiar, but there is also homeowners insurance, which is also well known. Home-buyers are sometimes required to purchase homeowners insurance before they can move in. 

Homeowners insurance covers a wide variety of different events. Fires, floods, theft, and dog bites are just a few. Both liability (coverage for negligence of the homeowner) and losses (damages that homeowners incur) are covered. There are exclusions and exceptions. Delays, denials, and confusion can be anticipated.

Every policy is different; attorneys can assist in pursuing a first party claim, particularly if the insurance company has issued a denial. A first party claim is when a policyholder pursues a claim pursuant to the policy purchased. For example, a first party claim could be made when a home is burglarized, and there is a provision that covers items stolen.

Since insurance law is based on case law, statutes, and regulations, there are a myriad of ways a policy can be interpreted. It is important, however, to know some basic principles. Here is a non-exhaustive short list:

1) Once a claim is reported, the insurance carrier must provide basic information to the policyholder -- like limits, benefits, coverages, exclusions, and other provisions in the specific policy in place.

2) An insurer must explain why a claim has been denied, and provide a basis for that decision. For example, if a claim was denied because the insurer did not have an opportunity to inspect the premises, it would have to show that a request was made and the request was denied.

3) Before an insurance carrier can ask for a "release," it must explain the legal consequences of having the claimant execute the release, i.e. forever barring the claimant from pursuing the claim further in court, or in arbitration.

4) The insurer must respond within 15 days if a claimant asks for information related to his or her claim. An insurer cannot ignore its own insured.

5) All insurance companies must investigate a claim with diligence, thoroughness, and in good faith. The insurer cannot delay a claim when there is sufficient, reasonable information to conclude the claim.

Pursuing a homeowners insurance claim can be daunting. It is important to know your rights and to be aggressive. It is extremely wise to contact an experienced attorney.

Sunday, February 8, 2015

Fighting a Drunk in Public Charge

Hollywood and other Los Angeles cities are home to numerous dance clubs and bars. With drinking establishments, there is always the risk of becoming intoxicated, and making bad decisions. Some choices could lead to legal trouble.

Most people are aware that it is unlawful, dangerous, and unwise to drive after a night out drinking. Some are unaware that it is a crime to be "drunk in public." Similar to a driving under the influence allegation, a drunk in public criminal charge could lead to a criminal record, jail time, and adverse employment consequences.

California Penal Code section 647 prohibits disorderly conduct. One aspect of disorderly conduct is being "drunk in public." Subsection (f) of Pen. Code section 647, prohibits being intoxicated in public to such an extent that you cannot care for the safety of yourself or others, or so drunk that you obstruct a street, sidewalk, or public way. Let's break down the elements:

(1) Intoxicated in a public place; and
(2) Cannot care for the safety of oneself or others, OR obstructing a street, sidewalk, or public way.

An arrest can occur if a drunk person is exhibiting behavior sufficient to meet element 2. One example: Danny the Drunk leaves the bar at 2:00 am, after having consumed ten shots of tequila. Danny the Drunk drank too much, and starts to have trouble walking. He can't go further than five feet, before he falls onto the street. Danny the Drunk is not hurt, but he blocks a group of nuns from walking by. Policeman Peter sees the whole thing and arrests Danny the Drunk for being "drunk in public."

Now, like every other criminal charge, there are ways to challenge a drunk in public allegation. A defendant could challenge the probable cause of the arrest. Like in my blog post about 1538 motions, a case can be dismissed if the arresting officer arrested the defendant without sufficient probable cause. Danny may be not be drunk at all; he could suffer from a medical condition that caused him to fall onto the street.

The prosecutor also has to prove both elements beyond a reasonable doubt. A defendant could challenge the "public" aspect of the crime. If a person was arrested while in a hotel, or store, both private businesses, he or she could argue that he or she was not in a public place.

Another way to challenge a drunk in public charge is if the defendant ingested an intoxicating drug involuntarily. For example, say Alan wants to play a prank on his friend Stu. Alan buys Stu a drink, but drops a Rufilin into the drink. Unbeknownst to Stu, while taking a drink, he is also taking an intoxicating drug. If Stu later cannot care for himself, in a public place, and was arrested, he would be able to successfully beat the "drunk in public" charge.

A lot of cases involve a person who was drunk, but not so drunk that he or she could not care for himself or herself. If you or someone you know is charged with a drunk in public criminal charge, it is wise to retain a criminal defense attorney. The potential penalties are too great.