Friday, July 24, 2015

Cell Phones May Impact a Personal Injury Case

Last week, our blog discussed unlawful searches of cell phones by law enforcement. This week we will be discussing cell phones but in the context of a personal injury case. How will evidence of cell phone use affect an injury accident matter?

Cell phones are widely used. Nowadays, it is difficult to find someone who does not own a cell phone that can text or search the internet. One report concluded that there are now more cell phones in the United States than people. Moreover, the National Safety Council has reported that 26% of all collisions involve a party using a cell phone while driving. Given these facts, personal injury attorneys should be prepared to investigate whether the at-fault party was using an electronic device, which helped cause the collision.

Cell phone cases are similar to DUI cases. Let me give some examples. One, it is unlawful in California to drive and use a cell phone (or manipulate a device with one's hands while driving), like it is unlawful to drive while under the influence of alcohol. Two, California has taken steps to notify the public of the dangers of driving while using a cell phone, just like with DUIs. Commercials are on all of the time -- some of them involve the victim speaking about how a cell phone has harmed them significantly. Three, a separate criminal case (DUI), or infraction case (cell phones), could help prove liability with respect to the negligent driver. In a lot of DUI cases, the district attorney makes the defendant admit liability for purposes of restitution.

Besides liability, cell phone use could potentially lead to punitive damages. Courts have held punitive damages are appropriate in some cell phone cases.

The argument to request punitive damages in a cell phone case relies upon the wisdom of the seminal case that involved a DUI driver: Tayor v. Superior Court (1979) 24 Cal.3d 890. In that case, the California Supreme Court found that certain conduct could give rise to a request for punitive damages. The opinion did not limit "malicious conduct" to DUIs. It stated, in part, that: "the circumstances in a [non-DUI case could involve] similar willful or wanton behavior..."

Injured parties should not only investigate cell phone use for purposes of liability, they should also consider whether it could impact the damage element of their case. Not all cases of cell phone use will merit punitive damages, however. "Malice" is difficult to prove. Nevertheless, plaintiffs should be generally aware of how cell phone use could potentially impact their own case.





Saturday, July 11, 2015

Law Enforcement Cannot Search Cell Phones Without Warrants

It is common knowledge that the law moves slow, much slower than technology. When it comes to technological advances, the law can barely keep up. One should be able to see why. Drafters of legislation, usually not keen on computer science and engineering, have a difficult time anticipating how new devices could impact the law.

For example, cell phones in the 1980's were bricks. Users could expect dropped calls and much attention. The ability to make calls without a landline was groundbreaking. But, cell phones did not serve any other function besides making calls. Many could not predict that cell phones would become min-computers. Smartphones are radically different from first generation cell phones; lawyers, judges, and legislators may have been the last to realize it.

Smartphones have impacted the law, and the Fourth Amendment. Messages, applications, and search history can assist law enforcement. Drug deals can be carried out by text message. Illegal transfer of stolen money can be done by mobile banking. Indeed, a murderer could develop ways to kill someone by searching on his or her cell phone. The vast majority of cell phone use is not criminal in nature. As such, it is important that privacy is protected. 

In June of 2014, the United States Supreme Court unanimously held that searching a cell phone incident to arrest requires a search warrant. Riley v. California was a strong rebuke of the government's position that law enforcement should be able to access digital data before it could be potentially destroyed.

Chief Justice John Roberts wrote, in part, that: "[t]he fact that technology now allows an individual to carry [the privacies of life] in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."

In practice, law enforcement has been slow to apply Riley. One would be surprised how often police officers still search cell phones after a DUI, domestic violence, or misdemeanor arrest without a warrant. In these cases, there can be redress if inculpatory evidence is obtained.

Should law enforcement search a cell phone after an arrest without a warrant, a defense attorney may be able to prevail in suppressing the evidence. A 1538 motion to suppress should definitely be considered as an option by a defense attorney if there are possible Riley violations.

Smartphones are more than just phones, they are at the center of many people's lives. Although the Fourth Amendment didn't touch upon the legality of searching cell phones (the founding fathers were smart but not fortune tellers), we now know that it is the law of the land that cell phones cannot be searched without a warrant.


Friday, June 19, 2015

Uber Accidents After the Recent California Labor Commission Ruling

My wife and I use Uber all of the time. It's great. One does not have to worry about parking or drinking and driving. The service is convenient and easy to use. Ride-sharing technology has been great for consumers.

However, what happens when passengers are injured while riding in an Uber car? With a recent ruling from the California Labor Commission, plaintiffs may benefit. The California Labor Commission found that Uber drivers are employees, not independent contractors. An employee classification for its drivers will mean a number of different things for Uber, including how it deals with injury accident claims.

Under California law, a legal doctrine called "Respondeat Superior" (I know, lawyers love Latin) holds employers responsible for the negligent acts of their employees. Given certain elements must be met, i.e. the Uber driver must have been working at the time of the accident, nevertheless, this ruling will allow injured parties to proceed against Uber directly.

Further, Uber will have to carry $1 million in liability insurance for its drivers. The insurance policy will be excess to the driver, meaning that the driver's own automobile insurance will be primary in the event of a claim. An injured party will first have to recover the policy limit from the Uber driver before he or she can recover from the Uber $1 million policy (not all injuries are serious enough to warrant a claim against an excess insurance policy).

Catastrophic accidents routinely pose difficulties for plaintiffs because there are insufficient policy limits. For example, an injured party may lose the use of his or her legs, but only be able to pursue the defendant's liability insurance, which has a limit of $15,000. In the described hypothetical, the injured party will have to bear great costs, including all disability bills. Should a plaintiff be involved in a catastrophic accident with Uber, this ruling will ensure larger limits, and potentially provide greater protections for the plaintiff.

Finally, the issue of agency, or independent contractor v. employee, is still is being litigated. Uber has pending lawsuits with both state and federal courts in California. While the Labor Commission is a set back for Uber, and a win for consumers, nothing is certain, or settled, at this point.







Thursday, June 4, 2015

Defending Against a Criminal Threats PC 422 Charge

Anyone familiar with the criminal justice system knows that it is not perfect. Any institution cannot be perfect when the institution is comprised of imperfect human beings. Nonetheless, there are commonplace problems that should be addressed. Until then, a defendant should be aware of how to successfully navigate a criminal threats charge when the facts are scant to support a conviction.

California Penal Code section 422 defines "criminal threats" as willfully threatening to kill or severely harm a victim. It is a "wobbler" crime, meaning that it can be charged as a misdemeanor or felony. However, prosecutors will routinely charge it as a felony to gain an advantage in the plea bargaining stage of the case.

Like with any other crime, the prosecution has to prove each element of the alleged violation beyond a reasonable doubt. The elements of Pen. Code section 422 show that it may be difficult to prove each element beyond a reasonable doubt when there exist facts favorable for the defendant. Let me explain, by first stating each element of the crime.

  • Defendant willfully threatened to unlawfully kill or cause great bodily injury (GBI) to another person or person's immediate family (from here on out we will exclude the section regarding a person's family)
  • Defendant made the threat orally, in writing, or by electronic communication device
  • Defendant intended that his or her statement be understood by the person as a threat
  • The threat was so clear, immediate, unconditional, and specific, that it communicated to the person being threatened a serious intention and the immediate prospect that the threat would be carried out 
  • The threat actually caused the person to be in sustained fear for his or her own safety and
  • The threatened person's fear was reasonable under the circumstances.
After an examination of the elements, one should be able to see how a criminal threats charge could be effectively defended against. Not all perceived "threats" fall under the purview of PC section 422.

For example, a threat made in jest between two friends would not be a chargeable offense. A conditional threat, as well, could not lead to a conviction: "I will hurt you if you continue to date that person..."

Similarly, a threat must cause a sustained fear in the person threatened. Say a defendant is mentally ill. While experiencing a psychotic episode, the defendant makes a criminal threat against a law enforcement official. Prior to the threat, the law enforcement officer knew or should have known that the defendant was a mentally ill person. Further, the defendant, outnumbered by six other officers, had no way of carrying out the threat. The hypothetical above would likely end with an acquittal.

A criminal charge is not a criminal conviction. A prosecutor may charge a defendant with a criminal threats charge, but there may be facts that support a dismissal or acquittal.