Wednesday, April 22, 2015

"Negligence Per Se" In a Motor Vehicle Accident

The grumpy attorney yelled objection loud enough for people at the back of the courtroom. "A presumption against my client is unwarranted...negligence per se was never discussed before trial!" The judge weighed the objection with a slight tilt of the neck. "Objection overruled. The accident report notates a vehicle code violation. The defendant will be presumed to have been negligent. Of course counselor, you may rebut that presumption."

Clients will often reference legal shows or movies. Most scenes do not depict the reality of a legal case. Prior to a trial, both sides get an understanding of what is going to be admitted into evidence. There are rarely the surprise, or "gotcha," moments.

However, shows and movies reflect true legal doctrines. The hypothetical interaction at the beginning of the blog post between attorney and judge highlights the doctrine: negligence per se. It is a presumption that can help plaintiffs in personal injury accident matters.

What is a presumption? Before one can answer that question, it is important to discuss burdens of proof. In a civil case, the plaintiff has the burden of proving his or her case. If the burden is not met, the plaintiff will lose and the defendant will win. In a civil case, the burden is proof by a preponderance of the evidence (opposed to the more difficult proof beyond a reasonable doubt in a criminal case).

Now, let's discuss presumptions. A presumption is a burden shift. It allows parties to shift the burden of proof, so it gives them a strategical advantage. One such presumption under California law is "negligence per se."

Evidence Code section 669 codifies this common law presumption. It states, in part:

"The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted."

When a defendant has violated a statute, say a Vehicle Code section, a presumption can be raised so that the burden is now on the defendant to rebut the presumption, i.e. that the violation was excused. The jury must presume that the defendant is negligent and liable for damages (if causation and damages exist).

Applying the doctrine in a personal injury case is not too difficult. Imagine that a plaintiff is rear ended while driving on the highway. A police report is drafted and the defendant driver who rear ended the plaintiff was cited for speeding, using a cell phone, and making an unsafe lane change. Defendant driver is convicted of all charges. Because the law prohibits speeding, cell phone use, and unsafe lane changes, it is likely that the plaintiff will be able to request a negligence per se presumption at trial. The purpose of those laws are to prevent reckless driving, and promote the safety of other drivers. The elements necessary for an instruction are present.

A case cannot be won simply with a presumption. But, a negligence per se presumption can definitely help. The jury returns after deliberation. The judge waits for them to all sit. He then asks, "Have you reached a decision?" One of the jurors stands up. "We have your honor."








Thursday, April 2, 2015

The Effects of AB 16: Changes to Domestic Violence Charge PC 273.5

Last year, the California legislature amended Penal Code section 273.5, corporal injury on a spouse. The new changes expanded the definition of whom can be classified as a victim. Now included under the statute: former fiances and fiancees, current and former dating partners, mother or father of the defendant's child.

The changes have widened the scope of who can be accused of committing an act of domestic violence. The authors of the bill projected that it could increase convictions under the law by 10%. It is too early to tell, however, if there have been more criminal filings as a result of the change. Nevertheless, a domestic violence charge remains a serious crime.

Treating domestic violence differently than other violent crimes has been entrenched in California law since 1945. There is data, and tragic anecdotal stories, showing that victims of domestic violence can experience mental trauma for years, if not indefinitely unto death. Thus, there is a strong public interest in treating domestic violence crimes differently.

All people accused of committing a PC 273.5 act of domestic violence are not guilty. There have been cases of false accusations or self-defense.

To be convicted under the law, the People have to prove beyond a reasonable doubt that the defendant:
(1) willfully inflicted a physical injury on an intimate partner; and
(2) as a result, the act caused the victim to experience a traumatic condition.

We already discussed how the term "intimate partner" was expanded by AB 16. A "traumatic condition" is a visible injury. If both elements can be proven, an accused can face serious penalties.

PC 273.5 is a "wobbler," offense, meaning that it can be charged as a misdemeanor or felony. If a defendant is convicted of the misdemeanor, he or she faces a maximum of one-year (1) in jail, and a fine of $6,000. If a defendant is convicted of the felony, he or she faces a maximum four-year (4) prison sentence.

There also could be consequences related to a state license or a person's immigration status. One cannot forget that it also carries a social stigma. People accused of committing an act of domestic violence should consult with a criminal defense attorney. Changes in the law, possible defenses, and analysis of a particular case can be discussed.











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.