Suing the Drunk Driverby Gerson & Schwartz, P.A.
Talking about suing drunk drivers is like talking about eating ice cream. Defending a drunk driver is certainly a lot less fun. There are plenty of advice programs for defense of criminal cases involving drunk driving. Most of it applies to the civil case too. Bringing the case for an injured plaintiff is not as easy as it may look by the results some personal injury lawyers have gotten. I am going to discuss some of the techniques I have used in some of my drunk driving accident cases and share with you some of what I have learned by handling these cases.
When analyzing and presenting automobile accident cases, driver conduct is always an issue. Where the driver of the adverse vehicle has been drinking or was drunk there are additional issues not part of the ordinary accident case. The criminal case begins at the time of the accident investigation by the police when the defendant is arrested. When you are retained the criminal case is already underway and you must act promptly and aggressively to protect your client’s rights or the opportunity will have been lost.
Victims rights are now recognized. Two years ago the legislature passed a new statute requiring officials in the criminal justice system to advise victims of their statutory rights.
There is nothing improper in your speaking up on behalf of your client in the DUI prosecution. Your client has the right to be heard on several important issues
1. What is the charge. If it’s a death case vehicular homicide, manslaughter, or
even higher degree of culpable homicide may be applicable. More likely,
felony vs. misdemeanor DUI would be the decision that must be made before
arraignment which in a criminal case must occur within 20 days of arrest. identifying the prosecutor is not so easy since permanent assignments in criminal court aren’t made until arraignment.
2. The plea-nolo vs. guilty no difference to prosecutor but it does to you
its also important to your client to have the def admit guilt not just agree not to
deny it any longer. To avoid or minimize jail the defendant will often make an elaborate verbal apology under oath to show his contrition to a sentencing judge which can be transcribed for use in a civil case.
3. The sentence restitution vs. condition of probation. Effect on insurance coverage. Our case with a company I won’t identify except to say the word farm paid 55K in medicals pursuant to liability policy limits. This was engineered by criminal lawyer who was very creative in getting Farm to pay out liability coverage without our knowledge or consent. State attorney makes it condition of probation to make it enforceable because if just sentenced to restitution and he doesn’t pay can’t put him in jail for failure to pay a debt but if it is condition of probation then it is enforceable as probation violation which means plea agreement can be yanked and defendant could possible be
maxxed by criminal judge.
The criminal case is a great source of evidence. The states discovery filing which occurs at arraignment contains a witness list, statements, and other documents that are useful in your investigation. These are all public record when filed in the criminal case so you are entitled to obtain them.
Toxicology is an important part of the case. If the defendant was injured in the accident subpoena his hospital records. Routine hospital admission labs show ethanol as a % of blood serum. This is more reliable than Breathalyzer results. Blood specimens and urine samples also show presence of other drugs, which may have acted in combination with alcohol to effect driver behavior. Hospital records will contain statements, and observations of the defendant’s behavior upon admission.
Accurate history of defendant’s age, size, drinking history and habits and experience,
Types and amounts of alcohol ingested, food intake and medications of illegal drugs are essential data to get a valid opinion of toxicology. Resorption rate, peak blood/alcohol level, metabolization rate are variables in assessing the effect on driver performance.
Some accident reconstruction experts are qualified to testify as to opinion on effect on driver behavior particularly if they have worked for or with law enforcement on traffic homicide cases. Some toxicologist are too especially if they routinely testify for the state in dui prosecutions. You may want to get a human factors expert. Such a witness can present data comparing intoxicated to sober drivers in perception time, reaction time, driver performance, etc. If the case damages and coverage warrant it I recommend using all three types of experts even though there is some overlapping of opinions. For exhibits, computer graphics and photo techniques to illustrate perception difficulties can be effective at mediation and in trial.
Depose the DUI investigators. These are your best witnesses to combat the expected testimony of the defendant that he had only 2 beers and was able to drive competently and it was your client’s comparative negligence that caused the collision. The accident report privilege only applies to the officer making out the Florida Uniform Crash Report.
It does not apply to the DUI investigation and every body along the chain from accident scene to jail cell is fair game.
Depose the person who bonded out the defendant, picked him up from jail when he got out or came to the scene of the accident. In the cell phone era wives and friends often are on scene before it is cleared observing drivers, vehicles, removing property (bottles) from persons and vehicles and getting the defendants side of the story. The physical description of the defendant after a night in jail is usually one that is helpful to hear and if it isn’t you haven’t lost anything by asking. Sometimes you can get real gems from a wife, friend or neighbor. In one case we had the wife claimed a privilege. It settled just before trial but I wanted to call her to the stand and have her refuse to testify about what her husband told her about the accident when she came to the scene.