Thursday, October 27, 2011

Sometimes You Need to Push the Insurance Company



My client was driving down the road maintaining her lane. A truck passed her and cut into her lane causing a collision. Both vehicles stopped. The truck driver claimed that my client swerved into his lane. My client claimed that the truck driver swerved into her lane. Fortunately, there was an independent witness who supported my client's version. My client had an old car and the damage was sufficient to be a total loss. My client submitted the estimate of the vehicle to the truck's insurance company. They denied her request based on their driver' s story. My client submitted the witness statement to the insurance company. This witness was independent, did not know the trucker or my client and had no stake in the outcome of the matter. Still the insurance company denied her claim.

My client hired me and I filed a lawsuit in her District Court for the value of the car. My client did not suffer any personal injury. I served the trucking company. Shortly thereafter my client received the full amount of the value of her car. A smile and a stick gets you further than just a smile. At least that's how it is with insurance companies.

When is a car not a car for drunk driving purposes? When it is a shelter.



The police officer saw my client parked along the side of the road in a legal parking space with the headlights on at 3 AM. The officer circled around the block and 5 min. later my client was in the same place. The officer got out of his patrol car and took pictures of my client who was in the driver seat slumped over the steering wheel. The headlights were on, the engine was running, it was late December and very cold outside. The officer woke up my client and she did poorly on the field sobriety tests and later took a breath test which indicated that she was somewhat drunk.

At trial the state was able to prove the above things. On cross-examination I was able to confirm that the car was legally parked and properly parked and had not moved the two times that the officer saw the car. Also, the car had not run into the car ahead of it. I called several witnesses which established that my client had gone to a birthday party at a restaurant. At the restaurant she had been drinking. Because of that drinking she had a designated driver take her car to the next spot. At the next spot she drank some more, did not feel well and told the group that she would wait for them in the car. It was cold outside and she turned the car on for heat. The group could not find her and although they made several calls to her she did not pick up because she was tired and had fallen asleep in the car.

At the end of the case I argued to the judge that under Maryland law our highest court has held that in some very narrow circumstances, a drunk person may use an automobile as shelter. We were able to demonstrate that she had not driven a car drunk, that she had no intention of driving the car and that indeed she was only using it for shelter. I believe what swayed the judge was one witnesses testimony that my client had already established a designated driver when she first left the restaurant. The judge acquitted her of all charges.

I want to stress that although the above is an accurate statement of the law in Maryland in my opinion, it is a very narrow exception. In other words, this is not a recommendation that you get drunk and get into your car. Take a taxi, take a bus, call a friend, stay away from your vehicle when you are under the influence.

Client Guilty of Driving under the Influence of Drugs? Only if the State Can Prove It



The officer was told that my client was weaving all over the road and had struck a curb. The officer found my client and his front tire was flat and he was driving along on the rim. The officer stopped my client. He claimed that he smelled a strong odor of an alcoholic beverage and that my client had very poor coordination. He arrested my client for drunk driving.

At the police station my client took the breath test which registered 0.0 (no evidence of alcohol). At that point the officer concluded that my client must be under the influence of drugs and summoned the drug recognition expert and also took blood from my client to test for the presence of drugs. The drug recognition expert concluded that my client was indeed under the influence of drugs.

The burden is always on the state to not only produce the evidence necessary to convict, but also to produce evidence which must persuade the trier of fact beyond a reasonable doubt that the defendant is guilty. On the first trial date the state failed to have their evidence all together. Ironically, the prosecutor told me that he had all of his witnesses and what did my client want to do. I consulted with my client. I told the prosecutor we were ready for trial. At that point the prosecutor told me that they did not have the results of the blood test and could not go forward. I thought that to be somewhat dishonest of the prosecutor and the case was called and postponed. I did ask that the judge not grant the prosecution any further in court continuances and the judge agreed.

After this trial date I requested that my client provide me with his medical records which demonstrated that he had significant back and neck injuries. With this evidence I believed I could argue to the trier of fact that it was not drugs that caused his impairment but significant injuries.

On the second court date the prosecution did not have the drug recognition expert. Again the prosecution asked for a postponement and the judge denied this based on the earlier judge's ruling (which I had requested). The prosecution realized that they had a problem with their case and we were able to work out this very serious case down to a negligent driving disposition. My client received one point and a minimal fine.