John D. Penner is a 1992 graduate of the Arizona State University Law School, His practice is limited to DUI, criminal defense, and plaintiffs’ serious injury litigation. He focuses on cases involving alcohol or drug toxicology and accident reconstruction. Mr. Penner has defended many clients in vehicular cases with criminal charges ranging from DUI to second degree murder, He has sued and defended bars for dram shop. Although Arizona has some of the most stringent DUI laws in the country, impaired driving remains a problem. Impaired drivers cause a significant number of accidents, many of which result in injuries or death.dui lawyer az
Such cases result in both civil claims and criminal prosecutions against the impaired drivers. Civil claims arising from impaired driving cases tend to have good liability and premium value due to the egregious nature of defendants’ conduct. Plaintiffs can put pressure on insurance companies to settle these cases for policy limits even though the injuries might not otherwise justify such a settlement. Defendants and their carriers must be concerned about potential punitive exposure or that the jurors could enter a significantly higher compensatory award because they are offended by defendants’ conduct.
How does this look in practice? Assume plaintiff is injured by a defendant who is clearly very intoxicated. Further assume that defendant has a $100,000 liability insurance policy and that plaintiff has $10,000 in medical bills, which are a combination of hospital bills, imaging and physical therapy. Assume that plaintiff suffered only soft tissue injuries and has made a reasonable recovery. Plaintiff should submit a policy limit demand. If the carrier is unwilling to tender the policy then plaintiff should consider filing a complaint along with a Rule 68 Offer of Judgment. If the Offer of Judgment is not accepted, plaintiff should consider trying the case. The carrier must either tender its limits or risk opening up its policy and covering any excess judgment.
In some cases a carrier not wishing to tender its policy limits will voluntarily open the policy in order to protect its insured. If a carrier has an opportunity to settle the case within its policy limits but chooses to not do so and thereby exposes its insured to an excess judgment, this can trigger a bad faith claim against the carrier and in favor of the insured. The bad faith claim can then be assigned to plaintiff, often along with a stipulated judgment and covenant not to execute.
In addition to the accident report, impaired driving accident cases usually involve a DUI or criminal police report. There may be audio or video recordings, 911 call tapes, or Computer Assisted Dispatch (CAD) reports. Plaintiffs should ensure that the DUI investigation report is complete and includes toxicology results.
In breath testing cases, the test results are generally available the night of the arrest. Presently the vast majority of Arizona jurisdictions use blood testing. The blood samples must be sent to a crime lab and tested using a technique called Head Space Gas Chromatography. Some crime labs, such as Phoenix, can have test results back relatively quickly. Other crime labs, such as DPS, take much longer. In drug cases it is not unusual for DPS to take six to twelve months in order to test blood. In cases involving serious injuries, results are often available more quickly.
Once toxicology results are available, plaintiffs must figure out what they mean. It is often advisable to hire a toxicologist. Other basic resources can also be helpful. The Windmark Blood Alcohol Concentration Chart provides a fairly accurate estimate of the number of drinks a driver would need to have in his system to reach a particular blood alcohol concentration. Stages of Acute Alcohol Influence Intoxication, by Dr. Kurt. M. Dubowski (2006) is a summary of what clinical signs and symptoms can be expected at various blood alcohol levels.
Attorneys who try impairment cases should consider how they are going to get the blood test results admitted. This can be easily done via stipulation if the defendant will agree. Absent a stipulation it is more difficult. Rule 703, Arizona Rules of Evidence, allows for an expert to testify as to facts used in forming an opinion even if that evidence would have been otherwise inadmissible. Although this would theoretically allow an expert to testify about a blood test, plaintiffs counsel should rely on this testimony at their peril. Prudent practitioners will make sure they can lay a foundation for the admission of the test result. This can include the testimony of a phlebotomist, testimony regarding the chain of custody, and testimony from the analyst who conducts the test.
Challenges to blood testing are possible under Rule 702, Arizona Rules of Evidence. In eleven consolidated criminal felony cases, defendants challenged the admission of blood testing conducted at the Scottsdale Crime Lab 4 The challenges in this case relate primarily to alleged problems with testing procedures. The SCL subsequently discontinued its blood testing program. This case is currently pending before the Arizona State Supreme Court. Impaired driving can give rise to a variety of different criminal charges, In cases without injury, drivers are generally charged with DUI. These charges come in different flavors. A driver who is impaired by alcohol or drugs or who has a BAC above .08 will likely be charged with regular DUI.5 A driver with a BAC above .15 will usually be charged with extreme DUI while a driver above .20 will be charged with super extreme DUI.6 Higher BAC defendants are significantly less sympathetic to juries. Juries and adjusters should be told when a defendant’s blood alcohol concentration reaches an extreme or super extreme level.
Aggravated DUIs are felonies. These occur when a defendant commits DUI having a reason to know his license was suspended; commits a third or subsequent DUI within seven years; commits a DUI with a person less than fifteen years of age in the vehicle; or commits a DUI while required to operate with a certified ignition interlock device.
A growing percentage of Arizona DUI cases involve drug impairment. If the defendant has an illegal drug or its active metabolite in his system, he is guilty of DUI regardless of whether the substance impaired his ability to drive.8 A person taking a drug with a valid prescription is not guilty of DUI unless impaired by the drug.9 Police reports in drugged driving investigations will often contain a DRE (Drug Recognition Expert) Report. Prescription drug DUIs in particular are on the rise in Arizona. A comparison should be made between the driver’s toxicology results and his prescription list in order to determine whether he had a prescription for all substances in his system. A toxicologist is likely required to determine whether the amount of a drug found in a driver’s system is attributable to the therapeutic use of the drug or whether the driver has taken more than prescribed. Relatively low levels of multiple drugs and/or alcohol can cause combined impairment.
Many drugs carry warnings against driving or operating machinery. These can be found in the Physician’s Desk Reference (PDR). Impaired driving cases which give rise to civil claims generally involve injury or death. Consequently, the defendant will often face more serious criminal charges.
This can affect the timing of the case. It is not uncommon for felony charges to be brought against a defendant a year or more post-accident. An impaired driving accident which results in a significant injury will often be charged as an aggravated assault. A case involving a death will often be charged as manslaughter or second-degree murder. The second-degree murder and manslaughter statutes both contain causation elements. Most cases involving aggravated assault and a related plaintiff’s case can be charged under A.R.S. 13-1204(A)(l). This subsection contains an element that the defendant causes serious physical injury. In Arizona a defendant is precluded from denying an essential element of his conviction in a subsequent civil proceeding. This is true even if defendant enters a no contest plea. Conviction under these statutes essentially imposes strict liability on impaired driving defendants in subsequent tort cases.
Additionally, felony convictions are generally admissible for attacking the credibility of a witness in a civil trial. Victims in criminal cases are entitled to restitution once defendant is convicted. These awards are limited to economic damages. Victims who collect restitution for economic damages are not allowed to claim those same damages in a subsequent civil case. A court should coordinate criminal restitution with civil damage recovery in order to fully compensate. victim for economic loss without providing a windfall. Plaintiffs should obtain copies of defendant’s liability policies. Defendant’s attorney will often provide these voluntarily. Plaintiffs and defendants have a common interest in establishing coverage.
If a plaintiff’s case is worth more than minimum insurance limits, carriers will often disclose the amount of policy limits. Potential exclusions are also a concern. State Farm and Farmers, the two insurance companies with the largest market share in Arizona, both cover punitive damages. Other carriers, such as American Family, Geico and Progressive, exclude punitive damages. Even in cases where coverage for punitive damages is excluded, impaired driving cases have premium value. Practitioners should consider whether they want a punitive damages instruction in cases where the insurance policy excludes punitive claims. Jury’s are likely to award more in damages in impairment cases due to egregious conduct regardless of whether punitive damages are claimed.
Some insurance policies contain criminal act exclusions or intentional act exclusions. These are relatively common in homeowner or umbrella policies. A vehicle liability insurance policy with criminal or intentional act exclusions likely violates Arizona’s Financial Responsibility Act. Any ambiguity in a material policy provision will be resolved against the carrier that drafted the policy, and in favor of the insured. Arizona plaintiffs can argue that exclusions are invalid if they run afoul of the “Reasonable Expectations Doctrine.” The terms of an unambiguous standardized insurance contract may be held to be unenforceable if the terms of the contract are beyond the reasonable expectations of the insured.
Impaired driving accidents can give rise to dram shop claims, that allow a cause of action against a bar or restaurant which over-served defendant prior to an accident. These cases generally involve some level of cooperation between plaintiff and defendant. Without input from the defendant driver, plaintiff may not know when and where defendant consumed alcohol or whether more alcohol was consumed after defendant left the bar.
The County Attorney’s Office has a victim advocate. This is an excellent contact person. The County Attorney’s Office will strongly consider the views of the victim in making plea offers. If a victim/plaintiff is not pushing for a maximum sentence, a defendant may be more inclined to provide information beneficial to a potential dram shop claim. In some cases there is too much animosity between victim and defendant for cooperation to be possible. A defendant has a right not to incriminate himself.
You can expect any represented criminal defendant to assert his Fifth Amendment right. The privilege against self incrimination may be invoked by one whose testimony is sought in a civil case. The privilege ends when there is no longer criminal exposure due to Statute of Limitations or prior conviction or acquittal The Fifth Amendment does not prohibit the drawing of adverse inferences against civil parties who invoke. A defendant exercising his Fifth Amendment Right is unlikely to negatively affect a plaintiff’s case against him. It can, however, make it very difficult to evaluate or prosecute a potential dram shop case. Dram shop plaintiffs should attempt to obtain defendant’s bar bill, receipt and/or credit card payment information. Plaintiffs should request any written policies the bar has concerning alcohol service guidelines. Bar employees can be deposed as to what training was received as to service guidelines. The liquor license of the establishment can be obtained. Plaintiffs should consider whether to obtain a Tavern Practices Expert to opine on standard of care. A tavern practices expert would likely testify that the standard of care requires a bar to count drinks. Many bars are not set up to do this. They have multiple bartenders working multiple cash registers and no system in place to keep track of drinks served.
One potential draw back of dram shop cases is that the impaired driver is either comparatively liable or a non-party at fault in any litigation. A jury might assign him a large portion of fault for the accident. He may have low liability insurance limits which are already exhausted. Impaired driving accidents can give rise to other civil causes of action. The owner of a vehicle may be held liable for negligently entrusting the vehicle to another if he gives express or implied permission knowing that the potential driver was incompetent to operate the vehicle. A social host who illegally furnishes alcohol to minors is subject to liability at common law. Dram shop liability does not typically extend to social hosts.
When an impaired driver causes injury to an accident victim, the resulting plaintiff’s case is generally very strong. The victim’s damages are worth more for settlement or at trial. The defendant likely has punitive exposure, which may or may not be covered under the insurance policy. Because they involve scientific issues, these cases also have more complexity than other accident cases. Plaintiffs who understand these issues will be rewarded with premium settlements or verdicts.
If you have been involved in a DUI and don’t know what to do, call AZ Hometown Lawyers now at 480.495.1005. Learn more about motorcycle accidents at http://nmo.e8e.myftpupload.com/practice/az-personal-injury-lawyers/.
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