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I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the holiday season and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 or upwards pre-trial to work up your DUI case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless misdemeanor on a felony DUI with injury case that was originally charged as a felony. I also just got an offer of a straight misdemeanor to another DUI with injury case. Both clients were in the Navy, and could not have the felony without it ruining their careers. I recently sued San Diego's top DUI cop in federal court and won a settlement from the City because the cop falsified the basis for his stop. Yes, there are cheap attorneys out there and they will always claim to do cheaply what the best of us do for the cost of our experience. But you get what you pay for. I personally don't hire doctors that hawk themselves as "cheaper than the other guy." Nor would I ever hire an attorney that hawks himself for cheap.

Some cases California DUI can be won. Some California DUI cases cases can't be won. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a novice if you had cancer? Of course not.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over California are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this holiday weekend.

1. If you drive in California during the holiday season, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. DUI officers historically write in their California DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, law enforcement labs don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather damaging evidence against you. And when you get home call this Southern California DUI Defense lawyer. Dui Defense is hard. But it's not impossible.

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the Christmas season and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 or upwards pre-trial to work up your DUI case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless misdemeanor on a felony DUI with injury case that was originally charged as a felony. I also just got an offer of a straight misdemeanor to another DUI with injury case. Both clients were in the Navy, and could not have the felony without it ruining their careers. I recently sued San Diego's top DUI cop in federal court and won a settlement from the City because the cop falsified the basis for his stop. Yes, there are cheap attorneys out there and they will always claim to do cheaply what the best of us do for the cost of our experience. But you get what you pay for. I personally don't hire doctors that hawk themselves as "cheaper than the other guy." Nor would I ever hire an attorney that hawks himself for cheap.

Some cases California DUI can be won. Some California DUI cases cases can't be won. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a novice if you had cancer? Of course not.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over California are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this holiday weekend.

1. If you drive in California during the Christmas season, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. DUI officers historically write in their California DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, law enforcement labs don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather damaging evidence against you. And when you get home call this Southern California DUI Defense lawyer.

legalweek

Irwin Mitchell has come under fire for the pricing of a personal injury case, after the Master of the Rolls, Lord Neuberger, said costs of almost £75,000 were disproportionate to a damages award of £12,750. The case, Simcoe v Jacuzzi UK Group, saw plumber Adrian Simcoe bring a claim against Jacuzzi UK after suffering pain as a result of repetitive work assembling shower cubicles for the company.

Medical malpractice cases come in many forms. When categorizing the types of malpractice in common parlance, there is usually too much emphasis on the injury itself and less attention on the actual type of negligence alleged. In other words, two patients may file a medical malpractice lawsuit after suffering brain injuries. However, the actual cases could be wildly different depending on how those injuries developed. For one patient, the injury may have been caused by a surgical error, with a doctor making egregious mistakes in the middle of the procedure that led to the injury. In the other case, the problem may be rooted in a failure to diagnosis, with claims not that the doctor caused the initial injury but that the consequences of the injury were far greater than they should have been because the doctor did not identify the problem when a reasonable doctor would have.

Each of these two legal cases, though both involving medical malpractice following brain injuries, will have very different arguments and evidence presented. Our Illinois medical malpractice lawyers know that it is often helpful for local residents to be aware that the type of negligence accusations made are usually more critical than the type of harm itself. Understanding this distinction makes it easier to understand why certain cases might be stronger than others, depending on the available evidence. Looking only at the harm is often less helpful.

In any event, however, the same goal in virtually all medical malpractice lawsuits is to provide redress to those hurt by the errors and to ensure that the negligent party is held accountable. Both of those goals can be met either via settlement between the parties or successful verdicts from a judge or jury after a trial. As many are aware, settlements are actually more common than verdicts.

Unfortunately, there is a public misconception that settlements provide less accountability, and that somehow families which accept settlements are only in the case to make money. Of course, this is entirely untrue. Just as with cases that go all the way to trial, settlements serve the same accountability function, often involving publicizing a negative event that occurred and ensuring that the hospital, doctor, nurse, or other medical professional faces some consequences for their actions. In addition, each Chicago medical malpractice lawyer at our firm has worked with families who seek to ensure changes are made at different institutions by requiring certain safety improvements as part o settlement agreements.

For example, this week the LA Times published a story on two settlements reached by one county hospital in that community. In one case, a woman suffered a stroke after giving birth. However, the medical team failed to provide reasonable care and she was sent home. She had to return to the hospital the very next day where she was diagnosed with bleeding on the brain. As a result of the delay she suffered permanent, severe brain damage. In the second case, a man came to the hospital with a head injury that he obtained while at work. The injury was very severe requiring prompt action. However, the medical team did not move quickly. Instead he was simply given medication and forced to wait. Eventually a surgical procedure was performed, but it was not done in time to prevent permanent neurological injuries.

Both cases settled recently—the first for $3.5 million and the second for $650,000. As the news story about the cases attest, the settlement also involved publicity of the errors, allowing other community members to learn about what went on and how. This publicity will no doubt have impact on steps that the hospital takes to prevent similar problems in the future.

See Our Related Blog Posts:

Medical Malpractice Deaths Could Have Been Avoided if Doctors Washed Their Hands

Too Much Noise in Operating Rooms Increase Surgical Errors

"Lost earning capacity is not a difficult concept to understand, but our friends in the defense bar sometimes are able to confuse judges and juries about what it means.  The United States Court of Appeals for the Sixth Circuit confronted in issue recently in a case involving Ohio tort law, and got it right.

Andler received broken bones in her feet at an event in 2004 and brought a premises liability claim. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year.  According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.

At the first trial, Andler offered expert testimony of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS”) figures, as to Andler’s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same.  When factoring in the effects  of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler’s damages for lost earning capacity totaled $232,346. 

In the first trial, the jury awarded $148,000 for lost future damages- the jury did not break down whether the money was for loss of earning capacity or future medical expenses.

The jury verdict was reversed on a substantive law issue and remanded.  On remand, the district court excluded expert proof on the issue of lost earning capacity, claiming that it was speculative.

This time, the jury awarded only $10,000 in future economic losses.

In Andler v. Clear Channel Broadcasting, Nos. 10-3264/3266 (6th Cir. Feb. 29, 2012), the district judge was reversed.  The 6th Circuit determined that the expert testimony should have been admitted into evidence.  (Defendant sought reversal on liability grounds - those efforts were rejected.)

Andler argued that she should have been permitted to introduce expert testimony on loss of earning capacity.  Here is Ohio law on the issue:

A tort plaintiff can recover future economic damages for any loss of earning

capacity caused by her injury.  A plaintiff claiming lost earning capacity must offer sufficient proof of (1) “‘future impairment’” and (2) “‘the extent of prospective damages flowing from the impairment.’”    The measure of damages in the second step is “‘the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.’”    Because predictions about future earning potential are necessarily somewhat speculative, an exact calculation of what the plaintiff could have earned but for the injury is not required; a plaintiff must prove damages with “reasonable certainty.

 

The damages are awarded for loss of earning power, not simply loss of earnings.

The proper focus is thus what the injured plaintiff could have earned over the course of her working life without the injury versus what she will now earn, not what she earned or will earn in any given year.  See id. (plaintiff must show that “the amount of wages [he] will be capable of earning over his working life after his injury is less than the amount of wages he was capable of earning over his working life before his injury”). Accordingly, the fact that a plaintiff earns a higher annual salary after an injury than she did prior to the injury does not bar her from recovering for loss of earning capacity. ... '[T[he jury may consider the earnings of the plaintiff at the time of the injury, but the jury is not bound to accept such earnings as conclusive of his future earning power.'

[Citations omitted.]

Tennessee law is very similar to Ohio law on this subject.

The accountant expert on loss of earning capacity was excluded because he testified that Andler's pre-injury earning capacity was higher than her actual earning capacity.  This testimony was based on BLS statistics for people of Andler's age, education and experience.  The district judge found the expert's testimony to be unreliable.

The appeals court rejected this basis for exclusion of the testimony:

The concern with the use of BLS averages rather than Andler’s actual historical

earnings suggests a confusion of the concepts of lost earnings and lost earning capacity. As explained above, lost earning capacity does not necessarily rely on a plaintiff’s historical earnings.  What matters is what Andler would have earned over the course of her working life, not what she earned in any given year.  Andler’s historical earnings are relevant, but the fact that she did not meet her earning capacity in the two years prior to her injury does not necessarily render Selby’s projections inaccurate or even unreasonable.  Although Andler did not work full-time before her injury, Selby’s projection that she would work full-time is not “clearly contradicted by the evidence.”  Andler testified that she took the childcare job after her divorce because it was located in the district where her children attended school and she 'wanted things to pretty much stay the same for my kids until they got out of elementary school.'  Working at the childcare center, she was able to 'be[] there for them before and after school.'   This testimony suggests she may have changed jobs once her children were older. Moreover, Andler had attended massage school and had worked for a chiropractor before working at the childcare center, training that could position her for a switch in career.  Finally, Andler explained that her post-injury switch to cosmetology work was “what I was already wanting to do.”

I was thinking about this lately… if Warner & Zimmerle, or I personally had a motto as a lawyer… it would be:

Don’t be a stereotype.

It harkens back to Google’s motto  - “don’t be evil“

Basically the point is not to do what bad lawyers do. Not to be who the public often thinks we are. 

For some examples:

1. Be honest. Be honest with clients, juries, media, everyone. When you hide the truth or stretch the truth, it makes you a stereotype. 

2. Be humble. Often times the lawyers who are always shouting in commercials or on the internet about how great they are – aren’t that great. Be confident and proud to share successes, but don’t be a stereotype.

3. No frivolous cases. Don’t file a case without a really good basis for it. Hire expert witnesses who will give you the truth – not what you want to hear. Good lawyers don’t like frivolous cases – they get in the way of good cases, make it harder for good cases to get to trial, and poison the public’s opinion on the justice system in general. The same should go for defense attorneys. No frivolous defenses. Unfortunately, we see a lot of dumb defenses with no basis in fact. Don’t be that person.

4. Give back to the community. This should go without saying. 

I think this would be a good start for all lawyers. Greed, competition, fear and other emotions can sometimes jump in and cloud a good lawyer’s judgment. In those times, come back to this and remember who you want to be – and who you don’t. 

Recently, the Illinois wrongful death lawyers at Levin & Perconti settled a lawsuit against a Chicagoland adult day care center and two other corporate defendants. The case stems from the death of an 87-year old man who suffered injuries while he was at the adult day care center. Local residents are likely familiar with these centers. They provide activities and supervision to elderly community members during the day. They are intended to be safe day-time environments for seniors, many of whom often need assistance with various tasks. However, each Illinois injury attorney at our firm knows that serious harm can befall those at these day care centers when caregivers do not act reasonably to ensure that the area is safe for those using it.

The incident which led to this suit took place in mid-July of 2010. The senior involved had just left the front of the facility and was waiting to be transported back to his home on a bus. Of course, being a senior center, staff members at the home should have been aware that many seniors need assistance at this time while getting on or exiting a bus. The steps and curbs present obvious dangers when vulnerable seniors are forced to navigate them alone. For that reason, those at these centers are charged with properly supervising and assistance the seniors at this time, if necessary. The care plan for this particular senior called for “stand-by assist” for ambulation.

Unfortunately, contrary to the man’s care plan, no staff member was assisting the senior as he was trying to get onto the bus. As a result, the senior fell while trying to make it into the vehicle. He hit his head during the fall, which resulted in a serious brain injury. The head wounds were life-threatening, and the man ultimately passed away from those injuries five days later.

In addition to the adult day care center’s failure to supervise the man, it soon became clear that the fall was also caused in part by an inadequately designed and unsafe curb ramp. In particular, the ramp’s side slopes and longitudinal slopes violated building codes—the ratios exceeded that which were allowed. On top of that, the curb ramp had no markings which would have warned users of its configuration, size, and location. Considering that this was at a senior center, with many facility users with unique vulnerabilities, those curb problems posed clear risks of serious harm.

The family subsequently filed an Illinois wrongful death lawsuit against those involved to demand accountability and redress. The settlement was recently finalized in the amount of $1.2 million. That amount was split between the day-care center as well as those involved in maintaining the premises. The family was represented by our injury attorneys John J. Perconti and Scott J. Richard.

Our Chicago injury lawyers appreciate that these sorts of accidents affect senior residents quite frequently. It remains imperative that all those who manage these senior centers and own the properties act reasonably to prevent these accidents and save lives. When they fail to do so, the law demands that they provide redress for the harm caused.

See Our Related Blog Posts:

Victim Dies in Bus/Van Accident

The New Role of Video Cameras in Chicago Nursing Home & Injury Cases