DUII accident attorneys

“Sleep Driving” a Defense to Strict-Liability DUII in Oregon

Last week the Oregon Supreme Court issued its decision in “State v. Newman”, an appeal whose facts arose from a Driving Under the Influence of Intoxicants (DUII) conviction.

Oregon DUII Auto Accident Injury AttorneysIn the state of Oregon, most cases require that a person act knowingly, negligently, or recklessly in order to be found guilty.  In this case, the defendant was tried for driving under the influence of intoxicants, which is a traffic offense.  Traffic offenses are “strict liability” offenses, which means that no mental state needs to be proven in order for a defendant to be found guilty.

In last week’s decision, the Supreme Court reversed the defendant’s DUII conviction and returned his case to the Court of Appeals for a new trail.  In this new trial, the judge must permit the defendant to provide expert testimony that his driving occurred while he was sleepwalking, which led to “sleep driving.”  The judge had previously excluded such evidence on the basis that DUIIs are strict liability offenses, thus that whether or not the driver was “sleep driving” was irrelevant.

In a surprising decision, the Supreme Court disagreed with the lower court, holding that a person must engage in a volitional act before that act can be considered criminal, regardless of whether or not the person has a culpable mental state.  This is a seminal decision because it applies an automatism defense to a crime that had not previously required any mental state.

Super Bowl Weekened DUIIs Down Over Last Year

Super Bowl XLVII has come and gone, and with it another Super Bowl weekend.  Every year this weekend is accompanied by long lines at the grocery store, dozens of football-themed commercials, and of course with a surge in drunk driving.

Superbowl 2013 | DUII Auto accident attorneys Oregon

However, according to an encouraging press release issued this morning by the Oregon State Police (OSP), DUII arrests were down throughout the state this Super Bowl weekend compared to last year.  OSP troopers arrested 38 people on DUII charges during 2012’s Super Bowl weekend, but only 31 this year.

OSP troopers also responded to two fatal traffic crashes this Super Bowl weekend.  According to OSP’s Fatality Analysis Reporting System (FARS), alcohol is a possible contributing factor in the latter of the two accidents, which occurred Sunday evening at approximately 8:20pm.  Last year three people died in separate car crashes on Super Bowl weekend and alcohol was a factor involved in all of those accidents.

As OSP highlighted in its press release, Super Bowl Sunday has become one of the most dangerous days to drive across our nation due to the high incidence of intoxicated drivers on the road.  According to the National Highway Traffic Safety Administration (NHTSA) 48 percent of nation-wide fatalities on Super Bowl Sunday involve a driver or motorcyclist whose blood alcohol content exceeds .08 percent.

In its 2010 study of Super Bowl accidents, NHTSA also found that alcohol impairment among drivers involved in fatal crashes was almost twice as high during Super Bowl weekend as it was during the week, and almost four times higher at night than during the day.

Since 2007, OSP troopers have arrested more than 300 intoxicated drivers during Super Bowl weekends.  If you or someone who you know has recently been injured in a collision with a drunk driver, then you should contact an experienced Oregon DUII auto accident attorney who can review your claim and advocate on your behalf.  Monetary damages might be available to you that can restore you to the condition you were in before your accident.

“Open and Obvious” Conditions and Unreasonable Danger in Premises Liability

Instructing Potential Jurors about Open and Obvious Conditions

An “open and obvious” condition is not a total bar to recovery in premises liability cases because to hold so would interfere with the purpose of comparative negligence statute. Indeed, the “open and obvious” defense is in fact the dfense of assumption of the risk.

The law notwithstanding, this is the argument that causes me the most angst.  On one hand, we must show that the condition was known, or should have been known, by the defendant.  On the other hand, if the condition was so obvious then jurors may want to hold your client at fault.  Here are my suggestions:

  1. Focus on knowledge and appreciation of the danger.  It is the danger itself, not just the condition, that must be obvious before one can be comparatively negligent.  When selecting jurors in a premises liability case, be wary of jurors who are quick to state that a condition is obviously dangerous.  However, this may not be a sure preemption since the juror may feel that, due to the condition’s obviousness, the owner should have fixed it or that it constitutes something “unreasonable dangerous” (see discussion below).
  2. Focus on invited distractions.  Your client is only held to the standard of a reasonable person under the circumstances.  Focus on all of the advertising, products, other customers, goods, and signs over which the defendant has control.  Ask if, given all of these distractions, it is reasonable that a person might not recognize a defect.
  3. Focus on the importance of the trip.  “Unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use… the landlord is subject to liability to him notwithstanding his knowledge of the existence of this condition.”  This is really just common sense and it works well where the trip is mandatory – an icy walkway ourside one’s door, for example.

What is Considered “Unreasonably Dangerous”?

When the condition on the premises is unreasonably dangerous, the duty imposed on the possessor is greater than in an ordinary case.  An “unreasonably dangerous” condition is one that cannot be encountered with reasonable safety, even if the danger is known and appreciated.  The possessor cannot escape liability merely by posting warning signs, but must remove or ameliorate the danger or take other reasonable steps to protect the invitee.

When determining whether a condition constitutes an unreasonably dangerous condition, consideration must be given to the type of people that might be affected by the actor’s conduct, including children and the aged or infirm.  Here are some tips:

  1. Focus on why this is a good rule.  Think of some corollaries.  Make the condition a public nuisance, dangerous to all.
  2. Focus on the fact that warnings or actual knowledge don’t matter.  Ask jurors whether they agree or disagree with this rule.  Some will disagree.  Before you move to strike them, see which other jurors agree with them.  Once you have identified all who disagree, move to strike the lot.  Remember: if you slaughter the lamb first, fewer will be willing to come out of the woods.  My personal record is striking three in one motion using this technique.
  3. Focus on why this type of condition was more dangerous for your particular plaintiff.  Age, eyesight, and lighting are all good grounds.  Again, the condition may be unreasonably dangerous only for some.
  4. Ask how the condition might have been remedied.  You might be surprised what you hear.  This lends insight not only into their belief as to the extent, or lack thereof, of expected remedial actions, but might also provide examples you could use later on in trial.

Above all else, remember this: find a way to explore issues applicable to your case, keeping in mind jurors’ natural biases.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Trial Report – Bend DUII Accident, Part III

The DUII-auto accident trial detailed in the last two posts took four full days.

When they jury returned, they awarded my client the following:

  • $8,350.10 for all past medical expenses.
  • No future medicals. This was the most surprising part of the award decision, since they related all priors up to last November.
  • No lost wages or impaired earning capacity. This was not really a surprise, given the economy and fact that my client still worked 100+ hours per week.
  • $10,000 non-economic damages. This, frankly, was also not surprising since my client spends all of his time at work.
  • $25,000 punitive damages.

The offer going into trial was $25,000, which my client received in punitive damages alone. It was a successful trial and another happy client.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Trial Report – Bend DUII Accident, Part I

On April 11, 2008, at about 8:45 p.m., our client was leaving a bar in Bend when he saw the Defendant engaged in a physical altercation with another patron. Our client watched the Defendant – who has admitted to drinking alcohol before this incident – strike the patron, pushing him into our client before the patron fell to the floor. The Defendant then rushed out of the bar into the parking lot. Our client also left the restaurant, where he met the Defendant in the parking lot. The Defendant began yelling obscenities and approached our client, threatening to harm him. This led to a heated verbal exchange. When the Defendant got in his minivan, our client warned him that he would call the authorities to make a DUII report if the Defendant attempted to drive. Undeterred, the Defendant got into his van and began to pull out of his parking space, so our client pulled out his phone to dial 911.

When our client walked to the front of the Defendant’s van to get the license plate number to report the DUII to the 911 operator, the Defendant began to drive in short bursts toward him, apparently attempting to scare him away. On the Defendant’s final lurch forward, his vehicle struck our client’s right knee, pinning his leg between the van and a Toyota Prius. The Defendant then tore out of the parking lot at high speed. Our client immediately called Deschutes County 911 and reported the hit-and-run to the dispatcher. The Defendant denied all of this, of course, and maintained that he backed out of the spot slowly, carefully, and without incident.

Deschutes County Sheriff’s deputies responded to the scene and, after taking witness statements, tracked the Defendant down at his home in Eagle Crest. After a brief investigation, the Defendant was arrested and taken to jail. Notably, the Defendant refused both a field sobriety test, as well as a breathalyzer test at the sheriff’s office. The Defendant was subsequently charged by the Deschutes County District Attorney’s Office with DUII, Recklessly Endangering Another, and Refusal to Take a Breath Test. On July 27, 2009, the Defendant pleaded no contest to the DUII charge and entered into a diversion program which resulted in a dismissal of the charges against him.

As a result of this incident, our client sustained right knee trauma and was diagnosed with a plica injury. He underwent conservative treatment, including steroid, cortisone and joint-replacement fluid injections as well as physical therapy, before resigning himself to living with knee pain. Nearly four years after this incident, the pain in his knee causes him to walk in a way anyone witnessing it could only describe as a “hobble.”

Because of his injuries, our client, who is self-employed at his concrete business, was completely unable to work at times. Even when able to work, he had to reduce the amount of work he does and hire help to finish the jobs he continues to take – jobs he was once able to do on his own. He sustained lost wages, primarily for replacement help hired during the first several months following the accident. Further, because he cannot perform work in the manner he once could, he claimed an impairment of his earning capacity.

The Defendant denied liability, causation, and damages.

Going into trial, our prayer was for $8,350.10 for past medical expenses; $10,000 for future medical expenses; $12,000+ for lost wages; $50,000 for impaired earning capacity; and $75,000 for noneconomic damages. We also claimed $50,000 in punitive damages due to the intoxication element.

My next post will give the details of the trial.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile