All posts by Chris

Bailing Out: How Bail Bonds Work

The goal for most people who are arrested is to get out or stay out of jail. For many people that can be accomplished very soon after arrest, at least for the short term. While criminal charges are pending, a person is innocent until proven guilty but his or her freedom is still constrained. The bail process allows a person to be free from confinement before the case is decided. Many people are released on a PTA (Promise to Appear), which requires nothing but a promise to appear for all court events. People who are not released on a PTA are given a bond. The bond is what must be posted, usually money, in order to secure release. Bond may be posted by the defendant or another person, or by a professional surety, known as a bondsman or bail bond agent. If the bond is cash-only, it cannot be posted by a professional.

High bonds are bad news for most defendants.

The bail process starts with the arrest. The police may set (based on their department policies) a bond or release a person on a PTA. The bond may be posted at that time and the arrested person can go home. If the person cannot make bond, he or she remains in custody until Arraignment which occurs on the next court day. The defendant can argue bond at arraignment and the judge can modify or maintain the original bond. The bond can be posted at court or at the jail after it is set. If the defendant cannot post bond, he or she is committed to the custody of corrections and will remain in jail until the bond is posted, terminated or the case concludes. Even after conviction, one can remain out on bond pending sentencing or appeal.

No discussion about bail is complete without bail jumping. Bond is essentially collateral or attending court. When a person out on bail misses court, the bond can be forfeited. Failure to appear (FTA) in Connecticut is an additional criminal charge–an additional misdemeanor if the defendant fails to appear for a misdemeanor and a felony if that person fails to appear for a felony. When a person fails to appear, the court usually issues a bench warrant which allows the defendant to be re-arrested and brought back to court. A bench warrant may however be vacated in certain circumstances. If a defendant used a professional surety, the surety is able to track down and apprehend the defendant. That is where bail enforcement agents come in. Bail enforcement agents (commonly known as bounty hunters even though not all bounty hunters are licensed bail enforcement agents) are professionals hired by sureties to apprehend people who jump their bail.

You were probably expecting Dog the Bounty Hunter. I give you Steve McQueen.

If you are arrested or know of a warrant, it is best to contact an attorney to help guide you through the criminal and bail processes.

Top Ten Law-Related Christmas Songs

While many people slow down around the holiday season, this is actually one of my busiest times of the year. In addition to my usual cadre of cases, I’m defending a green guy charged with stealing Christmas (he gave the stuff back!) and prosecuting foreclosures and evictions for a client named Mr. Potter. Since the law doesn’t take holidays, here are ten songs to get you into the holiday spirit and also highlight some of the season’s common legal issues.

The Kinks “Father Christmas”
This holiday favorite stands on its own as a rock song. The protagonist is a department store Santa who is roughed up by a group of youths who want money and not toys (this song was written during the English recession in the ’70s). One asks for a job for his unemployed father and another asks for a machine gun so that he can threaten and rob. Larceny, robbery, assault and threatening are among the potential crimes described. Additionally, this fun-sounding song delves into the relationship between poverty and crime.

Bob Rivers and Twisted Radio “Police Stop My Car” (to “Feliz Navidad” by Jose Feliciano)
A common theme in these Christmas rock songs is having too much to drink. In this song, the speaker is pulled over for a DUI. Have a sober–or get pulled over–Christmas.

The Pogues “Fairytale of New York”
Having too much to drink lands this singer in the drunk tank on Christmas Eve. At least he wasn’t driving. Public intoxication is not a crime in Connecticut however intoxication can lead to breach of peace, disorderly conduct, assault and other charges. Additionally, drug possession is referenced (“you’re an old slut on junk”). The subject couple in this song immigrated to the US and may face ICE (Immigration and Customs Enforcement–not frozen water) issues.

No Doubt “Oi to the World” (cover of the Vandals)
A gang fight between punks and skinheads breaks out only to be settled by Christmas magic. Before Gwen Stefani went B-A-N-A-N-A-S, she fronted No Doubt (bonus: does anyone recall the Gwen Stefani stomach-pumping rumor from way back?).

The Vandals “A Gun for Christmas”
The singer here gets a gun for Christmas to protect his other gifts. If giving or receiving a firearm, check all applicable firearm statutes to avoid legal problems. The Vandals recorded an entire Christmas record. “My First Christmas as a Woman” is another good listen.

Ramones “Merry X-Mas (I Don’t Want to Fight Tonight)”
The song and video imply an unstable couple on the brink of family violence (here’s a tip- don’t say “Hi ho, let’s go” to your significant other). Christmas Eve is not a night to fight. If you get taken in and can’t post bond, because Christmas is a court holiday, you won’t have the chance to argue it down or be released for another day.

Blink 182 “I Won’t Be Home for Christmas”
This guy did fight before Christmas and spent the holiday in custody. On a serious note, incarceration affects not just convicted defendants but their families who will spend holidays without them.

Dr. Elmo “Grandma Got Run Over By a Reindeer”
This is a great song for lawyers because it involves both civil and criminal issues. Christmas drinking does it again as Grandma never makes it home after drunkenly trudging through the snow. Civilly there is a potential wrongful death action against Santa. Grandpa should note that the statute of limitations in CT is two years. It might take a while sending a marshal to the North Pole to complete service. Santa will need a lawyer for the possible criminal charges, which may include manslaughter and/or homicide by a motor vehicle. His sleigh insurance carrier will likely defend him in the civil suit.

Weird Al “The Night Santa Went Crazy”
Santa really goes over the deep end in this one. Maybe it’s related to being sued and losing his license for running over an old lady or that was just an indicator of a larger problem. Santa lands in federal prison after committing cruelty to reindeer, unlawful restraint and using dangerous weapons, including a flame thrower and a Luger. I’m not sure how the U.S. has jurisdiction over the North Pole. I’m guessing it has something to do with maritime law. Note that the opening of this song is similar to “Black Gold” by Soul Asylum.

Dropkick Murphys “The Season’s Upon Us”
Just seeing that the Murphy’s recorded this song is enough to know that it’s about drinking. Although it doesn’t explicitly reference criminal activity, you know there’s going to be some fighting and probably a divorce at some point.

Have a safe and legal holiday season! If you don’t, call me.

Duck Fails — A&E, Duck Dynasty and the First Amendment

It’s been a while since we’ve had a pop culture fake First Amendment incident. More than two years have passed since ESPN dropped Hank Williams Jr. from the Monday Night Football opening after Hank got all rowdy and compared Pres. Obama to Hitler.

Why must you live out those songs that you wrote, Hank?

The latest celebrity to be booted off the air for saying something controversial off the air is Phil Robertson of A&E hit “Duck Dynasty,” which follows a family in Louisiana who makes duck calls. In an interview with GQ, Mr. Robertson, an avowed Bible-reading Christian, stated, among other things, that homosexuality is sinful and on par with bestiality and prostitution. A&E suspended Mr. Robertson. Then the First Amendment “defenders” came out.

Louisiana Governor Bobby Jindal issued this statement:

“Phil Robertson and his family are great citizens of the State of Louisiana. The politically correct crowd is tolerant of all viewpoints, except those they disagree with. I don’t agree with quite a bit of stuff I read in magazine interviews or see on TV. In fact, come to think of it, I find a good bit of it offensive. But I also acknowledge that this is a free country and everyone is entitled to express their views. In fact, I remember when TV networks believed in the First Amendment. It is a messed up situation when Miley Cyrus gets a laugh, and Phil Robertson gets suspended.”

Other characters have joined Gov. Jindal in his support of Mr. Robertson, including a half-term half-witted former politician who had her own reality shows and will not be linked on this blog. They suggest that because we have a First Amendment, that Mr. Robertson should be allowed on the air to say whatever he wants. I’m all in favor of First Amendment protections and free speech but I have to admit that there is no First Amendment issue here. The First Amendment prevents the government and government actors from restricting expression. In this situation, it isn’t the FCC or any government branch that is suspending Mr. Robertson, but his broadcaster, A&E, by itself. The First Amendment does not usually apply to private relationships such as the one between A&E and its TV personalities (and ESPN and Hank Williams Jr.). There’s probably even a provision in their contracts that allows such as suspension or cancellation. The First Amendment creates no right to be on TV. I’m not surprised that Gov. Jindal is mixed up over the First Amendment because he has had some struggles with it in the past.

Mr. Robertson’s views might upset people but are far from unique. A great many politicians and clergymen say similar things and are allowed on TV, especially on news and political shows. A&E could have let him stay on the air and even give him an entire show of him ranting on whatever he wants. But would advertisers, viewers and cable subscribers like that? That’s probably what motivated A&E.

I base my decisions on business.

While we’re on the First Amendment, it should be noted that it also grants a right of free association and its inverse of dissociation. A&E is free to not associate with Mr. Robertson or his co-stars provided it satisfies any legal obligations it might have.

What’s the Deal With Plea Bargaining?

My favorite episode of Perry Mason is the one in which Perry reaches a deal with the DA and his client takes it instead of going to trial. A close second is the time Perry requests a continuance because he has to be in another court.

“Your honor, may we have a few more weeks so my client can consider Mr. Burger’s offer?”

The reality is that few criminal cases ever go to trial. Many are resolved through diversionary programs (such as AR) or nolles. The bulk of criminal cases are resolved through guilty pleas. As we know, a criminal defendant is innocent until proven guilty. After a defendant his arraigned, he enters an initial plea, which is usually “not guilty,” and the case proceeds. The plea is a decision that only a client can make. At some point, barring a program or a nolle, the State will extend an offer for a guilty plea: if the defendant changes his or her plea to guilty (or nolo contendere or Alford pleas), the State will recommend a certain punishment and/or will drop or lower some of the charges. The court might even weigh in with what it will sentence the defendant should he plead out. If the defendant rejects the offer, the case could be set down for trial. An agreement can still be reached at any time but we’re dealing with the basic contract principles of offer and acceptance. The State is under no obligation to extend a new offer or to accept a defendant’s counter-offer (back to contracts class, a counter-offer is a rejection). The defendant can plead guilty anyway and leave the sentence up to the court without an offer from the State–this is an open plea–but it is only for the charges before him. Once the court finds probable cause for an offense, the defendant can be brought to trial for it. Only the State decides what to charge a defendant with.

What can a defendant do if he or she does not like the State or court’s offer? Take the case to trial. If only it were that easy. Although that decision is solely the client’s, a criminal defense attorney must advise him or her in that decision and make a recommendation. A poor recommendation to try a case or plead out may constitute ineffective assistance. I enjoy trying cases but my clients’ decisions aren’t about my fun. Their lives and liberty are at stake, as well as the people they support and depend on. For someone who is sitting in jail unable to bond out, the prospect of getting hammered after a loss at trial is often not worth the risk when a plea for lesser charges can get him out much faster. This happens a lot in drug cases wherein the statutes expose a defendant to lengthy prison terms. Other times preconfinement credit and split sentences can free someone almost immediately as long as he pleads to something. Sometimes the punishment isn’t the time but the offense–becoming a felon and suffering all of the ensuing collateral consequences.

Do we have five suspended after two with three years probation?

All of the scenarios, charges, evidence and consequences are what we talk about with clients, sometimes in the courthouse lockup. I never like telling a client to stop fighting; to give up his rights and go to jail. What I like less is when a client makes a poor decision. So much of this work isn’t staying out of jail but getting out of jail.

Pistol Permit Reciprocity in Connecticut (There isn’t any)

Yesterday I wrote about how it is possible in Connecticut for people to be charged with Breach of Peace related to the legal carrying of a firearm. I noted that one must have a valid carry permit to carry a pistol, concealed or openly, on his or her person or in a vehicle. All states except for Vermont, Alaska, Arkansas and Wyoming currently require a pistol permit. Many of these states honor some other states’ permits, meaning that an out-of-state permit-holder can carry in the allowing state without having to obtain that state’s permit. Connecticut however is not one of those states. Connecticut does not have a reciprocity agreement with any other state to honor its permits.

In short, a person cannot carry a pistol on his or her person or in a vehicle in Connecticut without a valid Connecticut permit. The penalty for carrying without a permit, in violation of Conn. Gen. Stat. Sec. 29-35 is one to five years of imprisonment, one year of which cannot be suspended unless good cause is shown. That is not a hard mandatory minimum but it is minimum time. The penalty for possessing a weapon in a motor vehicle, which includes a pistol without a permit in a motor vehicle, in violation of Sec. 29-38, is up to three years of imprisonment without any minimum. Both offenses are felonies.

Since people travel and Connecticut is a small state with three neighbors, the logical question is: what if someone with a valid permit from his or her own state travels through Connecticut with firearms in the vehicle? State and federal law allow such transportation to take place. Sec. 29-38d provides

(a) The provisions of sections 29-35 and 29-38 shall not apply to the interstate transportation of firearms through this state in accordance with 18 USC 926A and 927, as amended from time to time, by any person who is not otherwise prohibited from shipping, transporting, receiving or possessing a firearm. Such person may transport a firearm for any lawful purpose from any place where such person may lawfully possess and carry such firearm through this state to any other place where such person may lawfully possess and carry such firearm provided such transportation is in accordance with subsection (b) of this section.

(b) During the transportation of a firearm through this state as authorized in subsection (a) of this section, such firearm shall be unloaded and neither such firearm nor any ammunition being transported shall be readily accessible or directly accessible from the passenger compartment of the vehicle. If the vehicle does not have a compartment separate from the passenger compartment, such firearm shall be unloaded and such firearm and any ammunition being transported shall be contained in a locked container other than the glove compartment or console.

(c) No person who is transporting a firearm through this state in accordance with this section may use or carry such firearm or sell, deliver or otherwise transfer such firearm while in this state.

The federal law cited, 18 U.S.C. 926A provides

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

If you plan to go hunting in another state, make sure you know the laws of that state and any other in which you will possess firearms.

While Connecticut does not recognize pistol permits from other states, some states will recognize a Connecticut permit. If you do plan on carrying your weapon in another state, it is imperative to verify the laws and permit requirements in that state as well as those of states you plan on traveling through. States have their own firearms laws and often illegal possession is a strict liability offense with severe penalties.

Breach of Peace Love and Understanding: How Can the Legal Carrying of a Firearm Be a Crime?

Connecticut law is relatively clear on the legality of carrying firearms. A permit is required to carry a pistol on the person and in a motor vehicle. No permit is required to carry a rifle or shotgun (provided the weapon is not one prohibited by state or federal law–e.g. a sawed-off shotgun). With a permit, a pistol may be carried concealed or openly–there is no law against openly carrying a pistol. Yet, as occasionally reported in the newspaper, people who were legally and openly carrying weapons have been arrested and charged not with weapons possession but with Breach of Peace. The Register published an article today on this phenomenon.

In the article Paul Vance of the State Police and Michael Lawlor, the governor’s criminal justice adviser, both state that a person can openly carry a firearm as long as it does not cause “annoyance or alarm.” Rich Burgess of the organization Connecticut Carry disagrees, saying, “The very premise of breach of peace is ‘violent or tumultuous behavior. Since carrying a weapon in public is legal, doing so is exempted from the breach-of-peace statute.”

Since we’re talking about Breach of Peace, let’s take a look at the actual statute: Sec. 53a-181 – Breach of Peace in the 2nd Degree. The statute reads in its entirety (with the most relevant language bolded):

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests. (b) Breach of the peace in the second degree is a class B misdemeanor.

Breach of Peace and its cousin Disorderly Conduct are among the broadest, open-ended statutes (along with Risk of Injury and a few others). It does not take much beyond being rowdy to get hit with this charge. Although Sec. 53a-181(a)(1) is the subsection that is applicable for weapons, it neither mentions nor excludes firearms or any kind of weapon. Mr. Burgess is incorrect is saying that carrying firearms is exempted from the statute because it is a legal activity. Many activities that are in themselves legal, such as speaking, are Constitutionally-protected until they are used in a threatening manner.

I know what you’re thinking: what if someone is just carrying a weapon and minding his or her own business and someone who is extra-sensitive to guns sees it and calls the police? Many other people might’ve seen it and not cared a lick. Whether the act constitutes a breach of peace is a question of fact: it is up to a judge or jury to decide the intent of the defendant and if the alleged activity constitutes violent, threatening or tumultuous behavior. So, how does a fact-finder do that? Time to pull up the jury instructions for 53a-181(a)(1). Here is what the State must prove beyond a reasonable doubt:

Element 1 – Intent
The first element is that the defendant
-acted with the intent to cause inconvenience, annoyance or alarm. The predominant intent must be to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

-recklessly created a risk of causing inconvenience, annoyance or alarm. A person acts “recklessly” with respect to a result or circumstances when (he/she) is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstances exist.

The words “inconvenience, annoyance or alarm” refer to what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

Element 2 – Conduct
The second element is that the defendant engaged in fighting or in violent, tumultuous or threatening behavior that actually involved physical violence or portended imminent physical violence.2 The defendant’s conduct must be more than a display of mere bad manners. It must cause or create a risk of causing inconvenience, annoyance or alarm among members of the public.

Element 3 – Public Place
The third element is that the conduct took place in a public place. “Public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

The above-bolded language specifies that whether behavior is violent etc. is based on an objective standard–not the subjective feelings of an actual person (such as the one who witnessed the event, a police officer or Mr. Lawlor). The question is essentially would an ordinary person feel threatened by this? Context and circumstances are always key. Carrying a holstered handgun on your belt while you buy a sandwich? Probably not objectively threatening. Walking around pointing at your weapon and winking at people? Possibly threatening. Carrying your hunting rifle into the woods? Seems reasonable and non-threatening to me. Walking near a school with a rifle? I’ll let you think about that one.

Carrying your rifle in preparation for deer-hunting likely isn’t breaching any peace. Doing it at a wedding or while speaking like Christopher Walken just might be.

Is Breach of Peace overused, often as a fallback to make an arrest? I think it is and have had the clients that demonstrate that idea. But it’s hard to say that weapons should be exempt from Breach of Peace because one can–and I’ve had the clients to prove this too–be charged with Breach of Peace without having any weapons. I don’t write the laws but I defend people who are charged with breaking them and it’s tough to defend something as open as Breach of Peace.

Breach of peace? In Charles Bronson’s world, he is making peace.

How a Lawyer Can Maximize Your Injury Case’s Value: the Collateral Source Rule and Healthcare

This post will answer the common question, “Do I need a lawyer?” in connection to an accident case. It might be a small accident with minimal medical expenses, such as a doctor’s visit or trip to the ER. With no lingering injuries, it would look like the case is small and you can handle it by yourself without a lawyer. If you already took the initiative to call the other person’s insurance company, there’s a good chance they asked some questions about your medical treatment and offered to pay your bills. Sounds easy enough. Why bother getting a lawyer? Won’t a lawyer just take 1/3 of what? I can get 3/3 without a lawyer. That is correct and insurance companies will love you for just wanting your bills paid. While it’s true that we lawyers take our fees out of your recovery (known as a contingency fee), there is a good chance that we can the increase in recovery that we can obtain for you greatly outweighs the fee. How do we do that? Most succinctly: we know what we’re doing.

Lawyers experienced in accident cases know how to value a case and how to obtain that amount from the insurance company. For one example, my last post highlighted the diminished value claim, a cause of action in a motor vehicle accident case in addition to the personal injury and property damage. This is not a well-known claim and may be overlooked by many people. An attorney can look into it. I certainly do when I handle my clients’ cases. A client’s case is almost always worth more than his or her out-of-pocket medical bills. One reason for that is collateral source reduction.

The collateral source reduction rule in Connecticut holds that a plaintiff cannot recover what his or her health insurance (with some exceptions, notably ERISA plans) pays in medical expenses. It would appear that a case really is worth only out-of-pocket payments. Further understanding of the collateral source rule proves otherwise. Although a plaintiff cannot usually recover what the insurance company pays, the plaintiff can recover what he or she pays to to secure the healthcare (the collateral source), which are healthcare premiums and can be worth quite a deal. The true value of a case can therefore have economic damages far greater than what you paid out in healthcare expenses. When insurance adjusters offer to settle a case with you directly, they’re not including this number.

The movie Collateral is an allegory of the collateral source rule. Tom Cruise’s psychotic hitman character represents the insurance industry. Jamie Foxx’s everyman working stiff character represents plaintiffs and policy-holders.

There are many other advantages lawyers have over self-represented parties including experience in prosecuting and settling injury cases. Knowledge of the law and procedure is the biggest advantage. This is an example on how that can make your case more valuable. Dealing with an insurance company yourself might sound easy enough but the adjusters are more likely slapping five with one another after you hang up rather than making arrangements to send a Brinks truck to your house.

Even if you have no out-of-pocket expenses, your case still has value.

Diminished Value Claims for Auto Accident Cases — Maximizing Your Recovery

I recently settled a client’s auto accident case. Not only was she injured, her car was damaged as well. In many auto accident cases, the plaintiff handles the property (car) damage case directly with the insurance company, whether his or her own or the defendant driver’s, and leaves the personal injury component to the attorney. Auto property damage is usually not litigated because there is often not a lot of question about the value and the plaintiff needs the car repaired quickly. Assuming insurance covers the damage and repairs to the car, the plaintiff is still not fully compensated for the loss. The reason is that a car, no matter how well repaired, is worth less after it is involved in a collision. Should the plaintiff attempt to sell the car, he or she would not be able to receive as much had the car not been involved in the collision. In a situation in which another driver is responsible for the accident and the ensuing personal injuries and property damage, it follows that the defendant driver should be responsible for the reduction in the car’s resale value.

Connecticut and many other states have a cause of action under common law that addresses this issue. It is known as a diminished value claim. The DV claim (not to be confused with domestic violence on the criminal side) entered Connecticut case law in 1944 with the case Littlejohn v. Elionsky, 130 Conn. 541 (1944). Littlejohn and its progeny, which includes Stults v. Palmer, 141 Conn. 709 (1954) and Damico v. Dalton, 1 Conn. App. 186 (1984), hold that a defendant is liable for the diminished value of a plaintiff’s vehicle which is calculated as the difference between the vehicle’s value before the accident and the value after the accident. Market value is used.

I owe it to myself to tell you, if you’re looking for a car that will decrease in value, the Wagon Queen Family Truckster…You think you hate it now, wait ’til you drive it.

My client and her car were rear-ended on I-95. Liability was clear. My client recovered from her injuries. The car did not. Although the body was repaired, the frame was bent. Damages were extensive but the car was not totaled. Frame damage makes a car difficult to sell and often at only a fraction of its pre-accident value. The way we prosecuted the DV claim was to have an auto appraiser appraise the car and then submit the DV demand with our personal injury demand to the defendant driver’s insurance company. We were able to resolve the case without filing suit. Such cases however can be litigated in court with the personal injury case. It is important to note that even though the client accepted an insurance payment for the repairs of the car, she was still able to recover the diminished value afterward. Diminished value claims are only available against a defendant (and through his or her insurance) and not a plaintiff’s own collision policy.

Not only did the Blues Brothers go to jail for their exploits, they were hit for a huge diminished value judgment for all of the police cars that were damaged in their car chase. That included both actual damages and bribes to Cook County officials.

The DV claim is one of many examples of why it helps to have a lawyer handle your accident case. An attorney will know what claims are available and maximize your recovery. It is true that a person can settle his or her own case with the opposing insurance company. Insurance companies love that. Your damages in a case are always more than your bills and you should be compensated for them. In my next post, I will explain that concept as it relates to insurance premiums.

Connecticut’s new law against texting while driving — and some other points.

Today the New Haven Register reported that Connecticut is getting tougher on texting while driving and points to a new law which took effect on Oct. 1.

Connecticut has band handheld cellphone (and other electronic device) usage by motor vehicle operators since 2006. Conn. Gen. Stat. Sec. 14-296aa provides in relevant part:

Except as otherwise provided in this subsection and subsections (c) and (d) of this section, no person shall operate a motor vehicle upon a highway, as defined in section 14-1, while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device while such vehicle is in motion. An operator of a motor vehicle who types, sends or reads a text message with a hand-held mobile telephone or mobile electronic device while such vehicle is in motion shall be in violation of this section.

If this isn’t distracted driving, then I don’t know what is.

What the new law, Public Act 13-271, enacted this spring, does is allow the Department of Motor Vehicles to assess points on the licenses of drivers who violate 14-296aa. One point to be precise.

While most people are aware of the existence of drivers license points, likely through references in pop culture or from police officers after they are handed tickets, few know how the process actually works. As I have discussed a few times, most notably in the posts regarding drinking and driving, DMV is an administrative agency that can take administrative actions separate from the legal system in response to convictions for crimes or infractions. Authorized by legislation, DMV has developed regulations to assess points for various offenses, ranging from a minimum of one point (speeding, failure to drive right) to five points (negligent homicide with a motor vehicle). DUI carries a three-point assessment.

Points for an offense remain on a driver’s record for 24 months. If at any time the driver accumulates six points, DMV sends him or her a letter warning that once the point total tops ten, the license will be suspended for 30 days. For any subsequent suspension, it will remain in effect until the point total falls below 10. Like DUI per se suspensions, there is a hearing process.

What’s the other collateral consequence that isn’t in the statute? Insurance. Insurance companies check drivers’ records when they apply for new policies and may also periodically pull records. Records with points and evaluations. At least that’s the idea behind the new law: people will be scared of insurance premium increases…because apparently they’re not scared of accidents. It might work.

Pres. Obama vs. the First Amendment — Scaling the Wall of Separation Between Church and State

Since he took office in January 2009, Pres. Obama’s opponents have asserted that he and his administration are shredding the Constitution–whether it be over guns, healthcare, national security, place of birth or just about anything else said and done in the past five years. I’m actually with them on a recent development…or am I?

Earlier this month, the United States, filed an amicus curiae brief in the case of Greece v. Galloway, which will be heard by the Supreme Court his fall. The issue is whether a town council opening its meetings with an official prayer violates the First Amendment. The town of Greece, NY has been leading prayers to open its meetings for well over ten years. The Second Circuit (in which Connecticut sits) held that the prayer does in fact violate the First Amendment and somehow avoids using “Are you kidding me?” in its opinion. The government’s official stance, through its amicus, is on the side of Greece and government-sponsored prayer which stands against the First Amendment and the separation of church and state.

The First Amendment in regards to religion contains both the Establishment Clause and the Free Exercise Clause. The Establishment Clause means that the federal (and state, as incorporated by the 14th Amendment) government may not establish a national religion, nor favor a particular religion or religion over non-religion. The Free Exercise Clause largely prevents governments from prohibiting individuals and their religions from exercising their religious beliefs. This amendment has not been amended since its passage. There is, under the Constitution, a clearly defined separation of church and state.

Church and State should not intersect. In New Haven for instance, they do not.

Forty years ago, in Abington School District v. Schempp, 374 U.S. 203 (1963), the Supreme Court ruled that school-sponsored prayer in public schools violated the First Amendment. More recently, in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Court held that an official prayer before public high school football games was unconstitutional. Although Greece allows and invites people of all different religious denominations to lead prayers, the practice still favors religion over non-religion.

One of the common refrains in these situation is that our nation is Christian or was founded by Christians. That isn’t true. Many of our founders were Deists, not Christians. Even assuming arguendo that all of our nation’s founders were devout, church-going Christians, that does not mean that they wanted religion entangled with government. Two Connecticut connections illustrate this concept.

Thomas Jefferson, in his 1802 letter to the Danbury Baptist Association, wrote,

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

Joel Barlow, a statesman and Connecticut native for whom Redding and Easton’s high school is named, proclaimed in the Treaty With Tripoli, in 1796, the following

Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

The Treaty of Tripoli was approved unanimously by the Senate in 1797. Vice President John Adams presided over that Senate (and supported the treaty) which included several nation builders (and future president Andrew Jackson), some of whom were themselves clergymen.

The separation of church and state is a concept that should be supported by both the religious and non-religious. The United States is home to many, many different religious groups which were able to flourish because there was no official religion or constraint. The administration and Supreme Court should see that and use the Greece case as an opportunity to keep the wall from cracking.