Category Archives: Motor vehicles

The Fourth Amendment Up in Smoke — Navarette v. California

Legal research often takes me back to the 1960′s and 70′s. The Supreme Court, first under Chief Justice Earl Warren, defined many Constitutional rights. Many cases involved the rights of the accused, such as Mapp v. Ohio (exclusionary rule), Gideon v. Wainwright (indigent right to appointed counsel), Miranda v. Arizona (no description necessary). Warren Burger succeeded Warren as Chief Justice in 1969 and the Burger court, while not as progressive as the Warren court, continued or at the very least did not reverse the criminal jurisprudence of the preceding decade. The decline began with the Rehnquist court in the 1980′s and 90′s and continues in the present with the Roberts court.

Today, the Supreme Court issued the decision of Navarette v. California with a majority of Justices Thomas (the author), Roberts, Breyer, Alito and Kennedy. Justice Scalia (Warning: I agree with Justice Scalia) sharply dissented, joined by Justices Sotomayor, Kagan and Ginsburg. Navarette was a Fourth Amendment case and while today’s decision does not carve out a new exception to the warrant requirement, it does make it easier for the police to stop vehicles.

The defendant Navarette was stopped on the highway in California after a 911 caller said that his truck ran him or her off the road. The police, suspecting drunk driving, saw the truck on the highway, followed it and stopped it. After stopping the truck, the police smelled marijuana (police ALWAYS smell marijuana although in this case they probably really did), searched the truck and found bales of marijuana in its bed. It seems pretty open and shut, so what was the Fourth Amendment issue? It wasn’t in the search because the smell of the weed likely provided the requisite probable cause to search. It lies in the stop–did the police have reasonable suspicion to stop the truck? There must be reasonable suspicion that a crime is taking place, has taken place or is about to take place involving the vehicle. That could be a traffic violation. The caller said that the truck ran him or her off the road, which would suggest reckless driving or possibly drunk driving. The caller described the truck and its location and that was enough for the majority to find reasonable suspicion in the totality of the circumstances.

Justice Scalia argues in dissent that there was not enough for reasonable suspicion because the call was anonymous and uncorroborated. The Supreme Court previously held in Florida v. J.L. that an anonymous tip that a young man was carrying a gun without anything more than a description and his location was not enough to justify a stop and search of him. In Alabama v. White, the Court upheld a stop based on an anonymous tip because the police corroborated it through their own investigation. That didn’t happen in Navarette. Although the police followed the defendant, he did not commit any traffic violations during that time nor did he show any signs of drunk driving. There was no corroboration. There was no accident or even identification of the caller.

Why shouldn’t an anonymous tip be enough on its own? Reliability. Our law, especially Fourth Amendment law, requires that information that leads to criminal action against an individual be reliable. That is why judges must sign off on warrants. It is also why courts prefer in person testimony over hearsay. An anonymous call could come from anyone and be for any reason. It is easy to side against the defendants in these cases because appeals come from guilty defendants. We don’t find out about many people who were shaken down by the police on bogus tips.

Based on the Navarette decision, an anonymous tip that a van was made entirely of marijuana, even without any corroboration, would be enough to warrant a traffic stop.

Aside from confrontation clause issues, the Roberts court has not been friendly to criminal defendants. Last year the Court held that a defendant’s silence can be used against him. Two years ago the Court upheld the use of strip searches for taking arrested persons into jail.

The dissent closes by saying, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.”

No Fourth Amendment issues here. The van is already parked and open to plain view and plain smell.

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.

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.