- Traffic Offense Case And Wrongful Death Suit
(originally published 22-Nov-07)
- Correct Sentence Date
(originally published 13-Apr-06)
- Accident or Homicide?
(originally published 23-Mar-06)
- Knowledge Of Use As a Criminal Instrument
(originally published 02-Mar-06)
- Unlawful Detention
(originally published 16-Feb-06)
Q.
Our son was coming home one evening and was involved in a two car accident. According to him he had a green light when a man ran a red light and our son hit him. Both our son and the other driver were taken to local hospitals. The other driver died several days later from his injuries. After the police investigation, and multiple conflicting witnesses (some say our son had a green light, others say he didn't), our son has been charged with failing to obey a traffic signal. Because of his age, this case will be heard in the Juvenile courts.
We've talked with an attorney who has told us that it's not worth us paying for an attorney. He says that this is a simple traffic case and that his legal fees would far surpass any traffic fines levied on our son. The jurisdiction that we live in VA does not allow witnesses names to be given, so we've been told to file a motion for discovery. Not being attorneys, we don't know how to do this or what forms are needed. But, we want to get all the information (Was the other driver wearing a seat belt, did he have alcohol/drugs in his system, was he a licensed driver, what did the witnesses see/say, etc.) on the accident so that we can be fully prepared for the court date.
The family of the other driver has served us with a wrongful death lawsuit. The attorney that we talked with has told us that unless our son pleads guilt to the traffic offense, nothing from this case can be used in the wrongful death suit. Is this true?
-- Anonymous
A.
It is critical your son have competent, effective legal representation on his juvenile court case. Although the matter solely involves a traffic offense, someone died as a result of the accident. The attorney who advised you his legal fees would exceed any traffic fines apparently forgot to mention, if your son is convicted of failing to obey the traffic signal the wrongful death suit will utilize such conviction to strengthen its case: your son was responsible for the accident and the death of the other driver. Furthermore, it will lead to a substantial amount of legal fees to defend your son in the wrongful death suit. Thus, it is probably wiser to obtain a dismissal or acquittal of the charge in juvenile court by retaining a competent attorney who can see the whole picture, and understands it does not matter if his/her legal fees are greater than the traffic fines. This win may lessen your future legal costs, or at the very least question the strength of the wrongful death action against your son.
It is essential you have a knowledgeable, competent attorney to obtain the necessary discovery to which you are entitled. Such an attorney will make sure to consider all potential cases against your son when giving him advice. In addition, it is critical your son's attorney be experienced in criminal cases as he will be advising your son on whether or not he should testify in juvenile court. If he decides to testify, your son must be prepared to do so by a skilled lawyer. Although your son must be protected at all stages, this one is the most significant in containing the damage. Only a competent attorney will assure all of your son's interests are protected. If he does not testify, there is a great risk your son will be convicted of the traffic offense due to the conflicting testimony. Despite the presumption of innocence and the right to remain silent, judges are only human and often feel responsibility toward society. Accordingly, it is often difficult for a judge to find someone not guilty, when an innocent person has been killed and the individual accused is a young man who fails to take the stand and contradict the prosecution's evidence. On the other hand, if your son does testify, he may get nervous and make an incriminating statement, despite his innocence.
I am sure your son must be traumatized by this accident and the fact the other driver died, even if it wasn't his fault. This is why he needs a competent attorney to guide and prepare him to testify, if they determine it is best for his case. Otherwise, if your son is not prepared and he incriminates himself, the testimony can be used to prosecute him for committing a crime, as well as to inculpate him in the wrongful death suit. Thus, it is in your son's best interests to have a competent, effective attorney to advise him about the choices he has and the ones he should make.
Best of luck!
Sincerely,
-- Laura Miranda
Q.My son was sentenced to 3.6 years in prison in December of 2003. The prison shows the wrong sentencing date and I can't locate the attorney who represented him so he can assist me in getting the dates corrected. What can I do about this myself?
-- Debby
A.Dear Debby,
You should focus on ordering the transcript from the date your son was sentenced. This will include an accurate date of sentence and the amount of incarceration the judge ordered he serve.
Usually, when you appear in court, particularly when a person pleads guilty, and on the date he is sentenced, a court reporter types what is said, as well as the name of the judge, the parties, defense attorney, prosecutor, the case number, etc. You can call the court clerk's office and inquire if there is such a record for you to order and who to call to obtain a copy, or if there is an audio recording of the events that can be transcribed if ordered. Of course, there is a fee you must pay. But it should be worth it to assure your son does not serve time beyond his sentence. In addition, you can request an official certificate of disposition with a seal from the court clerk at the courthouse where you son was sentenced. This will also have the correct date and the actual sentence the court imposed. Let the court clerk know you need authentic proof of the date your son was sentenced to provide to the jail. You can provide either of these documents to the Department of Corrections and to the jail where you son is serving his sentence. The Department of Corrections has a legal department.
The jail where your son is housed should also have a legal department or be able to refer you to one in charge of their matters. Call and find out the name of the attorney or representative to whom you should mail the proof you obtain and make sure to send it by certified mail.
Also, write a letter to the warden at your son's jail and include any documents demonstrating an accurate date your son was sentenced, as well as a copy of the letter sent to their legal department requesting the date of sentence be corrected.
Finally, you can write a letter to the judge who sentenced your son and request assistance if nothing else works. Make sure to provide the court with the same copies you sent to the legal department as well as the correspondence you mailed to them and proof of receipt. Remember, also critical is the date when you son was first incarcerated if that was prior to his date of sentence. He should receive credit for any prior period he may have served on the case. For example, if when he was first arrested bail was set and he spent some time in jail before posting bail, this period he served counts toward his sentence.
Best of luck!
Sincerely,
-- Laura Miranda
Q.I am charged with Criminally Negligent Homicide in a truck-auto accident. There are no circumstances other than an accident occurred and the passengers died as a result. I was alert, no DUI/DWI issue, no mechanical issue with my truck, and no intent on causing harm to anyone. The rig could not stop after the car suddenly pulled out in front of me. I have no criminal record, not even police involvement. What are my chances of being exonerated from this charge?
-- James
A.Dear James,
You are already in a precarious position since you have been arrested and charged with Criminally Negligent Homicide. Although it is not intentional murder, the charges you are confronting are very serious. It means the District Attorney has assessed the circumstances and found you to be responsible for the person's death to a certain extent, despite your lack of fault for the accident's occurrence. Unfortunately, if you are seeking a just outcome you will need a substantial amount of money to present your defense. Hopefully, the company you work for will assist you economically, as they may be subject to a civil lawsuit themselves, by the decedent's family, if you are found guilty of the charges, or plead guilty.
First, you need a seasoned criminal attorney who believes in your innocence and is not one who will give up.
Second, you need a qualified expert on reconstruction of car accidents, who can evaluate the damage to the vehicles, the velocity at which the cars were traveling when the accident occurred, the angle and moment of impact, in order to determine whose fault it was. If the police did their job, they should have taken photos of the skid marks and the scene of the accident, as well as of both the vehicles, or the vehicles should still be available for inspection as evidence in the case. An expert with knowledge of the rig and its inability to stop when a car suddenly pulls out in front of it, when traveling at the velocity you were traveling, is also key. Hopefully, you were traveling at the legal speed limit. This detail is significant as well. If the expert's analysis demonstrates the person who died was responsible for the accident, and your attorney feels s/he can trust the Prosecutor handling your case, s/he can present the results to try to get the charges reduced or dismissed. If, however, the Prosecutor's expert's reconstruction of the accident implicates you, please confer with your attorney and make an informed decision whether or not to go to trial.
Your lack of criminal history and the fact you were not drinking, are critical and favorable to your defense. Your age, experience driving trucks, and lack of prior accidents will also be important. You should have a doctor review the autopsy report of the decedent, to see if s/he was under the influence of alcohol, medications, or illicit drugs. Also, you need an investigator to do a background check on the person who died to see if s/he had a criminal record or a history of accidents.
Only when you have all of this information can an attorney advise you about your chances of being exonerated of the charges.
I wish you the best of luck!
Sincerely,
-- Laura Miranda
Q.Our business owns a van. The van was being used by an employee when he was caught with drugs and drug paraphernalia. Police say they can keep the van because of the drugs etc. We have been told, not by an attorney, that because the ownership was in the name of a business, and not the person driving the vehicle that they cannot keep the vehicle. Which is correct?
-- George
A.The van is subject to forfeiture because it was used to commit a crime, even if solely for the purpose of transporting the drugs and drug paraphernalia in possession of the employee.
The key factor, however, since the van was in the business' name, is whether the employer, and owner of the van, knew the vehicle was being used in the commission of a crime. Only if the state can prove the owner had such knowledge, will the van be forfeited. If the employee was using the van during work hours solely for his job responsibilities, it would be difficult to infer the employer had such knowledge. Although there are exceptions, for example, if the employee had a recent, prior, criminal record involving drugs of which the employer was aware, the circumstances may permit an inference. If the employee was permitted to use the van after work hours, and the employer had knowledge of his drug habit, the employers' knowledge the vehicle was being used as a criminal instrument could be inferred. Again, it depends on the surrounding circumstances.
I would advise you to have an attorney, familiar with the law of forfeiture, handle the return of the van.
Good luck!
Sincerely,
-- Laura Miranda
Q. I do not understand if I now have a "Police Record."
I went into a drugstore to buy an item. I took the items to the front of the store and paid. I returned to the store to look for an item I forgot to buy. I did not find it and proceeded to the exit. As I was exiting the store the second time I was approached by the store loss prevention person and accused of stealing. I refused to let the store clerk search me or take me to their backroom.
The police were summoned. I was escorted to the back of the store where I was handcuffed and completely searched. I was taken to the precinct in handcuffs where they took my cell phone, scarf, shoelaces and some cash. I was not fingerprinted or photographed. I am a military veteran and a medallion taxi driver so my photo and prints are on file somewhere. I was placed in a cell for two hours. The officer asked me questions about home phone number and SSN, which I answered. I was not read my rights at any time, nor was I ever informed that I was under arrest.
At the end of two hours, the officer let me out of the cell and said that the DA was not going to prosecute. When I asked "Was I under arrest?" Her answer was "Have you ever been arrested?" My response was "NO, never." She replied, "You are not in the system, its squashed."
I am confused. Was I or was I not arrested? Do I now have a record? Do I have any recourse?
-- Anonymous
A.You do not have a criminal record. If you were not fingerprinted, there will be no evidence of an arrest. From the details you provided, you also were not placed under arrest. You were detained for the purposes of investigation. It seems you were unlawfully detained, however, for a two(2) hour period.
Once the police arrived at the store, searched and found no stolen items in your possession you should have been released. Unfortunately, the police did have "probable cause" to search you because of the "store loss prevention" person's allegation you had stolen an item. But the law did not permit the police to take you to the precinct and continue to hold you, unless they had further inculpatory information.
There will be no public record of this detention. Police paperwork does exist at the precinct where you were detained, recording the complaint made by the store, officers going to the scene to investigate and transporting you to the precinct. This police paperwork, however, is inaccessible to the public.
I suggest you consult an attorney who handles cases of unlawful police detention as soon as possible. You may have a civil lawsuit. If so, a notice of claim must be filed against the New York City Police Department within ninety(90) days of the incident you described. There may also be a potential law suit against the store. You should seek the advice of a civil attorney.
Good luck!
-- Laura Miranda
