Drunk Driving News for February 22, 2011

Todd Miler who shares office space with me handles OWI cases in central Iowa. His availability to me has allowed me to watch how the law works to handle the criminal defense of these cases. I’ve been handling the PI side of drunken driving cases now for the better part of 30 years and they can be a challenge. The law is somewhat convoluted and patched together from a public policy trying to deter drinking and driving while trying not to compensate those who are drunk and driving. The estate claims and the dependent claims can proceed but with some restrictions. Of course after reading thousands of wrong-way driving news reports from all over the country the risks of drinking and driving are pretty telling. If I can answer your questions give me a call; otherwise here today are the news items for Iowa about OWI, drinking and driving or drunk driving as it’s commonly referred to. Here are some stories for today. Contact information: sdlombardi@aol.com and 515-222-1110.

Winter in Iowa means accidents, and lots of them.

Today we look at a few of the accidents resulting in a fatality as investigated and reported on by the Iowa State Patrol. For the past couple of weeks we’ve had a pause in the numbers, but with the first bit of snow and ice the numbers are right back up there again. The car and truck related deaths come to us from the following counties: Harrison, Cerro Gordo, Polk, Freemont, Pocahontas, Webster, two from Franklin, Marion, Marshall and another one from Harrison.

Criminal Law Drunk Driving - What you need to know about our services.

: If you’ve been arrested for drunk driving you need to see an attorney within the first ten days after your arrest. Todd Miler has been representing people arrested for OWI or OMVUI for over 10 years. You need to call him for an immediate appointment.

Are the Movie Camera Lighs Blinding the Eyes of the Broward County Sheriff'

Like the intuition about Melissa Lewis’ murder the same thread of common sense told me mixing government employees who are carrying out their official-constitutional duties, with reality TV doesn’t add up. After all they aren't being paid to be TV celebrities; they are being paid to be government employees handling law enforcement.

Hit and Run that kills Bicyclist spurs debate on the impact of age on driving privileges

On August 30, 2009 a hit-and-run occurred killing bicyclist, Mark Grgurich age 54.  Hit by a white truck on Warren County Road G14, according to the Des Moines Register.

The white 1986 Chevrolet pickup was discovered to belong to Paul “Jud” McKinney, through investigating surveillance photographs, according to the Des Moines Register.  The 79 year old McKinney will go to court on September 22, 2009 to face the following charges:

-leaving the scene of a fatality
-concealment of evidence
-failure to maintain control

If convicted of all charges he could face seven years in prison.

An underlying cause for McKinney hitting the bicyclist is a vision problem called macular degeneration which causes a decline in vision especially in the central visual area, vital for driving. According to the Des Moines Register, “McKinney's sister, Elsie Manning, told The Des Moines Register that her brother has macular degeneration, a condition usually found in older adults that results in a loss of vision, especially central vision.” Though, “a Warren County sheriff's investigator said he was unaware that McKinney had macular degeneration and did not know if it figured in any way in the fatal crash.”  McKinney was to renew his license in October, having to renew it every two years due to his eye condition. Scott Falb, a DOT driving specialist said, “in Iowa, drivers may be issued a four-year license until the age of 70, but after that the state ‘wants them to come in every two years to appraise their condition as a driver’." Even though McKinney had macular degeneration, because of his age he still had to go in every two years to be evaluated.

According to the Des Moines Register:

“In Iowa in 2008, 15- to 24-year-old drivers had a rate of 3.28 fatal crashes per 10,000 licensed drivers. That dropped to 2.54 in the middle years and then headed up again as drivers reached their 70s, Falb said. At age 85 the rate reached 3.56 fatal crashes per 10,000 licensed drivers.”

From this current issue debate is rising on whether there should be stricter rules applied to older drivers. A news article from channel 13, WHO, discusses this question in regards to other cases besides McKinney.  One such case is Margaret Winter who is in her 80’s and uses a walker to get around, but also feels she should be able to drive her car.  She went in to renew her license and the DOT required her to take a test, which she failed at least twice. Winter feels it’s unfair and wrong that she cannot have her license since she has been driving for 55 years. Watch a clip from this issue on Ms. Winter.

What do you think is too old and how this impacts our roads we all use in some way or the other?

http://www.whotv.com/videobeta/watch/?watch=e97bf4db-82e0-4cb1-bb8b-340c10da9616&src=front

 

 

I-29 Iowa Interstate Accident Takes Life of Man Lying Down in Northbound Lane of Traffic

This is a strange and a sad case to report about. A semi-truck traveling on I-29 in Monona County, Iowa ran over a man lying on the interstate. The accident occurred on July 14, 2009 at about 1:30 a.m. in the northbound lane of travel at the 123.70 mile marker. The driver of the semi, Kenneth Olson, was driving a 2009 Volvo when he saw a body lying in the northbound lane of travel. He attempted to swerve left but was unable to avoid running over the body. The man lying on the interstate was killed by the forces. Of course it’s difficult to adjust the direction of a semi-truck very quickly. We can certainly appreciate the failed attempt by Mr. Olson.

People familiar with the man lying on I-29 thought he was under the influence of marijuana and PCP. The report describes their assessments as “very impaired”.

Here is something to think about. What if in swerving to the left the truck struck another vehicle? Would the truck driver be liable? Well, there’s no way of knowing for sure, but probably not is my guess. He’s confronted with a sudden emergency and under Iowa law a sudden emergency excuses a driver from normal rules of the road or duties attendant to every driver. We don’t normally expect to see a body lying in the interstate, so seeing one would probably constitute a sudden emergency. Snow and ice in the middle of winter can’t really be a sudden emergency but a body in the summer certainly could be.

Another interesting fact about this case is that it involves the last name of a person associated with an unsolved criminal case in Iowa.  Jane Wakefield went missing on September 8, 1975.

Driver Safety: Failing to yield kills one driver and injures two others on I-35 southbound, Ames, Iowa

Garrett Chitty, 17, tried entering I-35 southbound where little room existed, stuck another truck being driven by Lewis Thomas of Cleveland, Ohio. Thomas’ truck moved over to the east striking a utility truck driven by Gary Parsons, 51 or Deposit, N.Y. Unfortunately for Parsons his truck turned on its side onto the guardrail and he was killed.

Parson’s and Thomas are entitled under Iowa law to workers’ compensation benefits. If Thomas has dependents, a wife or children, they too will be entitled to receive benefits. The wife can receive lifetime workers’ compensation benefits or the children benefits so long as they are receiving an undergraduate education. Lombardi Law Firm handles these types of cases.  The wife can get these benefits commuted to a lump sum.

In addition each are entitled to pursue a claim against the other driver, Chitty for improperly attempting to enter the highway.

UNIT 1 ENTERING SB 35 FROM WB 30 UNIT 2 WAS SB ON 35 OUTSIDE LANE UNIT 3 SB 35 INSIDE LANE UNIT 1 ENTERED SB 35 AND LEFT SIDE OF UNIT 1 STRUCK UNIT 2 THEN LEFT SIDE OF TRAILER STRUCK UNIT 3 UNIT 3 LEFT THE ROAD THROUGH THE GUARDRAIL AND ROLLED OVER COMING TO REST ON THE GUIDEWIRE ON WB HWY 30.

For additional information check out the Iowa Drivers' License Manual concerning entering the interstate from a ramp.

Iowa workers' compensation act provides for death benefits to dependents.

Death Benefits (85.28, 85.31, 85.42, 85.43, 85.44)

Death benefits are payable to the dependents of the employee. Benefits are first payable to the surviving spouse for life or until remarriage. Dependent children are entitled to the benefits until they reach age 18, or age 25 if they are actually dependent. Others may qualify, if there is a showing of actual dependency. Upon remarriage, if there are no dependent children, the surviving spouse is entitled to a two-year lump sum settlement. Burial expenses not to exceed twelve times the statewide average weekly wage in effect at the time of death are paid in addition to the weekly death benefits.

Motorcycle Safety: Motorcycle Crash near Creston Kills Driver

Whatever may have caused the 66-year-old driver of a motorcycle to lose control cost him his life. Rounding a curve, while not wearing a helmet and being on a gravel road were the mixture of circumstances on Highway 183 south of Creston, . The accident occurred around Iowa3:15 P.M. on Saturday, November 1, 2008 in Pottawattamie County.

For motorcycle riders the fall can be a very dangerous time.

 

 

Lawyer to Lawyer - The Lawyer's Toolbox - Accident Investigation – What do I do with this case?

Many small town lawyers have local residents approach them about taking their personal injury case. In many instances the lawyer may hesitate but the challenge seems like something that would spice up their otherwise mundane small county practice. So they sign the client up. But after ordering the accident investigation report they don’t know which way to turn or what to do. Not wanting to tell the client they don’t have the experience to know where to turn they end up holding the file and doing nothing. Time passes, like it always does, and the file gathers dust as it sits on the corner of their desk. The file being ever present is nothing more than a hindrance to the lawyer because it’s a constant subconscious reminder of what they aren’t doing. Well speed up about almost two years and I’ll get a frantic call from the local attorney wanting to associated with me on this otherwise good personal injury case. The accident scene is now barren of any evidence. The witnesses memories get as cold as a glacier’s surface. And any evidence that was available is now history. There’s a brief description by the police officer but nothing more.

As I watched the news last night I couldn’t help but see the wrecked van heading to Marshalltown with nine passengers. The television news report showed the van all mangled and some people described as relatives of the victims, one died, walking around the scene. This was described as a one-vehicle rollover type accident. Well being a civil trial lawyer and having some knowledge of rollover type accidents, remember the Firestone tire controversy, I said to Barbara, “I’ll bet it’s a tire failure.” Sure enough the next clip of the scene shows a separated tire tread lying on the ground. Normally I stop thinking about it because of the number I see but not this one.

You see it’s easy to ignore the case thinking you’ll get to it. But whatever lawyer gets this case or if the Iowa State Patrol thinks about it, someone needs to secure the tires and the separated tread. In cases like this it’s important the lawyer secure as much of the physical evidence as is available and promptly. Besides securing the physical evidence have the garage mechanic mark each tire with chalk to show from which wheel it was taken; i.e., which location of the vehicle it was attached. (front driver’s side, passenger front seat, driver’s side rear, passenger side rear) It may seem like a little thing but words chosen to describe location have to be obvious from the description chosen. Any ambiguity in the location creates argument later in the case.

 

If evidence is taken directly from the scene, use markers to photograph the location of where the physical evidence was located at the scene. Mark, measure and photograph all skid marks.

 

You may wonder how I know all of this. Well I do have 27 years of practicing as a civil trial lawyer. But in law school I worked my way through school and was a private investigator. In addition we investigated such a case in northern Wisconsin where the mechanic was interviewed and disclosed he’d mixed up the tires when he marked them. Luckily he’d marked them in such as way as to recall in what order and location they were removed. That sequence jogged his memory making him realize his mistake in the markings. That placed the blown tire on the opposite side of the vehicle from which he originally reported. This is a difficult enough business without having it complicated by a delay that destroys evidence.

 

So be prompt in securing physical evidence and be clear about how the pieces are cataloged and where at the scene they were located. And if you’re going to sooner or later refer or associate on the case do it the day you get the case, not a week before the statute of limitations is about to run.