The Verdict - The Lombardi Law Firm Blog
Here at the Lombardi Law Firm we add blog content that is personal to those involved in accidents. We write this way so you have an understanding of how we think and handle cases - your case. We invite you to call us if you think we can help you resolve your legal problems. We settle most of our cases, because we do the basic legal work necessary to understand the facts of your case. We offer on our website, relevant and concise information that you will be helpful to you as you get ready to settle or to try your case.
We can and will do the same for you. That's my promise. So call us today!
Steve Lombardi, 515-222-1110 or email@example.com
In an article in Here New Brunswick Urban Voice, called “Overcoming the fear of cycling”, Andrea Laltoo discusses being a bicycling commuter and the dangers often linked to habitual biking on the road with motor vehicles. Laltoo brings up the most asked question, "But isn't it dangerous?" which she answers “yes” but not for the obvious reasons most people assume. An obvious fact that bicyclists are not as protected as motor vehicles by seatbelts, airbags, and metal frame coverings, does cause bicycling to have a higher danger factor. Laltoo also considers:
“Cycling can even result in death (then again, so can eating a sandwich, if you choke). But is cycling along with traffic really as dangerous as our imaginations tell us "..." or is the fear of cycling an irrational phobia of stepping outside of our comfort zones?”
Laltoo then mentions another bicyclist advocate, Ken Kifer who has a website devoted to facts and details of bicyclist safety and lifestyles, as well as tips on bike safety in traffic, (see http://www.kenkifer.com/bikepages/traffic/index.htm). One of Kifer’s ideas is interesting to Laltoo, “most people are aware that flying is statistically safer than driving (when analyzing risk of fatality per passenger and per distance). Why, then, do we drive without giving a second thought to our safety and yet flinch at flying?” This idea of flying as more dangerous than driving may be described as what “Nancy S. Blum, a social worker with University of Iowa Hospitals and Clinics, cites lack of control over the situation as the number one reason her patients fear flying.”
When it comes to car transportation, drivers are given many, many hours of training to be allowed to drive, as well as have direct control over the vehicle. As for biking, one has control over the moving object, but people are not given specific and detailed training on how to operate the bike and navigate the roads on the bike.
The real facts on bicyclist injuries on the road are not necessarily due to traffic, Laltoo cites “John Forester (founder of the Effective Cycling program)” who says, “50 per cent of cycling injuries and deaths were caused by cyclist error, compared with only 8 per cent caused by motorist error”. Though this does not take away the fact bicycling is still a safety risk, it is mostly through the control of the individual biker themselves. Laltoo promotes biking as a main form of transportation as it being safe, if one takes control over their biking skills and knowledge.
With more people wanting to save money and the environment, the bike becomes a good option for transportation. But with less than adequate skills, knowledge, and experience on a two-wheeled contraption, bikers may cause more harm to themselves than they realize if proper steps are not taken.
Keep this in mind the next time you hit the road on your bike. Where your helmet and if necessary a rear view mirror. I've been hit by a truck when training for a triathlon. Believe me it's not a pleasant experience. It was about mid-morning, time for the donut break when the approaching truck suddenly turned left right into my path. The rear duals didn’t look all that appealing, the passenger side of the cab uninviting so off I went trying to skirt along the front. He hit me directly in the center of the grill, sending me head-over-heels attempting a full gainer. I landed squarely on the high side of my butt. Days later it looked like I was carrying around a baseball in my back pocket. I broke no bones, chipped some teeth when I kissed the grill, and was plenty sore for weeks. The funniest part was when the cemetery manager straddled and asked if he could call someone for me. I gave him the law firm telephone number. On the way to the hospital I asked the ambulance attendant if I could use the phone. Calling my office, the secretary Julie told me the insurance company called in less than five minutes after the cemetery manager hung up. Never hit a guy who makes living as a personal injury lawyer. So now I get to honestly say I’m not an ambulance chaser, I’m always there before the ambulance.
Wednesday afternoon on Park Ave. around 5:30, a motorcyclist was killed in a hit and run by a SUV, according to channel 13 news source. After filling up the Ford Explorer SUV at the Casey’s General Store at 4331 Park Ave with $27 worth of gas, Santos Vidal Rodriguez, the 26 year old driver, with 23 year old brother, Orlando David Rodriguez, drove away from the gas station without paying, and hit the motorcyclist east on Park Ave. The motorcyclist was Bruce James Mundy, age 49, a father of two who lived in Adel, and a 30-year military veteran, according to the Des Moines Register. Mundy was wearing a helmet while riding his vehicle but died at the local hospital he was brought to, said the Des Moines Register.
The two Rodriquez’s ran from the scene of the accident but were later caught. Surveillance tapes from Casey’s, which captured the accident, are aiding police in the investigation. They are faced with second-degree robbery charges and many traffic-related charges from the crash, though have not been charged yet, according to the Des Moines Register.
This accident has brought to the forefront the 1999 shootout near Martin Luther King Jr. Parkway and Forest Avenue, between police and Santos Vidal Rodriguez, the driver in this current case. The shootout began after Rodriguez’s car was pulled over for suspect in a robbery earlier in the day. Police Officer Jeffrey Gowen and Sgt. Garey Bryan II who were involved in the shootout were wounded and the then 16 year old Rodriguez “lost a leg and had brain damage”, reports the Des Moines Register. Rodriguez was never tried for this offense because “Polk County prosecutors believed his injuries made him incompetent to stand trial” and would never fully recover.
After this incident on Wednesday, Santos Rodriguez was interviewed by police and said he was fully coherent.
Watch a clip from the Des Moines Register of the accident, and interview of police officer, Sgt. Lori Lavorato:
Serious consideration and implementation is in place for setting up bikes to rent, ride and return to “B-Cycle” stations set up around Des Moines, Iowa, according to KCCI news source. This idea of renting a bike is not new, it has been in place in European cities, and even in a few cities in the U.S., such as Washington, D.C., Denver, and soon to be in Minneapolis.
The B-Cycle system is similar in design to the Red Box system, where one can swipe a credit card to rent and return it to another location. It is said that there will be 10 racks and that the first 30 minutes will be free, with each additional hour at about a dollar or so.
Tim Lane, who is Iowa fitness consultant, is enthusiastic about this new addition to Des Moines saying “There's an economic impact, a health impact and an environmental impact, all in one cool machine." Though this bike is not up for a triathlon says Lane, they are practical, can get a person from one place to another, are versatile for different heights, and even ideal for commuters with a guard on the chain.
Watch a video on the B-Cycle: http://www.kcci.com/news/21109398/detail.html
With this new addition to the city one might worry about additional safety concerns. Also, will helmets be at the B-Cycle stations to rent as well, or will one have to carry their own?
But there are more questions you should also ask yourself, whose responsibility is it to check to make sure all the nuts and bolts, screws and washers are tight or in place? Whose responsibility is it to maintain these bikes? If you intend to participate in this bike exchange system you’d best be aware of its limitations and to act in a way that protects you.
1. Provide your own helmet.
2. Bring your own WD-40.
3. Carry a set of wrenches made just for bikes.
4. Check the bike before you get on and start to ride.
5. If the bike looks poorly maintained, don’t use it.
6. Carry your own pant leg clip.
7. Think about whether it’s worth the risk, rather than to have your own bike.
We’ve been covering wrong-way collisions for the month of July and have continued to update during the month of August in 2009. This is the second update since writing the wrong-way series that started on August 3, 2009. You can read the complete list of wrong-way collisions in the recap posted on August 15, 2009.
Wrong-Way Accidents - Complete Recap of All July 2009 Collisions, August 15, 2009
Twenty-Six More Wrong-Way Interstate Highway Drivers, August 18, 2009
Analyzing July 2009 Wrong-way High Speed Collisions in America, August 3, 2009
Wrong-way drivers on I-80 Interstate are a problem, June 3, 2009
Here is the update for wrong-way collisions for this series with Devon Glass and Dave Mittleman from Michigan and Wayne Parsons from Hawaii Injuryboard. Wayne, I’m wondering aloud if you see many wrong-way driver collisions on any of your three highways? And Devon, what are you seeing in the Michigan area on the Interstate highway system? I’d like to hear what if anything Mike Bryant is seeing in that maze of Interstate highways around the Twin Cities of Minnesota. And maybe we can get an Al Franken report. In fact before we get too serious, these wrong-ways tend to be extremely deadly, let’s start out with that YouTube video of the talking fish from the Franken-Coleman Senate race. I love that talking fish ad. It’s gotta be a classic. Sorry Norm (we attended college together at the University of Iowa) but this is way too funny to leave alone.
Now back to the serious stuff about wrong-way drivers. We’ve had a wrong-way collision not more than ½ a mile from my house on I-35 southbound. It’s at the end.
Detroit, Michigan – August 28, 2009 wrong-way collision on Lodge Freeway. A 31-year-old man died after he drove the wrong-way. Accident occurred at around 12:45 a.m., driving southbound. Alcohol is believed to have been a factor.
Haltom City, Texas – August 28, 2009 – State Highway 121 wrong-way driver collided head-on with a semi-truck and was killed. This man was heading north in the southbound lanes around 2 a.m. This driver safety stopped in the emergency lane, but when police approached he took off, again the wrong-way colliding with the semi-truck. Additional details were provided by the Star-Telegram. The wrong-way driver was 53-years of age. A map and video are available with WFAA Latest News.
Pittsburg, Pennsylvania – August 27, 2009 - No deaths in this southbound wrong-way driver in the northbound lanes of traffic in the HOV lane of Parkway North near the McKnight Road ramp. There was personal injury and OWI charges were pending against the wrong-way driver.
Allentown, Pennsylvania – August 27, 2009 – This wrong-way collision occurred around 3:30 A.M. at 8th and Linden Streets when the driver turned and drove the wrong way on Linden Street. One man was killed and another seriously injured.
St. Louis, Missouri – August 26, 2009 – In this wrong-way collision three died and one was injured on Illinois 255, about 11/2 miles north of I-270. The wrong-way driver is reported to be a 46-year-old man driving with a revoked license with multiple arrests and six convictions on alcohol related offenses. He lived, but the driver and a passenger in the other car were killed. Emergency calls shortly before this collision reported a wrong-way driver heading south in the northbound lanes of I-255 and then another call came in reporting a car heading north in the southbound lanes. Confused or drunk driver, you be the judge.
Detroit, Michigan – August 28, 2009 – A 28-year-old man was driving northbound in the southbound lanes of M-10 near Larned. The driver died and a passenger in the wrong-way vehicle was taken to the hospital and listed in fair condition. Alcohol was reported to be a factor, according to reports of what the police said.
Maderia, Ohio - August 28, 2009 – This wrong-way collision occurred on I-71 involved a 27-year-old driver and two passengers, one 18 and the other 24. Drugs and alcohol are believed to have been a factor.
Maderia, Ohio – August 2009 – In this second wrong-way crash in a two-day period a 64-year old man died after driving head-on into the wrong-way driver. The driver of the wrong-way car was a 33-year-old man. The crash involved a third car driven by an 18-year-old who was not injured. This one occurred on I-275 just before 2:00 a.m. Saturday morning.
Milford, Oakland County, Michigan – August 26, 2009 – Police report this collision was caused by intentionally driving the wrong-way by a young girl (16-year-old) who was depressed over her father’s death in November. She took her mother’s SUV and drove the wrong-way in the westbound lanes of I-96 near Lansing. She drove head-on into a semi-truck at around 9:25 p.m. She left a note saying she was tired of being depressed and wanted to see her father.
Birch Run, Michigan – August 26, 2009 – I-75 was the scene of this wrong-way driver that involved a man intentionally driving the wrong-way while police chased him in a stolen vehicle. The driver was 22-years of age.
Allentown, Pennsylvania – August 26, 2009 – This wrong-way collision happened in downtown Allentown at 3 a.m. Not much detail was given in this report although it appears to be a one-car crash with the driver dying and the passenger critically injured. They crashed into several fixed objects including a parking garage and a restaurant.
Boston, Massachusetts – August 23, 2009 – The 42-year-old wrong-way driver was being chased by police when he intentionally drove the wrong-way on state highway 24 and I-495. No one was hurt although the chase went on for nearly a half-hour.
Landrum, South Carolina – August 22, 2009 – The 33-year-old wrong-way female driver collided head-on with another vehicle. The collision caused one death, one person was seriously injured and the wrong-way driver was charged with “two counts of felony driving under the influence of alcohol -- one count involving great bodily injury and one county involving death.” The driver was heading westbound on I-26 near mile marker 2 near Landrum around 5:20 a.m. A front seat passenger was reported to have died.
Edmonton, Canada – August 22, 2009 – A wrong-way driver heading south in the northbound lanes of Wayne Gretzky Drive was operated by a 49-year-old woman reported to be impaired by alcohol.
Hickory, North Carolina – August 18, 2009 – The report is of an elderly couple (driver was 75) driving the wrong-way (northbound in the southbound lanes) on U.S. 321 just before 2:00 p.m. They drove head0n into a pickup truck killing the elderly driver and severely injuring his wife, a passenger.
New Orleans, Louisiana – August 19, 2009 – It seems no state is immune to wrong-way driving, well maybe North and South Dakota. In this wrong-way collision in the eastbound lanes of I-12 a young female driver drove head-on into an 18-wheeler killing her. She drove the wrong-way for at least 6 miles. Police suspect alcohol was involved. The driver was not wearing her seatbelt and was ejected from the vehicle.
West Des Moines, Iowa – I-35 northbound in the southbound lanes of traffic. The wrong-way driver was not killed but the driver of the car struck head-on was killed. The explanation for this collision is that the wrong-way driver was suffering from a diabetic condition and became confused, entered the wrong-way on Highway 5 and continued all the way off 5 and onto I-35 heading north in the southbound lanes.
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Interstate Highways and Wrong-way Collisions, the Carnage Continued...
One last point to be made is that people have it all wrong when it comes to saving money. The notion there are too many lawsuits makes about as much sense as there are too many doctors treating cancer patients. There aren't too many cancer treatments, there is too much cancer. And the same goes for the disease of distracted or drunk driving; there aren't too many lawsuits, there are as many lawsuits as there are drunk and distracted driver accidents. The fact is there are fewer lawsuits than accidents. The correct question is why are there so many accidents; not lawsuits. Take away only the number of lawsuits and you encourage more drunken and distracted drivers to plow into you. If you want to reduce the number of lawsuits stop driving drunk or distracted. It's that simple.
Here is the series so far on Interstate Highway crashes and how to avoid them:
Are Double-Bottomed Semis More or Less Dangerous to You? - Devon Glass from Church Wyble, P.C. (Michigan), August 26, 2009
Who wins and loses when a Ford Focus and a fully-loaded semi-truck crash? - Steve Lombardi from The Lombardi Law Firm (Iowa), August 25, 2009
Hawaii Freeway Chronicles #1: What Are The Danger Points On H-1, H-2 and H-3?, by Wayne Parsons of Wayne Parsons Law Offices. (Hawaii), August 27, 2009
The Interstate Highway Graveyard, “Speed Kills”, Lombardi, August 28, 2009
Why Speeders on the Highway Cause More Serious Accidents, Glass, August 28, 2009
Death and Injury On Interstate Highways Increase With Higher Speed Limits, Wayne Parsons, August 29, 2009 2:31 AM
On August 26th 2009 a high speed chase ended in a crash leaving the female passenger inside with minor injuries. The Iowa State Patrol saw a van speeding along University Ave. near 13th street at about 2:30 a.m. The Trooper, John Salesbury, tried to pull the van over but the driver refused and a high speed chase proceeded. The chase lasted for about 3 minutes and ended on Chautauqua Parkway when the van crashed into a utility box. The driver of the van fled the scene as the Deputies were assisting the female passenger inside as the van was on fire. The as of yet unidentified man now has several warrants out for his arrest to go with the medical bill he will be receiving for the injuries suffered by the woman in the crash.
One has to wonder what makes a person run when confronted with a situation like this news item. Experience tells us people who run have done something wrong, engaged in criminal activity, stole the car, have warrants out for their arrest or else have immigration problems that make them avoid arrest. The best way to handle this problem is not to keep running but to schedule time with a lawyer who handles criminal matters. Todd Miler writes for this blog on occasion and handles criminal matters and would be one such person to discuss your options. Running is an endless lifestyle where you’re always looking over your shoulder.
Do you want to see what it looks like when a car strikes a pedestrian? Watch this video of and you won't cross the highway the same way as a pedestrian.
Now you’re on the roadside after breaking down, you pull out your cell phone, call triple A and the tow truck arrives. The operator exits his truck and wham! He’s suddenly struck by an oncoming car. Unbelievable, you say. Not so.
Santa Clara, California – December 2008 - My friend John Bisnar from California blogs about an instance of a ground crew mechanic working on the ground near a helicopter. A wind gust blows over a helicopter, causing it to spin out of control, and a blade struck the mechanic, killing him. This helicopter was being used by the power company to string power lines between poles. Interesting to say the least and it explains why the worker would not be so concerned with keeping his eye on the helicopter. This workers attention needed to be focused on whatever his job may have been that day.
Pana, Illinois – January 2009 – Clothe colors can make all the difference. Reflective tape also helps. In this case the truck driver was unable to see the man walking along Illinois highway 29. The man was struck and killed. The driver explained with the darkness, 7:30 p.m. he was unable to see the pedestrian walking. What this 60-year-old man was doing walking on the side of the highway we don’t know but we do know the driver was unable to see him.
Tama, Iowa – April 2009 – I reported on a young Iowa woman who was struck and killed by a train. This train-pedestrian accident has striking similarities to the story written by James Joyce in Dubliners. A Painful Case is a short story about Mr. Duffy who rebuffs Mrs. Sinico, and then four years later realizes he has condemned her to loneliness by rejection and then death. This realization strikes him while reading her obituary that describes her death being caused by a train as she walked across the tracks at Sidney Park, a train station on Sidney Parade Avenue, in the village of Merion, southeast of Dublin.
Barbara and I sojourned to Dublin for a two-week drive around the southeast and west until we found our way back to the streets of Dublin and more specifically, Fleet Street and the Temple Bar District. Ah yes, sit will you for a pint of Guinness?
Construction site photographs of the utility pole may be necessary to prove the case or why it fell over when struck by the Bobcat
In what can only be described as a tragedy, a construction worker today was killed after a utility pole was knocked over striking and killing him. The utility pole was backed into by a fellow worker operating a Bobcat with a bucket on it. The worker that died was 32 years-old and his fellow worker was 57. The accident occurred at 10:15 a.m., just south of S.W. 26th Street and Watrous Avenue in Des Moines. The younger man was pronounced dead at the hospital.
There are several interesting legal points to this story. First, the younger man leaves two young children behind. Hopefully this young man’s employer had workers’ compensation coverage that will pay these children benefits through college or at least through high school (age 18). It’s not unusual that smaller contractors don’t have coverage; that’s not legal, but lawyers see it often in the construction industry.
Second, the dependents of this young man would have a claim for the workers’ compensation benefits and also may have a claim against the owner of the pole. The Des Moines Register article includes a reference to a spokesperson from MidAmerican Energy Co who said the pole was not one of theirs and did not carry electrical lines. Mediacom said they commonly rent poles and Qwest hadn’t yet commented. So who owned that pole? This pole is interesting in that it was caused to fall down when the Bobcat backed into it; a scenario unlikely to normally happen. It should take a lot of pressure to cause a utility pole to fall down. Normally they snap. And that’s the rub, as I like to say, of this case investigation. Why did it fall down so easily?
Which leads me to the third and final point; the case investigation to preserve valuable evidence. I remember driving towards Des Moines on Grand Avenue one day many years ago when I noticed a pole that had been struck by a car. The power company had a truck on location and was in the process of setting up to take the pole down and set it father away from the street. A client lived at that location so I pulled in to talk with him; he was standing on the sidewalk watching. Immediately I took out a camera and began taking photographs, which later were sent to the attorney representing the man whose legs were apparently pinned between the pole and a car bumper in the accident. Had I not taken photographs the pole would have been removed taking with it any chance of knowing what it looked like. It’s important to gather and preserve the key evidence in the case; in this case the pole. Someone needs to take photographs of the pole and the accident investigation site. Whoever is in charge of the dependent children needs to hire someone to get in there and photograph the location before the owner removes and destroys the pole. How that pole was seated in the ground may be a very important fact and pictures a sometimes worth a thousand words.
Owners don’t sit around waiting for injured people to complete their investigation. Owners need to get busy cleaning up the mess to make sure someone else isn’t injured or killed. Justice waits for no one.
So act, don’t sit around wondering. If you know Andrew Clark’s guardian tell them to get some legal advice and quickly; their future may depend upon it.
I didn’t know it could happen so soon after the last one. But count them, the 7th pedestrian-bus collision in downtown Des Moines since July 2007. A 61-year-old woman was struck by a DART bus and taken to an area hospital. This is the second accident in just 19 days. The third or fourth one back cost the City of Des Moines Transit Authority $2.74 million.
William Holmes was struck in a crosswalk by a DART bus on Oct. 13, 2008 in downtown Des Moines.
Veronica Lima, 54, is still in the hospital after she sustained leg injuries on July 9, 2009.
Just last week, it’s being said that DART settled a lawsuit with Emily Abrahamsen. Ms. Abrahamsen’s pelvis was crushed in August of 2007 when she too was hit by a city bus.
I’m not sure but if this is pedestrian hunting season my guess is DART has exceeded its bag limit.
On July 9th 2009 Veronica Lima of West Des Moines was dropped off on 9th and Walnut when DART bus driver Robert Delpierre allegedly failed to yield the right of way and then stopped right on her leg. Now that’s an ouch-moment beyond the imagination. When Mr. Delpierre was asked if he could back up the report says he appeared in shock and while there has been speculation about whether Ms. Lima was in the crosswalk or not, witness Scott Vanscoy is quoted as saying, “It shouldn’t have happened, she had the right away”. On the Des Moines Register message board a message left by a Vanscoy (Scott Vanscoy?) had this to say, “This woman was in fact in the cross walk, I saw her there. And the comment about him holding her hand until paramedics arrived...My only memory of the driver being there was when he initially came over and proceeded to scold the victim for not watching where she was going! Your comments are just about as sickening as the drivers!”
To further support her case it seems that these accidents are common when the DART bus drivers are making left hand turns as this is the 6th such incident involving accidents when making left hand turns since 2007. With the number of accidents it makes citizens wonder if their training is sufficient or if something else is going on. Are the pedestrians not watching out as well? Are the drivers and pedestrians making eye contact to know each knows the other is aware of their presence? If not, how about if one or both stop. While the bus agency’s general manager said that she was not in the crosswalk he admitted that the accident was going to force them relook at having all drivers make only right hand turns in order to avoid any further incidents.
A bicyclist was struck and injured while entering Fleur Drive in Des Moines. The vehicle was turning and struck the 47 year-old male rider while in a cross walk. Vehicles have a duty to stop for people in a marked crosswalk. We’ve blogged about bicycle and pedestrian safety, especially is it relates to Des Monies, Iowa; within the last two years we’ve had several pedestrian-bus, car-pedestrian and a pedestrian-garbarge truck backing accident in the city.
There was no mention of whether cell phones or iPods played any role in distracting either driver or pedestrian. These videos have a good message that applies in Virginia and in Des Moines, Iowa.
Yield, It's Worth the Wait
Another pedestrian was struck by a car and injured in Des Moines. This car-pedestrian collision occurred at the intersection of Second Avenue and Court Avenue at 4:30 p.m. on Monday, May 11, 2009. The driver apparently didn’t see the woman. The woman was struck then hit her head on the street. She was taken to Mercy Medical Center in Des Moines.
Des Moines has been having quite a few pedestrian-car and pedestrian-bus and pedestrian garbage truck accidents of lately. There was no mention of whether cell phones or iPods played any role in distracting either driver or pedestrian.
Pedestrian safety is nothing to ignore.
How do you maintain your silence when they are asking your questions? An officer has to honor your request to talk to a lawyer and to remain silent. That is your constitutional right. You have the right under the 5th Amendment to not be a witness against yourself, and you have the right under the 6th Amendment to the assistance of counsel. Be prepared however since the officer is not going to take your silence as a friendly gesture. Some officers view silence as an admission of guilt. Many officers view the constitution as an obstruction to justice and some have the view that the “end justifies the means.” Those officers do not care if you’re constitutional rights are violated. They do not like it when people do not respect their authority and refuse to answer their questions. They threaten to file additional charges, such as Interference with Official Acts for refusing to answer their questions. Even if you do not answer their questions and do not take their “tests”, they will still charge you with OWI. If you have decided, either on your own or through the advice of an attorney, to remain silent then you need to stick to your guns. If you initially decide to remain silent, which then draws the officer’s anger, and you decide to talk about your charge, you are then in the worst situation which is making statements about your charge in additional to having an angry cop. Most officers will honor your request and fill out their paperwork as long as you sit quietly. If you do initially indicate that you are going to remain silent, you can not decide to ask questions and expect the officer to talk to you. All of your questions should go to your lawyer, not the officer.
What if the officer promises you that you’ll get off easy or that he won’t tell anyone? The law says that police officers can lie when investigating criminal activity. There is simply no way for me to ever count how many cases involve officers telling someone that they won’t be charged if they just come clean or admit they did something. Often times, upon hearing that assurance, people will say just about anything in order to end their encounter with an officer, expecting to go free. Unfortunately that is usually just the beginning of the legal process. The officer will then take that statement and use it against the person. Words out of your own mouth tend to be the most damning evidence, even if you are innocent. The officer is not the ultimate charging authority, which is the job of the prosecutor. The prosecutor does not have to honor any promise or assurance that the officer has made to you.
What are some of the “investigative techniques” that officers use? There are a handful of techniques that officers use to gain evidence. First, they often will follow a vehicle for an extended period of time to observe driving behavior. For example, the officer is going to count how many times your tires touched the center line, or that you were “weaving within your own lane.“ After stopping your vehicle, and upon their initial approach to your vehicle, they are going to stand at your window and see what they can see, smell what they can smell, and hear what they can hear. If they see anything that has the potential to be evidence, they are going to want to examine it. This can mean something as obvious as open beer cans, to as subtle as a pack of cigarettes. They are going to watch your every move while you are search for your license, registration and insurance. The officer’s report will ultimately say that you were “fumbling around” looking for those things. The report will also indicate “an odor of alcoholic beverage coming from within the vehicle.“ These are common phrases included in most reports. You will next be asked to sit in the officer’s vehicle. This helps the officer in many ways. The officer can sit and chat with you while he’s filling out your traffic citation. He is going to try to get you to admit you had a beer prior to driving. If you have a passenger in your vehicle, the officer is then going to go up and ask the passenger the same questions and look for any discrepancies in the stories. Often times, the officer will tell the passenger that the driver said things, when in fact the driver said no such things. In this day and age, most law enforcement vehicles are equipped with video and audio capability and will capture the entire encounter. Sometimes an officer will turn off his microphone so that he does not record what is said. Eventually you will end up in front of his vehicle performing physical exercises and the officer will say that he could tell you were intoxicated by how you performed those exercises.
Who decides whether someone should be charged with OWI? Normally an officer on the scene of the traffic stop will make that determination. That officer is the person who observes the driving and the behavior at the scene and ultimately requests a sample for blood alcohol analysis. The arresting officer is often times the only witness the State uses in an OWI prosecution. Before they finish their training to become a police officer, all officers are taught the necessary testimony to obtain an OWI conviction. In some cases, an officer does not make the final charging decision and will request that a prosecutor review the evidence. Even if the officer told the driver that they were not going to be charged with OWI, the prosecutor can file the charge. In every case, the prosecutor has the ultimate decision on whether to proceed with a charge and pursue it in court.
What are some of the reasons that OWI charges get dismissed? In the final analysis, the reason any case gets dismissed is due to a lack of evidence. This means that either the State doesn’t have enough evidence, or the evidence they obtained was obtained in violation of the law. Your case should never get to trial if the officer did not do his job correctly. Most of the time the officer fails in some respect- the question becomes how important was that failure. The key to most acquittals is that the client gets to a lawyer’s office almost immediately after arrest. A dismissal is usually due to one or more of the following: an improper stop of the motorist, an improper search of the vehicle, inaccurate breath testing, failure of the government to meet deadlines, violation of constitutional rights such as Miranda, independent witnesses to counter the officer’s testimony, or lack of proper cause to arrest.
When should you refuse the breath test? This is a very difficult decision. There is no universal answer applicable to all persons. When a person provides a breath test and is over the legal limit, they are going to have their driver’s license suspended. The length of the suspension depends upon whether this is a first, second or multiple offenses. A person may be eligible to obtain a work permit prior to the end of the suspension. If a person refuses to provide a breath sample, however, the length of the suspension is going to be much longer. Any person who is employed or needs to travel by vehicle for any reasons is going to have to make the difficult decision. You do have the right to consult with an attorney prior to making this decision at the police station. If you request to talk to an attorney prior to providing a breath sample, the officer has to honor your request, otherwise your license cannot be suspended and they cannot use the breath test, or lack thereof, against you in court.
How long does a person lose their license when arrested for OWI? Being charged with OWI is a very serious crime in Iowa. If convicted, you will lose many rights, privileges, liberties and a considerable sum of money. This means jail time, several thousand dollars, the inability to drive for a considerable period of time which will potentially cost you your job, and additional freedoms while on probation such as the ability to enter a restaurant for at least one year, or to have to get permission from your probation officer to leave your county of residence on each occasion. You will also lose your hunting privileges, among other things. Often times, losing your driver’s license is the most serious of these consequences. The length of any drivers’ license suspension and eligibility for a work permit should be examined by an attorney. Factors such as whether a breath test was performed, the level of blood alcohol concentration, whether there was an accident, the existence of any prior convictions, and the sentence given by a judge will all influence the length of suspension. The sentencing judge also has some discretion on the amount of the fine and the jail sentence imposed.