The Austin, Texas police chief, echoing the desires of Mothers Against Drunk Driving and other advocacy groups, has endorsed a brand new category of drunk driving offense based on an even lower level of blood alcohol content (BAC).  This new category of proposed offense in Texas would be called “Operating While Ability Impaired,” and would be intended to address cases in which a driver has a BAC between .05 and .07.  The Austin chief argues that “the new offense would give prosecutors and judges and juries another tool to use” against drivers who drink.  Their argument claims that sometimes it can be hard to get convictions for DWI, so prosecutors may be forced to plea bargain cases in order to get convictions.

Of course, nobody who drives wants to share the road with drunk drivers but local politicians should not be tempted to bring the new law under consideration in Texas to New Hampshire.  Under New Hampshire law, a driver can already be convicted if his ability to drive is impaired to any degree. We all have different internal chemical make ups.  Some of us are not impaired at .05 or even at .08.  Others of us should not be driving after having anything to drink, even if out BAC is .03.  The DWI-law-enforcement-industrial-complex makes no effort whatsoever to distinguish between these different kinds of people.  Under our law, when it comes to breath testing, at .08, everyone is guilty by definition.  For New Hampshire to adopt a law such as the one proposed in Texas would only make this situation worse.

Jerry Ray Bowen was a felon and probable gang member who apparently shot his sawed-off shotgun at his girlfriend’s car as she drove away following a violent break up. Not surprisingly, the police wanted to locate Bowen and his sawed-off shotgun.  The police had heard that Bowen “might be staying at his foster mother’s home,” and obtained a search warrant for her home and any weapons found there.

Augusta Millender, the foster mother, and other members of her family were home when the SWAT team arrived to execute the search warrant.  At 5:00 a.m. they were ordered to leave their home while the police searched for Bowen and his sawed-off shotgun, neither of which were found at the Millender home.  What police did find, however, was Ms. Millender’s own (not-sawed-off) shotgun, and a box of .45 caliber ammunition.  These items were seized.

Ms. Millender, who had been at home sleeping when the SWAT team burst through her front door, filed suit against the police for violating her Constitutional rights, specifically, her right to be free from unreasonable searches and seizures under the Fourth Amendment.

Civil rights claims against police can be uphill battles, but in the right circumstances, the cases are definitely worth pursuing.  Often, the existence of a search warrant forecloses suit under the Fourth Amendment and allows the police to rely on “sovereign immunity” to avoid responsibility for their misconduct. In the Millender case, however, the 9^th Circuit Court of Appeals held that the police were not immune from suit because even though a judge signed the search warrant, the evidence that Bowen or his shotgun would be found in the Millender home was so scant that no reasonable officer should have believed that there was probable cause in the first place.

Victims of civil rights violations by police officers face a tough battle when they seek compensation from the government.  Pursuing these claims requires skill and experience.  At Douglas, Leonard & Garvey, we have brought cases against police officers and other governmental officials to protect our clients’ constitutional rights.

11. You need to ask your doctor to explain the treatment plan you will use at home.

12. You need to make sure you and your doctor agree on exactly what will be done during an upcoming surgery.

13. You need to ask questions or voice any concerns you have.

14. You need to make sure that your primary care doctor is involved with your case.

15. You need to make sure that all health or professionals involved in your care have important health information – don’t assume they know everything they need to know.

16. You need to have a family member or friend with you if you need help speaking up for you.

17. You need to find out why a test or treatment is being recommended or are you better off without it.

18. You need to ask the results of any tests.

19. You need to learn about your condition and treatment options.

20. You need to be involved and informed in order to protect yourself from medical errors.

This is a follow-up to our earlier article about school bullying. In some cases, bullying can go beyond the threats, taunts, and physical rough-housing, and take on sexually-motivated undertones. In cases where student-on-student harassment involves sex-based conduct, whether it is verbal or physical, and a school fails to put a stop to it after learning of it, the school may face civil liability under federal law.

Title IX of the U.S. Code, prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” Virtually all public schools receive federal funding of some type today, so they are generally bound by Title IX’s anti-discrimination requirement. Under Title IX, schools have a duty to prevent sex-based harassment of students once the school’s officials are notified of it. Failure to put a stop to sex-based bullying can result in significant financial liability for offending schools.

In a recent case in Michigan, a federal court jury awarded a bullied student $800,000 under the provisions of Title IX. The student in that case was subjected to four years of sexually-tinged bullying, including incidents in which he was subjected to repeated sexually-motivated insults, and one incident in which a naked bully rubbed himself against the victim in a locker room. School officials were aware of the problem, but were uncoordinated and ineffective in protecting the victim from his tormentors.

Title IX provides for a powerful remedy, in addition to state law civil liability, in those bullying cases where school officials are unwilling or ineffective in preventing sexually-charged bullying by students.

The recent divorce plans for Al & Tipper Gore after over 40 years of marriage reflect the fact that even long-term marriages can end up in divorce.

There are multiple sources of pressure in long-term marriage and one such stressor that can create later-in-life breakups are tensions related to adult children. Often one spouse gets overly involved with the adult children and worries about their happiness and economics while the other spouse may be at the stage of saying, “I’ve done my parenting I want to have my own life now. Let the kids figure it out.”

Other pressures can arise sometimes when people in their 60’s decide to do a career change or a location change. This can put stress on a long-term marriage that was used to the old relationship based on a prior job or location.

Statistically, folks are living longer and they are healthier but some couples become bored with each other after a few decades. The focus in their marriage moves from raising the children to an empty nest. When the kids leave, cracks in the long-term partnership may widen. This requires the couple to refocus on their relationship as being spouses, not just being parents.

The bottom line is that you can’t take your marriage for granted just because you’ve made it to 40 years of marriage you may if you want to make it to 60 years.

If you’ve been watching the news lately, you may have seen a story concerning the tragic death of 15 year-old high school student, Phoebe Prince, in Massachusetts. Phoebe was the victim of a vicious bullying campaign waged against her by at least 6 other students at South Hadley High School.

Everyone knows that growing up is hard, and that some amount of getting picked on from time to time is a part of every adolescent’s life experience. However, serious bullying can cause lasting psychological and, in some cases, physical harm to vulnerable children. In addition, the students doing the bullying can face serious negative consequences themselves when it gets out of hand. The bullying students in Phoebe’s case have been charged criminally for her death. Phoebe’s case is an extreme example of how bad it can get when schools do not step in to prevent bullying from getting out of hand, but lasting harm can and often is done even in less serious cases.

New Hampshire’s Supreme Court has held in the past that schools have a duty of reasonable supervision to oversee the welfare of the students in their care. That means that once a school becomes aware of unsafe conduct affecting the welfare of its students, it must step in and take reasonable measures to alleviate the dangerous situation. In the context of bullying, that means that once a student makes school officials aware that he or she is the target of bullying, the school must work to put a stop to it. Schools that fail to take prompt and effective measures to prevent bullying from continuing may face liability for damages caused to the bullied student for their failure to do so.

click here to read the People Magazine article

When does an insurance company have a duty to make a payment after you’ve filed a claim? The answer is, of course, “it depends.”

In personal injury claims, the insurance company is required by statute to attempt “in good faith to effectuate prompt, fair and equitable settlements or compromises of claims in which liability has become reasonably clear.” So in a rear-end car collision case, where the plaintiff in the car that was rear-ended clearly was not at fault, and driver who hit him or her was clearly liable, the insurance company would have a duty to act in good faith to come up with a “prompt, fair and equitable” settlement or compromise. Of course, all of those terms are subjective – the insurance company’s idea of “prompt, fair and equitable” is likely to be different than the injured plaintiff’s. As a practical matter, unless the insurance company’s negotiating position on the claimant’s damages is plainly unreasonable, the insurer can (and often does) hold out for a long time.

That is one reason it is important to have an experienced litigation team available to negotiate a personal injury claim – with that trial experience comes the skills and resources to demonstrate to an insurance company that it will not succeed in maintaining an unreasonably low settlement position.

A husband had accrued 116 sick days and 42 vacation days at the time of divorce. The question was whether those days marital property or not. The husband had no present right to be paid for his sick and vacation days absent retirement or termination of his employment, which had not occurred.

The court said that if the husband were to use the sick or vacation days awarded to him prior to retirement or termination of his employment he would never collect cash for those days. Thus, it would be hard to come up with a value for something that he might use himself for vacation or sickness in the future.

The Illinois Supreme Court held that even though the husband had accumulated those days during his marriage any future value of those benefits was indeterminate and speculative. Those types of benefits are different from things such as pension plans or deferred compensation that have an actual monetary value. On the other hand, if he had actually retired and cashed those days out during the divorce proceeding they would be marital property, subject to division by the court.

Depending on the circumstances surrounding the abuse, there may be a claim against the perpetrator and anyone else who allowed the abuse to occur.  Claims may be filed against individuals, including, but not limited to:

• Clergy
• Teachers
• Scout Leaders
• Doctors
• Family Members
• Acquaintances

Claims against entities or organizations may include:

• Employers
• Schools
• Religious Organizations
• Charitable Groups
• Other Entities at Which the Abuse Occurs

Frequently, we receive calls from accident victims after they have failed to settle their claim with the insurance company on their own.  Unfortunately, while they were not being represented by an experienced personal injury lawyer, we discover many people fall for the insurance companies’ tactic of requesting a taped or recorded statement from the accident victim.  Sometimes, the recorded statement is asked for under the guise that the insurance company is just trying to “move the claim along.”  Most accident victims do not know any better and fall for it.

Giving a recorded statement before you have consulted with a personal injury lawyer may harm your case.  A personal injury claim is an unfamiliar situation for most people and they are not aware of what is important to their case.  But insurance companies are experienced in processing these claims and know what information to ask.  Be clear – any misstatement by you about the facts of how the accident occurred or the extent of your injuries will later be used against you to reduce your recovery of damages.