| YOUR AUTO AND THE POLICE
Although the area of automobile law is in constant flux and the degree
of protection
offered by states widely variant, there are some fundamental points to
remember if the
police stops your vehicle.
The Stop
Q. What should I do once I realize that the officer is signaling me to
pull over?
A. Pull over to the side of the road as quickly and safely as
possible. Remain in your
vehicle until the officer otherwise directs you. Get ready to produce
your license and
registration, because you may be asked to do so.
Q. The officer is at my window. Now what?
A. Stay composed and politely ask why you were stopped. If you
have any doubt that you
were stopped by a real police officer if, for example, you were pulled
over by an
unmarked vehicle politely ask to see the officer's photo identification,
not just his or her
badge. If you are still not certain that he or she is a real police officer
you may ask that a
supervisor be called to the scene or request that you follow the officer
to a police station.
The Search
Q. Suppose the officer wants to search my car?
A. Ask why the officer wants to conduct a search. If you have
absolutely nothing to hide,
expediency might dictate that you let the search proceed. If you don't
want the search to
proceed, you do not have to consent. Usually, the officer is not permitted
to conduct the
search unless you consent, the officer has probable cause (see below),
or the officer
reasonably believes that he must search the auto for his or her own protection.
Ask
courteously whether the officer has a search warrant of if you are under
arrest. If the
officer replies that you are under arrest, ask for an explanation.
Q. What if the officer insists on searching my car?
A. Don't interfere. You can always challenge the legitimacy of
the search later in court.
Q. Can the police legitimately search my vehicle without a warrant?
A. That depends on the circumstances. The police would not usually
have the right to
search your automobile when you are stopped only for a minor traffic offense
such as
speeding, but if the violation requires that you be taken into custody
(for example, a
"Driving Under the Influence" [DUI] arrest or driving with a
suspended license), the
search would generally be permitted. If the officer has arrested you,
the officer does not
need a warrant to pat down your body in searching for weapons.
In general, when an arrest is not involved, the police have more latitude
to search a
vehicle than to search a home. The U.S. Supreme Court recognizes an automobile
exception to the Fourth Amendment's protection against warrantless searches.
The Court
has held that a person expects less privacy in an automobile than at home.
(No one ever
said "A man's Chevy is his castle.") The rationale for permitting
warrantless searches of
cars is that the mobility of automobiles would allow drivers to escape
with incriminating
evidence in the time it would take police to secure a search warrant.
For a warrantless
search to be valid, however, the officer must have probable cause. (See
the "Criminal
Justice” section for more details on this topic.)
Q. What is probable cause?
A. Probable cause, in this context, is a reasonable basis for
the officer to believe that the
vehicle contains incriminating evidence, so that the officer is legally
justified in searching
it.
Q. What part of the vehicle may the police search if they have
probable cause?
A. Generally, the police officer may search the immediate area
at the driver's command,
that is, under and around the front seat. The law is always changing.
Sometimes state
constitutions offer greater protection against searches than the U.S.
Constitution.
Therefore, if you have questions about a search the police have made of
your vehicle, it is
best to consult a lawyer in your state.
Q. May the officer search in my glove compartment?
A. Yes, the Supreme Court has held that such a warrantless search
is permissible. The
reason is that the glove compartment is within the arrested driver's reach.
Q. May the officer search a closed container inside my car?
A. Police are permitted to search containers or packages found
during a legitimate
warrantless search of a vehicle. The container must be one that might
reasonably contain
evidence of a crime for which the officer had probable cause to search
the vehicle in the
first place. In 1982, the Supreme Court ruled that the police do not need
a warrant to
search closed containers found in the passenger compartment of an automobile
whose
occupant is under arrest.
Q. May the police search my car without a warrant after they
have impounded it?
A. The police do not need a warrant to undertake a routine inventory
of an impounded
vehicle. The reason is that such an inventory protects the driver's possessions
against theft,
and also protects the police against claims of lost or stolen property.
Such an inventory
also protects the holding facility from dangerous materials that may be
in the impounded
vehicle, and it may aid in the identification of the arrested person.
Q. Suppose the officer sees a packet of marijuana on the back
seat?
A. When the police can see evidence readily from a place in which
they have a right to be,
the law does not consider it a search. Rather, it is a plain view seizure.
As long as the
officer has a legitimate reason to be standing by the car and easily sees
what the officer
has probable cause to believe is evidence of a crime, the officer can
make the seizure.
Then the officer probably could conduct a warrantless search of the rest
of the passenger
compartment of the vehicle and possibly the trunk (if probable cause exists
to believe the
trunk may contain evidence).
Q. Can the police pull me over in a roadblock and demand to check
my license and
registration?
A. The U.S. Supreme Court has said that such roadblocks do not
constitute an
unreasonable search as long as police stop all the cars passing through
the roadblock or
follow some neutral policy, such as stopping every fourth car. The police
can't single out
your car unless they have an articulable suspicion that you don't have
your driver's license,
your vehicle is unregistered, or that you or your car are otherwise seizable
for violating the
law.
Q. Is it legal to design a roadblock to catch drunk drivers?
A. Yes, provided the selection of vehicles to be stopped is not
arbitrary and it minimizes
the inconvenience to drivers. Courts have upheld such roadblocks as constitutional.
States'
legislatures disagree, however, about whether the prosecution needs to
show that a
roadblock is the least intrusive way to enforce drunk driving laws. Also,
some states
require that the ranking police officer who supervised a roadblock testify
at the offender's
trial.
Q.I got stuck in a speed trap. What can I do about it?
A. If the speed limit was clearly marked and you were exceeding
it grit your teeth and pay
the fine. If you think you've been unfairly prosecuted, you might report
the trap to your
auto club or state authorities to spare other drivers the same expense.
Q. I was stopped for speeding by a radar gun. Do those things
work?
A. Courts today regularly take judicial notice of the ability
of radar to measure accurately
vehicular speeds. That doesn't mean that you can't try to prove that the
particular radar gun
in your case was poorly maintained or that its operator misread the results
or was
inadequately trained to use the device, but it is an uphill fight.
Q .Aren't "fuzzbuster" devices the best way to avoid
speed traps and radar guns?
A. Depends where you drive. Some states have declared them illegal,
subjecting drivers
who use them to fines.
The Arrest
Q. What should I do if the police arrest me?
A. Better to discuss what you shouldn't do. Do not:
• speak to anyone about your case;
• answer police queries or waive your right to advice of counsel;
• submit to a lineup or any kind of tests without your lawyer;
• dodge news photographers or cover your face (looks guilty);
• be impolite to the police.
Some people cooperate with the police by making statements in the hope
that the
officer will let them go. Remember that once you have been arrested you
will be charged
with an offense, and any statements you make, if incriminating, will be
used against you.
Q. What do I tell my lawyer while I'm in custody?
A. Be prepared to tell your attorney where the police have taken
you, where the arrest
occurred and if it was made by uniformed or plainclothes police, the charges
against you,
and the amount of bail you can afford.
Q. If the police arrest me and issue a citation, can I dispose
of the case in a noncriminal way?
A. No. Once you've been arrested, you must go through the criminal
process.
Sidebar: Driving Under the Influence
Statistics indicate that at least one-third of all drivers involved in
fatal accidents were
alcohol impaired at the time. Groups such as Mothers Against Drunk Driving
and
legislators are spearheading a nationwide crackdown on drunk drivers that
includes
passage of tougher laws, including every state hiking the legal drinking
age to twenty-one.
Although it is a traffic offense, drunk driving is classified as criminal
in the ordinary sense
of prohibited conduct willfully undertaken
.Q. How come police never say "you're under arrest for drunk
driving?"
A. Different states call the offense different names. These include
driving under the
influence (DUI), operating under the influence (OUI), and driving while
intoxicated
(DWI).
Q. Does the language really matter?
A. Yes, "operating" jurisdictions (those charging OUI),
for example, do not require that
the vehicle be in motion. In most states a person may be charged with
OUI if he or she is
in actual physical control. Actual physical control may be shown when
the person is
seated in the driver's seat, in possession of the ignition key, and capable
of starting the
motor.
Q. What does "drunk driving" mean?
A. The elements of the offense vary from one state to another.
However, the Uniform
Vehicle Code says proof is necessary that the person is under the influence
of alcohol or
drugs. Most states agree that a person is under the influence if he or
she is less able, either
physically or mentally, to exercise clear judgment and to operate a vehicle
with safety. As
noted above, the person must be driving or in actual physical control
of a vehicle. If a
particular state's statute includes language such as "on a public
highway" or "intoxicating
liquor," the state also must prove that point. Some states treat
"driving while impaired by
alcohol" as a lesser offense of DWI.
Q. How does the state prove its DWI case?
A. The prosecution relies heavily, sometimes solely, on the arresting
officer's testimony
about the offending vehicle's operation and the defendant's behavior (observations
of the
defendant's appearance, speech, and an odor of alcohol), and results of
field sobriety tests
and chemical tests (breath, blood, or urine). The officer might say, "The
car was weaving
over the center line of the highway," or "The driver had slurred
speech, heavy odor of
alcohol, glassy bloodshot eyes, and could not walk straight.
Q. May the police force me to give a sample of my blood or my
breath?
A. Every state has "implied consent" laws for chemical
testing of intoxication. The law
views people who have a driver's license as automatically agreeing to
submit to blood,
breath, or urine tests to determine whether they are sober. In 1983, the
U.S. Supreme
Court ruled that a driver may be forced to submit to a blood alcohol test
without the
driver's consent or a warrant and without violating the driver's right
against selfincrimination
if the driver has already been arrested for another offense, such as vehicular
homicide; the driver's blood has already been taken for another purpose,
such as medical
care; and such action is permissible under the state's implied consent
law.
While police generally will not compel you to submit to a blood test,
the Supreme
Court decision discussed in the previous paragraph permits a blood test
taken by force so
long as the officer has probable cause to believe that you are under the
influence.
If you can refuse to take the test, should you? There is no hard and fast
answer to that
question.
On the one hand, unless you are certain that you have had less than three
or four drinks
in the past hour, or less than five drinks in the past several hours,
common wisdom holds
that it is a good idea to refuse the tests. It generally is more difficult
to convict a driver of
drunk driving if no field sobriety or chemical tests are taken.
On the other hand, if you refuse to take a breath testing device test,
your driver's
license probably will be suspended automatically for a long period of
time. In some states,
for example, it will be suspended for six months, but only three months
if you take and fail
the test (if you are a first offender).
Q. What are field sobriety tests?
A. Every police department has its own preferred tests. The police
may ask you to do
several things after you have gotten out of the vehicle, such as standing
on one foot for a
specified time or walking a straight line. The police also may ask you
to touch your nose
with your index finger with your eyes closed and head back, and have you
stare at a
flashlight or a pen so that the officer can see how your eyes respond.
Q. Suppose I fail the tests?
A. It is not like school. You cannot promise to study harder
next time. A skilled lawyer,
however, may challenge whether the police administered the tests properly,
or whether the
tests effectively measure what they intend to. In addition, a lawyer may
present qualifying
evidence. For instance, a chronic knee injury may prevent you from supporting
your
weight on one foot.
Q. How does a breath testing device work?
A. The person blows into the machine, which measures the percentage
of alcohol in the
person's body. The law considers a standard measure as legally intoxicated.
This measure
might be .10 (one-tenth of one percent blood-alcohol concentration), or
.08, depending on
the state. The rules vary from one state to another. However, the law
often entitles the
defendant to two breath tests that must measure within .02 (or some other
percentage) of
each other.
Q. If the breath-testing device hits .10, am I in serious trouble?
A. Probably, but a lawyer may show that the machine's operator
received inadequate
training, the operator's certification has lapsed, or the operator did
not maintain the
machine well. Other factors may also affect the breath testing device
reading and may be
established through an expert witness. Diabetics, for example, have high
levels of ketone
(a naturally occurring chemical), which could yield false results when
diabetics are tested.
However, in most cases the result of a breath test will be allowed into
evidence.
Q. May I change my mind after declining to take a blood or breath
test?
A. There is no right for a person to change his mind once he
or she has refused. The law
still considers a change of heart as a refusal so far as it concerns a
license suspension. It is
a good idea to call a lawyer while you are thinking over a decision, if
the police allow you
to do so. However, unless you have a statutory right to a lawyer in your
state, which could
delay the test for several hours while the attorney is en route to the
police station, you will
have to decide whether to submit to the test fairly soon after being asked
to do so. In some
states, you must immediately decide.
The Nationwide Crackdown on Drunk Driving
Tragic stories of victims killed by drunk drivers proliferate in the
news media. The ranks
of groups, such as Mothers Against Drunk Driving (M.A.D.D.) and Students
Against
Destructive Decisions (formerly Students Against Drunk Driving [S.A.D.D]),
continue to
swell. State legislatures have responded by introducing harsh new
drunk driving laws at a
dizzying clip. Society is no longer satisfied with giving offenders
a slap on the wrist when
it comes to drunk driving. See websites for MADD (http://www.madd.org/)
and SADD
(http://www.saddonline.com/)
The legal drinking age is twenty-one in every state in the Union.
In addition, the majority
of our states have enacted so-called "per se" laws, which
prohibit a person from driving an
automobile if the person has a blood-alcohol reading of a certain
amount or more. When
the per se law is used, the prosecution need not show that the person
is under the
influence. Rather, the prosecution need only prove that the person
was driving and
showing a blood-alcohol reading of the certain amount or more at the
time. A blood
alcohol reading of .10 remains the legal presumptive level of intoxication
in some states,
but a growing number of states have lowered their per se limit to
.08.
Another trend nationwide among legislatures is to pass laws that create
harsher penalties
for higher breath testing device results. Some states provide for
enhanced penalties for
blood alcohol readings of .20 and higher. Other states have created
lesser offenses, such as
driving "impaired," with a blood alcohol level of .07.
In civil courts throughout the country, "dram shop" cases
and "social host" cases are
gaining wider acceptance, and expanding the liability for negligence.
Taverns, restaurants,
and individuals who furnish alcohol to intoxicated persons knowing
that they are likely to
drive are liable to third persons who are injured as a result of the
conduct of the
intoxicated individual. |
Q. What kind of penalty am I likely to get for DWI?
A. Consult a lawyer in your state because penalties vary widely
and depend on several
factors, such as whether you are a repeat offender. A number of states
require minimum
penalties for first-time offenders, for example, which might involve enrollment
in an
alcohol treatment program and a license suspension of a month or so. A
second-time
offender might suffer a two-year license suspension or revocation of license.
Some states
impound the license plates or vehicles of habitual drunk drivers, and
others revoke the
licenses of habitual offenders.
This is an extremely volatile area of the law. Jail terms for first offenders
are more
common than they used to be. Community service and enrollment in mandatory
alcohol
programs, as well as heavy fines, are doled out by courts in various combinations
with
regularity as a result of changing public perceptions about drunk driving
and the efforts of
highly visible groups such as Mothers Against Drunk Driving.
License Suspension/Revocation
Q. Suppose the police stop me and I've forgotten my license at home?
A. Driving a motor vehicle on a public street or highway without
a license is an offense in
most states. Often, a person accused of failing to have a license in his
or her possession
can avoid conviction if able to produce a license in court that was valid
at the time of the
police stop.
Q. What is the difference if the state suspends, cancels, or
revokes my license?
A. Suspension involves the temporary withdrawal of your privilege
to drive. The state
may reinstate that privilege after a designated time period and payment
of a fee. You may
also restore the privilege by remedying the underlying cause of the suspension,
such as
buying automobile insurance.
Cancellation involves voluntarily giving up your driving privilege without
penalty.
Cancellation allows you to reapply for a license immediately.
Revocation aims both to discipline the driver and protect the public.
Revocation
involuntarily ends your driving privilege. Revocation generally is permanent
until you are
eligible after a minimum period set by law to apply for a new license.
The state may
conduct a reinstatement hearing. You may have to retake a driver's license
examination.
Driving with a Suspended or Revoked License
The police probably will arrest you for driving with a suspended or
revoked license. This
usually is a serious misdemeanor that carries with it a stiff fine
and possibly some time in
the local jail. In some states, however, it may be a felony that lands
the offender in state
prison or with a significant amount of community service to work off,
particularly if the
suspension or revocation was based upon a DUI.
If you are stopped while driving with either a revoked or suspended
license, you can
expect to be arrested and taken to the police station to post bond.
If you cannot raise the
required amount of bond money, you will be taken to court for a bond
hearing (usually
within twenty-four hours), where a judge, in his or her broad discretion,
will set bond.
You will remain in jail until the bond is posted. The bond you will
need to post
depends on the crime you are alleged to have committed and on your
previous driving
record. A monetary bond might be set, or you might be released on
a personal
recognizance bond, which requires only your signature and promise
to return to court as
ordered and not to violate any other laws. |
Q. If State A has suspended/revoked my license, but I have a
valid license in State B,
can I drive in State A?
A. Under the law of some states, a valid driver's license from
another jurisdiction does not
enable you to drive on the highways of a state that has cancelled, suspended,
or revoked
your license. However, other states have held that a license properly
issued by a foreign
state under the Driver's License Compact ends the suspension or revocation
of a motorist's
original license.
Q. What are the grounds for license suspension?
A. They vary by state. A local lawyer will be able to give you
details about your state
laws. Generally, however, a state might provide that three moving violations
within one
year warrant a three-month suspension. Refusal to submit to a field sobriety
or breath
testing device test also will result in suspension.
Q. What are the grounds for license revocation?
A. They are based on violating specific laws, such as habitual
reckless driving, drunken
driving, nonpayment of your motor vehicle excise tax, using a motor vehicle
to commit a
felony, and fleeing from or eluding the police. Again, they vary by state.
Q. Does the law entitle me to notice and a hearing before the
state revokes my
license?
A. Barring an emergency, due process under the Fourteenth Amendment
generally
requires notice and a chance to be heard before the state ends a person's
license privileges.
However, for certain serious offenses, the state may simply rely on the
court conviction to
revoke the person's license without the need for any hearing.
Q. What if the state charges me with an offense that requires
a license suspension?
A. Unless another law says otherwise, no notice is necessary
before a state may suspend
your license under the mandatory provisions of a law. As a driver, you
are presumed to
know the law.
Q. If the state does notify me, what should the notice say?
A. The time, place, and purpose of the hearing should appear
on the notice of a hearing to
suspend or revoke your license.
Q. Does the law entitle me to a jury?
A. No. A suspension/revocation hearing is an administrative,
not a judicial proceeding.
You are entitled, however, to confront and cross-examine witnesses against
you at such a
hearing. You are well advised to be represented by counsel at such a hearing.
Q. What must the state prove before a court can convict me of
driving on a
suspended or revoked license?
A. The law varies from one state to another. The state, however,
usually has to show that:
• the accused's license or privilege to drive was revoked or suspended
on the occasion in
question; and
• the accused was driving a motor vehicle on a public highway at
the time of the
offense.
License Renewal
Q. Must I take another examination to renew my license?
A. Check with your state's division of motor vehicles. Some states
permit renewal by mail.
Most states require a vision test, and in some instances, a new photograph
for renewal. A
few require a written test. Prerequisites for license renewal could include
as much as a
vision test, written test, thumbprint, signature, and photograph.
Some states impose additional requirements if a driver has amassed a number
of traffic
convictions or if the driver is of a certain age or has certain physical
problems. Some
states require a road test for “elderly” drivers (those over
a specific age that is set by state
law) prior to renewal.
Q. May a physical or mental affliction prevent me from driving
legally?
A. Yes. A few states require doctors to report physical and mental
disorders of patients
that could affect driver safety.
Seat Belt Laws
Q. My kids hate wearing seat belts. Must they wear these?
A. All fifty states and the District of Columbia require children
to be restrained while
riding in motor vehicles. State laws vary, however, concerning the age
of the child subject
to the child restraint law. Seat belts are desirable when one considers
that approximately
700 children under the age of five die in passenger vehicles annually
and that 45 percent
of the deaths of children between ages one and fourteen are caused by
car accidents.
Q. Do I have to wear a seat belt?
A. It depends where you live and perhaps where you sit in the
car. Thanks to variations in
state law, you may only be required to strap in children up to a certain
age or merely be
required to wear belts if in the front seat.
Q. May I still recover payment for my injuries if I am in an
accident and not wearing
my seat belt?
A. Yes. Most states reject the so-called "seat-belt defense,"
and will not permit evidence
that plaintiffs did not buckle up as proof that they were negligent in
a way that contributed
to the injuries. In some jurisdictions, however, evidence of the plaintiff's
failure to use a
seat belt may reduce the amount of damages awarded to the plaintiff.
Speeding and Other Offenses
This section cannot possibly discuss the many traffic offenses and statutory
variations that
exist among the fifty states. Generally, minor infractions are those in
which a first offense
is likely to yield a fine and no jail time. Examples include parking offenses,
speeding,
failure to keep to the right of the center line, driving an unregistered
car, and driving a
vehicle with defective equipment. More serious offenses carry stiffer
fines and the
possibility of a jail sentence. These include reckless driving, leaving
the scene of an
accident, and driving after a license revocation.
Q. How could I have received a speeding ticket when I was being
careful?
A. A lack of due care is not an element of the charge of speeding.
Simply because you
were not in an accident does not prove that you were driving at a reasonable
speed.
Q. What are the elements of a speeding charge?
A. It depends on whether your state bases its speeding laws on
"absolute/fixed maximum
limits" or "prima facie limits." It is a violation to exceed
a fixed maximum limit regardless
of the circumstances at any time. On the other hand, prima facie limits
allow drivers to
justify the speed at which they were driving by considering traffic and
road conditions and
visibility.
Q. Does the type of speed limit change the nature of the complaint
against me?
A. Yes. The complaint and notice or summons to appear for a fixed
maximum violation
will specify both your alleged speed and the maximum speed allowable within
the
locality. In contrast, in prima facie jurisdictions, driving above the
posted speed limit is
not the offense. The police must charge you with driving above a speed
that was
reasonable and proper given the existing conditions. One example might
be driving fifty
miles per hour in a school zone.
Speeding laws vary greatly from state to state. Therefore, it is a good
idea, for legal
and safety reasons, to get into the habit of reducing your driving speed
whenever you
approach a railway crossing or intersection, drive around a curve, or
encounter special
hazards, such as severe weather.
Q. Are there any excuses I can offer that might prevent a police
officer from writing
up a speeding ticket?
A. If you are taking a pregnant or sick person to the hospital,
you might be spared a
speeding citation, and you might even get a police escort to the hospital.
Sometimes a
court emergency (be sure to display the court papers to the officer),
or a broken
speedometer (be prepared to give the officer a test ride) may succeed
but only, of course,
if they are truthful reasons.
Q. What kind of information is included on a traffic ticket?
A. The color, model, and registration of your vehicle, and the
date, time, and place of the
alleged offense is provided on the ticket. Also, the specific violation
charged (if it's a
parking meter offense, the meter number as well), the officer's name and
badge number,
the fine schedule, and a notice of your ability to have a hearing to contest
the ticket will
probably be on a ticket as well. However, each jurisdiction has its own
form. If the officer
includes incorrect information in writing the ticket, such mistakes may
provide you with a
defense against the citation.
Q. What does "leaving the scene of an accident" mean?
A. Consult a lawyer about your state's law. Generally, drivers
of vehicles involved in an
accident in which personal injury or property damage occurs must stop
and identify
themselves and their vehicles. Drivers must also notify police, and help
any injured
persons. Neither the driver's intent nor the ownership of either vehicle
involved in the
collision are elements of the offense. (See the "Accidents"
section below.)
Q. What are the defenses to such a charge?
A. It is a complete defense if no personal injury or property
damage resulted from the
accident, or if you had no knowledge that an accident had occurred. On
the other hand,
claiming that you left intending to drive directly to the police station
to report the accident
probably would not be a good defense.
Q. What is "reckless driving"?
A. The language varies from jurisdiction to jurisdiction, but
increasingly, states are
following the Uniform Vehicle Code, which defines it as "willful
or wanton disregard for
the safety of persons or property." Essentially, the prosecution
must show that reckless
drivers were indifferent to the probable harmful results of their driving,
and that the
reckless drivers should have realized that such driving posed a hazard.
Accidents
Q. According to the law, how safely must I drive?
A. You have to use reasonable care under the circumstances. Negligence
the failure to
exercise such care is the most common basis for liability. However, ordinary
negligence
does not mean you are guilty of reckless driving in the criminal sense.
For such driving to
be unlawful, it must be willful or wanton as defined above.
Q. Do I owe a higher standard of care toward pedestrians?
A. No, the same standard applies. Motorists must exercise reasonable
care under the
circumstances toward pedestrians. In practical terms, this means keeping
a careful lookout
for them, and maintaining control over your vehicle to avoid injuring
them. You must also
sound your horn to warn of your approach when you believe that the pedestrian
is unaware
of the danger. In some states, you must stop if you see a pedestrian anywhere
in a
crosswalk.
The law does not, however, expect you to anticipate a pedestrian darting
out into the
roadway.
Q. Do I owe the same duty of care toward my passengers?
A. Generally, yes, although it may change based on your passengers'
relationship to you.
However, as in all accidents, you will not be liable if a passenger sustains
injury through
no fault of your own.
Q. To what standard of care am I held if someone else is driving
my car in which I
am a passenger?
A. The law in some states will assume you still have "control"
over the vehicle. Other
states require the owner to take steps to stop the negligent driving as
soon as the owner
becomes aware of it. In other words, as a car owner, you can be liable
for more than just
your own negligent driving.
Q. Am I legally responsible even if I am not in the car if an
accident occurs?
A. Possibly. You still might be liable for property damage, injuries,
and even death if you
permit someone else to operate your defective vehicle, or if you allow
an inexperienced,
habitually intoxicated, or otherwise incompetent person to drive your
car. The law refers
to this conduct as "negligent entrustment."
Q. What if my child is driving my car and an accident occurs?
A. Some jurisdictions recognize the "family purpose doctrine,"
under which the "head" of
the family who maintains a car for general family use may be held liable
for the negligent
driving of a family member who was authorized to use the vehicle. The
fewer than twenty
states that adhere to this doctrine treat the family member as an agent
of the vehicle
owner, who is presumed to be better able to satisfy property damage and
injury claims.
Q. If I am involved in an accident, must I identify myself to
other involved parties?
A. In the past, common law did not require you to give your name
before leaving an
accident scene. Modern laws that require you to identify yourself after
an accident in
which someone is hurt or killed have survived court challenges. You should
identify
yourself to a police officer (see below), and show your license and proof
of insurance
coverage if asked. Otherwise, you do not have to, and probably should
not, say anything.
Specifically, do not reveal how much insurance coverage you have, or admit
liability.
What You Should Do If You Have an Accident
If possible, park on the shoulder of the road and do not obstruct
traffic. Use your car's
flashers or flares to warn approaching motorists of the accident.
If asked, give your name,
address, vehicle registration certificate, and proof of insurance
to the other driver. Get the
same information from the other driver.
Write down the names and addresses of all passengers and possible
witnesses. Also,
get the names and badge numbers of any police officers who respond
to the scene. If you
have a camera handy, photograph damaged cars, skid marks, and the
accident scene. Draw
a diagram of the accident and make notes about the weather, lighting
conditions, and road
conditions. Most important, help any persons who are injured.
Do not make any statements about who you believe was at fault. Also,
do not admit
blame to the other parties or witnesses. As soon as possible after
the accident, notify your
insurance company. If you sustained any personal injury, seek medical
attention promptly.
Consult an attorney if you intend to file suit. |
Q. If I collide with a parked car, am I required to do anything?
A. The law requires you to try to find the owner. Alternatively,
you are permitted to attach
a written note to the parked car identifying yourself and your vehicle.
You also should
notify the police.
Q. Must I tell the police if I am in an accident?
A. Alert the police immediately if someone is hurt or killed.
Generally, if the accident
involves a death, personal injury, or property damage above a specific
amount that varies
among states, you must notify the police and file a written accident report
immediately, or
within a short time span, usually five to ten days. Often, states require
you to file the
report with the bureau of motor vehicles or similar state authority. Some
states do not
require you to report an accident if no one is injured or if property
damage is less than a
certain dollar amount. Other jurisdictions require a report only if no
police officer
responded to the accident scene.
Q. What if I do not fill out an accident report?
A. Failure to file a written report is a misdemeanor in most
states. Some states may
suspend your driver's license until you file the report. Remember, by
completing an
accident report, you are verifying that the report contains a recital
of all important facts
known to you. Providing false information in a written report is illegal,
and typically is
punished by a fine.
Q. Should I contact an attorney after the accident? What should
I tell the lawyer?
A. If you are filing a lawsuit against the other driver, you
will hire your own lawyer. If the
other driver is suing you, your insurance company will provide a lawyer
for you. At the
initial client interview, supply information about:
• your family status and employment situation;
• the accident, including witnesses' names and addresses; and
• your injuries.
If you are filing suit, tell the lawyer about all your out-of-pocket expenses,
such as
doctors' bills, ambulance and hospital costs, automobile repairs, rental
car costs, and any
lost income.
Q. What might happen if I believe the collision is at least partly
my fault?
A. You may not be in the best position to determine how the accident
happened. Defective
equipment in your vehicle, a malfunctioning traffic signal, or the other
driver's
intoxication are among the many possible causes of the accident. Accepting
blame and
apologizing to the other driver may be used as evidence against you at
trial. Leave it to the
judge or jury to decide who is at fault.
Q. If the accident is partly my fault, may I still receive payment
for my injuries?
A. The answer depends on whether you live in a contributory negligence,
comparative
negligence, or no-fault jurisdiction. (See the discussion of no-fault
insurance in the
"Insurance" section )
Q. What is contributory negligence?
A. Essentially, contributory negligence bars you from recovering
money for your injuries
if your own negligence in any way contributed to the accident's occurrence.
The other
driver must prove that you were negligent.
Q. What is the logic behind this legal doctrine?
A. The reasons behind contributory negligence range from punishing
you for your own
misconduct to discouraging you from acting negligently again. Only a few
states still
accept the concept of contributory negligence, which once was widely supported.
Q. What does "comparative negligence" mean?
A. Adhered to in the vast majority of states, comparative negligence
divides the damages
among the drivers involved in an accident based on their degree of fault.
In "pure"
comparative negligence states, you can receive payment for your injuries
regardless of
how much of the blame you carry for the accident, as long as the other
driver is at fault to
some degree. In "modified" comparative fault states, you may
recover payment only if
your own fault is below a certain threshold, such as 50 percent.
Q. How does comparative negligence work?
A. As an example, you are involved in an accident in which you
were driving ten miles
above the posted speed limit on an icy road. You believe, however, that
the accident
occurred because the other driver ran a red light.
In a comparative negligence state, it is up to the fact-finder, be it
judge or jury, after
hearing your case, to assign the degree of fault for each of you in terms
of a percentage.
Suppose the fact-finder decides that your speeding was responsible for
20 percent of your
injuries, and the other driver's going through the red light contributed
the remaining 80
percent. If the total amount of damages were $100,000, you would only
recover $80,000.
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