When a motorist is charged with driving under the influence (DUI) of alcohol or driving while intoxicated (DWI), the motorist is likely to face a multitude of possible penalties. In addition to jail time, fines, and suspensions, many states require motorists to participate in what is commonly called a driver alcohol education (DAE) program. For first-time offenders participation in the program may be either discretionary or mandatory depending upon the state. However, most states require participation for repeat offenders.

The DAE program is intended to enhance public safety by eliminating or reducing the recidivism of offenders. In addition, the programs generally attempt to diagnose and recommend treatment, dispense information about alcohol abuse, and increase the participants' awareness of the dangers of drinking alcohol and driving.

In addition to the education and treatment provided, participation in a DAE program can have numerous benefits for a first time offender. For some first time offenders, participation may allow the offender to avoid a guilty plea and reduce the license suspension period and fines. Most offenders find that attending a DAE program is much more preferable to serving a traditional sentence.

Not all states will automatically send an offender to DAE program. In many states, the trial judge has broad discretion in determining whether to sentence an offender to participation in a DAE program. If the judge chooses not to exercise his or her discretion and order participation, this action can generally not be appealed. However, in most states a conviction for DUI or DWI will result in the requirement that the offender attend a DAE program. Even if an offender is not ordered to take such a program, many states will require participation in such a program in order to regain a driver's license.

The penalties imposed by states for operating while intoxicated (OWI) and operating under the influence (OUI) follow the same pattern of penalties imposed by states enforcing laws for driving under the influence (DUI) and/or driving while intoxicated (DWI). In general, all states and the District of Columbia have "per se" laws defining it as a crime to drive with a blood alcohol concentration (BAC) at or above a proscribed level of 0.08. percent and above.

In most states, if a driver fails or refuses to take a chemical test, the driver's license will be administratively suspended. Administrative license suspension laws are independent of criminal procedures and are invoked after arrest and range from one week to one year, with most averaging 90 days. Driving privileges may be restored during suspension if the driver demonstrates special hardship to justify restoration of the privilege, and then the privilege is restricted to time and place, such as to or from work or school.

All states impose mandatory penalties for OUI/OWI convictions. License suspension or revocation usually follows conviction for alcohol-impaired driving. Some laws require driver license suspensions for drug convictions even if the offender was not driving at the time of the offense.

The penalties become progressively stiffer if the driver has been charged with multiple offenses over a fixed time period, usually five to 10 years. All offenses carry minimum and maximum jail time, fines, driver responsibility fees, and license suspension periods. In addition, the state may confiscated the license plate of the vehicle owned by the driver and either impound or immobilize the vehicle for a fixed time period. An ignition interlock device may be required for a several year period following completion of the sentence. This device is often made mandatory for a first offense as well as subsequent offenses.

Three or more convictions can lead to felony charges and enforcement of vehicle forfeiture laws. In that event, the offender must also attend mandatory drug / alcohol treatment programs paid for by offender. In general, states have created "first-time" offender programs which stress driver and alcohol education and community service in lieu of jail time. To increase the first-time offender's understanding of the consequence of his or her actions, many communities use victim impact panels where victims and/or witnesses describe the experiences they or loved ones have endured due to the actions of drunk drivers.

When an individual has been charged with drunk driving, the State will often present expert testimony concerning chemical tests. The State is required to provide a proper foundation for chemical tests. However, if the defense can show that the State's expert lacked the required qualifications or that another key component of a proper foundation for admissibility is missing, the defense can object to the admission of the chemical tests. Although courts may allow an expert to testify regarding the results of tests done by a lab technician under the expert's direct supervision, the evidence can be excluded if the defense can show that the expert witness had no knowledge about the details of the chemical analysis other than what the technician reported.

The expert witness laws vary by state, as do the need for expert witnesses. For example, a few states have determined that chemical testing is not based on scientific expertise and test results are nonscientific evidence that require no scientific substantiation or expert testimony. Other states have held that evidence of chemical testing is admissible so long as a proper foundation is laid. Most jurisdictions hold that chemical testing evidence is scientific evidence.

In addition, the defense may provide expert witnesses. For example, a forensic toxicologist will review the blood alcohol test and other tests to determine if they were properly administered and returned legitimate results. Where results do not make sense, the forensic toxicologist will challenge the procedures followed or assert that the equipment was faulty or that there was operator error.

Where an individual is charged in a drunk driving accident, an accident reconstruction expert can examine the scene of the accident to determine whether the individual was actually at fault. The expert will likely use police reports, witness statements and other evidence such as damage to the vehicles to assess the mechanics of the accident. The expert's testimony may affect the jury's determination of fault in the accident.

If you have been convicted of driving under the influence (DUI) or driving while intoxicated (DWI), you have a criminal record. Contrary to popular belief, the conviction does not go off your criminal record after seven or ten years. The conviction stays on your record for life unless you do something. However, in many cases, a convicted drunk driver can have his or her record expunged.

Expungement of a criminal conviction is the clearing of all records on file within any court, correctional facility, law enforcement agency, or criminal justice agency that deals with a defendant's apprehension, arrest, trial, or disposition of an offense within the criminal justice system by removing, sealing, or destroying the record. However, expunging a record for a DUI offense is not considered a right. Expungement is a privilege that only occurs in specific circumstances if the petitioner files the correct paperwork.

Once your record has been expunged the law permits you to say that the conviction never happened. If you are asked on job applications if you have even been convicted of a criminal offense, you can answer "no." It is the ultimate form of relief for a person convicted of DUI or DWI. Expungement of a DUI or DWI conviction will often open up many more chances for employment that do not exist for individuals with DUI or DWI convictions.

However, not everyone will be entitled to expungement of his or her criminal record. The relief available will depend on the type of conviction, for example whether it was a misdemeanor or a felony; the age of the offender, whether a juvenile or an adult; and the type of sentence received, whether it was probation, a jail sentence, or a prison sentence. In addition, the requirements for expungement relief vary by state. For example, in some states a person cannot have his or her record expunged if he or she has more than one conviction for DUI or DWI. If you have a DUI or DWI conviction that you would like to get expunged, you should contact an experienced criminal law attorney. An experienced attorney can advise you on your state's specific expungement requirements.

It is common for a motorist suspected of drunk driving to come into contract with a physician. For example, if the motorist is injured in a traffic accident, first aid may be administered by a physician at the accident scene or the motorist may be taken to a hospital for treatment. In addition, law enforcement agencies often have policies in place that require them to take any motorists that are suspected of being intoxicated to a physician.

When a motorist is treated by a physician, the physician will observe the motorist's physical condition and usually discuss with the motorist his or her physical condition. In some situations, the physician will administer a test similar to a field sobriety test or take a urine or blood sample from the motorist. The physician will probably be able to offer a medical opinion as to whether the motorist was under the influence of alcohol and whether the motorist was able to safely drive a vehicle.

If the prosecution attempts to call the physician as a witness in a drunk driving case, a defense attorney will generally attempt to exclude the physician's testimony on the ground that admission of the testimony would violate the physician-patient privilege. The physician patient privilege is a rule of evidence that prohibits a physician from testifying about comments the patient makes to the physician while seeking medical advice. Not all states recognize a physician-patient privilege, but in states where the privilege is recognized, it can be an important weapon in the defense arsenal in a drunk driving case.

In order to invoke the physician-patient privilege, the defense must meet four requirements. First, a physician-patient relationship must have existed. Second, the information must have been acquired while the physician was attending to the patient in a professional capacity. Third, the information must have been necessary to enable the physician to act in a professional capacity. Finally, there must have been confidentiality.

In some states, a motorist may be allowed an examination by a physician of his or her choice. However, even when the motorist is examined by his or her own physician at his or her request, the physician may be called by the prosecution as a witness against the motorist unless the physician's testimony is barred by some evidentiary rule. The privilege generally does not apply where the physician is called as a defense witness.

Professor Prosser

In the late 20th century, one of the leading texts on the topic of torts was professor William L. Prosser's Handbook of The Law of Torts. The professor defined the debate in his first sentence: "A really satisfactory definition of a tort has yet to be found." Although he presented several definitions of a tort, he concluded that no single definition adequately captured its essence.

Judge Rogers

A judge in Baltimore, Maryland, however, was not so hesitant. In a Case & Comment magazine article entitled "From Tort to Tortilla (A Fascinating Family of Words)," judge Henry L. Rogers pointed out that the Latin version of the word is "torqueo, torquere" meaning "to twist." The judge concluded that "one who commits a tort is acting in some kind of twisted way." Accordingly, a tort is twisted conduct for which its victim is permitted to sue its perpetrator.

Professor Prosser 2

Although he said that there was no satisfactory definition of a tort, professor Prosser did offer one. He noted that the word tort "was at one time in common use in English as a general synonym for 'wrong'." Clearly, a tort was a wrong. Professor Prosser concluded that "Broadly speaking, a tort is a civil wrong, other than breach of contract, for which a court will provide a remedy in the form of an action for damages."

More Observations

Between professor Prosser and judge Rodgers it can be said that a tort is a twisted conduct. It is twisted conduct that is a civil wrong. It is a civil wrong for which a victim can bring an action other than breach of contract (or some other major kind of law). A tort law action is an action for money damages.

Inherent in the law is the idea of setting standards. Torts can also be viewed as standards of conduct apart from criminal law and other major kinds of law.

Your Lawyer

The are many kinds of wrongful conduct. Your lawyer can advise you as to whether the circumstances of your case give you the right to sue under tort law.

Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. Most scholars agree that tort law has four purposes: (1) compensation for damages; (2) financial responsibility; (3) deterrence; and (4) avoiding self-help. This article discusses the purpose of financial responsibility.

Precautions

The second purpose of tort law is to require those who cause financial harm by tortious conduct to pay for the financial harm they have caused. Tort law encourages those with a propensity to engage in tortious conduct to not engage in tortious conduct, or if they do, to be financially responsible for their tortious conduct. In other words, tort law is a kind of financial coercion. The financial coercion against those with a propensity to engage in tortious conduct is the threat of tort liability.

The threat of tort liability encourages those with a propensity to engage in tortious conduct to take precautions to avoid tort liability. For example, if the sidewalk in front of a business is in need of repair, the threat of tort liability encourages the owner of the business to get the sidewalk in front of the business repaired. Most business owners realize that it costs them less in the long run to repair the sidewalk in front of their business than risking a customer falling on the sidewalk, being seriously injured, and suing. The cost may be greater than responding to a potential or actual lawsuit by an injured customer. If it becomes widely known that the business owner left the front sidewalk in disrepair, the business may lose the business of customers who do not want to risk a similar injury.

Preparation for Financial Responsibility

Sometimes precautions can be taken to avoid the threat of liability under tort law. The cost of taking precautions to avoid liability under tort law may exceed the risk those precautions are designed to prevent.

For example, the manufacturer of a product may know from statistical analysis that about one of every 2,000 products it manufactures will be defective and that some of those defective products will avoid detection and rejection by their quality control department. The defect can be eliminated by using a manufacturing process that is three times more expensive. Whether they admit it or not, some manufactures choose the cheaper process and risk tort liability.

If there is any chance that a manufacturer's product may be dangerous, a manufacturer might set aside money in bank accounts and other investments to be used to pay any future tort liability. Although such a policy may be viewed as cold and calculating, it is often a reality. It can be argued that it is a more ethical policy than not setting aside any money at all.

Family Law: Parental Duties & Rights: Care & Control of Children

A person who employs a minor child in a dangerous occupation may be liable to the child's parent for harm that is sustained by the child. An occupation is considered to be dangerous if it involves a risk of death or serious bodily harm because of the age and inexperience of the child. The occupation does not have to be dangerous for an adult in order for the employer to be liable to the parent.

A person who employs a minor child in a dangerous occupation will be liable to the child's parent if the parent incurs a loss of the child's services as a result of the child's employment or if the parent incurs medical expenses on behalf of the child. However, in order to be liable, the employer must have known that the child's age and inexperience would render the occupation dangerous to the child. If the child appeared to be older or if the child was experienced in that type of occupation, the employer is not liable to the child's parent. Also, if the employer reasonably believed that the occupation was no more dangerous to the child than to an adult, the employer is not liable to the child's parent.

If a parent consents to the employment of his or her child in a dangerous occupation, the parent will not be able to recover from the child's employer for the child's injuries. Also, if the parent does not object to the child's employment, the parent will not be able to recover from the employer. However, the employer takes the risk that a child may not be working with his or her parent's consent. If the child misrepresents that his or her parent consented to his or her employment, the parent will still be entitled to recover from the employer.

A parent's right to recover from his or her child's employer does not depend upon the employer's liability with regard to the child. The parent's cause of action is a separate cause of action from the child's cause of action. In other words, the employer is liable to the parent even if he or she is not liable to the child. The employer is liable even if he or she was not negligent or even if the child was contributorily negligent. The employer is liable to the parent based on the fact that he or she employed the child in a dangerous occupation and based on the fact that the child was injured in the dangerous occupation.

Torts: Damages: Consortium Damages

Most states have enacted statutes that prohibit the sale of intoxicating liquors to a person who is intoxicated or who is known to be addicted to alcohol. These statutes may also extend to the sale of a habit-forming drug to a person who is known to be addicted to drugs. A spouse may be entitled to an action under these statutes, which action is similar to the common law tort action for the sale of a habit-forming drug to a spouse.

A spouse who files an action for the sale of a habit-forming drug to his or her spouse is known as the deprived spouse. The spouse who has been sold the habit-forming drug is known as the impaired spouse.

A deprived spouse's action against a defendant for the sale of a habit-forming drug is different than an action against the defendant for a tort that is committed against the impaired spouse. The deprived spouse's action is not a derivative action. Even if the impaired spouse consents to the sale or is contributorily negligent, the deprived spouse is entitled to the action.

A defendant who sells a habit-forming drug to an impaired spouse is liable to a deprived spouse if he or she knew that the habit-forming drug would be used by the impaired spouse in a manner that would be injurious to the impaired spouse's health, if he or she knew that the drug would not be used for proper medicinal purposes, or if he or she knew that the drug would be used to satisfy the impaired spouse's addiction. The deprived spouse does not need to forbid the sale. The deprived spouse only needs to show that he or she did not consent to the sale and that the sale was not made in accordance with a valid prescription. The fact that the sale did not violate a criminal statute is not a defense.

A defendant who sells a habit-forming drug to an impaired spouse is liable to a deprived spouse for the harm that results to the deprived spouse's marital interests. Such marital interests include a loss of the services or support of the impaired spouse. The marital interests also include a loss of the impaired spouse's affections and sexual relations. The deprived spouse is also entitled to damages for medical expenses that he or she incurs for the impaired spouse's medical treatment as a result of the habit-forming drug. The deprived spouse is further entitled to any other expenses that he or she incurs as a result of the sale, such as the cost of a drug rehabilitation program.

As a general rule, it is not illegal to say something that is not true. The general rule probably evolved from the fact that, in addition to engaging in intentional deception, human beings can simply be mistaken. It is also true that some false statements do not deceive because they come from sources known to be unreliable. If we do not rely on the mistaken statements of others, they do us no harm.

Sometimes, however, there ought to be legal liability for a false statement. Sometimes, as a practical matter, we have to rely a statement of another. If a false statement is made under such circumstances, it can cause harm.

Those who know that their words are being relied upon are in a position to intentionally deceive and cause harm by saying something that is not true. As a general rule, a person may be found liable for fraud when he or she causes harm by making a false statement that is reasonably relied upon.

The Elements of Fraud

Potential liability for fraud exists when six elements are shown to be present: (1) knowing, recklessly, or without reasonable grounds, (2) making a material misrepresentation (3) to deceive another (4) who reasonably relies on the misrepresentation (5) causing that person (6) actual damages. Only the person who is damaged may bring a lawsuit for fraud. In most states, only economic damages can be recovered.

The first element points out that, to be potentially liable for fraud, a person must know that his or her statement is false, have reckless disregard the truth or falsity of their statement, or make their statement without reasonable grounds for believing it to be true. Thus, a person who can reasonably determine the truth or falsity of his or her statement cannot claim that he or she reasonably believed that his or her false statement was true.

Negligent Misrepresentation

The word fraud is sometimes used in the narrow sense of knowing, intentional fraud. When fraud is committed unintentionally, because a false statement is made without reasonable grounds for believing its truth or with reckless disregard for its truth or falsity, it may be referred to as negligent misrepresentation. In many lawsuits, intentional fraud and negligent misrepresentation are pleaded in the alternative as separate causes of action.

The Difficulty of Proving Fraud or Negligent Misrepresentation

It is difficult to prove fraud or negligent misrepresentation. Defendants in fraud and negligent misrepresentation lawsuits often challenge the plaintiff on every element. If the court does not rule in favor of the plaintiff on every element, the lawsuit fails. Plaintiffs with high moral values are often shocked to learn that they have been deemed to have "unreasonably" relied on the defendant's false statement.