Litigation

Legislative Intent Key to Whether Punishments Violate Double Jeopardy Protections

Under the Fifth Amendment to the U.S. Constitution, criminal defendants cannot receive two punishments for two crimes, which he asserts to be a single crime, arising from the same transaction and prosecuted in a single trial. To be entitled to this protection, a criminal defendant must show that the charges arise from the same act or transaction and that the charged crimes are, in fact, the same offense. However, the protection against double jeopardy is not absolute where the legislature intended cumulative punishment under two statutes, and this intent is articulated either on the face of the statute or through legislative history.

Appealing Double Jeopardy Charges

As an example of the interaction between these principles of law, consider an appellate case where a defendant was charged with both criminal possession of a firearm and criminal violation of a protective order. These charges arose out of a single transaction in Shelton on or about August 10, 2005, when defendant possessed a firearm despite knowing that he was subject to a protective order of the court. The defendant was charged and convicted under General Statutes §§ 53a-217(a)(3)(A) and 53a-223(a). On appeal, the defendant argued that these crimes constituted the same offense, since one could not have happened without having committed the other. As such, being convicted of and sentenced for both violated double jeopardy.

The Appellate Court credited the defendant’s argument, referencing a case where a defendant could not have violated his protective order without also committing the crime of trespass. However, the Court acknowledged that double jeopardy does not limit whether or not a legislature may split a single transaction into separate crimes, allowing the prosecution multiple avenues of charging in a single proceeding. In essence, multiple punishments are possible where there is one transaction.

The Court’s Decision

The Court delved into the language of each statute and found that neither contained prohibitions on multiple punishments for the same offense. In fact, neither statute made reference to the other. At this point, the Court found the legislative history of § 53a-223 to be rather telling. Representative Michael P. Lawlor explained, “Once you’re subject to a restraining order or a protective order, you’re not permitted to have a firearm. In fact, you’re obligated to turn in your firearm within a relatively short period of time.” When asked what would happen in a case where a defendant violated both a protective order and another criminal statute, Representative Lawlor said that both statutes would apply.

The Court found that the defendant’s conviction for violating both §§ 53a-217(a)(3)(A) and 53a-223(a) was consistent with legislative intent to provide cumulative punishments for the single act of possessing a firearm in violation of a protective order. Therefore, the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

To speak with a criminal attorney call us at (203) 221-3100 for a free consultation or reach out to Managing Partner Joesph Maya via email at jmaya@mayalaw.com.

Wrongful Death Suit: Texting While Driving Fatality

Case Details

The family of a Utah boy who was killed in an alleged texting-while-driving accident is suing the driver who hit him for wrongful death. The accused driver, Jeffery Lloyd Bascom, is also facing criminal charges under the state’s distracted driving law.

Thomas LaVelle Clark, 15, was walking along a semi-rural road on the outskirts of the town of Vernal when he was hit from behind by a pickup driven by Bascom, 28. Clark was thrown 40 feet over a ditch and landed near a cow pasture, according to local news reports.

Bascom admitted to police on the scene that he was texting at the time of the accident. Utah makes homicide involving the use of a hand-held wireless communication device while driving a second degree felony, which carries a prison term of up to 15 years.

Not an Uncommon Incident

The Clark accident is far from an isolated incident, unfortunately. According to the National Safety Council, there have already been nearly 100,000 vehicle crashes in the country this year involving cell phone use, or one every 24 seconds. And the National Highway Traffic Safety Association reports that around 3,000 people were killed in distracted driving accidents in 2010. The Association further notes that cell phone users are 23 times more likely to be involved in a crash.

States are legislating to catch up with technology, but laws on phone use while driving vary across the country. Ten states plus Washington, D.C., ban handheld phone use by drivers across the board. An additional 29 ban text messaging only.

A Strong Stance

Utah’s distracted driving law was updated last year to ban any cell phone use while driving, with the exception of making a call or using GPS. Violators can be charged with a misdemeanor, with heightened penalties if there is an injury involved. A felony, like in Bascom’s situation, comes into play when there is loss of life.

“Utah has taken a strong stance on this growing problem,” says Anthony C. McMullin of the McMullin Legal Group in St. George, Utah. “Utah’s 2012 amended texting law makes it much easier for prosecutors to successfully charge and convict violators.”

Plaintiffs could potentially bring a wrongful death or personal injury lawsuit regardless of the criminal laws surrounding an accident, but the existence of specific language for distracted driving can make it easier for attorneys to show a driver was at fault. “Utah’s newly amended texting law also has civil implications,” McMullin says. “The new law heightens the responsibility and duty of all drivers when they get behind the wheel. A driver’s duties include keeping one’s vehicle under control, maintaining a proper lookout and obeying the motor vehicle laws of the State of Utah.”

Texting and Driving Accidents

Texting drivers leave a trail of evidence behind them. Police can check a phone at the scene or, barring that, investigators or attorneys can subpoena phone records from the carrier to find out if a driver was sending any messages at the time of an accident, making it likely that they will be held accountable for their actions.

“If a person is texting or otherwise operating a cell phone while driving and that usage results in a motor vehicle accident, it is typically very easy to establish a breach of the driver’s duties,” says the attorney. “Bottom line is if a driver causes an accident while texting, they may not only be charged criminally but will almost certainly be civilly responsible for any injured parties damages.”

By: Aaron Kase, Laywers.com

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or wrongful death suit or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com to get in touch with our Managing Partner, Joseph Maya.

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate

Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendants, a sister, individually and as the executrix of her father’s estate, appealed from the judgment of the Superior Court, which upon a de novo appeal of a Probate Court order, denied a motion for rectification or for a corrected judgment, and ordered that the bank accounts misappropriated by the plaintiff brother be returned to the father’s estate for distribution.

The Court’s Decision

The Appellate Court concluded that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to the defendant, individually. The decedent used the survivorship accounts as a method of estate planning and he intended for the accounts to pass immediately to the defendant, individually, upon his death and not to be the subject of probate.

The Appellate Court recognized the decedent’s intent and wanted to ensure that the plaintiff did not profit from his abuse of the power of attorney that he utilized to substitute his name for the defendant’s individual name on certain bank accounts containing the funds.  The plaintiff did not engage in fair dealing in transferring certain bank accounts to himself under the power of attorney and abused his position of trust. The power of attorney did not authorize the plaintiff to change the name of the survivor on the accounts.

Because the plaintiff was a beneficiary under his father’s will and stood to inherit some of the funds if they were distributed pursuant to the will, it was error for the Superior Court to order the return of the funds to the estate.  The Appellate Court reversed the judgment only as to the order that the plaintiff transfer to the decedent’s estate all of the misappropriated funds.  The case was remanded with direction to order those funds, with the exception of the sum of $ 11,000, returned to the defendant, individually.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Joseph Maya at Maya Murphy, P.C. today at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.

Toxicology Report Suppressed in DUI Case Because Warrantless Search Exceptions Did Not Apply

In this criminal law matter, a Superior Court of Connecticut granted a defendant’s motion to suppress evidence, because the State did not show exigent circumstances allowing the warrantless seizure.

Case Background

This case arose from an incident that occurred on August 15, 2003. The defendant was involved in an automobile accident, resulting in the death of the other driver. He was transported to a nearby hospital where, without a warrant, police requested that his blood be drawn. One of the officers unaware of this order was informed of that the blood had been drawn, so he elected to not perform the field sobriety and chemical alcohol tests. Five days later, police applied for and was granted a warrant for the blood toxicology report.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI), in violation of Connecticut General Statutes (CGS) § 14-227a(a), and second-degree manslaughter with a motor vehicle, among several other counts. On March 8, 2004, the defendant submitted a motion to suppress the toxicology report, arguing that they were obtained in violation of the search and seizure protections of the state and federal constitutions.

Under state and federal law, individuals are protected against unreasonable searches and seizures of their persons, houses, papers, and effects. The “[c]ompulsory administration of a blood test” clearly constitutes a search and seizure of one’s person. If a search is conducted without a warrant evidencing probable cause, it is per se unreasonable, and evidence derived from this illegal search will be excluded unless one of a “few specifically established and well-delineated exceptions” applies. Two such exceptions to the exclusionary rule are inevitable discovery and exigent circumstances.

The Court’s Decision

The inevitable discovery exception will thwart suppression of evidence if the State can show, by the preponderance of the evidence (more likely than not), that through lawful means the evidence would have been discovered anyway. Officers must have been actively pursuing such means before the constitutional violation in question occurred.

In this case, the State argued that this exception applied because had the officer not been told the blood was drawn, he would have proceeded with the various OMVUI-related tests. Therefore, the State would have inevitably discovered the defendant’s blood alcohol content (BAC). However, the Superior Court was not persuaded, because the State assumed that the defendant would have consented to the alcohol chemical tests. Under CGS § 14-227b, a person is free to refuse the test, though he will face license suspension for doing so. As such, the police could not presume that this procedure would inevitably lead them to discovery of the defendant’s BAC level.

Exigent Circumstances Doctrine

Exigent circumstances doctrine applies where police officers, who have requisite probable cause, do not have time to get a warrant. They must act swiftly to effectuate an arrest, search, or seizure, to avoid, for example, the destruction of evidence. The State bears the burden to point to specific and articulable facts that gave rise to the exigent circumstances.

In this case, the State argued that if they did not order that the defendant’s blood be taken, they would have lost evidence of his BAC level. However, the Superior Court noted that the record was devoid of any facts to support this proposition. Therefore, because neither exception applied to the facts of this case, the Superior Court granted the defendant’s motion to suppress.

Written by Lindsay E. Raber, Esq.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

$49,500 Settlement against Distracted Driver

A contractor from Bethlehem, Connecticut received $49,500 in a civil settlement for injuries sustained in an auto collision when his truck was rear-ended by a distracted driver.

The plaintiff was rear-ended while stopped on a road in Westport, Connecticut. As a result of the collision, the plaintiff suffered an aggravation of cervical spondylosis and required physical therapy and cervical injection therapy.  While no neck surgery was performed, medical examination reported the plaintiff was left with an impairment of the cervical spine, a condition that was contested by the insurance carrier for the defendant.

The defendant was a young professional from Trumbull Connecticut.  After the collision, an open laptop computer was found on the defendant’s front passenger seat in the automobile.  The defendant admitted negligence, admitting to both taking his eyes off the roadway as well as rear-ending the plaintiff at an impact speed of 25-30 miles per hour.

The lawsuit was settled for $49,500 before trial after discovery was complete and a medical examination was performed.

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to an automobile accident or a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Connecticut Now Requires Insurers to Prove Prejudice from Late Notice of Claim

Most insurance policies require the insured to give the carrier notice of a claim “as soon as practical,” or words to that effect. For the past 24 years, in order to avoid denial of their claims, Connecticut has required policyholders to demonstrate that their insurance company was not prejudiced on the ground of late notice.  The Connecticut Supreme Court recently reversed itself to the extent prior law allocated to the insured the burden of disproving prejudice.  In so doing, Connecticut joins the vast majority of states that require carriers to prove prejudice as a result of late notice of claims in order to deny coverage on that ground.

Case Details

Arrowood Indemnity Co. v. King, 304 Conn. 179 (2012) arose from an insured’s son towing a friend on a skateboard behind an all-terrain vehicle.  The friend fell and was severely injured.  The respective families continued to socialize and there was no mention of the commencement of litigation as a result of the incident.

Nearly a year later, the insured got a not-so-friendly letter from the attorney representing the friend’s family informing them of a potential lawsuit.  Then, and only then, did the insured’s family report the incident to their insurance company.  The insurance company declined coverage, in part, on the basis of an untimely claim.  Under preexisting law, in order to obtain coverage, the insured would have to prove that the carrier was not prejudiced by the delay.

The Connecticut Supreme Court used Arrowood as an opportunity to overrule its 1988 decision that allocated to the insured the burden of disproving prejudice to the insurance company.  The Court had earlier opined that a strict litmus test of delayed notice (without regard to actual prejudice) would likely result in the forfeiture of insurance coverage. Now, post-Arrowood, the burden of proving prejudice from delay is on the insurer.

As a practical matter, it is the insurer that is best able to assess and prove any prejudicial effect of delay on its investigation of a claim or the mounting of a legal defense.  The result should be better-informed trial court decisions on the existence or extent of prejudice to carriers from delayed notice.  Connecticut policyholders are better off as a result as they are more likely to be able to access the insurance coverage for which they have over years paid premiums.

The commercial litigation attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of insurance-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport, and Fairfield in resolving such issues. Please contact our Westport office by phone at (203) 221-3100

Couple Injured by Out-of-Control Dump Truck Wins $10 Million

A couple injured in a multi-car wreck caused by an out-of-control dump truck won a jury award of more than $10 million.

Theodus Williams was driving a 1979 Mack dump truck for Valvano Construction Inc. when he lost control of the truck that was loaded with stone. He hit a line of cars on a city street causing a chain reaction.

One of those cars then hit Robert and Holly Ann Kuchwara’s car and sent the couple’s Toyota SUV into a utility pole, fracturing Holly Ann’s vertebrae, shattering her ankle, and leaving her with head trauma.

The couple sued the construction company and its driver and claimed the dump truck was unsafe for driving.

Their lawyer, Joseph Quinn, had evidence of police charges against the company and the driver for 12 violations each. According to those charges, the truck had faulty brakes and steering problems, and Williams was driving with an expired medical certificate.

The jury gave the couple $9.1 million to compensate for their injuries and an extra $1 million to punish the company and driver.

“Obviously we’re thrilled with the verdict after a case in which there was no offer of settlement,” said Quinn. “The jury accepted the finding of the state police that the truck should never have been on the road.”

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to an automobile accident claim or personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

$130,000 Settlement for Personal Injuries From Car Accident

A Naugatuck woman secured a $130,000 settlement stemming from an accident where she was rear-ended on Interstate 91 in Windsor, Connecticut by another motorist.

The plaintiff was a twenty-five-year-old makeup artist and retail saleswoman. As a result of the accident her neck, lower back, and knee were injured, requiring medical treatment. The plaintiff received medical treatment from a chiropractic physician for her cervical spine and lower back. The chiropractic physician assigned the plaintiff a five percent impairment of the cervical spine and a five percent impairment of her lumbar spine pursuant to the 5th Edition of the AMA Guide.  An orthopedic surgeon examined her knee injury who recommended exploratory arthroscopic surgery to repair a suspected meniscus tear.

The plaintiff’s Audi had substantial rear-end crash damage from the accident. The automobile liability policy on the vehicle operated by the defendant had a minimum $20,000.00 policy. The policy was paid in full by the owner’s liability carrier. The defendant operator also carried a $20,000.00 automobile policy on his own private automobile, which was also exhausted

The plaintiff’s own under-insured motorist carrier then paid $90,000.00 of under-insured motorist benefits to the plaintiff after the full limits of automobile liability coverage were exhausted against both liability policies covering the defendant operator and owner.

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

$3.77 Million Settlement Awarded to Widow Who Lost Husband in Car Accident

A Wilton, Connecticut jury awarded $3.77 million to Janet Fleming, whose husband died in a 2009 auto accident. The driver of the other car, Gregory Dionisio, was intoxicated at the time. This jury settlement closes the wrongful death lawsuit stemming from the 2009 car crash.

Accident Details

The accident occurred early in the morning of July 5, 2009. Dionisio was traveling north on Ridgefield Road in Wilton when he veered into the southbound lane. His car crashed into Fleming’s husband’s motorcycle. Both drivers were taken to the hospital, and Fleming’s husband died of injuries sustained in the crash.

Dionisio turned himself into the police the following month on charges of second-degree manslaughter and driving while intoxicated. He was found to have been driving with a BAC of .09 percent, which is .01 percent over the legal limit. Additionally, Dionisio’s body tested positive for marijuana, cocaine, ecstasy, and painkillers, according to Wilton police.

While at the hospital, Dionisio attempted to drink the urine from his bedpan because he was worried that authorities would test his urine. A nurse witnessed this and sent the urine sample to the hospital’s lab, which proved to be the evidence needed to convict him for the DUI charge.

The Settlement

The settlement consists of the $3.77 million to be paid by Dionisio. In a statement to the court, Mrs. Fleming said that her husband was “needlessly killed” by a driver who was intoxicated on various mind-altering substances and that she misses him terribly.

For his part, Dionisio made a statement that he is deeply sorry for the “thoughtless and stupid mistake” he made. He expressed his sadness for the victim’s family and friends, saying that while he doesn’t expect forgiveness, he hopes that they will one day be able to do so.

Dionisio is currently serving five years in prison on DUI and manslaughter charges related to the incident

By: Martin, settlementboard.com

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County.  If you have any questions relating to a personal injury claim or wrongful death claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Driver Convicted of Vehicular Manslaughter Countersues Boy’s Parents

A driver convicted of vehicular manslaughter has filed a countersuit against the parents of the boy he killed. He claims the boy’s parents are to blame because the boy wasn’t wearing a helmet and was riding his bike in the street when killed. The parents’ civil lawsuit against the driver touched off the driver’s counterclaim.

  • Convicted driver responds to wrongful death lawsuit with own claim
  • Injured party’s fault often at issue as a defense or counterclaim
  • Sovereign or governmental immunity shield’s DMV’s mistake
Parents Seek to Sue CT DMV for Negligence

It’s pretty unusual for someone who wasn’t injured in an accident to sue a victim’s survivors for damages. It would not be unusual for this driver to raise the defense of contributory or comparative negligence to the parents’ lawsuit. It’s doubtful a jury would sympathize with either the defense or the counterclaim in this case.

The parents of the boy have also sued the Connecticut Department of Motor Vehicles. They claim the DMV should have pulled the driver’s license because of his numerous prior traffic convictions, including five arrests and four convictions for drunk driving. The DMV has admitted its mistake.

What stands between the parents and compensation for the loss of their son is not the driver’s countersuit. He’s probably judgment proof anyway. It’s the doctrine of sovereign immunity. The state can’t be sued for personal injury or wrongful death in most circumstances. The parents have asked the state to waive immunity in their case.

By: Arthur Buono

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.