One does not need to speak, understand or even read the English language in order to obtain a driver's license in the State of Iowa. The written tests are translated by the Department of Transportation into many of the commonly encountered languages throughout the State. What happens then when an individual who has obtained their license with little if any understanding of the English language, gets arrested for Operating While Intoxicated? By law, officers must read the arrestee the implied consent advisory which "explains" the consequences of their decision to take or refuse chemical testing. This advisory is difficult enough to understand with a solid understanding of the English language but what is to be done for those who have no such understanding?
This question was recently answered by the Iowa Supreme Court in State vs. Hector Garcia (http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080919/06-2110.pdf). According to Justice Baker and the rest of the Iowa Supreme Court, an officer must make a reasonable effort to convey the implied consent advisory to a non-English speaking person. What is reasonable and unreasonable will depend upon the facts of each case and will be determined on a case by case basis. In coming to this conclusion, the Iowa Supreme Court adopted the same standard as previously created by the Wisconsin Supreme Court in State v. Piddington, 623 N.W.2d 528 (Wis. 2001). Under this standard the arresting officer is required to utilize those methods which are reasonable, and would reasonably convey the implied consent warnings under the circumstances facing him or her at the time of the arrest. Pursuant to this standard making an interpreter available when possible is desirable however finding an interpreter is not absolutely necessary especially if it were to interfere with the evidence gathering purposes of the implied consent statute.
The Iowa Supreme Court's holding in Garcia is consistent with the fast majority of Operating While Intoxicated/Implied Consent cases discussing the duties of officers following an arrest of an individual who has been arrested for operating while intoxicated. Just like 804.20 (phone calls) and 321J.11 (independent testing) the officer is bound by the standard of "reasonableness." The difficulty with such a standard however, is the fact that what is considered "reasonable" by one judge may not be considered "reasonable" by another judge. This standard is subject to diverse interpretation and consequently diverse enforcement. This being the case, it is imperative for defense lawyers and defendants to make thorough and concise records regarding the options available to the officer in addition to the arrested individuals proficiency in the English language. In Garcia, the Court affirmed the trial courts decision, because Mr. Garcia communicated with the officer in English and appeared to at least grasp the concepts being relayed by the officer, including signing an English Miranda waiver form. In situations where the arrestee's proficiency in English can be questioned, defense attorneys should most certainly inquire of the applicable law enforcement agencies. the number and availability of interpreters at their disposal, and other services such as telephonic interpreters that are often used by law enforcement and other emergency service agencies when dealing with non-English speaking individuals. A good place to start would be with the county or local 911 operators’s who would most certainly have access to interpreting services to assist with non-English speaking callers.
While the outcome was not what was desired by Mr. Garcia, the Iowa Supreme Court's decision in Garcia is a victory for the OWI/DUI defense community and individuals that do not speak English as their first language. Finally, an issue that was apparently not raised and thus, not considered by the Court was the possibility that the Equal Protection Clause may be violated if an officer does not make an effort to convey the implied consent advisory to an individual in their native language. With each case and each argument made always comes a different twist and different turn that may result in a more favorable outcome.
Wednesday, September 24, 2008
Tuesday, September 16, 2008
Lazy Officer Exception to the Warrant Requirement?
The Iowa Supreme Court recently created what some may call the "Lazy Officer Exception" to the search warrant requirements of the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Iowa Constitution. In the State of Iowa v. Christopher Leon Christopher, filed September 12, 2008, the Iowa Supreme Court determined that officer Butler from the Des Moines Police Department was justified in arresting Mr. Christopher without a warrant for the offense of driving while barred he witnessed Mr. Christopher commit some five weeks prior. Officer Butler witnessed Mr. Christopher driving while he was off duty believing him to have a barred driver's license and took no measures to stop him at that time for the violation. Officer Butler confirmed that Mr. Christopher was barred the next day while he was on duty and then saw Mr. Christopher five weeks later and decided to arrest him without a warrant for the offense of driving while barred. Following Mr. Christopher's arrest, he was searched and drugs were discovered.
Prior to trial, Mr. Christopher moved to exclude the use of the drugs at trial arguing that his arrest violated the Due Process Clause and the Fourth Amendment of the United States Constitution as well as the Iowa Constitution. Mr. Christopher argued that the warrantless arrest was not lawful because it was not done within a reasonable time following the commission of the crime.
The Iowa Supreme Court upheld the arrest concluding that a reasonable time requirement between the time the officer observed he offense and the warrantless arrest is not "necessary to protect the rights of the accused."
From a defense perspective, this poses a problem since officers are now allowed to apparently make a warrantless arrest at any time following the commission of a crime that they witnessed so long as it is within the statute of limitations and are free to conduct a warrantless "search incident to that arrest" of the person following the arrest. Some would argue that officers now can be an ostrich with their head in the sand for a crime that they witness until they believe that a person may have evidence of other crimes on their person in order to hurdle the confines of the Fourth Amendment protections against unreasonable searches and seizures.
The Iowa Supreme Court seemed to somewhat address this concern in the decision by cautioning that if the Police delay an arrest to gain a tactical advantage over the an accused, there may be a due process violation.
Prior to trial, Mr. Christopher moved to exclude the use of the drugs at trial arguing that his arrest violated the Due Process Clause and the Fourth Amendment of the United States Constitution as well as the Iowa Constitution. Mr. Christopher argued that the warrantless arrest was not lawful because it was not done within a reasonable time following the commission of the crime.
The Iowa Supreme Court upheld the arrest concluding that a reasonable time requirement between the time the officer observed he offense and the warrantless arrest is not "necessary to protect the rights of the accused."
From a defense perspective, this poses a problem since officers are now allowed to apparently make a warrantless arrest at any time following the commission of a crime that they witnessed so long as it is within the statute of limitations and are free to conduct a warrantless "search incident to that arrest" of the person following the arrest. Some would argue that officers now can be an ostrich with their head in the sand for a crime that they witness until they believe that a person may have evidence of other crimes on their person in order to hurdle the confines of the Fourth Amendment protections against unreasonable searches and seizures.
The Iowa Supreme Court seemed to somewhat address this concern in the decision by cautioning that if the Police delay an arrest to gain a tactical advantage over the an accused, there may be a due process violation.
Tuesday, September 9, 2008
Does Topless = Indecent Exposure?
It has never been offensive or contrary to our public sense of morality for a male to be in public without a shirt. Woman on the other hand are subject to a double standard. However, one cannot help but wonder "what crime would be committed if a female were to sunbathe topless at a public beach?"
At first blush, the answer may seem logical that it would constitute the crime of indecent exposure. In the words of Lee Corso: "Not so fast my friend."
The recent Iowa Supreme Court decision of State v. Ronnie Isaac(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080905/06-2030.pdf) sheds some light on this provocative question. While the facts of Mr. Isaac's case are much more offensive and troubling than the question being posed here and will likely lead to some legislative changes, the decision does provide us with a thorough outline to be used in answering this question. According to the Iowa Supreme Court in Isaac, public exposure does not necessarily equal the crime of indecent exposure. In order to establish the crime of indecent exposure, the State must prove beyond a reasonable doubt the following four elements:
1. The exposure of genitals or pubes to someone other than a spouse;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.
In the situation of our topless sunbather, clearly elements 3 and 4 may not be difficult for the State to establish, however, elements 1 and 2 could be problematic.
First, the human breasts do not qualify as "genitals" or "pubes" under Iowa law nor under any recognized medical definition. Therefore, the State would be unable to establish the first element and as a result, a judgment of acquittal or dismissal of the charge would be required on that fact alone.
Second, just assuming that somehow the female breast would qualify as "genitals" or "pubes" the State must prove beyond a reasonable doubt that at the time of the exposure, the person exposed himself/herself for the purpose of arousing or satisfying his/her sexual desires or those of the person making the observation. If there is an understandable alternative purpose to the act other than sexual gratification (who wants tan lines?), then the intent element behind this crime arguably could not be established either.
When we apply the rules of law set forth by the Iowa Supreme Court, it does not appear that topless sunbathing constitutes indecent exposure but a word of caution should be given. Many cities and townships have their own set of municipal ordinances that may have provisions outlawing this type of conduct. We can't begin to go through each and every municipal code section available but we can and do always enjoy providing a little food for thought.
At first blush, the answer may seem logical that it would constitute the crime of indecent exposure. In the words of Lee Corso: "Not so fast my friend."
The recent Iowa Supreme Court decision of State v. Ronnie Isaac(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080905/06-2030.pdf) sheds some light on this provocative question. While the facts of Mr. Isaac's case are much more offensive and troubling than the question being posed here and will likely lead to some legislative changes, the decision does provide us with a thorough outline to be used in answering this question. According to the Iowa Supreme Court in Isaac, public exposure does not necessarily equal the crime of indecent exposure. In order to establish the crime of indecent exposure, the State must prove beyond a reasonable doubt the following four elements:
1. The exposure of genitals or pubes to someone other than a spouse;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.
In the situation of our topless sunbather, clearly elements 3 and 4 may not be difficult for the State to establish, however, elements 1 and 2 could be problematic.
First, the human breasts do not qualify as "genitals" or "pubes" under Iowa law nor under any recognized medical definition. Therefore, the State would be unable to establish the first element and as a result, a judgment of acquittal or dismissal of the charge would be required on that fact alone.
Second, just assuming that somehow the female breast would qualify as "genitals" or "pubes" the State must prove beyond a reasonable doubt that at the time of the exposure, the person exposed himself/herself for the purpose of arousing or satisfying his/her sexual desires or those of the person making the observation. If there is an understandable alternative purpose to the act other than sexual gratification (who wants tan lines?), then the intent element behind this crime arguably could not be established either.
When we apply the rules of law set forth by the Iowa Supreme Court, it does not appear that topless sunbathing constitutes indecent exposure but a word of caution should be given. Many cities and townships have their own set of municipal ordinances that may have provisions outlawing this type of conduct. We can't begin to go through each and every municipal code section available but we can and do always enjoy providing a little food for thought.
Thursday, August 21, 2008
DUI Prevention - Top Ten Ways to Avoid a DUI
With the extended Labor Day weekend quickly approaching signaling the unfortunate ending of summer, law enforcement will be stepping up patrols and traffic enforcement in an effort to increase DUI/OWI apprehensions. The National Highway Traffic Safety Administration has began hitting the airwaves and television with their advertisements with the theme, "over the limit, under arrest" and "buzzed driving is drunk driving." In response to the increased crack down on suspected drunk drivers, the Attorneys at GRL Law feel it appropriate not only to encourage responsible behavior but also assist the general public in avoiding being stopped by law enforcement in the first place. If you do not give law enforcement a reason to pull you over then a DUI investigation never begins. As such, here are a few helpful tips from the attorneys at GRL Law.
Top Ten Ways to Avoid a DUI
1. Don’t Drink and Drive. While it’s not illegal to drink and drive, the only sure fire way to avoid an arrest for DUI is not to put yourself in a position where an officer suspects you of being intoxicated. The only way to do that is not to consume alcohol prior to driving.
2. Get off the Road by 11 p.m. The majority of DUI arrests occur after midnight and for the obvious reason that people tend to leave bars around that time, especially bar close at 2 a.m. Thus, it is the third watch (11p.m. – 7 a.m.) officers that are much more aggressive in their enforcement. When you would ordinarily not be pulled over for a license plate cover that covers the county during normal hours, after 11 p.m. the chances of that occurring drastically increase.
3. Don’t drive like a jack ass. Simply put, if you don’t give law enforcement a reason to pull you over, you don’t have to worry about a drunk driving arrest. If you have been out drinking for an evening and elect to drive home, make sure to pay attention to posted speed limits and traffic control signs and devices. You should also understand that a “concerned citizen” call can be sufficient to justify an officer in pulling you over. Thus, treat others on the road with respect when you’ve had a few and are driving home. If you don’t give them a reason to stop you, then you don’t have to worry about what to do following the stop (http://www.grllaw.com/CM/Custom/Your-Rights-OWI.asp)
4. Ensure your vehicle equipment is working properly. The smallest traffic violation or vehicle equipment/lighting violation gives law enforcement a legal basis to stop your vehicle. Ensuring that all lighting and equipment is in proper working order will obviously decrease your chances of being stopped in the first place.
5. Remove license plate frames or covers that obscure or obstruct the reading of ANY portion of your license plate. More and more, law enforcement is making a habit of stopping vehicles because the license plate frame covers or obscures a portion of the county printed on the license plate. While it is debatable whether or not this truly violates the statute, the best way to ensure you do not have to get into this fight is to remove any frames or covers that makes the license plate hard to read or obstructs any portion of any letters on the plate.
6. Don’t drive on a suspended or revoked licensed. In the State of Iowa, law enforcement may stop a vehicle if the registered owner is suspended, barred or otherwise revoked. Believe it or not, a police officers job is not always full of fun and excitement. They do get bored and will routinely run license plate numbers of vehicles in front of them or that they pass as they travel down the road. If the registered owner comes back as suspended or revoked, you just gave them something to do and it is downhill from there.
7. Don’t sleep in the driver’s seat of a vehicle that is running. If you are going to take a nap in your car, take it in the passenger’s seat or in the rear seat and make sure the vehicle is not running! A few extra steps can save you a few thousand dollars.
8. Stay off your cell phone. Studies have shown that individuals talking on cell phones are just as, if not more impaired, then individuals with an alcohol concentration of .08. Combine cell phone use and a few beers and you are asking for disaster. Text or call your after hours company once you safely arrive home. It can wait!
9. Don’t make stops on your way home. While a late-night burrito or taco supreme sounds incredible at 2 in the morning, you stopping drastically increases the odds of you spending the night courtesy of the county bed and breakfast. More people get called in for drunk driving by fast food restaurant drive-through workers and convenience store workers then you would think. Go straight home and keep some frozen chimichangas in the freezer for after hours, it all tastes the same at 2 a.m.
10. Don’t eat while driving. Just like your cell phone, eating food impairs your ability to safely operate your vehicle. The less distractions you have while driving the better off you will be. Again, wait until you safely arrive at home.
Top Ten Ways to Avoid a DUI
1. Don’t Drink and Drive. While it’s not illegal to drink and drive, the only sure fire way to avoid an arrest for DUI is not to put yourself in a position where an officer suspects you of being intoxicated. The only way to do that is not to consume alcohol prior to driving.
2. Get off the Road by 11 p.m. The majority of DUI arrests occur after midnight and for the obvious reason that people tend to leave bars around that time, especially bar close at 2 a.m. Thus, it is the third watch (11p.m. – 7 a.m.) officers that are much more aggressive in their enforcement. When you would ordinarily not be pulled over for a license plate cover that covers the county during normal hours, after 11 p.m. the chances of that occurring drastically increase.
3. Don’t drive like a jack ass. Simply put, if you don’t give law enforcement a reason to pull you over, you don’t have to worry about a drunk driving arrest. If you have been out drinking for an evening and elect to drive home, make sure to pay attention to posted speed limits and traffic control signs and devices. You should also understand that a “concerned citizen” call can be sufficient to justify an officer in pulling you over. Thus, treat others on the road with respect when you’ve had a few and are driving home. If you don’t give them a reason to stop you, then you don’t have to worry about what to do following the stop (http://www.grllaw.com/CM/Custom/Your-Rights-OWI.asp)
4. Ensure your vehicle equipment is working properly. The smallest traffic violation or vehicle equipment/lighting violation gives law enforcement a legal basis to stop your vehicle. Ensuring that all lighting and equipment is in proper working order will obviously decrease your chances of being stopped in the first place.
5. Remove license plate frames or covers that obscure or obstruct the reading of ANY portion of your license plate. More and more, law enforcement is making a habit of stopping vehicles because the license plate frame covers or obscures a portion of the county printed on the license plate. While it is debatable whether or not this truly violates the statute, the best way to ensure you do not have to get into this fight is to remove any frames or covers that makes the license plate hard to read or obstructs any portion of any letters on the plate.
6. Don’t drive on a suspended or revoked licensed. In the State of Iowa, law enforcement may stop a vehicle if the registered owner is suspended, barred or otherwise revoked. Believe it or not, a police officers job is not always full of fun and excitement. They do get bored and will routinely run license plate numbers of vehicles in front of them or that they pass as they travel down the road. If the registered owner comes back as suspended or revoked, you just gave them something to do and it is downhill from there.
7. Don’t sleep in the driver’s seat of a vehicle that is running. If you are going to take a nap in your car, take it in the passenger’s seat or in the rear seat and make sure the vehicle is not running! A few extra steps can save you a few thousand dollars.
8. Stay off your cell phone. Studies have shown that individuals talking on cell phones are just as, if not more impaired, then individuals with an alcohol concentration of .08. Combine cell phone use and a few beers and you are asking for disaster. Text or call your after hours company once you safely arrive home. It can wait!
9. Don’t make stops on your way home. While a late-night burrito or taco supreme sounds incredible at 2 in the morning, you stopping drastically increases the odds of you spending the night courtesy of the county bed and breakfast. More people get called in for drunk driving by fast food restaurant drive-through workers and convenience store workers then you would think. Go straight home and keep some frozen chimichangas in the freezer for after hours, it all tastes the same at 2 a.m.
10. Don’t eat while driving. Just like your cell phone, eating food impairs your ability to safely operate your vehicle. The less distractions you have while driving the better off you will be. Again, wait until you safely arrive at home.
Wednesday, August 13, 2008
Bicycle Safety
Yet another Iowa bicycle/car accident has resulted in a fatality. This morning, KCCI News Channel 8 reported that an 83 year old Cedar Falls man died after being struck by a car while riding his bicycle.
As gas prices continue to climb, the popularity of bicycling will continue to rise correspondingly especially in these warmer months. While riding a bike is obviously good exercise and a way to save money, it is not without its hazards. Bicyclists are much more difficult to see for drivers of motor vehicles and riding a bike in highly trafficked areas requires the rider to be extra alert and cautious of his/her surroundings. It is important for a bicyclist to understand that a person riding a bike on the road in the State of Iowa is subject to all of the rights and responsibilities of the driver of a motor vehicle. In other words, bicyclists are subject to the rules of the road. see Iowa Code section 321.234 (http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=IowaCode&ga=82. (on a side note, this rule also applies to person's riding an animal or animal drawing a vehicle). A violation of the rules of the road by a bicyclist is not only a citeable offense, it may also limit or prevent recovery in the event that the violation is found to be the cause of the accident.
In an effort to promote bicycle safety, the National Highway Traffic Safety Administration has published a list of "Safe Riding Tips." They are as follows:
1. Wear a properly fitted bicycle helmet. "Protect your brain, save your life." As inconvenient and "goofy" as bicycle helmets may be, they do save lives.
2. Adjust your bicycle to fit. According to NHTSA when standing over your bicycle there should be 1 to 2 inches between you and the bar if using a road bike and 3 to 4 inches if using a mountain bike.
3. Check your Equipment.
4. See and Be Seen. Make sure you can be seen by others, especially motorist. If riding at dusk or dawn or in the dark, ensure that the proper reflective garments are worn and that your bike is equipped with adequate reflectors and lighting.
5. Control Your Bicycle. This should go without saying.
6. Watch for and Avoid Road Hazards. In Iowa, our roads are not always in the most pristine shape, especially in the spring following the harsh winter weather and melt. Be alert and on a lookout for potholes, cracks, and other hazards that may suddenly appear.
7. Avoid Riding at Night. Nighttime is obviously the most hazardous time to be on the road on a bicycle. It is hard enough for motorists to see a bicyclist in broad daylight, if at all possible avoid night riding.
All in all, biking is a wonderful mode of transportation that provides exercise, entertainment and a little cushion to the wallet that many of us should do more. However, keep in mind that when riding a bike on the road we are required to obey the rules of the road, and a little extra caution can make the difference between a serious if not deadly accident and arriving home safe. Be safe, stay aware, and arrive home safely.
As gas prices continue to climb, the popularity of bicycling will continue to rise correspondingly especially in these warmer months. While riding a bike is obviously good exercise and a way to save money, it is not without its hazards. Bicyclists are much more difficult to see for drivers of motor vehicles and riding a bike in highly trafficked areas requires the rider to be extra alert and cautious of his/her surroundings. It is important for a bicyclist to understand that a person riding a bike on the road in the State of Iowa is subject to all of the rights and responsibilities of the driver of a motor vehicle. In other words, bicyclists are subject to the rules of the road. see Iowa Code section 321.234 (http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=IowaCode&ga=82. (on a side note, this rule also applies to person's riding an animal or animal drawing a vehicle). A violation of the rules of the road by a bicyclist is not only a citeable offense, it may also limit or prevent recovery in the event that the violation is found to be the cause of the accident.
In an effort to promote bicycle safety, the National Highway Traffic Safety Administration has published a list of "Safe Riding Tips." They are as follows:
1. Wear a properly fitted bicycle helmet. "Protect your brain, save your life." As inconvenient and "goofy" as bicycle helmets may be, they do save lives.
2. Adjust your bicycle to fit. According to NHTSA when standing over your bicycle there should be 1 to 2 inches between you and the bar if using a road bike and 3 to 4 inches if using a mountain bike.
3. Check your Equipment.
4. See and Be Seen. Make sure you can be seen by others, especially motorist. If riding at dusk or dawn or in the dark, ensure that the proper reflective garments are worn and that your bike is equipped with adequate reflectors and lighting.
5. Control Your Bicycle. This should go without saying.
6. Watch for and Avoid Road Hazards. In Iowa, our roads are not always in the most pristine shape, especially in the spring following the harsh winter weather and melt. Be alert and on a lookout for potholes, cracks, and other hazards that may suddenly appear.
7. Avoid Riding at Night. Nighttime is obviously the most hazardous time to be on the road on a bicycle. It is hard enough for motorists to see a bicyclist in broad daylight, if at all possible avoid night riding.
All in all, biking is a wonderful mode of transportation that provides exercise, entertainment and a little cushion to the wallet that many of us should do more. However, keep in mind that when riding a bike on the road we are required to obey the rules of the road, and a little extra caution can make the difference between a serious if not deadly accident and arriving home safe. Be safe, stay aware, and arrive home safely.
Tuesday, August 5, 2008
Top 5 Things to do Following an Arrest for Operating While Intoxicated to Protect Your Rights
1. Contact an attorney or law firm that specializes in this area such as the lawyers at Gourley, Rehkemper, and Lindholm. Your attorney should be able to assist you in obtaining and preserving valuable evidence such as video recordings, 911 calls and dispatch reports and other items that might otherwise be destroyed if a timely request is not made.
2. Request a hearing with the Department of Transportation to contest your license revocation. This must be done within 10 days of the date of your arrest, and by doing so, your license will not be suspended until after you have been given an opportunity for a hearing. If you do not request a hearing within 10 days of the date of your arrest, you will lose your right to have that hearing and your license will be suspended on the 10th day following your arrest with no opportunity to contest it.
3. Schedule a substance abuse evaluation. In most counties, the court will require this as a condition of your release. If it is not completed within the time required they will attempt to put you in jail until it is completed.
4. Do not talk to anyone especially the police about the specifics of your case. People have a tendency to try and discuss their case with others prior to talking to an attorney which has the potential to give you even more problems.
5. Document what happened. Write down what happened and be as specific as possible. The police have written details of what happened, so should you. Take pictures (digital if possible) of the scene and your vehicle you never know when or why you may need these. Collect any phone records, financial statements, or other documents from your activities before and following your arrest.
2. Request a hearing with the Department of Transportation to contest your license revocation. This must be done within 10 days of the date of your arrest, and by doing so, your license will not be suspended until after you have been given an opportunity for a hearing. If you do not request a hearing within 10 days of the date of your arrest, you will lose your right to have that hearing and your license will be suspended on the 10th day following your arrest with no opportunity to contest it.
3. Schedule a substance abuse evaluation. In most counties, the court will require this as a condition of your release. If it is not completed within the time required they will attempt to put you in jail until it is completed.
4. Do not talk to anyone especially the police about the specifics of your case. People have a tendency to try and discuss their case with others prior to talking to an attorney which has the potential to give you even more problems.
5. Document what happened. Write down what happened and be as specific as possible. The police have written details of what happened, so should you. Take pictures (digital if possible) of the scene and your vehicle you never know when or why you may need these. Collect any phone records, financial statements, or other documents from your activities before and following your arrest.
Wednesday, July 16, 2008
Dog Bite Prevention
According to the Center for Disease Control, dogs bite more than 4.7 million people per year with 800,000 Americans requiring medical attention for those attacks. The scariest statistic is that the highest rate of dog bite related injuries were among children ages 5 – 9 years old with approximately 150,000 dog bites occurring among children under the age of 14. More importantly, the majority of injuries to children 4 years old and under were to the head/neck region, causing obvious concern regarding the possibility of severe injuries.
Despite the troubling statistics which are considered by many experts to under-represent the true number of dog bites and attacks in our country, many dog bites are widely considered to be preventable. As a result, the Center for Disease Control has published a number of ways that dog attacks can be prevented which include considerations before purchasing a dog as well as safety tips that should be taught to every child. They are as follows:
Things to Consider Before You Get a Dog:
Consult with a professional (e.g., veterinarian, animal behaviorist, or responsible breeder) to learn about suitable breeds of dogs for your household.
Dogs with histories of aggression are inappropriate in households with children.
Be sensitive to cues that a child is fearful or apprehensive about a dog and, if so, delay acquiring a dog.
Spend time with a dog before buying or adopting it. Use caution when bringing a dog into the home of an infant or toddler.
Spay/neuter virtually all dogs (this frequently reduces aggressive tendencies).
Never leave infants or young children alone with any dog.
Do not play aggressive games with your dog (e.g., wrestling).
Properly socialize and train any dog entering the household. Teach the dog submissive behaviors (e.g., rolling over to expose abdomen and relinquishing food without growling).
Immediately seek profession advice (e.g., veterinarian, animal behaviorist, or responsible breeder) if the dog develops aggressive or undesirable behaviors.
Preventing Dog Bites:
Do not approach an unfamiliar dog.
Do not run from a dog and scream.
Remain motionless when approached by an unfamiliar dog.
If knocked over by a dog, roll into a ball and lie still.
Prevent children from playing with a dog unless supervised by an adult.
Immediately report stray dogs or dogs displaying unusual behavior to an adult
Avoid direct eye contact with a dog.
Do not disturb a dog who is sleeping, eating or especially caring for puppies.
Do not pet a dog without allowing it to see and sniff you first.
If bitten, immediately report the bite.
The full article can be found at http://www.cdc.gov/ncipc/duip/biteprevention.htm
NOTE: If you or a loved one has been injured by a dog bite or attack, many of these factors, especially the "Things to Consider Before You Get a Dog" are investigated and may form the basis of a cause of action against a caretaker of a dog for negligence in addition to the statutory strict liability claim against the owner. On the other side of the case, the insurance company will likely attempt to question the bitten person's actions prior to the bite, using many of the factors listed in "Preventing Dog Bites" in an attempt to limit their monetary exposure.
Despite the troubling statistics which are considered by many experts to under-represent the true number of dog bites and attacks in our country, many dog bites are widely considered to be preventable. As a result, the Center for Disease Control has published a number of ways that dog attacks can be prevented which include considerations before purchasing a dog as well as safety tips that should be taught to every child. They are as follows:
Things to Consider Before You Get a Dog:
Consult with a professional (e.g., veterinarian, animal behaviorist, or responsible breeder) to learn about suitable breeds of dogs for your household.
Dogs with histories of aggression are inappropriate in households with children.
Be sensitive to cues that a child is fearful or apprehensive about a dog and, if so, delay acquiring a dog.
Spend time with a dog before buying or adopting it. Use caution when bringing a dog into the home of an infant or toddler.
Spay/neuter virtually all dogs (this frequently reduces aggressive tendencies).
Never leave infants or young children alone with any dog.
Do not play aggressive games with your dog (e.g., wrestling).
Properly socialize and train any dog entering the household. Teach the dog submissive behaviors (e.g., rolling over to expose abdomen and relinquishing food without growling).
Immediately seek profession advice (e.g., veterinarian, animal behaviorist, or responsible breeder) if the dog develops aggressive or undesirable behaviors.
Preventing Dog Bites:
Do not approach an unfamiliar dog.
Do not run from a dog and scream.
Remain motionless when approached by an unfamiliar dog.
If knocked over by a dog, roll into a ball and lie still.
Prevent children from playing with a dog unless supervised by an adult.
Immediately report stray dogs or dogs displaying unusual behavior to an adult
Avoid direct eye contact with a dog.
Do not disturb a dog who is sleeping, eating or especially caring for puppies.
Do not pet a dog without allowing it to see and sniff you first.
If bitten, immediately report the bite.
The full article can be found at http://www.cdc.gov/ncipc/duip/biteprevention.htm
NOTE: If you or a loved one has been injured by a dog bite or attack, many of these factors, especially the "Things to Consider Before You Get a Dog" are investigated and may form the basis of a cause of action against a caretaker of a dog for negligence in addition to the statutory strict liability claim against the owner. On the other side of the case, the insurance company will likely attempt to question the bitten person's actions prior to the bite, using many of the factors listed in "Preventing Dog Bites" in an attempt to limit their monetary exposure.
Thursday, July 10, 2008
Boating While Intoxicated - Just say no, don't blow!!!
In boating while intoxicated cases the motto must be "Just say no, don't blow!"
There is no reason to submit to any testing in a boating while intoxicated case. One does not lose their motor vehicle driving privileges for refusing testing in a boating while intoxicated case so the benefits of denying the State potential evidence to use against the individual to obtain a criminal conviction for boating while intoxicated greatly outweigh the benefit to taking the tests.
If a person refuses the evidentiary breath test at the station in a boating while intoxicated case, the individual obviously can still be charged with the criminal offense under the theory of being "under the influence" of alcohol, however, the State's case is much weaker without any "tests" then it is with a "test" result. The only consequence in addition to the potential criminal charge which would be filed if the person took and failed the test anyway, is a $500 civil penalty (for a first offense) and an order prohibiting the individual from operating a motorboat or sailboat for a year. Most people can live with not driving a boat for a year, especially in Iowa where the boating season is maybe 4-5 months long. That being the case, there simply is no reason to voluntarily provide the government with evidence necessary to prosecute and obtain a criminal conviction for the offense of boating while intoxicated?
Furthermore, there are significant constitutional issues and challenges that can be made when the State attempts to impose punishment and "civil penalties" against an individual in a boating while intoxicated case for refusing to submit to testing. Every individual in the United States of America has the constitutional right to elect not to consent to the search of their person, place or effects. In motor vehicle operating while intoxicated cases, the United States Supreme Court and Iowa Supreme Court have adopted and approved the legal doctrine of "implied consent" which in essence states that by obtaining a drivers license and driving on public highways built for the public's use and enjoyment, all drivers of motor vehicles "impliedly consent" to testing their bodily fluids for drug or alcohol concentration if suspected for operating while intoxicated. This is called "implied consent" which permits the State to use coercion by threatening drivers license suspensions against the person to obtain their consent to chemical testing. Additionally, pursuant to the doctrine of "implied consent", if a person refuses to submit to testing, the State is authorized to impose a punishment against the individual as opposed to forcibly extracting their bodily fluids for chemical testing.
The problem that arises in boating while intoxicated cases is that no driver's licenses or permits are required to operate a motorboat or sailboat in the State of Iowa. Additionally, the waterways are natural as opposed to constructed roadways built and paid for by the State and Federal governments. As a result, the fundamental principals upon which the doctrine of "implied consent" rest, do not apply in boating while intoxicated cases. Thus, the argument goes that the State is not justified in obtaining one's consent to chemical testing through the use of coercion and the State cannot punish the individual for exercising a constitutional right to refuse consent to the search of their person. Ultimately, these issues have not yet been presented or decided by the Iowa Supreme Court or even the United States Supreme Court.
Given the right case and the right facts, these issues will most certainly be raised by the attorneys here at GRLLaw, however in the meantime, the motto in boating while intoxicated cases continues to be "Just say no, don't blow!"
There is no reason to submit to any testing in a boating while intoxicated case. One does not lose their motor vehicle driving privileges for refusing testing in a boating while intoxicated case so the benefits of denying the State potential evidence to use against the individual to obtain a criminal conviction for boating while intoxicated greatly outweigh the benefit to taking the tests.
If a person refuses the evidentiary breath test at the station in a boating while intoxicated case, the individual obviously can still be charged with the criminal offense under the theory of being "under the influence" of alcohol, however, the State's case is much weaker without any "tests" then it is with a "test" result. The only consequence in addition to the potential criminal charge which would be filed if the person took and failed the test anyway, is a $500 civil penalty (for a first offense) and an order prohibiting the individual from operating a motorboat or sailboat for a year. Most people can live with not driving a boat for a year, especially in Iowa where the boating season is maybe 4-5 months long. That being the case, there simply is no reason to voluntarily provide the government with evidence necessary to prosecute and obtain a criminal conviction for the offense of boating while intoxicated?
Furthermore, there are significant constitutional issues and challenges that can be made when the State attempts to impose punishment and "civil penalties" against an individual in a boating while intoxicated case for refusing to submit to testing. Every individual in the United States of America has the constitutional right to elect not to consent to the search of their person, place or effects. In motor vehicle operating while intoxicated cases, the United States Supreme Court and Iowa Supreme Court have adopted and approved the legal doctrine of "implied consent" which in essence states that by obtaining a drivers license and driving on public highways built for the public's use and enjoyment, all drivers of motor vehicles "impliedly consent" to testing their bodily fluids for drug or alcohol concentration if suspected for operating while intoxicated. This is called "implied consent" which permits the State to use coercion by threatening drivers license suspensions against the person to obtain their consent to chemical testing. Additionally, pursuant to the doctrine of "implied consent", if a person refuses to submit to testing, the State is authorized to impose a punishment against the individual as opposed to forcibly extracting their bodily fluids for chemical testing.
The problem that arises in boating while intoxicated cases is that no driver's licenses or permits are required to operate a motorboat or sailboat in the State of Iowa. Additionally, the waterways are natural as opposed to constructed roadways built and paid for by the State and Federal governments. As a result, the fundamental principals upon which the doctrine of "implied consent" rest, do not apply in boating while intoxicated cases. Thus, the argument goes that the State is not justified in obtaining one's consent to chemical testing through the use of coercion and the State cannot punish the individual for exercising a constitutional right to refuse consent to the search of their person. Ultimately, these issues have not yet been presented or decided by the Iowa Supreme Court or even the United States Supreme Court.
Given the right case and the right facts, these issues will most certainly be raised by the attorneys here at GRLLaw, however in the meantime, the motto in boating while intoxicated cases continues to be "Just say no, don't blow!"
Monday, July 7, 2008
Intoxicated Surfing in Iowa . . . Really?
In drafting additional content for the GRLLaw website for boating while intoxicated we came across an interesting little statute still in full force and effect in the State of Iowa.
Iowa Code section 462A.12(2) prohibits any individuals in the State of Iowa from "manipulating" any "water skis, surfboard or similar device while under the influence of an alcoholic beverage, marijuana, a narcotic, hypnotic or other drug, or a combination of these substances." A violation of this law is a simple misdemeanor. (see http://www.grllaw.com/CM/Custom/misdemeanor.asp.)
While one can understand how watersking or wakeboarding while intoxicated can be considered a hazardous activity and one that should possibly be made illegal, aren't we taking it a little too far to make it illegal to be on a surfboard while in such a condition. First, there have yet to be any documented "surfable" waves in the State of Iowa. Second, if one is in the water while in an intoxicated condition (whether by alcohol or marijuana or other drug) the safest place would probably be on a surfboard or other similar floatation device. Should we make swimming while intoxicated illegal as well? Actually we have. Ultimately, being in a public place such as a public waterway while intoxicated is a crime in and of itself (see http://www.grllaw.com/CM/Custom/Pulic-Intoxication-Iowa.asp) which leads one to wonder why in the world our Legislature thought it necessary to spend time creating a law specifically saying that it is illegal to be floating on the water while in an intoxicated condition. As if somehow a waterway open to the public could be considered private? Can our state legislatures please find something more important to do?! Get to work fellahs (and ladies) we have an economy in the tank right now.
Sometimes a lighter sided rant is necessary. Just some food for thought and a little bit of useless trivia.
Iowa Code section 462A.12(2) prohibits any individuals in the State of Iowa from "manipulating" any "water skis, surfboard or similar device while under the influence of an alcoholic beverage, marijuana, a narcotic, hypnotic or other drug, or a combination of these substances." A violation of this law is a simple misdemeanor. (see http://www.grllaw.com/CM/Custom/misdemeanor.asp.)
While one can understand how watersking or wakeboarding while intoxicated can be considered a hazardous activity and one that should possibly be made illegal, aren't we taking it a little too far to make it illegal to be on a surfboard while in such a condition. First, there have yet to be any documented "surfable" waves in the State of Iowa. Second, if one is in the water while in an intoxicated condition (whether by alcohol or marijuana or other drug) the safest place would probably be on a surfboard or other similar floatation device. Should we make swimming while intoxicated illegal as well? Actually we have. Ultimately, being in a public place such as a public waterway while intoxicated is a crime in and of itself (see http://www.grllaw.com/CM/Custom/Pulic-Intoxication-Iowa.asp) which leads one to wonder why in the world our Legislature thought it necessary to spend time creating a law specifically saying that it is illegal to be floating on the water while in an intoxicated condition. As if somehow a waterway open to the public could be considered private? Can our state legislatures please find something more important to do?! Get to work fellahs (and ladies) we have an economy in the tank right now.
Sometimes a lighter sided rant is necessary. Just some food for thought and a little bit of useless trivia.
Tuesday, July 1, 2008
Iowa Smoking Ban - The Consequences
There has been much to do about the newly effective smoking ban in public places in the State of Iowa that went into effect at 12:00 a.m. this morning. According to the newly enacted Iowa Code section 142D .3 smoking is prohibited in all public places and all enclosed areas within places of employments. Additionally, a person is not allowed to smoke in the seating areas of outdoor sports arenas or stadiums or other type of venues where members of the general public assemble to watch entertainment events, patio areas of restaurants or public transit stations, school grounds or any public buildings under the control of the state government or political subdivision. The prohibition does not however apply to the Iowa state fairgrounds in specified designated smoking areas nor to facilities of the Iowa national guard in designated smoking areas or the gaming floor of a casino. There are a number of detailed definitions and exceptions as to when and where people can still smoke in the State of Iowa, but a question worth answering is what are the consequences if someone breaks the new law.
A violation of the new smoking bans is a "civil violation" for both the offending smoker and the offending establishment.
For the offending smoker, the violation is punishable by a civil penalty of $25.
The consequences are a little steeper for the owner, operator manager or person with custody or control of the public place in violation. First Offense = maximum civil penalty of $100; Second Offense within one year = maximum civil penalty of $200; and each Third and Subsequent Offense within one year = maximum civil penalty of $500. More importantly any permit or license issued to the premises or owner is subject to suspension for violations of this law. The Administrative Rules pertaining to the enforcement of these penalties can be found at http://www.iowasmokefreeair.gov/common/pdf/admin_rules.pdf.
Also, in case you were wondering, the money raised by these civil penalties goes into the general fund of the state, unless a local authority is designated by the department in administrative rules is involved in the enforcement, in which case they are deposited in the general fund of the respective city or county.
A violation of the new smoking bans is a "civil violation" for both the offending smoker and the offending establishment.
For the offending smoker, the violation is punishable by a civil penalty of $25.
The consequences are a little steeper for the owner, operator manager or person with custody or control of the public place in violation. First Offense = maximum civil penalty of $100; Second Offense within one year = maximum civil penalty of $200; and each Third and Subsequent Offense within one year = maximum civil penalty of $500. More importantly any permit or license issued to the premises or owner is subject to suspension for violations of this law. The Administrative Rules pertaining to the enforcement of these penalties can be found at http://www.iowasmokefreeair.gov/common/pdf/admin_rules.pdf.
Also, in case you were wondering, the money raised by these civil penalties goes into the general fund of the state, unless a local authority is designated by the department in administrative rules is involved in the enforcement, in which case they are deposited in the general fund of the respective city or county.
Wednesday, June 25, 2008
Charges Against Ambulance Driver Dismissed
Charges against the City of Baxter ambulance driver charged in a fatal crash in Bondurant have been dismissed.
On June 25, 2008, on the morning of trial, the Polk County Attorney’s office filed its Notice of Intent Not To Prosecute Baxter ambulance driver, Kimberly Milligan, for the charges arising out of the fatal accident that took place at the intersection of Grant Street and Hubbell in Bondurant. Judge Eliza Ovrum granted the State’s Motion to Dismiss and assessed all costs associated with the action against the State.
Had the case proceeded to trial, the State would have been required to prove beyond a reasonable doubt that Ms. Milligan’s operation of the ambulance prior to the collision was reckless and that it amounted to a willful and wanton disregard for the safety of others.
Iowa law permits the driver of an emergency vehicle to proceed past a stop light and/or exceed the maximum speed limit unless doing so would be reckless. The law specifically states:
1. The driver of an authorized emergency vehicle, when responding to an emergency call . . . . may exercise the privileges set forth in this section.
2. The driver of any authorized emergency vehicle, may:
a. Park or stand an authorized emergency vehicle, irrespective of the provisions of this chapter.
b. Disregard laws or regulations governing direction of movement for the minimum distance necessary before an alternative route that conforms to the traffic laws and regulations his available.
3. The driver of a fire department vehicle, police vehicle, or ambulance, or a peace officer riding a police bicycle in the line of duty may do any of the following:
a. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.
b. Exceed the maximum speed limits so long as the driver does not endanger life or property.
The Iowa Supreme Court has held that the standard for imposing responsibility on the driver of an emergency vehicle for accidents arising from these situations is one of recklessness as opposed to ordinary negligence. “Reckless” is defined by Iowa law as “intentionally doing an unreasonable act in disregard of a risk that is known or so obvious that it should have been known making it highly probable that harm would follow.” This is a difficult burden to meet as best demonstrated by the Iowa Supreme Court’s decision in Bell v. Community Ambulance Service Agency for Northern Des Moines County, where the Supreme Court determined that the Ambulance driver was not legally responsible for the injuries to a driver of another vehicle that pulled out in front of the ambulance at an intersection. The Supreme Court reasoned that because all traffic was stopped and the lane ahead was clear, the driver of the ambulance could not have reasonably be said to have had a conscious knowledge of a dangerous situation. With facts very similar to Ms. Milligan’s case, the Supreme Court reasoned that the driver of the ambulance had no warning or actual knowledge that a dangerous situation was about to be created by the other vehicle drivers actions.
On June 25, 2008, on the morning of trial, the Polk County Attorney’s office filed its Notice of Intent Not To Prosecute Baxter ambulance driver, Kimberly Milligan, for the charges arising out of the fatal accident that took place at the intersection of Grant Street and Hubbell in Bondurant. Judge Eliza Ovrum granted the State’s Motion to Dismiss and assessed all costs associated with the action against the State.
Had the case proceeded to trial, the State would have been required to prove beyond a reasonable doubt that Ms. Milligan’s operation of the ambulance prior to the collision was reckless and that it amounted to a willful and wanton disregard for the safety of others.
Iowa law permits the driver of an emergency vehicle to proceed past a stop light and/or exceed the maximum speed limit unless doing so would be reckless. The law specifically states:
1. The driver of an authorized emergency vehicle, when responding to an emergency call . . . . may exercise the privileges set forth in this section.
2. The driver of any authorized emergency vehicle, may:
a. Park or stand an authorized emergency vehicle, irrespective of the provisions of this chapter.
b. Disregard laws or regulations governing direction of movement for the minimum distance necessary before an alternative route that conforms to the traffic laws and regulations his available.
3. The driver of a fire department vehicle, police vehicle, or ambulance, or a peace officer riding a police bicycle in the line of duty may do any of the following:
a. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.
b. Exceed the maximum speed limits so long as the driver does not endanger life or property.
The Iowa Supreme Court has held that the standard for imposing responsibility on the driver of an emergency vehicle for accidents arising from these situations is one of recklessness as opposed to ordinary negligence. “Reckless” is defined by Iowa law as “intentionally doing an unreasonable act in disregard of a risk that is known or so obvious that it should have been known making it highly probable that harm would follow.” This is a difficult burden to meet as best demonstrated by the Iowa Supreme Court’s decision in Bell v. Community Ambulance Service Agency for Northern Des Moines County, where the Supreme Court determined that the Ambulance driver was not legally responsible for the injuries to a driver of another vehicle that pulled out in front of the ambulance at an intersection. The Supreme Court reasoned that because all traffic was stopped and the lane ahead was clear, the driver of the ambulance could not have reasonably be said to have had a conscious knowledge of a dangerous situation. With facts very similar to Ms. Milligan’s case, the Supreme Court reasoned that the driver of the ambulance had no warning or actual knowledge that a dangerous situation was about to be created by the other vehicle drivers actions.
Supreme Court - Execution of Child Rapist is Cruel and Unusual
"We hold the Eighth Amendment prohibits the death penalty" for the rape of a child where the crime did not result and was not intended to result, in death of the victim." Kennedy v. Louisiana, Justice Kennedy, writing for the majority. http://www.supremecourtus.gov/opinions/07pdf/07-343.pdf.
As a result of the United States Supreme Court's decision decided this morning, Patrick Kennedy has escaped the death penalty and instead will be forced to spend the remainder of his natural life in prison. The crime for which Ms. Kennedy was convicted is best described by Justice Kennedy as "one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death." However, the Supreme Court held that the principals of the Eighth Amendment prohibiting cruel and unusual punishment require that the use of the death penalty be restrained and only resorted to for the worst of crimes. The Court's precise words were: "The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application." "In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.
In writing the opinion, Justice Kennedy stressed that the "standards of decency" by which cruel and unusual punishment is judged under the Eighth Amendment are constantly evolving. What may have been the societal standards that prevailed in 1791 when the Eighth Amendment was adopted are not the "current prevail" of today's society. In essence, Justice Kennedy and the majority of the court held that today's society does not approve of executing those convicted of offenses where another life is not taken. This may or may not change in the future depending upon how our societal standards of decency evolve.
To date, only six states authorize the death penalty for child rape.
As a result of the United States Supreme Court's decision decided this morning, Patrick Kennedy has escaped the death penalty and instead will be forced to spend the remainder of his natural life in prison. The crime for which Ms. Kennedy was convicted is best described by Justice Kennedy as "one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death." However, the Supreme Court held that the principals of the Eighth Amendment prohibiting cruel and unusual punishment require that the use of the death penalty be restrained and only resorted to for the worst of crimes. The Court's precise words were: "The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application." "In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.
In writing the opinion, Justice Kennedy stressed that the "standards of decency" by which cruel and unusual punishment is judged under the Eighth Amendment are constantly evolving. What may have been the societal standards that prevailed in 1791 when the Eighth Amendment was adopted are not the "current prevail" of today's society. In essence, Justice Kennedy and the majority of the court held that today's society does not approve of executing those convicted of offenses where another life is not taken. This may or may not change in the future depending upon how our societal standards of decency evolve.
To date, only six states authorize the death penalty for child rape.
Wednesday, June 18, 2008
An Allegation Impossible to Disprove - Sexual Abuse in the Third Degree
There is nothing more scary and troubling then an accusation that is all but impossible to completely disprove. One theory of Sexual Abuse in the Third Degree in the State of Iowa is just that.
Iowa law provides that it a person commits Sexual Abuse in the Third Degree when the defendant performs a sex act on another while the other is incapacitated. Incapacity under this section includes three separate areas: 1) mental incapacity; 2) physical helplessness; and 3) physical incapacity. "Mental incapacitated" is defined to mean: that a person is temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance."
As you can see from reading the definition of mental incapacitation, alcohol intoxication can and does fall under the scope of this law. Thus, all it takes is for a regretful or vengeful partner to cry foul and a "night of pleasure" can immediately turn into a nightmare where the alleged perpetrator is looking down the barrel of a sexual abuse (rape) charge requiring a 10 year prison term and membership in the Iowa Sex Offender Registry if convicted. How many times have grown adults, college kids, and high schoolers left a party, bar or social gathering after having too much to drink and engaged in the infamous one night stand? In this day and age, these events are becoming more and more common, so much so, that an energy drink company makes light of the "walk of shame" in a recent television commercial. What nobody thinks about before, during or even after is what happens if the other person wakes up in the morning and realizes they just committed adultery; cheated on their significant other; don't receive a call back; or feel slighted, ridiculed or ignored or otherwise greatly regret their previous nights actions? What happens when the person's significant other finds out and they get backed into a corner or they become irate because they don't receive a call back?
Given the law described above, it becomes very easy for the slighted partner to claim that the sex was nonconsensual due to alcohol intoxication. Once the allegation is made, law enforcement is obligated to investigate and the "suspect" is at the mercy of prosecutorial discretion whether or not charges get filed. While many of these cases may never be proven beyond a reasonable doubt, the mere fact that a charge such as this if filed can destroy families, careers and a person's future. They will always be tagged with the label of suspected rapist. The most frustrating part for individuals in this situation is the fact that their innocence cannot be proven. The allegations cannot be completely disproved. An incapacitated individuals body will still often times function normally, thus, pointing to the lack of physical evidence of force is not as effective as it otherwise would be. Additionally, polygraph tests are not admissible in court and videotaping the escapade without the other's consent is a separate crime in and of itself. These situations come down to a game of he-said, she-said. Ask Kobe Bryant how much fun it is to play this game.
It's a scary and troubling thought but something that should be considered before laying down with strangers. Know the law; understand the law; avoid undesired accusations
Iowa law provides that it a person commits Sexual Abuse in the Third Degree when the defendant performs a sex act on another while the other is incapacitated. Incapacity under this section includes three separate areas: 1) mental incapacity; 2) physical helplessness; and 3) physical incapacity. "Mental incapacitated" is defined to mean: that a person is temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance."
As you can see from reading the definition of mental incapacitation, alcohol intoxication can and does fall under the scope of this law. Thus, all it takes is for a regretful or vengeful partner to cry foul and a "night of pleasure" can immediately turn into a nightmare where the alleged perpetrator is looking down the barrel of a sexual abuse (rape) charge requiring a 10 year prison term and membership in the Iowa Sex Offender Registry if convicted. How many times have grown adults, college kids, and high schoolers left a party, bar or social gathering after having too much to drink and engaged in the infamous one night stand? In this day and age, these events are becoming more and more common, so much so, that an energy drink company makes light of the "walk of shame" in a recent television commercial. What nobody thinks about before, during or even after is what happens if the other person wakes up in the morning and realizes they just committed adultery; cheated on their significant other; don't receive a call back; or feel slighted, ridiculed or ignored or otherwise greatly regret their previous nights actions? What happens when the person's significant other finds out and they get backed into a corner or they become irate because they don't receive a call back?
Given the law described above, it becomes very easy for the slighted partner to claim that the sex was nonconsensual due to alcohol intoxication. Once the allegation is made, law enforcement is obligated to investigate and the "suspect" is at the mercy of prosecutorial discretion whether or not charges get filed. While many of these cases may never be proven beyond a reasonable doubt, the mere fact that a charge such as this if filed can destroy families, careers and a person's future. They will always be tagged with the label of suspected rapist. The most frustrating part for individuals in this situation is the fact that their innocence cannot be proven. The allegations cannot be completely disproved. An incapacitated individuals body will still often times function normally, thus, pointing to the lack of physical evidence of force is not as effective as it otherwise would be. Additionally, polygraph tests are not admissible in court and videotaping the escapade without the other's consent is a separate crime in and of itself. These situations come down to a game of he-said, she-said. Ask Kobe Bryant how much fun it is to play this game.
It's a scary and troubling thought but something that should be considered before laying down with strangers. Know the law; understand the law; avoid undesired accusations
Thursday, June 12, 2008
Flood zone notification - Part 4 - The Bank
Before any federally regulated lending institution may issue a loan to an individual for the purchase of property, federal law requires that it first conduct a flood search and issue a document called a flood certification. This is a condition that must be satisfied before any lending institution can make, increase, extend or renew a loan secured by real estate or a mobile home. If the bank or lending institution in conducting the required flood search determines that the physical structure is located within a FEMA standard flood hazard area, the institution must also then provide notice to the purchaser of the property prior to closing. In fact, the law's exact language requires that the notice be given to the potential buyer "a reasonable period in advance of the signing of the purchase agreement, lease, or other documents involved in the transaction."
The notice to the potential buyer must including the following:
A) a warning, in a form to be established by the Director, stating that the building on the improved real estate securing the loan is located, or the mobile home securing the loan is or is to be located, in an area having special flood hazards;
(B) a description of the flood insurance purchase requirements under section 102(b) of the Flood Disaster Protection Act of 1973 [42 U.S.C.A. § 4012a(b) ];
(C) a statement that flood insurance coverage may be purchased under the national flood insurance program and is also available from private insurers; and
(D) any other information that the Director considers necessary to carry out the purposes of the national flood insurance program.
The bank or lending institution is then required to keep within its records a copy of the notification in it's records for the period of time that the bank owns the loan.
While the lending institution may hire an outside company to conduct the flood search or determination, the institution must still vouch for and take responsibility for the accuracy of the information provided by way of the flood certification.
It is important to note that unlike the seller disclosure and appraisal report previously discussed, the search conducted by the lending institution is only concerned with the actual structure's location within a flood zone or FEMA flood hazard area. This is because it is the structure or house's location withing the flood hazard area that triggers the corresponding federal requirement that the home be covered by flood insurance before the loan can legally be issued. The rest of the properties location in the flood hazard area is of no consequence as far as the lending institution is concerned.
Many lending institutions have attempted to avoid liability for their failure to perform a flood search or for conducting below standard flood searches by claiming that they owe no legal duty to the home buyer to provide accurate information or to even conduct these flood searches in the first place. While these arguments have had some success in federal court under the federal laws, they have left it open for State's to make their own determinations. Under Iowa law, the cause of action would be both for negligence and for misrepresentation and should be sufficient to get the case to the jury.
The notice to the potential buyer must including the following:
A) a warning, in a form to be established by the Director, stating that the building on the improved real estate securing the loan is located, or the mobile home securing the loan is or is to be located, in an area having special flood hazards;
(B) a description of the flood insurance purchase requirements under section 102(b) of the Flood Disaster Protection Act of 1973 [42 U.S.C.A. § 4012a(b) ];
(C) a statement that flood insurance coverage may be purchased under the national flood insurance program and is also available from private insurers; and
(D) any other information that the Director considers necessary to carry out the purposes of the national flood insurance program.
The bank or lending institution is then required to keep within its records a copy of the notification in it's records for the period of time that the bank owns the loan.
While the lending institution may hire an outside company to conduct the flood search or determination, the institution must still vouch for and take responsibility for the accuracy of the information provided by way of the flood certification.
It is important to note that unlike the seller disclosure and appraisal report previously discussed, the search conducted by the lending institution is only concerned with the actual structure's location within a flood zone or FEMA flood hazard area. This is because it is the structure or house's location withing the flood hazard area that triggers the corresponding federal requirement that the home be covered by flood insurance before the loan can legally be issued. The rest of the properties location in the flood hazard area is of no consequence as far as the lending institution is concerned.
Many lending institutions have attempted to avoid liability for their failure to perform a flood search or for conducting below standard flood searches by claiming that they owe no legal duty to the home buyer to provide accurate information or to even conduct these flood searches in the first place. While these arguments have had some success in federal court under the federal laws, they have left it open for State's to make their own determinations. Under Iowa law, the cause of action would be both for negligence and for misrepresentation and should be sufficient to get the case to the jury.
Wednesday, June 11, 2008
Flood zone notification - Part 3 - The Appraiser
When a person or entity is in the business of providing information to another for that person's benefit, the provider of information has a duty to exercise ordinary care in ensuring that the information provided is truthful and accurate. According to the Iowa Court of Appeals, “[i]t is generally recognized that persons who supply information, in the course of their business or profession, for the guidance of others in their business, have a duty to use reasonable care in obtaining and communicating the information.” Greatbatch v. Metropolitan Federal Bank, 534 N.W.2d 115, 117 (Iowa Ct. App. 1995); citing Restatement (Second) of Torts section 552 (1977). This includes real estate appraisers conducting appraisals of residential property prior to the closing of a purchase.
Anytime a residential real estate appraisal is conducted, the appraiser is required to determine whether or not any part of the property is located within a FEMA special flood hazard area. This is obviously taken into consideration by the appraiser in coming to a fair market value assessment of the property. Often times appraisers will use computer software to assist in the search but like any software these programs are only as reliable as the person using and directing them.
When a breach of the appraisers duty is discovered, they will often times attempt to fall back on a claim that the home buyer is not their client and thus, they owe no duty to accurately report this data to the home buyer. This argument however is misplaced because all residential real estate appraisals are forwarded to the home buyer for their review and the appraisal must be in range with the purchase price for closing to take place. In the event that the property is located within a flood zone, this would naturally be noted in the appraisal report and/or reflected in the final appraised value. Additionally, The Iowa Supreme Court has held that the purchaser of residential property is justified in relying on an appraisal ordered by the lender for the purpose of completing the sale. According to the Supreme Court: "Even though the appraisal might be made primarily for the benefit of the lending institution, the appraisal should also reasonably expect the home purchaser, who pays for the appraisal and to whom the results are reported (an who has access to the written report on request), will rely on the appraisal to reaffirm his or her belief the home is worth the price he or she offered for it. The purchaser of the home should be among those entitled to rely on the accuracy of the report and therefore should be entitled to sue for damages resulting from a negligent report."
In the event that the real estate appraiser does not detect or accurately or timely disclose that the property to be purchased is located within a flood hazard area, they may be liable for a portion of damages incurred by the home buyer. Larsen v. United Federal Savings and Loan Association of Des Moines¸ 300 N.W.2d 281, (Iowa 1981).
Please see following posts for specifics on each required disclosure.
Seller Disclosures Real Estate Appraiser Disclosures Mortgage Lender & Bank Disclosures
Anytime a residential real estate appraisal is conducted, the appraiser is required to determine whether or not any part of the property is located within a FEMA special flood hazard area. This is obviously taken into consideration by the appraiser in coming to a fair market value assessment of the property. Often times appraisers will use computer software to assist in the search but like any software these programs are only as reliable as the person using and directing them.
When a breach of the appraisers duty is discovered, they will often times attempt to fall back on a claim that the home buyer is not their client and thus, they owe no duty to accurately report this data to the home buyer. This argument however is misplaced because all residential real estate appraisals are forwarded to the home buyer for their review and the appraisal must be in range with the purchase price for closing to take place. In the event that the property is located within a flood zone, this would naturally be noted in the appraisal report and/or reflected in the final appraised value. Additionally, The Iowa Supreme Court has held that the purchaser of residential property is justified in relying on an appraisal ordered by the lender for the purpose of completing the sale. According to the Supreme Court: "Even though the appraisal might be made primarily for the benefit of the lending institution, the appraisal should also reasonably expect the home purchaser, who pays for the appraisal and to whom the results are reported (an who has access to the written report on request), will rely on the appraisal to reaffirm his or her belief the home is worth the price he or she offered for it. The purchaser of the home should be among those entitled to rely on the accuracy of the report and therefore should be entitled to sue for damages resulting from a negligent report."
In the event that the real estate appraiser does not detect or accurately or timely disclose that the property to be purchased is located within a flood hazard area, they may be liable for a portion of damages incurred by the home buyer. Larsen v. United Federal Savings and Loan Association of Des Moines¸ 300 N.W.2d 281, (Iowa 1981).
Please see following posts for specifics on each required disclosure.
Seller Disclosures Real Estate Appraiser Disclosures Mortgage Lender & Bank Disclosures
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