Personal Injuries Caused by Drunk Driving or Intentional Conduct and Bankruptcy

Afraid you may get a judgment for a personal injury, only to have the defendant file bankruptcy and leave you with nothing?  In the words of Lee Corso; “Not So Fast My Friend.”

While most injury claims are covered and paid for by the wrong-doer’s insurance policy, insurance does not always cover all claims.  In these situations a judgment can be obtained against the individual who is held financially responsible out of their own assets.  While some judgments are certainly dischargeable in bankruptcy, others are not.  Two specific types of judgments which can overlap with our criminal defense or personal injury cases that are not dischargeable in bankruptcy are “intentional torts” and injuries caused by drunk driving. 

Some personal injury claims and judgments are not dischargeable in any type of bankruptcy proceeding if the injury is the result of an intentional tort. An intentional tort is a wrongful act committed on purpose, not merely negligently, with the intent of causing physical, mental or financial harm to another person.  These types of judgments often include injuries sustained in an assault, sexual assault, libel or slander, malicious prosecution, and other similar intentional wrongful acts, specifically intended to do harm to another person.

Most automobile related personal injury claims or judgments are due to negligent offenses (accidental conduct).  However if the cause of the accident  is due to the driver being intoxicated from alcohol or other drugs, the debt arising from that accident for personal injury is non dischargeable, meaning it won’t go away if you file bankruptcy.  11 U.S.C. §523(a)(9) provides that a debt will not be discharged “for death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.”  It’s also important to note that other fines, penalties, and restitution orders associated with a conviction of any crime (even traffic tickets) are non-dischargeable in bankruptcy.

A person suffering under the weight of a judgment resulting from a personal injury caused by an intentional tort or drunken driving may have an alternative financial shelter by way of a chapter 13 bankruptcy filing. This provision does not discharge the debt but provides for an often-times more practical payment plan.  Under chapter 13 bankruptcy provisions the debt will not be discharged, but can be transformed into a priority unsecured debt which may be repaid in full at 0% interest over the course of a 5 year plan under 11 USC §507(a)(10). Five years or sixty months is the maximum amount of time the court will allow a person to repay this debt so the planned payments in the chapter 13 must be sufficient to repay at least the full amount of this debt (plus some administrative fees and any other priority debts).  Otherwise, the chapter 13 plan will not be feasible and the court will not confirm the plan, resulting in the chapter 13 bankruptcy being dismissed.

GRL Law would like to thank Deanna Bachman for this guest blog.  Deanna is the owner of Bachman Law P.C., a West Des Moines law firm, specializing in bankruptcy and debt relief.  For more information on Iowa bankruptcy and debt relief options log onto www.bachmanlawpc.com.

Are Undocumented Aliens Entitled to Workers Compensation Benefits?

In today’s business world many companies hire undocumented workers, whether knowingly or unknowingly, but when one is injured on the job can the employer use that fact to decline to pay them worker’s compensation benefits?  Today the Iowa Supreme Court issued its opinion in the case of Staff Management and New Hampshire Insurance Company v. Jimenez and answered the question with a resounding “No."

In this case Staff Management, a temporary employment agency, employed Ms. Jimenez and assigned her to Proctor & Gamble in Iowa City.  During the course of her work duties Ms. Jimenez suffered injuries which were diagnosed as hernias in two locations.  Ms. Jimenez worked roughly 1 month from the date of diagnosis until her surgery.  She returned to work roughly a month after surgery.  She continued to work, despite severe pain which limited her ability to perform her duties, for a month prior to her employment being terminated.  Staff Management claimed she was terminated due the recent discovery that she was undocumented, Jimenez claimed they were aware the entire time of her employment she was undocumented and that she was terminated due to her injuries.

At hearing regarding her worker’s compensation claim, Ms. Jimenez was awarded a continuous award for healing period benefits from the date of the original injury, to pay all medical expenses to treat the injury, and to pay all future medical care and prescription charges.  On appeal the employer argued that Ms. Jimenez was ineligible for worker’s compensation benefits due to her undocumented status.  The employer argued (1) the definition of “employee” under the Iowa Workers’ Compensation Act does not specifically include undocumented workers; (2) Iowa law requires a contract of service between the employer and employee to be covered under the Iowa Workers’ Compensation Act, which would be void due to illegality; and (3) even if undocumented workers were entitled to workers’ compensation benefits, federal law disallows benefits to be paid.

In regards to the employer’s first argument, the Iowa Supreme Court examined the statutory definition of “employee” which contains a broad definition of who are employees as well as a specific list of persons who are excluded from being employees.  The Court held that the broad definition of “employee” included undocumented workers and that the legislature did not specifically exclude undocumented workers from being employees.

The Court analyzed a similar case from Connecticut when addressing the employer’s argument that any service contract is void due to the undocumented status of Ms. Jimenez.  The Iowa Supreme Court agreed with the Connecticut Supreme Court and held that to declare the contract for service between an employer and an undocumented worker void would only provide an incentive for employers to hire undocumented workers because they would be absolved from liability for injuries the worker sustained.  

Similarly, the Iowa Supreme Court agreed with the Connecticut Supreme Court’s analysis of the employer’s third argument.  The Court reasoned that federal law does not prohibit the payment of healing period benefits because healing period benefits are payment for lost wages while an injured employee receives medical care.  

 Bottom line, the Iowa Supreme Court concluded that an employer may not hire an undocumented alien, avail themselves to that employees services, but then deny workers compensation benefits when the worker is injured on the job.

GRL Law Obtains Record Verdict

Polk County Jury hands down record verdict against property company owned in part by Des Moines housing code habitual violator, Mark Critelli.

On November 12, 2013, a Polk County Jury returned a verdict totaling $1,137,500.00 in favor of the parents of a 21 year old woman who fell to her death from a second story balcony at Grand Stratford Apartments in Des Moines.  It is believed that the jury’s verdict is the largest Iowa verdict under Iowa’s relatively new adult parental consortium statute.

On July 23, 2011, 21 year old Shannon Potts was killed when she fell from a second story balcony of the Grand Stratford Apartments.  The subsequent investigation revealed that the balcony railings were only 32 inches high in violation of the Des Moines Housing Code which required 42 inch railings.   Records showed that the defendant property owner, CM Holdings, LLC, had received four prior notices from the City of Des Moines that the railings were defective and in need of replacing prior to Shannon’s fall.  Mark Critelli, a Des Moines property owner who has been declared a “habitual violator” of the Des Moines Housing Code for repeated health and safety violations, was a 50% shareholder in CM Holdings LLC.

Shannon’s parents’ attorney, Cory F. Gourley, released the following statement:

Kathy and Tim are extremely grateful to the jury in his case for vindicating Shannon and her untimely death.  Moreover, Shannon’s parents hope this verdict serves as a stern warning to landlords to prioritize safety of guests and tenants over profits.   

There is nothing wrong with a business making money.  But when it comes at the expense of a human life, something has to change. The jury agreed.  While it is too late for Shannon and her family, Kathy and Tim are hopeful that the jury’s verdict will save the lives of others by serving as a constant reminder to landlords that their disregard for safety requirements will not be tolerated and comes at a steep price.

For more information on individual's rights and responsibilities regarding dangerous conditions on property log onto www.GRLLAW.com.

“Even though you bought this over the counter at a gas station, you should have known it was illegal, son.”

The moral of the story from the Iowa Court of Appeals this week is “If it looks like drugs and smells like drugs, it’s probably drugs...even if it’s for sale on the gas station shelf.” 

This week, the Iowa Court of Appeals decided State v. Heinrichs, No. 3-800/12-2174.  In that case, Heinrichs was pulled over for having expired license plates.  The stopping officer noticed the odor of marijuana coming from the car.  The officer asked the defendant if he “had anything on him.”  Henrichs said he had a pipe for smoking “incense.” The officer also found Henrichs in possession of a small black foil bag labeled “100% Pure Evil” that said it was “not for human consumption.” Heinrichs later identified the substance as “K-2” and told the officer he bought it over the counter at a liquor store.

The officers arrested Heinrichs for possessing a controlled substance and charged him with possession of “synthetic cannabis,” a serious misdemeanor under Iowa law. The State had a witness from the Department of Criminal Investigations crime lab who was prepared to testify the substance seized from Heinrichs contained the chemical “AM-2201,” which is “designed to imitate the [effects] of cannabis on the brain.”

The specific code section that Heinrichs was charged under is Iowa Code Section 124.401(5), which makes it illegal for a person to knowingly possess a controlled substance.  What constitutes a controlled substance when it comes to “synthetic marijuana” is defined in two separate places. 

The first, Iowa Code section 124.204(4)(u), outlaws the possession of “tetrahydrocannibinols” naturally contained in the Cannabis plant (i.e. marijuana), as well as synthetic equivalents of the substances contained in the cannabis plant. In other words, marijuana and “syntiethc marijuana.” The second is Iowa Code section 124.204(4)(ai)(5). That section actually spells out some of the specific chemical compounds that the State deems to be illegal “synthetic marijuana compounds.”  Some of them are:

(a) CP 47, 497 and homologues 2-[(1R, 3S)-3-

hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol).

(b) HU-210[(6aR,10aR)-9-(hydroxym ethyl)-6,6-dimethyl-3-

(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobe chromen-1-ol)].

(c) HU-211(dexanabinol, (6aS,10aS )-9-(hydroxymethyl)-6,6-

dimethyl-3-(2 -methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]

chromen-1-ol).

(d) JWH-018 1-Pentyl-3-(1-naphthoyl)indole.

(e) JWH-073 1-Butyl-3-(1-naphthoyl)indole.

(f) JWH-200 [1-[2-(4-morpholinyl) ethyl]-1H-indol-3-yl]-1-

naphthalenyl-methanone.

              As you can see, they are all scientific names and compounds that a normal person would not even come close to being able to identify on the street.  

               Both parties agreed that the compound AM-2201 that was found in the package that Heinrichs had was not specifically listed in that statute. So the only issue was whether a reasonable person could have known that the package Heinrichs bought was illegal to possess. Heinrichs argued that section 124.204(4)(u), which outlaws synthetic cannabis, was unconstitutionally vague because the statute does not define the criminal offense so that ordinary people could understand what substances were illegal.  Heinrichs argued that a person would need an advance degree in chemistry to understand what substances are illegal. He also argued that an ordinary person would be even more confused as to whether the package was illegal to possess because it was being sold over the counter at Waterloo retail locations.

               Unfortunately for him, the Court of Appeals didn’t smell what Heinrichs was smokin’.  The Court found that, even though a person may in some instances mistakenly and innocently purchase the substance over the counter, that was not the case here. The Court stated that the packaging warned the substance was “not for human consumption,” yet Heinrich was using a pipe to smoke it. The Court determined that Waterloo officers were sufficiently able to distinguish between people who may have innocently possessed a “botanical potpourri” and people who were buying “incense” to smoke it to get high.

               In short, the Court found that Heinrichs knew that he purchased the package in order to smoke it to get high and was not an innocent purchaser of some potpourri from Bed, Bath and Beyond.  Thus, the court found that Heinrichs should have known that the contents of the package were prohibited by the statute. 

               So, the moral of the story is: if you see something on the shelf and you think it may be synthetic marijuana or another drug, don’t buy it!  And of course, if you find yourself in a situation like Mr. Heinrichs, contact the attorneys at GRL Law to help you protect your rights.

Charge Everyone and Let the Jury Sort it Out.

On 8-12-13 at approximately 1125 hrs I Officer Jones noticed a vehicle traveling eastbound on Main Street.  The vehicle appeared to be traveling above the posted speed limit.  I activated my radar unit and locked the vehicle in at 30 mph in a 25 mph zone.  I activated my emergency lights and proceeded to make a traffic stop of the vehicle.

I made contact with the driver and requested his driver’s license, insurance and registration.  There were three passengers in the vehicle and I requested identification from each of those individuals.

I could smell a strong odor of marijuana emanating from the vehicle.  All occupants were removed from the vehicle and patted down for officer safety.  All occupants denied the presence of any contraband in the vehicle.  The occupants were asked to have a seat on the curb while I searched the vehicle.

During the search of the vehicle a plastic baggie containing approximately 1 gram of a green leafy substance was located in the center console.  Based upon my training and experience this substance appeared to be marijuana.

All occupants denied the marijuana was theirs.  All occupants were subsequently placed in handcuffs and charged with Possession of a Controlled Substance.

Sound familiar?  This is an all-to-common fact pattern that comes across our desks on a regular basis.  The same basic principles apply to other forms of contraband as well as to other locations, such as houses and apartments.  So, in these types of situations, where contraband is found near multiple individuals how do prosecutors, defense attorneys, the courts and juries sort out who is responsible?

The law delineates two types of possession: actual possession and constructive possession.  A person actually possesses contraband when it is found on his or her person; such as when a baggie of marijuana is found in someone’s front pant pocket.  When an individual has knowledge of an item’s presence and has the authority or right to maintain control of the item, that person constructively possesses the item.  The aforementioned fact pattern is an example of a constructive possession case.

Pursuant to Iowa law, to prove a constructive possession case the State is required to prove beyond a reasonable doubt the defendant:

(1)          exercised dominion and control over the contraband;

(2)          had knowledge of the presence of the contraband; and

(3)          had knowledge that the material was a controlled substance.

In the fact pattern presented, possession of the marijuana cannot be inferred due to multiple individuals occupying the same vehicle.  Under these circumstances there are a number of factors that are examined to determine whether each defendant had knowledge and was able to maintain dominion and control over the contraband.  These include (1) incriminating statements, (2) incriminating actions when contraband is discovered in or near the defendant’s belongings, (3) fingerprints, or (4) any other circumstances linking the defendant to the contraband. 

In motor vehicle cases additional factors that are considered are (1) was the contraband in plain view, (2) was it with the defendant’s personal effects, (3) was it found on the same side of the car seat or next to the defendant, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant. 

If you ever find yourself in a similar position it is in your best interest to simply remain silent and know you will be better off in the long run if you simply don't say anything.  Shut up; Wise up; Lawyer up.  Just in case you need a friendly reminder in your time of need, don’t forget to download the Oh Crap App available at Android Market and iTunes.