The plaintiff was a 60-year-old male employed as an engineer. He suffered a head-on collision which resulted in gastrointestional injuries. Treatment included an end colostomy procedure, a surgical procedure in which the colon (large bowel) is severed and the functioning end is brought to the skin at the abdomen. Excrement is expelled into a bag attached to the abdomen. At the time of settlement the plaintiff had not yet decided on whether to have a surgical colostomy reversal. The plaintiff was hospitalized for 19 days in a convalescent state and later underwent physical therapy. Other injuries included pelvic fractures, right fibula fracture and right knee contusion, none of which were treated surgically. Total medical expenses were $144,933. Lost wages were $38,887. This case settled for $637,500 shortly after I filed suit. Click HERE to read a more detailed report from Virginia Lawyers’ Weekly.
$637,500 settlement after head-on collision resulting in gastrointestional injuries
January 24th, 2012Sample Virginia Beach Police DUI field notes
July 15th, 2011Here are police field notes from a DUI case I defended today in Virginia Beach Circuit Court.
Sample Virginia Beach Police DUI field notes
My client was found “not guilty” because while he exhibited some signs of impairment, there were also many signs of impairment that were not present. It was a close case, so the defendant won. For any attorney defending a DUI case, a review of the standard field notes is helpful. Police officers’ testimony always track these field notes. They literally read these notes out loud in court in prosecution of DUI cases. (Note how the form instructs the officer, “point to the defendant” and how the form recites exactly how the officer should testify in court.) The standard forms allow officers to circle or check-off signs of impairment, but the forms also give the defense lawyer dozens of other signs of impairment which are not present during the encounter–i.e. any sign of impairment not circled or checked-off by the police officer. The first section relates to the officer’s observations of the defendant, (slurred speech, strong odor of alcohol, bloodshot eyes, etc.). The next page is regarding standardized field sobriety tests that police use to determine whether there is probable cause of impairment: The horizontal gaze/nystagmus test, the walk and turn test, and the one-leg stand test. An alphabet test is also included but is seldom used in my experience.
When cross examining the police officer, ask for detail about by how much or how far a defendant missed “heel to toe” or how the defendant took an “improper turn” or how many times the defendant had to put his foot down during the one-leg stand test. Often, the officer will not be able to explain the reason that he regarded the defendant’s turn as “improper” or how many times the defendant had to put his foot down, etc. Also, note that in this case, under the section regarding the officer’s observations of the defendant, the officer circled that the defendant was swaying while walking but not while standing. The officer also did not indicate loss of balance or use of arms to balance while performing the walk-and-turn test, so I was able to cross examine about this contradiction. Also, note that in this case the officer did not note how many times the defendant allegedly stepped off the line during the walk-and-turn test, yet the officer did allegedly copy about a dozen letters of the alphabet which the officer said the defendant incorrectly recited, even while the defendant was instructed to say the alphabet as fast as he could. The officer’s inability to explain exactly how the defendant took an incorrect turn, how many times he stepped off the line, how many time he put his foot down (during the one-leg stand test) were weaknesses in the officer’s testimony.
It is also important to note that in this particular case, there was no breath test available. The defendant in this particular case had refused to take a breath test. I was able to get the charge of refusal to take a breath test dismissed in General District Court on grounds described in another post on my blog. So, in this case, guilt or innocence turned on the officer’s observations of the defendant, the defendant’s performance on field sobriety tests, and a few other factual matters unrelated to breath alcohol tests.
Driver who made wide left turn at fault for auto/pedestrian accident
June 23rd, 2011I negotiated a $100,000 settlement, which represented the limits of liability coverage, for a 69-year-old woman who was struck in a crosswalk while crossing the street and sustained multiple rib fractures and a right tibia/fibia fracture. There was some suggestion that my client was contributorily negligent for stepping off the sidewalk into the path of the turning vehicle. However, I pointed out that Va. Code 46.2-846 requires a driver who is turning left onto a multi-lane road to make the turn as closely as possible to the center of the road. In this case, the defendant driver made a wide left turn into the outer right-most lane and caused the accident. The insurance adjuster agreed to tending the policy limits.
Client guilty of cocaine offense gets lesser sentence after drug weights not attributed to him
May 17th, 2011I just finished a sentencing hearing today in U.S. District Court, Norfolk. My client had previously pled guilty to conspiracy to import more than 500 grams of cocaine into the U.S., a class B felony punishable by a term of at least 5 years but no more than 40-years in prison. A presentence report was prepared by the U.S. Probation officer. The report calculated my client’s recommended sentencing guidelines at 108 to 135 months, or about nine to eleven years. These sentencing guidelines applied because 4 kilograms of cocaine were attributed to my client as a result of a government informant claiming he had purchased this amount of cocaine from my client in 2009. I filed an objection to the 4 kilograms of cocaine being attributed to my client. We had an evidentiary hearing which resulted in conflicting evidence. The judge ruled that it was the government’s burden to prove that those 4 kilograms were attributed to my client and the government had not met its burden. So, the judge struck those 4 kilograms from the presentence report, resulting in my client’s recommended sentencing guidelines being only 57 to 71 months. My client was ultimately sentenced to 70 months (5-years and ten-months), an outcome very favorable to my client who prior to the hearing had been facing a recommended sentence of about nine to ten years. The vast bulk of the drug weight that had been attributed to my client in his presentence report was based on the word of a several-times convicted felon who was himself seeking a reduction in his own prison time. To counter this witness, I had to subpoena to court a separate witness who rebutted the informant’s testimony.
Bribery case illustrates pitfalls of federal sentencing guidelines
May 13th, 2011As an attorney who sometimes represents criminal defendants in federal court, I want to point out a couple of things about Phil Hamilton’s possible sentence. The federal court sentencing system provides huge-disincentives of going to trial. Once found guilty, either by way of a guilty plea or a trial, advisory sentencing guidelines are calculated based on a point system. Defendants who plead guilty instead of going to trial are credited for “acceptance of responsibility.” So, those who take their case to trial run a risk of getting a longer prison sentence in the event that they are found guilty. This creates a disincentive toward going to trial, or an incentive to just plead guilty. In addition to the disincentive toward going to trial, the federal sentencing guidelines also punish defendants who take the stand and testify on their own behalf but who end up being found guilty. The federal sentencing guidelines refer to this as a “sentencing enhancement for obstruction of justice.” The rationale is that if the jury’s finding is inconsistent with the defendant’s testimony, then the defendant must have lied and therefore should be punished more harshly for “obstruction.” This is a double-whammy disincentive that any defendant in federal criminal court who might wish to defend himself and take the stand on his own behalf.
News stories I have read have reported that Phil Hamilton faces “up to 30 years” in prison. This is probably the maximum possible sentence, but most likely he will be sentenced within a guideline range which will be calculated like this:
Basic offense level for bribery by a public official: 14
If the offense involved an elected official, add 4 points
If the value of the bribe was greater than $70,000 but less than $120,000 add 8 points
If the defendant testified on his behalf and the jury verdict was inconsistent with his testimony, add 2-points for “obstruction”
Subtract 0 points for “acceptance of responsibility”
Total offense level = 28
The other count for which Hamilton was convicted, extortion, has a lower base offense level of only 9 as compared to the bribery charge which as stated above has a higher offense level of 14. So, for purposes of calculating sentencing guidelines, I am pretty sure these two charges would be grouped together and the higher-level offense as stated above would be used.
Assuming no prior criminal record, the federal sentencing guidelines for the above-described offense level is 78 to 97 months, or about 6 to 8 years. The interesting point is that under the federal sentencing guidelines, if Del. Hamilton had simply pled guilty, he would have been given 3 points of credit for “acceptance of responsibility” and would not suffer the 2-point enhancement for “obstruction.” His adjusted offense level would have been 23 instead of 28 and his recommended sentencing guidelines would be 46 to 57 months, or about 3.8 to just shy of five years. So, because he chose to go to trial and testify on his own behalf, he faces about two to three additional years of prison time.
As I followed this prosecution in the news, I thought it was a close-case as far as guilt or innocence was concerned. It seemed to me that Phil Hamilton was within reason to plead not guilty and to testify on his own behalf. It’s too bad that the decision to defend himself (if the sentencing judge follows guideline recommendations) will likely cost him a significant amount of prison time.
