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Comparative Negligence: Assigning Fault in Wisconsin Traffic Accidents
Personal injury and traffic accident trials are about assigning fault. The court determines who was at fault in the accident, and then it awards damages to the injured parties. Sometimes this fault determination is simple and straightforward. If a drunk driver runs a red light and crashes into the side of a car that was following the traffic laws, the accident was the drunk driver's fault. However, not every accident is so clear. There are some cases where neither side was driving as carefully as they should have been. In the past, courts would have simply said that no one could recover since any level of carelessness made that accident the fault of both parties. That is no longer true. Now courts invoke the legal doctrine of comparative negligence to determine how to assign fault.
The Blunt Facts about Drug Charges
Throughout the United States, each state has enacted laws that make it unlawful to possess, distribute or manufacture illegal drugs. These substances include marijuana, cocaine, heroin, methamphetamines, and various other drugs. Also, an individual could be charged with drug distribution if he or she is engaged in the illegal distribution of prescription drugs, the most common being painkillers or sleeping pills. The punishment for possession is much more lenient than that of distribution or manufacturing. These punishments depend on a variety of factors, such as the type and amount of drug, geographic area and groups targeted for the distribution of illegal drugs. The terms of punishment can range from a couple of years in prison to life imprisonment.
Possession of a small amount of a drug, such as marijuana, is usually only a misdemeanor. However, charges related to drug trafficking, distribution and manufacturing are commonly considered felonies and lead to more serious fines and prison time. If you are found in possession of a substantial amount of drugs, there is a possibility you could be charged with intent to distribute if the police believe you were in a position to sell them to other people. This is also true if you are found with a limited amount of drugs and a significant amount of cash.
If you are facing charges related to drug trafficking, it is important to remember that state and federal laws almost always come into play. Most state laws are modeled after federal laws and there are mandatory minimum punishments depending on the type and amount of drug involved. Although lawmakers passed these harsh laws to deter major drug distributors, petty drug dealers are too often the ones to be prosecuted.
Drug-Related Arrests in Wisconsin
According to the Wisconsin Department of Justice, there were a total of 340,893 arrests across the state in 2012 (See “Arrests in Wisconsin 2012”). Drug arrests accounted for 27,345, and 83 percent of these arrests were related to possession charges. A first-time offense related to the possession of marijuana carries a $1,000 fine and possibility of six months in prison. A list of substances regulated by the state of Wisconsin can be found here and felony classifications can be found here.
Depending on the circumstances of your case, the state or federal prosecutor can determine whether or not you had the intent to sell or manufacture illegal drugs. The typical indicators are amount of drug, type of drug, geographical location, and presence of distribution paraphernalia (baggies, scales, etc).
Let Our Attorneys Defend You in Your Case
The possible punishments, regardless of the drug trafficking charges, are far too serious to consider taking care of on your own. You should contact an experienced Milwaukee criminal defense attorney to help you fight the charges every step of the way.
Child Pornography Charges in the Digital Age
In recent years, law enforcement agencies across the United States and in Wisconsin have relentlessly pursued producers, possessors and distributors of child pornography. Individuals caught and charged with the sexual exploitation of children or possession and/or distribution of child pornography could potentially be prosecuted under state or federal laws, or even both.
Between 1996 and 2005, the Federal Bureau of Investigation reported that the amount of child pornography and sexual exploitation cases opened by the agency skyrocketed from 114 to 2,402, and arrests related to these charges per year increased from 68 in 1996 to 1,649 in 2005. Within this 10-year period alone, the amount of cases opened and arrests made by the Federal Bureau of Investigation increased over 2,000 percent.
Penalties for Child Pornography
Under federal law, a first time offense of production of child pornography is a felony, which carries a 15-year minimum sentence up to a maximum of 25 years in prison. But a first-time offense of possession of child pornography is a felony and only carries a three-year mandatory minimum, up to a 20-year maximum, while distribution carries a five-year mandatory minimum. A second offense in either one of these categories of charges essentially doubles the maximum possible sentence. In Wisconsin, possession of child pornography is a class D felony, which carries a maximum 25-year sentence, with a fine up to $100,000, or both. The production of child pornography or the sexual exploitation of children is a Class C felony, which carries a maximum 40-year sentence and up to $100,000 fine, or both.
Understanding Your Fourth Amendment Rights
Legal disputes over the admissibility of evidence seem like they have the potential to be quite dry, but in reality they can make all the difference in the outcome of a case. For instance, if a person is charged with possession of a controlled substance, the prosecution will have a difficult time proving their case if the judge prevents them from actually introducing the drugs to the jury.
In the criminal context, one of the most important rules related to the admissibility of evidence comes from the Fourth Amendment. The Fourth Amendment protects citizens from “unreasonable” searches. Importantly, if a police officer finds evidence as a result of a search that the court considers unreasonable, then the prosecutor cannot use that evidence in the trial as a punishment for violating the defendant's rights.
Police and Warrants
The general rule about whether a search is reasonable is whether it was executed pursuant to a valid warrant. Warrants are legal documents that empower the police to perform a search. The police get warrants by going before the judge, and presenting evidence that there is probable cause to believe that a search will turn up further evidence of criminal activity.
The mere existence of a warrant does not make all searches valid. For instance, warrants are limited to searching specific premises for specific items. If the police exceed the boundaries of the warrant, then the search may be deemed unreasonable. Similarly, warrants are only good for a limited amount of time. Police are not allowed to seek warrants and then store them indefinitely to use as needed. Searches executed under an outdated warrant may also be considered unreasonable.
Exceptions to the Warrant Rule
Importantly, the rule that police need a warrant to perform a search is subject to a variety of exceptions. One of the most important exceptions is for vehicles. It would be impractical to always force police to seek a warrant during a traffic stop, so the law allows police to use their own judgment. If the police believe that there is probable cause to perform a search, then they may search a vehicle over the driver's objections. However, if that search turns up evidence of a crime, the judge at trial will have to determine whether the officer actually had probable cause.
Another important exception to the warrant rule is one of consent. Police officers are allowed to ask for permission to perform searches of people or their property. People are under no obligation to consent to these searches, but if they do consent, they lose the authority to later contest the reasonableness of the search.
The law provides a variety of protections to ensure that people accused of crimes do not have their rights violated. If you are facing criminal charges, and want to learn more about these protections, contact an experienced Milwaukee criminal defense lawyer today.
Companies Developing Marijuana Breathalyzers
One of the biggest political controversies across the country today is the creeping legalization of marijuana. Many states have legalized marijuana for certain medical uses, and some have even gone so far as to legalize it for recreational use. This spate of legalizations presents a new issue, the likely increase in people driving under the influence of marijuana. In order to deal with this, both companies and universities are attempting to develop and commercialize marijuana breathalyzers for use by police forces. These breathalyzers have the potential to make enforcement of OWI laws more objective and scientific, but there are also some issues with their introduction.
Potential Benefits
The major benefit of these breathalyzers would be their objectivity. Right now, police officers are mainly forced to rely on their judgment to determine if a person is driving while under the influence of marijuana. They have to look for things like bloodshot eyes, failure of field sobriety tests, the smell of marijuana, and the presence of drug paraphernalia. While some of these may be strong indicators of an OWI, a person with bloodshot eyes who fails a field sobriety test could also simply be suffering from fatigue. The only way to be sure is to then bring the person back to the station to test their blood or urine for the presence of marijuana.
These marijuana breathalyzers could change that. They could provide police with a convenient way to test for marijuana, and determine if it was worth bringing the person back to the station for a more thorough test. This could also benefit drivers since it would make it less likely for police to bring people back to the police station based on inaccurate suspicions.
Possible Concerns
However, there is also a good reason to be concerned about these new breathalyzers, particularly in Wisconsin. Wisconsin is known as a “zero tolerance” state for marijuana OWIs. This means that any detectable amount of marijuana in a person's system is enough to justify an OWI conviction. This could make marijuana breathalyzers a serious problem because they could lead to an over-enforcement of OWI laws.
There is a big difference between having a detectable amount of marijuana in a person's system and having their driving impaired by the marijuana. Marijuana can be detectable for days or weeks following the use. This means that a person could come from a state where the use of marijuana is legal, and then be successfully charged with “impaired” driving weeks later. Consequently, the use of marijuana breathalyzers may require a change to Wisconsin's OWI laws.
OWI charges can result in serious penalties, especially for repeat offenders. If you have been charged with an OWI and want to learn about your options, contact a skilled Milwaukee criminal defense attorney today.
Expungement in Wisconsin
One of the most difficult parts of a criminal conviction is the continuing existence of a criminal record. Long after people have served their time and reformed themselves, they can still find their criminal record holding them back, preventing them from getting work, housing, or state licensing. Wisconsin law does allow for people to have their criminal records expunged in certain circumstances. However, it is important to note that Wisconsin's laws on expungement are particularly harsh. They do not provide as many benefits as some states' laws do, and they can also only be accessed for a limited number of reasons.
How Expungement Works
Expungements in Wisconsin are available to only a limited group of people, usually those who committed their crimes as juveniles or young adults. In order to qualify for an expungement, a person must meet four criteria. First, they must have committed the crime while they were under the age of 25. Second, the crime must be a misdemeanor or certain low-level, non-violent felonies. Third, the person must have successfully completed their sentence, which includes things like complying with the terms of probation following a release from prison. Fourth, the court must determine that the offender stands to benefit from an expungement and that such an expungement would not go against the public interest.
Strategies for Beating an OWI
OWIs can be serious charges that come with expensive penalties, especially for people who have prior OWIs on their records. Many people risk driving drunk because they think they will not get caught. Yet, there are tens of thousands of OWI convictions every year, according to statistics compiled by the Wisconsin Department of Transportation. Consequently, people should be aware of the different strategies Wisconsin OWI attorneys can use to fight an OWI conviction after the charges occur. These strategies include taking advantage of the burden of proof, fighting to exclude evidence, and contesting evidence that cannot be excluded.
The Burden of Proof
One key point to understand about the criminal justice system is that the burden of proof rests on the prosecution. This leads to the often recited line that people are innocent until proven guilty. In a practical sense, this means that it is the job of the prosecutor to prove the case, not the person's OWI defense attorney. This is an important strategic point. A person accused of an OWI does not need to prove they were sober. They merely need to knock out key portions of the case against them that would prove drunk driving.
The Entrapment Defense in Wisconsin
Many legal and police-based TV shows raise the issue of an “entrapment” defense at some point during their run, but the defense is often not as simple as those shows imply. The entrapment defense is an argument available to criminal defendants that the police tricked them into committing a crime that they would not have otherwise committed. The defense arises most often in cases where the defendant was caught by an undercover officer, such as in prostitution stings or undercover drug buys. However, proving entrapment as a defense requires more than just showing that the officer deceived the defendant in some way.
Proving Entrapment
The important thing to understand about entrapment is that it is a high bar to meet. Mere deception on the part of the police is not enough, and neither is simply providing the defendant with the opportunity to commit a crime that they would have otherwise committed. Instead, the defendant has to show that the police somehow induced them to commit a crime they would not have engaged in without police interference. Undercover drug sales make a good example for showing the distinction between providing an opportunity and inducing the crime.
Proving Negligence in Distracted Driving Cases
No matter where you go these days, it is not unusual to see or hear an advertisement related to the dangers of distracted driving. When people hear the term distracted driving, they usually associate it with cellphone usage and teenage drivers. This is not surprising due to the fact that teenage drivers account for the highest proportion of distraction related traffic accidents. However, most people tend to forget that distracted driving comes in many shapes and sizes.
What is Distracted Driving?
Distracted driving encompasses any activity that diverts a person’s attention from operating a motor vehicle and the road. These distractions include texting, fidgeting with cell phones, eating, drinking, putting on makeup, reading, utilizing navigation systems, watching videos, adjusting the radio and even speaking with passengers.
According to the National Highway Traffic Safety Administration (NHTSA), texting while driving is approximately six times more dangerous than drinking and driving. Since 1982, the amount of alcohol-related traffic accident deaths has dropped 52 percent while the amount of non-alcohol related traffic accidents has increased 78 percent during the same time period. The Centers for Disease Control and Prevention, based on a report from the NHTSA in 2012, reported that accidents involving distracted drivers accounted for the death of 3,328 people and injuries to approximately 421,000 others.
How Do I Prove The Other Driver Was Distracted and Negligent?
Based on the different forms of distracted driving listed above, this question is hard for many victims of distracted driving accidents to answer. Victims of these types of accidents should consult with an experienced distracted driving accident attorney, since, depending on the circumstances, these cases could present complex issues.
Whenever a driver operates a motor vehicle on a public road, he or she is required to safely operate that vehicle and owes a duty of reasonable care to pedestrians and other drivers. This duty of reasonable care is breached when a driver is distracted and gets into an accident. If the distracted driver was speaking on a cell phone at the time of the accident, evidence of the phone call could be used to prove negligence. Likewise, if the driver was adjusting the radio, putting on makeup, or eating food at the time of the accident, the acts of the distracted driver could be used to prove negligence because he or she was not safely operating the motor vehicle.
What is Comparative Negligence?
Evidence of distracted driving can also be used against individuals who do not cause the accident. For example, if a driver is fidgeting with a cell phone while operating a motor vehicle and another driver hits the first car, this distraction could constitute contributory negligence depending on the circumstances. In this case, under Wisconsin law, if the distracted driver playing with their cell phone is found to be 51 percent negligent, he or she would be prevented from recovering any compensation for damages or injuries sustained from the accident.
Many states, including Wisconsin, have passed laws to combat distracted driving. Wisconsin has even included a provision specifically banning the “composing or sending” of text messages while operating a motor vehicle. Remember, every time you get behind the wheel, you are legally responsible for safely operating a motor vehicle. All measures should be taken to prevent any unnecessary lapses in attention. Failing to do so could put yourself, your passengers and other drivers in danger.
If you or someone you know suffered injuries at the hands of a distracted driver, you should contact an experienced Milwaukee personal injury attorney who will assist you in obtaining the compensation you deserve for the injuries you suffered.
Truck Driver Substance Abuse and Truck Accidents
Commercial truck drivers have a demanding job. They face long, lonely hours on the road, and their salary is directly related to how hard they are willing to push themselves to keep driving. Consequently, federal law places a variety of restrictions on how long truck drivers are allowed to stay on the road for, in order to reduce the possibility of truck accidents. Unfortunately, many drivers choose to ignore these restrictions, pushing themselves beyond the legal limits. Even more problematically, worldwide research suggests that many of these drivers rely on illegal substances in order to stave off the fatigue and boredom that comes from that type of driving. Drivers who share the road with these trucks should be sure to keep this type of danger in mind.
Common Types of Truck Driver Substance Abuse
Truck driver substance abuse falls into two main categories, abuse of depressants and abuse of stimulants. Abuse of depressants involves drivers who are using drugs such as marijuana or alcohol when they are behind the wheel. In fact, truck drivers in the United States had the highest incidence of positive tests for alcohol use; 12.5 percent of drivers tested positive. These sorts of drugs can pose a serious danger to drivers sharing the road with truckers because the alcohol and marijuana can impair a driver's concentration, slow their reaction time, and can even cause truckers to fall asleep behind the wheel.
The other type of substance abuse that is common for truck drivers is the abuse of stimulants, drugs like cocaine and amphetamines. Truckers often use these sorts of substances to stave off fatigue and keep driving longer. While the fact that these drugs help keep drivers more alert may seem like a good thing, they come with a host of dangerous side effects. Truck drivers using stimulants behind the wheel may experience dizziness, impaired concentration, altered reaction times, and even hallucinations.
Responding to a Truck Accident
This prevalence of substance abuse among truck drivers adds an extra dimension to the way in which people should respond to trucking accidents. Acquiring evidence of possible substance abuse during the crash can make it easier to prove fault in the case. People should also be aware of the special laws related to substance abuse that apply to truck drivers. For instance, the Federal Motor Carrier Safety Administration has placed a lower legal BAC limit on truck drivers. Rather than the ordinary 0.08 percent legal limit, truck drivers are considered intoxicated if their BAC rises above 0.04 percent.
Trucking accidents can lead to serious injuries because of commercial trucks' massive size. If you have been injured in a trucking accident, and want to learn more about your rights, contact a skilled Milwaukee personal injury attorney today. Our team of lawyers is here to help you fight for the full and fair compensation that you deserve.
