Month: September 2012

Flagstaff Injury Lawyers: Comparative Negligence

Arizona’s personal injury laws favor comparable negligence (or contributory negligence) when more than one person is at fault for an injury and damages. This can be confusing when two or more vehicles are involved in a collision or accident in Northern Arizona, commonly referred to as a motor vehicle accident (MVA). That type of personal injury case leads to certain questions:

(1) Can both drivers be at fault? Yes. Sometimes both drivers are speeding, or one driver doesn’t use a turn signal properly and another driver fails to yield, causing a collision and injuries.

(2) What happens if both drivers are at fault?

That is where comparative negligence comes in. Arizona codified the comparative negligence laws in A.R.S. section 12-2505. According to the Arizona law, the defense of contributory negligence is a question to be determined by a jury in court. If there is contributory negligence, then “the full damages shall be reduced in proportion to the relative degree of the claimant’s fault which is a proximate cause of the injury or death, if any.” This means that if a jury determines that a driver is 25% at fault, but that another driver is 75% at fault, the driver who was 25% at fault shall be awarded damages in full, minus 25% of the total. It’s not fuzzy math – it’s personal injury law.

(3) If I am partially at fault for my own injury, should I give up?

No! Many people who are partially at fault can still be awarded damages. Recently in Flagstaff, a case went to a jury trial where a man slipped and fell on some ice, causing a serious injury to his leg, which subsequently needed to be amputated. The jury determined that the man’s damages were over $1 million, but that he was about 40% at fault. So the man was awarded the damages minus 40% of the total. He still walked away with significant damages.

Practical Tip from Griffen & Stevens Law Firm, PLLC: Always consult with a personal injury expert before you settle a claim with an insurance company. If you are being told that you were partially at fault, you can still “win” your case!

Drug Dogs & Searches in Arizona

In recent weeks in Northern Arizona, we have seen a surge of constitutionally questionable dog sniff cases, or “drug detection canine” cases.

The common scene is a person driving on I-40 or I-17 near Kingman, Seligman, Williams, Flagstaff, Winslow, or Holbrook (major target areas for drug dog cases). The officers pull the person over for trivial traffic violations, such as: illegal lane usage, speeding (sometimes 1 mph over the speed limit), unsafe following distance, or other trivial Arizona traffic law that is rarely enforced. The officers make the driver get out of the vehicle. The officers issue a “warning” for the bogus traffic violation and begin asking questions about drugs and illegal activity. The officers note nervousness or other “indicia” of drug trafficking. The officers then make the driver wait while they run a drug detection canine around the vehicle. The canine will breath heavily, snap its head around, bark, or claw. And with that, the cops grab your keys, open up your vehicle, invade your privacy, and pour through every personal item in your vehicle. If they find any contraband, you’ll be arrested on the side of the highway and jailed. This police process is ripe with constitutional violations.

And we love to fight back. Here are some things you should know.

Practical tip from Griffen & Stevens Law Firm, PLLC: If you are stopped for a trivial traffic violation, be polite, having your ID, registration, and insurance ready, and don’t be nervous. If the officer writes you a ticket or a warning, do not agree to speak about anything. Remain silent, but be cooperative. Do not agree to answer any questions about drugs or illegal activity. Once you have your ticket or warning and/or your ID back, ask the officer, “Am I free to leave?” If you are, then go. If he says no, exercise your right to remain silent. Do not consent to any search of your person or your vehicle.

A “sniff” by a drug detection canine of the air outside of a vehicle is not a search for purposes of the Fourth Amendment to the U.S. Constitution. United States v. Place, 462 U.S. 696 (1983). Nevertheless, Arizona prosecutors still have the burden of establishing probable cause for the warrantless search and seizure.

In another major drug dog case, Illinois v. Caballes, 125 S.Ct. 834 (2005), the Supreme Court held that the sniff of the exterior of a vehicle by a “well trained” drug detection canine during a “legitimate” traffic stop does not constitute a constitutionally cognizable intrusion upon legitimate privacy interests. But is the dog reliable? Why is a dark barking sufficient reason for the government to invade your private world against your will? Well, the State has to prove the dog is reliable and that the dog actually alerted to contraband. We have won “canine sniff” cases on several bases, including: handler cueing of the dog, bad alert, insufficient reliability of the dog, residual odor alert (which does not establish probable cause), lack of record-keeping on the dog, and many other factors.

Officers in Arizona cannot use dogs as a “free pass” to search any vehicle they want. But that’s what they are doing. To stop this unconstitutional behavior, we fight the validity of the traffic stop (bogus traffic violation), we demand information about the accuracy of the dog, and we challenge the actual dog alert and search in the court of law. The constitution may mean nothing on the side of the highway, but in court, your rights rule the day. And we’ll keep it that way.

Can Lance Armstrong and Barry Scheck Coexist?

Written by Bruce S. Griffen

For more than 30 years, I have been an in-the-trenches criminal defense lawyer. For more than 30 years, I have also participated in triathlons. I guess the connection is that competing in athletics was a way of relieving the stress of being a trial lawyer. I am not much on heroes. But I have had one in each of my passions. In the criminal defense world, it was lawyer Barry Scheck.

It was Barry Scheck because of the Innocence Project.

As most, both within and without the law know, the Innocence Project was, when really distilled down, a marriage of law and technology. We took technological/scientific advancement, DNA, and retroactively applied it to certain criminal convictions. DNA testing was able to be conducted on old forensic samples and, in case after case, proof secured that the individual was falsely convicted. This was great cause for celebration. It demonstrates that new technology can go back and correct fundamental injustice. (The Innocence Project is alive and well in Flagstaff at the Northern Arizona University Department of Criminal Justice.)

In my triathlon world, my obvious hero choice was Lance Armstrong. His talent, his cancer, his comeback, and his dedication to curing cancer, certainly makes for hero worship.

And then Barry Scheck nailed him.

The Innocence Project worked in reverse when it comes to Lance Armstrong. We took new technology, applied it to old blood samples, and were able to prove not innocence, but rather guilt. Seems to me this is a first: technological advancements reaching back, not to clear, but rather to convict. I’m not sure there’s ever been a time when DNA testing was conducted on an old case where someone was cleared rather than convicted. How would we feel about that? Is it okay, both socially and legally, to employ technology in that way?

The Lance Armstrong situation could, and perhaps should, create some debate. Die hard Lance fans have cried foul. They assert there exists a “statute of limitations” and that more than enough time had passed to leave Lance alone. Essentially, they claim that the reverse innocence project, which brought Lance down, was unfair and untimely. (The statute of limitations, for example, in an Arizona felony case is 7 years, except for very serious crimes the statute of limitations does not exist.)

We have legal concepts that help analyze this debate. We have ex post facto laws. Those are laws unfairly applied retroactively. But in this case, it was not a law that was applied retroactively but a technical/scientific process. The law that was (that you can’t blood dope) still is. In Lance’s case, we were just able to prove a violation with new technology. Philosophically, perhaps there is debate that new technology should not be allowed to be used retroactively to establish guilt. Again, a legal concept (double jeopardy) could be considered.

Lance was tested (more than 500 times) and he always passed. Shouldn’t his case be res judicata? A final legal concept has commonly utilized a distinction between a procedural and a substantive change in the law to determine whether the same can be applied prospectively as opposed to retroactively. Again, Lance supporters would say that it is patently unfair to take new technology and apply it in anything other than prospectively. I would argue that whatever legal theory you try to apply to the Lance Armstrong downfall, the same all fall short. In the final analysis, there should be no other test than truth.

Whether science should be applied retroactively, to possibly undo our heroes, misses the point. Sport is not more important than science. Science and sport are not more important than the truth. There is a line here: I am totally okay with using any type of medicine, chemical, device or contraption to cure cancer and enable someone, especially with Lance Armstrong’s talent, to have another shot at life and sport. It is not alright, however, to use the same win at all costs mentality when it comes to competition. In that arena, you can’t take anything you want to make you better.

So Lance can’t be my hero anymore. No hero of mine can lie to me. To me, there is no legal theory, defense or procedure that can save Lance. He didn’t just engage in blood doping… he is a dope. But I’m no dupe.

Flagstaff Injury Lawyer to Speak at General Assembly on Navajo Nation Indian Reservation

Flagstaff personal injury attorney Ryan J. Stevens has accepted an invitation to speak at the Shonto Chapter House, located northeast of Tuba City, Arizona, at their next General Assembly meeting.

Mr. Stevens will share legal insight on personal injury law applicable to all of northern Arizona, including on the Navajo Nation Indian Reservation. Having practiced law in the courtrooms of the Navajo Nation, Hopi Tribe, Arizona state courts, and U.S. federal courts, Mr. Stevens has the range of knowledge and personal insight to bring complicated legal concepts to a welcoming stage. The American Indian reservations of northern Arizona present a complex set of state (Arizona), federal (U.S.), and tribal (Navajo Nation) laws. And the American Indian roadways often present a multitude of serious dangers that result in fatal or near-fatal motor vehicle accidents.

Law enforcement is stretched thin across the broad high plateau of northern Arizona, leaving roadways subject to people driving at high rates of speed. The most common causes of serious injuries and crashes are: speeding, drunk driving, and poor weather conditions.

Mr. Stevens will address members and non-members of the Navajo Nation from Flagstaff, Tuba City, Shonto, and more. He will discuss the ever-changing personal injury laws of Arizona, using cutting edge legal research to help bring to light the most important case law (i.e., Arizona Supreme Court and Arizona Court of Appeals decisions) of 2012.

When a person is seriously injured on the reservation, Flagstaff lawyer Ryan J. Stevens, along with experienced attorneys Bruce S. Griffen and Gunter Ziwey*, come to the aid of the injured and their families.

At the Griffen & Stevens Law Firm, PLLC, we understand the need for personalized and meaningful legal representation. We treat all people and all families with respect, dignity, and professionalism. And if someone has done wrong to you or your loved one, we aggressively pursue your claim to the maximum permitted by Arizona law. Our results speak for themselves. We pride ourselves in offering top level free consultations on all personal injury, car accidents, and wrongful death cases. We maximize results for our clients. And we comfort those in need by protecting and asserting their legal rights.

*Gunter Ziwey is admitted in Germany only.