Month: September 2015

The Importance of Dog Bites

Most people are not aware of the personal and legal implications of a dog bite. The immediate need for medical care is, of course, the top priority. But then what? Will there be a scar? Permanent injury or disfigurement? What happens to the dog owner? And the dog?

Statistically, dogs bite about 4.5 million Americans every year, half of them children between ages 5 and 9. Injuries often include one or more of the following: scars, nerve damage, abrasions, punctures, lacerations, crush injuries, tissue loss and avulsion, bone fractures, sprains and strains, disability and disformity, and life-threatening infections like rabies. Children are especially susceptible to facial scars and facial fractures.

Getting proper medical care and treatment is extremely important after a dog bite. At the Griffen & Stevens Law Firm, PLLC, we know the best doctors and are happy to refer dog bite injury clients to the right providers for the best care.

Legal Implications of Dog Bites

In Arizona, dog bites are subject to strict liability. The dog owners are strictly liable for the bite victim’s injuries if they are “owners” of the dog. Ariz. Rev. Stat. § 11-1025(A).

Arizona law specifies that “[t]he owner of a dog which bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of his viciousness.” § 11-1025(A). Importantly, the legislature defined “owner” as “any person keeping an animal other than livestock for more than six consecutive days.” A.R.S. § 11-1001(10).

In Arizona, dogs do not get “one free bite;” owners are held strictly liable for injuries caused by their dogs’ actions and liability is imposed without regard to an owner’s knowledge of the dog’s viciousness. Massey v. Colaric, 151 Ariz. 65, 725 P.2d 1099 (1986).

In sum, if an unprovoked dog bite occurs, the owner or keeper of that dog is civilly (and sometimes criminally) liable to the victim for damages. If the owner has homeowner’s or renter’s insurance, the damages may be covered by the insurance carrier.

Griffen & Stevens Law Firm, PLLC Practice Tip: The statute of limitations for strict liability on a dog bite is one (1) year in Arizona. Contact our law firm as early as possible to preserve all evidence and file a lawsuit within the statute of limitations.

The dog bite owner/keeper can be criminally prosecuted under several city and county codes. Criminal restitution may be available in the criminal case. However, it is critically important to file a lawsuit and/or initiate a claim with the insurance carrier who will be paying the damages to the dog bite victim.

Other damages may become known soon after the dog bite. Emotional harm; fear of dogs; and other emotional and psychological consequences are common. These harms and damages, in addition to the physical injuries, can lead to a serious insurance claim. We would be honored to aggressively pursue your dog bite claim.

Contact us for a free case evaluation on any dog bite case.

Retrograde Analysis in Arizona DUI

Flagstaff, AZ – Arizona law prohibits driving with a blood alcohol concentration (BAC) of 0.08% or higher within two hours of driving. For the purpose of this article, “within two hours of driving” is the critical phrase.

What if the police cannot obtain a breath or blood sample from the driver in the two hours after driving?

In some cases, it takes over two hours to get a qualified phlebotomist to draw a person’s blood. In other cases, the driver may refuse to consent (warning: there are consequences for refusal) to a breath sample. Or the driver may have to receive medical treatment, and no sample can be obtained within the first two hours.

Regardless of the reason for the delay, the State will still prosecute the driver for DUI, even if they did not obtain a BAC on the driver within 2 hours of driving.

How? And what is a retrograde extrapolation?

The State will try to meet its burden of proving that a defendant had a BAC higher than the legal limit within two hours of driving by using retrograde extrapolation. State ex re. Montgomery v. Miller (Real Party in Interest: Suzanne Madrid), 234 Ariz. 289, 295 ¶ 4 (Ariz. Ct. App. 2014) (citation omitted) (hereinafter referred to as “Madrid”). A retrograde extrapolation is a method by which a person’s BAC at an earlier point in time is calculated based on his BAC from a later blood test. Id.

Rule 702 of the Arizona Rules of Evidence provides that a trial judge serves as a gatekeeper who makes a preliminary assessment as to whether the proposed expert testimony is relevant and reliable. Madrid, 234 Ariz. at 297. There are several considerations under Arizona law: (1) whether the proffered expert is qualified to testify about a particular issue; (2) the expert testimony must assist the trier of fact in understanding the evidence – expert testimony that does not relate to any issue in the case is irrelevant therefore not helpful; (3) the court examines whether the expert obtained enough information to make the opinion reliable; and (4) the law requires the expert’s testimony to be based on ‘reliable principles and methods’ and must be based on more than speculation.

Under newer legal standard for expert testimony pursuant to Daubert, the trial court should consider such factors as: 1) whether the expert’s theory or technique can or has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) whether the theory or technique is generally accepted within the relevant scientific community; 4) the known or potential rate of error of the technique; and 5) the existence and maintenance of standards controlling the application of the technique.

According to Madrid, “[n]o single Daubert factor is dispositive of the reliability of an expert’s testimony, and not all of the Daubert factors will apply to all experts or in every case.” Id. at 299 (internal quotation and citation omitted).

Generally, the best Arizona experts agree that a number of variables affect how long it takes an individual to reach their peak BAC, including drinking history (time of last drink, how much they drank and over what time period, what type of alcohol they drank, whether they are a heavy or social drinker), eating history (when they ate, what they ate and how much food they consumed before they were stopped), and personal characteristics (height, weight, gender).

The Madrid Case

The trial court in Madrid determined that the retrograde analysis evidence was “unreliable and highly prejudicial” and precluded it from trial. The Arizona Court of Appeals applied Rule 702/Daubert and reversed the trial court’s decision.

Under 702(c) the court made several findings: (1) the State’s expert’s testimony that an average person reaches a peak BAC within two hours of driving was sound because the expert was able to cite multiple studies supporting his position; (2) the analysis had been peer reviewed because the State submitted several peer reviewed publications; (3) the State presented evidence that its expert’s methodology has been generally accepted within the relevant scientific community; (4) the State’s expert’s specific methodology reliably accounted for the potential rate of error in his retrograde analysis; (5) there were general scientific standards that governed the use of retrograde extrapolation; (6) whether an expert prepared his/her testimony in preparation of litigation does not weigh heavily for or against reliability regarding retrograde; and (7) retrograde is generally considered to be a reliable scientific procedure.

With that, the Madrid case solidified Arizona law on retrograde analysis under the new expert testimony standards (Daubert). Under Arizona law, when offered properly by a qualified expert witness, retrograde extrapolation is acceptable and admissible in a DUI case.

If you need a free consultation on a retrograde DUI case, or any criminal case, send us an email or call us at the number at the top of this web page.