DUII

5 Things To Know if You Were In a Crash with a DUII Driver

Ross Law PDX recently resolved a case where our client was hit by a DUII driver. The driver was out drinking and decided to drive home. While he was driving his blood alcohol concentration was well over the legal limit. The speeding drunk driver ran a stop sign and T-Boned my client’s car. The crash totaled my client’s vehicle. The DUII driver then attempted to flee, but pulled over minutes later. The DUII driver was then arrested and charged with DUII and Reckless Driving. While the DUII driver was spending the night in jail, our client was at Urgent Care getting treatment for his injuries. The crash caused ourclient to suffer soft tissue injuries (neck and back strain) which thankfully healed in a short amount of time. Our client brought Ross Law on board and we were able to obtain the DUII Driver’s $25,000.00 policy limits very shortly after letting them know of our representation. This is not an unusual scenario in DUII crash cases. However, these cases are unique and many victims of DUII drivers are often getting less than they are entitled to simply because of confusion about their rights and obligations. The following five things should assist DUII victims in ensuring they receive maximum compensation for their losses:

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1) You Have a Right to Receive A Police Report & Other Information: One of the first things that victims want to know is what happened to cause their injuries. Clients often say, “I don’t understand how he/she could have been so drunk and still driving.” Getting a police report helps victims learn what happened. It also helps them evaluate a civil case against the DUII Driver. The vast majority of the time the District Attorney will not release a police report while the case is pending under any circumstances. This is one exception to that rule. The law mandates that the District Attorney’’s Office must provide a report to victims or their lawyers if it is requested. See ORS 135.857.

2) The District Attorney Does Not “Represent” The Victim: The District Attorney’s job is to prosecute the DUII driver. This means that they will ensure that the DUII driver is either convicted of DUII or brought to trial for DUII. If the DUII driver is convicted of DUII, then the District Attorney may ask all victims involved if they are seeking restitution. This does not mean that the District Attorney is the victim’s lawyer. It simply means that the District Attorney (“DA”) is doing their job to ensure that the victims receive criminal restitution they are entitled to. This distinction is important to remember, because many people believe that the DA is also helping them with an “insurance claim” or getting compensation. Simply put, that is not he District Attorney’s job. That is what personal injury lawyers and crime victim lawyers such as Ross Law PDX do. This must be clear because the victims may limit their compensation if they do not exercise all of their rights. Click here to learn more about the difference between the district attorney and a civil attorney.

3) Criminal Restitution is Not the Same as Compensation in a Civil Case: Many times the District Attorney will send DUII victims a letter requesting if they are seeking “restitution.” Many people are confused about these letters and notices. Additionally, some DUII victims believe that seeking restitution is the same as pursuing a civil claim against the DUII driver. These are very different things. Criminal restitution is very limited. Criminal Restitution only covers “economic damages” caused by the defendant. Economic damages are defined as “objectively verifiable monetary losses.” These are often referred to as “out of pocket expenses.” Things like medical bills, burial expenses, lost income, costs to repair property, and insurance deductibles are routinely covered. See ORS 137.106(1) and ORS 31.710(2)(a). However, things like pain, suffering, frustration, anxiety, interference with activities of daily living are not recoverable as criminal restitution. These are non-economic damages. The DA has to make a claim for restitution within 90 days of sentencing, so it is important to communicate with the DA promptly if you are seeking restitution.

4) Insurance Companies Will Still Cover A DUII Crash: There are many instances when an insurance company refuses to provide coverage for an incident due to the insured’s conduct. However, the vast majority of the time an insurance company will still provide insurance coverage for a DUII crash. This is important because it allows the injured victims to receive compensation for pain and suffering in addition to their economic losses.

5) A DUII Crash Case is Worth More than a Regular Case: Insurance companies evaluate make their money by evaluating risk. They do their best to attempt to figure out what a Jury may award the victim of a DUII driver. This can be difficult because of the risk of punitive damages and the fact that the Jury may simply award the victim a substantial amount of money because the driver was impaired at the time of the crash. As a result, insurance companies will usually pay more to a victim of a DUII driver.

If you or someone you know has been injured in a crash with an Oregon DUII driver or impaired driver you should call Ross Law PDX at 503.224.1658 for your free personal injury consultation. Oregon Personal Injury and Wrongful Death attorney Jeremiah Ross is happy to discuss your options. Please remember that case results vary and the law is constantly changing. Please contact a personal injury lawyer rather than relying on this post. Also this post could be considered ATTORNEY ADVERTISING.

Can You Be Sued for Over-serving Alcohol to A Person that Causes a Car Crash?

‘Tis the season for holiday parties, which means it is also the season for DUII crashes. Many of these crashes cause catastrophic injuries or deaths. When that occurs it is likely that the injured person’s family will want to hold all negligent persons responsible for causing the injuries or death. Most people think that simply the impaired driver is solely responsible for causing the crash. However, that may not be the case if the DUII driver is leaving a residence or bar where he was over-served alcohol. In Oregon you can be sued if you are a social host and over-serve a visibly intoxicated person who causes a car crash. This means that you may be responsible for the injured person’s losses which can be millions of dollars in some cases.

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To put it another way, homeowner’s can be held responsible for serving alcohol to a person that is visibly intoxicated and later injures another in a DUII crash. (See ORS 471.565). Oregon courts have determined a person who receives guests in a social setting, in which the host serves or directs the serving of booze or beer to guests can be held accountable if the overly intoxicated person later injures another in a DUII crash. Don’t believe me? Check out the Court’s opinion in Deckard v. Bunch, 358 Or 754 (2016).

Social Host liability is important because home owner’s and renter’s insurance policies may cover DUII crash injuries and provide tens of thousands, or hundreds of thousands of dollars, in additional insurance coverage. This money can be used to pay medical bills, physical therapy, vocational rehabilitation, and to compensate the injured person or their family for their harms and losses. More importantly, social host liability will hopefully act as a deterrent to over-serving intoxicated people who may get behind the wheel.

Social Host cases can be complicated and there are other theories an attorney can use to attempt to obtain maximum recovery for a person’s wrongful death, injury, or loss. Please contact Portland Personal Injury Attorney, Jeremiah Ross, at 503.224.1658 for a free personal injury consultation. Please remember this post is for informational purposes only and you should rely on the current statute and case law when considering a dram shop claim. These laws constantly change and the theories of liability are not as clear as they were in the past. Please consult with an attorney if you believe you have a dram shop claim, social host claim, or have been injured by a DUII Driver.

Where Does Oregon Rank on "The States with the Worst Drivers"

As a personal injury lawyer, I often hear about Oregon's worst drivers.  Oregon's drivers can do some incredibly dumb things that often result in injuring others.  A recent survey from SmartAsset (a tech/finance company) has ranked the States' drivers from best to worst.  Oregon ranks number 26 on the list. The optimist in me says that we are lucky to live in Oregon, because there are 24 States that have more terrible driving habits than Oregonians. However, the reality isn't so rosy.  Oregonians have serious room for improvement, to drive safer and reduce traffic caused fatalities and injuries.  The survey also noted some interesting facts about Oregon Drivers: 

1) Only 83.3% of Oregon drivers have insurance.  All vehicles are required by law to be covered by insurance, so this is a troubling statistic.   This is why it is imperative to have sufficient uninsured ("UM") motorist coverage on your auto insurance policy. The State minimum $25,000.00 is likely not enough to cover you if you are in a crash.  Click here to learn three things you should know about Oregon's Auto insurance. 

2) For every 1,000 drivers in Oregon 3.16 of them will be arrested for DUII (Driving While Under the Influence of Intoxicants).  This is also a troubling statistic because this is for DUI arrest, not the actual number of DUII drivers.  This statistic is not surprising to me because I regularly represent people that were injured by DUII Drivers.  In case you were curious, North and South Dakota both top the charts for DUII arrest with over 11 DUII arrests for every 1,000 drivers.  

CAUTION THE LANGUAGE IN THE VIDEO MAY BE OFFENSIVE and IS NOT ENDORSED BY ROSS LAW

3) 1.3 people will die in Oregon Roads for every million vehicle miles traveled.  To put it another way, 2 people will die on Oregon Roads after all of the vehicles in Oregon travel a combined 3 million miles.  These wrongful deaths become more frequent as more people move to Oregon and more people drive in Oregon.  As of May 2018, 17 people had died in traffic crashes.  Things are not looking better for the remainder of the year. For example, last week a motorcyclist was killed near the St. Johns Bridge. Almost all of these wrongful deaths are completely preventable if drivers simply obey the rules of the road.  or the 

If you were wondering where the worst drivers are, well here it is.  According to Smartasset the states with the worst drivers are:

1) Mississippi

2) Tennessee

3) California

3) Missouri (Tied with California)

5) New Mexico

5) Texas (Tied with New Mexico)

7) Alabama

8) Florida

9) Alaska

10) Arizona (Tied with Alaska)

Click here to read more about the survey and the methodology they used. Remember if you or someone you know where in an Oregon car crash call Portland Personal Injury Attorney Jeremiah Ross at 503.224.1658.  Ross Law PDX provides free case evaluations for wrongful death and personal injury matters.   Jeremiah Ross also represents people in disputes with their insurance company in uninsured motorist claims, underinsured motorist claims, and personal injury protection benefits claims.  Please note that Jeremiah Ross, and Ross Law PDX, do not have any affiliation with Smartasset, nor have they confirmed any of the statements or statistics are accurate. 

 

 

A dangerous day for driving ,SNOW and the Superbowl:

It is Superbowl Sunday and the National Weather Service is also predicting snow yet again in Portland, Oregon.  As the Oregonian has previously reported, the Superbowl is historically a dangerous day for people to be on the road, because of all of the DUII Drivers.   Portland drivers have shown over the past few weeks that we have issues with driving in the snow.  In short, this is a terrible day to drive.  

 

If you need information about what to do if you were in a car crash due to snow click here.

 

If you were involved in a crash with a suspected DUII driver click here.

If you have questions about additional compensation, because you were hit by a DUII driver click here.  You may be entitled to punitive damages, criminal restitution, and increased damages if your case is taken to trial.  and there may be more people responsible for causing the crash than just the bad driver.  For more information click here.

If you want to speak with a lawyer rather than reading call me at 503.224.1658 for your free car crash personal injury case evaluation.  Feel free to call Ross Law and Jeremiah Ross at 503.224.1658.  

Please remember this post is for informational purposes only and the law is constantly changing.   Please call a lawyer before relying on this post. 

Victim of a Crime? Know Your Rights...

The Criminal Justice system can be a confusing, intimidating, and scary place for crime victims. Many victims do not know what is expected from them, who the lawyers are that are involved, and more importantly they don't know their rights.  Many times the District Attorney's office does their best to keep victims involved in the case, but DA's and victim advocates are often overworked and simply do not have the time or resources to ensure every victim's rights are understood and honored. This post is meant to provide you some information to assist you in asserting your rights.   Below is a list of things you should know if you were a crime victim:

Who Is The District Attorney:  The District Attorney is an attorney that represents the State of Oregon in criminal matters.  They are also called prosecutors, DAs, or DDAs.  Basically each county has a District Attorney (DA).  That person has an office that employs deputy DA's to hold people responsible that have been accused of breaking the law.  

Is the DA the Victim's Attorney:  No, the DA represents the State of Oregon.  The victim is a citizen of the State and has unique rights under the law, but the DA is not the victim's lawyer.  If you believe you the defendant should be responsible for paying for your harms and losses you should seek a "civil lawyer" such as myself to represent you.  The criminal justice system and the Civil Justice System are not the same.  For example, the District Attorney cannot obtain damages for emotional harm, but a civil lawyer can. For more information click here.

Who are "Victim Advocates:"   District Attorneys offices have persons that are victims and advocates that do their best to ensure victims rights are honored.  In Multnomah County the DA has a Victim Assistance Program or VAP.  To learn more click here.

What are Oregon Crime Victim's Rights:  Oregon Victims have numerous rights.  I have posted some, but not all, of the rights below.   Please remember the law is constantly changing and it is best to consult with an attorney or the District Attorney to ensure the law has not changed.  Do not rely solely on this post.  With that said, see the rights below:

  1. Crime Victims Must Be Informed of Their Rights:  A “law enforcement agency” shall notify a crime victim about his or her rights as soon as reasonably practicable. Or Const, Art I, § 42(1)(g); ORS 147.417(1). 
  2. If You Request, Then You Must Be Informed of All Critical Stages of the Proceedings: A crime victim has, upon specific request, the right to be informed in advance of any critical stage of the proceedings held in open court when the defendant or alleged youth offender will be present and to be present at any such stage of the proceedings. Or Const, Art I, § 42(1)(a) 
  3. The DA Must Account for Your Schedule when Setting a Trial Date: “When resetting any trial date or setting any court hearing requiring the presence of the victim, the court shall take the victim into consideration. The court shall inquire of the district attorney as to whether the victim has been informed of the prospective date and whether that date is convenient for the victim.” ORS 136.145
  4. If Requested, You Have a Right to Be informed if The Defendant's Probation May be Revoked: Right to Notice of Probation Violation/Revocation Hearings Upon request, a crime victim has the right “to be notified of any hearing before the court that may result in the revocation of the defendant’s probation for a felony or person Class A misdemeanor.” ORS 137.545(11). 
  5. You Have a Right to Be Present at Critical-Stage Proceedings if Requested: A crime victim has, upon specific request, the right to be present at any critical stage of the proceedings held in open court when the defendant or alleged youth offender will be present and to be present at any such stage of the proceedings. Or Const, Art I, § 42(1)(a).
  6. You Right to Have a Person with you (with some exceptions): The victim of a person crime who was at least 15 years old when the crime is committed, may select a personal representative to accompany the victim to phases of the investigation and prosecution of the crime except for grand jury proceedings and certain child-abuse assessments. ORS 147.425. 
  7. If English is Your Second Language You Have a Right to Court Appointed Interpreter “In any criminal proceeding, the court shall appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to a victim who is a person with a disability and who seeks to exercise in open court a right that is granted by Article I, section 42 or 43, of the Oregon Constitution, including the right to be present at a critical stage of the proceeding.” 
  8. You Have a Right to Be Heard at a Pretrial Release Hearings if Requested: Under the Oregon Constitution a crime victim has, upon specific request, the right to “be heard at the pretrial release hearing.” Or Const, Art I, § 42(1)(a). 
  9. You Have a Right to Be Heard at Sentencing A crime victim has the constitutional right to be heard “at the sentencing or juvenile court delinquency disposition.” Or Const, Art I, § 42(1)(a). Under statute, a crime victim has the right at sentencing “to reasonably
    express any views concerning the crime, the person responsible, the impact of the
    crime on the victim, and the need for restitution and compensatory fine.” ORS
    137.013. A trial court must inquire whether the victim wishes to be heard before
    imposing sentence. ORS 147.512(3). 
  10. You Have a Right to Be Heard at DUII Diversion Hearing: If a DUII offense involves damage to property of a person other than the defendant, the victim of the property damage has a right to be present and to be heard at any hearing on a petition for a diversion agreement. ORS 813.222(1). 
  11. You Have a Right to Consult with the DA in any Plea Negotiation involving a Violent Felony: A crime victim has the constitutional right “to be consulted, upon request, regarding plea negotiations involving any violent felony.” Or Const, Art I, § 42(1)(f). In prosecutions involving violent felonies, a prosecutor must—if requested by the victim—make “reasonable efforts to consult the victim before making a plea offer and before entering into a final plea agreement.” ORS 147.512(2)(a).
  12. You Have a Right to a Speedy Disposition: By law, crime victims have the rights to “have the trial or adjudication, including the imposition and execution of the sentence or disposition, conducted with all practicable speed” and “to the prompt and final conclusion of the criminal or juvenile delinquency proceeding in any related appellate or post-judgment proceeding.” ORS 147.430(a)-(b); see also ORS 138.627(1)(a) (victims have the right to have their “schedule taken into account [by the trial court] in scheduling . . . post-conviction proceedings”).  T
  13. You Have a Right to Records of Proceedings: A crime victim has a statutory and constitutional right to a copy of the record of a criminal proceeding. See Or Const, Art I, § 42(1)(e) (a crime victim has “[t]he right to have a copy of a transcript of any court proceeding in open court, if one is otherwise prepared”); ORS 147.419 (a crime victim may obtain a copy of a transcript or audio or videotape of criminal proceeding held in open court at the victim’s expense).
  14. You Have a Right to Information about the Defendant: Under the Oregon Constitution, a crime victim has “[t]he right, upon request, to obtain information about the conviction, sentence, imprisonment, criminal history and future release from physical custody of the criminal defendant or convicted criminal and equivalent information regarding the alleged youth offender or youth offender[.]” Or Const, Art I, § 42(1)(b).
  15. You Have Right to Information about HIV or Other Communicable Diseases: A victim of a crime involving “the transmission of bodily fluids from one person to another” can request that defendant submit to “a test for HIV and any other communicable disease.” ORS 135.139(1).
  16. You Have a Right to Information about Emergency Contraception: A sexual assault victim has the right to “unbiased, medically and factually accurate written and oral information about emergency contraception” from the hospital providing the victim care. ORS 435.254(1). 
  17. Right to Information in DUII Proceedings Where You Were in a Crash with a DUII Driver:  In any prosecution arising from an automobile collision in which the defendant is alleged to have been DUII, the prosecuting attorney shall make available to a victim, upon request, reports and information disclosed to the defendant. ORS 135.857. That requirement applies to juvenile proceedings. ORS 419C.270 
  18. You Have a Right to Refuse to Speak or Communicate with Anyone Representing the Defendant: Under the Oregon Constitution, crime victims have “[t]he right to refuse an interview, deposition or other discovery request by the criminal defendant or other person acting on behalf of the criminal defendant provided, however, that nothing in this paragraph shall restrict any other constitutional right of the defendant to discovery against the state.” Or Const, Art I, § 42(1)(c). Under statute, crime victims “may not be required to be interviewed or deposed by or give discovery to the defendant or the defendant’s attorney unless the victim consents.” ORS 135.970(3). A defense attorney must inform victims of the identity and capacity of persons contacting the victim on behalf of the defense and the victim’s right to have “a district attorney, assistant attorney general or other attorney or advocate present during any interview or other contact,” ORS 135.970(2). 
  19. If You Were Raped, You Have the Legal Protection to Prevent the Defense From Asking about Your Reputation or Opinion of Past Sexual Behavior. This is called the Rape-Shield Law. In a prosecution for rape, sodomy, unlawful sexual penetration, or sexual abuse, or in a prosecution for an attempt to commit one of these crimes, the following evidence is not admissible: Reputation or opinion evidence of the past sexual behavior of an alleged victim; or reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim incited the crime or indicated consent. In a prosecution for these crimes or attempt to commit one of these crimes, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also inadmissible unless admitted in accordance with the Oregon Evidence Code and is evidence that relates to the motive or bias of the alleged victim, is necessary to rebut or explain scientific, medical or testimonial evidence offered by the state, is necessary to establish the identity of the victim or is otherwise constitutionally required to be admitted. ORS 40.210. Oregon Evidence Code (OEC) Rule 412
  20. You Have a Right to Be Safe and Protected from the Defendant: Under the Oregon Constitution, a crime victim has “[t]he right to be reasonably protected from the criminal defendant or the convicted criminal throughout the criminal justice process” and “[t]he right to have decisions by the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim and the public, as well as the likelihood that the criminal defendant will appear for trial.” Or. Const. art I, § 43(1). 
  21. The Court Must Order No Contact with the Victim at Pre-Trial Release Hearing: When a defendant is released pretrial, the trial court or releasing authority must include a condition that defendant have no contact with the victim. See ORS 135.970 (4)(a) 
  22. You Have a Right to Restitution (Money), but it is limited to out of pocket expenses: Under the Oregon Constitution, a crime victim has “[t]he right to receive prompt restitution from the criminal convicted criminal who caused the victim’s loss or injury.” Or Const, Art I, § 42(1)(d). Upon proof of “nature and amount of damages,” a victim is entitled to full restitution for “economic damages” caused by a defendant’s criminal conduct unless the victim consents to a lesser amount. ORS 137.106(1). Economic damages are: objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past * * * impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less. ORS 137.103(2); ORS 31.710(2)(a). 
  23. You May Have a Right to a Compensatory Fine:  A court may order compensatory fines payable to a crime victim, which may be imposed in addition to statutory restitution, “as a penalty for the commission of a crime resulting in an injury for which the person injured by the act constituting the crime has a remedy by civil action[.]” ORS 137.101. This is a convoluted area of the law in which the statute arguably allows the judge to impose a fine and instead of the fine being paid to the State of Oregon the fine is paid directly to the Victim.  Their are nuances regarding how this is done, and a District Attorney or Civil Lawyer such as myself should be contacted.  Feel free to call me at 503.224.1658.
  24. The Crime Victim Compensation Fund May Pay for Medical Bills, Counseling, but it is limited: A crime victim may be eligible for compensation through the Criminal Injuries Compensation Account administered by the Department of Justice. See ORS 147.035 (discussing compensable losses). An emergency award granted “pending a final decision in [a compensation] claim” may be available. ORS 147.055. Oregon law specifically provides for compensation for HIV testing and counseling when a crime involves the transmission of bodily fluids, ORS 135.139(8), and for a sexual-assault medical assessment. ORS 147.395. 

The bottom line is if you are a crime victim you have rights.  You should assert them.  Too often defendant's rights appear to trump victim's rights.   That should not occur if you assert your rights and the District Attorney and the Court honors your rights.  If you have any questions about your rights, call me for a free crime victim consultation at 503.224.1658.   PLEASE REMEMBER THE LAW IS CONSTANTLY CHANGING AND THESE RIGHTS ALSO CHANGE.   Please consult with a lawyer or District Attorney to learn your actual rights.   This post, this blog, and this web-site may be considered attorney advertising.  

 

Injured by a Drunk Driver Leaving a Holiday Party? Throwing a Party? Things you Need to Know

The Holiday Season is in full swing.  People are shopping, decorating, and atttending the various holiday festivities here in Portland.  Many people are also dusting off their ugly holiday sweater and attending Holiday Parties.   I am a huge fan of Holiday Parties and a bigger fan of tacky sweaters, but I can't stand people that drink and drive.  Unfortunately, drinking and driving occurs far too often during the Holiday Season.  This can turn the Holiday season into a tragic event for anyone involved in a crash with a DUII Driver.  Socieity has little tolerance for DUII Drivers, but here in Oregon the law also allows the injured person to hold all people accountable for causing their injuries.   This includes the business or people that over-served the DUII driver alcohol.

In Oregon, homeowner’s can be held responsible for serving alcohol to a person that is visibly intoxicated and later injures another in a DUII crash. (ORS 471.565). Oregon courts have determined a person who receives guests in a social setting, in which the host serves or directs the serving of booze or beer to guests can be held accountable if the overly intoxicated person later injures another in a DUII crash. See Solberg v. Johnson, 306 Or 484, 490 (1988). This type of liability is referred to as “Dram Shop” liability. Dram Shop liability is important because home owner’s and renter’s insurance policies may cover DUII crash injuries and provide tens of thousands, or hundreds of thousands of dollars, in additional insurance coverage. This money can be used to pay medical bills, physical therapy, vocational rehabilitation, and to compensate the injured person or their family for their harms and losses.   Dram Shop liability also applies to a business that over-serves a visibly intoxicated person that ends up harming another.

Hopefully this guy is not driving home.  If he does, and injures someone the party host may be liable.

It is important to keep in mind if you intend on making a dram shop claim there are time limitations that notice must be given in. Specifically, if it is a wrongful death claim then notice must be given within one year of the date of death, or within a year after the date plaintiff discovered, or should have discovered, the claim, whichever is later. (ORS 471.565) In a personal injury matter, notice must be given within 180 days of the injury, or 180 days after the injured person discovered or reasonably should have discovered, the existence of a dram shop claim which ever is later. (ORS 471.565) However, these notice requirements may not always apply and there are exceptions. Please refer to a current version of ORS 471.565 for notice requirements and time limitations.

Dram shop cases can be complicated and there are other theories an attorney can use to attempt to obtain maximum recovery for a person’s injury or loss. Please contact Portland Personal Injury Attorney, Jeremiah Ross, at 503.224.1658. for a free personal injury consultation. Please remember this post is for informational purposes only and you should rely on the current statute and case law when considering a dram shop claim. Please consult with an attorney if you believe you have a dram shop claim or have been injured by a DUII Driver.

Who Can be Held Liable if You Are Injured by a Rowdy Tailgater or a DUII Driver?

It is College Football season again.  Oregonians flock to Autzen Stadium or Reser Stadium to see their beloved Ducks and Beavers battle on the turf.  Here in Portland people flood into Providence Park to see the Portland State Pilots.  These fun outings can become tragic when alcohol, drugs, and/or stupidity meld together.  When that occurs  people can get hurt. That leads us to the question, who is liable for a person injured by an intoxicated person.  The obvious answer is the intoxicated person that actually injures another person.  However, the analysis does not stop here.

 Oregon's Dram shop law allows other people to be held responsible for the intoxicated person's actions.   This law allows a person injured by an intoxicated person to hold the social host liable for over-serving an intoxicated person.  Also, the bars around Providence Park in Portland should be aware they can be liable to a person injured by an over-intoxicated person if the visibly-intoxicated person was served alcohol while visibly intoxicated.   

Examples always make this easier to understand.   Imagine Jon is going to the PSU game and stops off at a bar for a drink.  Jon stays at the bar with his friends and becomes trashed.  He consumes eight shots of whisky in an hour and is struggling to stand.  The bar tender continues to serve him despite his rowdy behavior.  Jon then walks towards Providence to see his beloved Pilots play.  On the way he sees a person wearing a Montana Jersey.   Without provocation, Jon attacks the Montana Fan.  Jon seriously injured the Montana fan.  The Montana fan has a permanent brain injury and hundreds of thousands of dollars of medical bills.   Jon is prosecuted, but doesn't have any money, so the Montana fan has little hope of Jon ever paying his medical bills.  However, the Montana Fan's lawyer discovers Jon was drinking at a bar and was over-served.  The Attorney sends the bar the proper notice.  The bar's insurance policy may cover the Montana Fan's medical bills.   The bar may also be forced to compensate Montana Fan for all of his harms and losses from the beating, and the bar may have to pay the injured person Punitive Damages.  

Video Courtesy of youtube.  Ross Law Does not Condone fighting. Tailgate fight

 

Imagine another situation where Jenny is tailgating at the Ducks game.  She is at a tailgate party hosted by Marcia.   Marcia provided a few bottles of liquor and has cases of beer for anyone to drink.  Jenny gets into the Vodka, and Marcia keeps it flowing.  Marcia has a rule at her tailgates "Hell no H20," and continues to serve Jenny more and more alcohol.  Jenny begins to stagger around and vomits all over a neighboring tailgater's car.  Marcia gives Jenny one more Vodka Tonic as Jenny staggers off.  Jenny then gets into her car and attempts to drive to her aparment near campus.  Jenny begins to drive home and then veers off of the road and crashes into a group of students walking to the Duck's game.   The three students are seriously injured. Jenny's minimal $25,000/$50,000 policy limits is quickly subsumed by the students hospital bills.  One of the Student's Personal Injury attorney reads the police report and discovers that Jenny was drinking at Marcia's tailgate party.  The student's attorney sends a demand to Marcia for the "dram shop" liability.  Marcia's $1,000,000.00 umbrella policy covers the crash.  The attorney also believes the University was not providing adequate supervision because there were other reports of Marcia's guest being out of control and drinking heavily.  In fact, one of the Security Guards didn't do anything when another tailgater complained of the heavy drinking and was concerned Jenny may drive home.  The Student's attorney may now be able to prove a case of negligence against the Security Company and the University.  The student may collect maximum compensation for his injuries because all of the wrongdoers will be held accountable.

These are just two examples of social host and dram shop liability.   Anytime a person is injured by  a heavily intoxicated person social host or dram shop liability may come into play.  For more information about dram shop liability read my previous article.  It may assist an injured person obtaining compensation that would otherwise not be available.   These cases often involve assault and battery, sexual assault, rape, and DUII driving.  

If you have been injured, assaulted, or rapted as a result of a heavily intoxicated person in Oregon please call me at 503.224.1658 to discuss your case.  Ross Law provides Free Consultations.  We do not charge you anything unless we recover. Please remember this post is not to be considered legal advice. Also, please remember the law is constantly changing.  Please consult with an Oregon Personal Injury or Crime Victim Attorney at 503.224.1658 instead of relying on this post.  This Post, the web-site, and blog may be considered ATTORNEY ADVERTISING!

What is the Difference Between a Civil Case and a Criminal Case?-15 Things Oregon Crime Victims Should Know

As a former prosecutor I rejected or "no complainted" various criminal cases.   Many of these cases lacked evidence to prove beyond a reasonable doubt that the suspect had committed a a crime.   Sometimes these were big cases that involved sexual assault, rape, assault, battery, or wrongful death caused by a negligent or DUII driver.   Those cases were always difficult to reject, because there was a victim that had been harmed, but there just wasn't enough evidence to support pursuing a conviction.   That meant that the wrongdoer would never be punished for the harm that they caused.  However, many of those cases would have been great Civil Cases.  That means the injured person or their estate could have received compensation (money) for the harms that the wrongdoer inflicted, even if the wrongdoer was never charged with a crime. 

 

Civil cases are much different than criminal cases. It is very important for a person that has been the victim of a crime to understand the difference between the two, so they can know all of their legal rights. Below are some of the main differences between Civil Law and Criminal Law in Oregon: 

  1. What is The Main Difference Between a Civil Case and a Criminal Case In Oregon? Civil cases are about holding the wrongdoer(s) accountable by compensating the victim.  Basically the wrongdoer(s) are ordered to pay the victim for the harms and losses they caused the victim.  In Criminal Cases the case is about holding the wrongdoer accountable by punishing the wrongdoer.  Basically the wrongdoer goes to jail, is on probation, or is put in prison.  In a Civil Case the focus is on the harms and losses the wrongdoer caused the victim.  In a Criminal Case the focus is on the acts the defendant committed that violated the law. 
  2. Is There A Civil Case If The Person Is Being Charged With A Crime?  In a civil case an injured person files a lawsuit against the person(s) or entities (government organizations or corporations) that caused the harm.  Being charged with a crime does not trigger a civil lawsuit.   In a Criminal Case the DA files documents to attempt to convict the wrong doer of a crime.  That does not trigger a civil lawsuit.  To Trigger a Civil lawsuit a person, usually a civil lawyer, files a complaint on behalf of the victim who is called the Plaintiff.
  3. Is The DA My Lawyer If I Was A Crime Victim?  In a Civil Case the injured person has their own lawyer that represents only the injured person(s).  In a criminal case the State of Oregon has a "prosecutor" (sometimes called a DA) that represents the State.  The Prosecutor may take the victim's wishes into account regarding plea bargains and other issues, but at the end of the day the Prosecutor does not represent the victim.  In a civil case the civil lawyer only looks out for the crime victim's interest.
  4. Who Is the Victim's Advocate in a Criminal Case?  In Oregon the Victim's Witness Advocate is an employee of the District Attorney's office.  They do a great job of attempting to keep victims informed of what is going on in the Criminal Case, and trying to create a dialogue between the victim and the prosecutor handling the case.  Victim Witness Advocates often will advise victims of criminal court dates (bail hearings, trial dates, sentencing dates), and will often inform the victim of their rights in the criminal proceedings.  However, this does not always happen with every case.  
  5. Do I Get A Victim's Advocate in a Civil Case?  Yes.  In a civil case your lawyer is your advocate.   There is not an employee of the government that will advocate on your behalf.  You will have a lawyer that is pursuing your case for you and asserting your rights. 
  6. Can I Get A Civil Lawyer To Be My Victim's Advocate In A Criminal Case?  Yes, as the victim of a crime you have a right to have a civil lawyer as your representative.   This is strongly encouraged to ensure the victim's rights are honored.   However, 
  7. The DA "No Complainted" My Case, Will A Civil Lawyer Take The Case?  It depends, it maybe that there is not enough evidence to hold the wrong doer(s) accountable in a civil case.  It may also be that none of the wrongdoers has any money, so it would not be worth pursuing a lawsuit because at the end of the day no one would receive any compensation.  It is best to call a lawyer like myself at 503.224.1658 to discuss your civil case.
  8. The DA Said There Wasn't Enough Evidence To Prove My Criminal Case, So How Would We Win a Civil Case?  One of the main differences between a civil case and a criminal case is the burden of proof.  In a criminal case the state must prove the wrongdoer committed a crime beyond a reasonable doubt.  That is the highest standard of proof.  In a civil case the standard is typically much lower.   To win your civil case you only have to prove your allegations by a preponderance of the evidence.   What this means is that you only have to show that more likely than not a person or entity caused your harm.  This is much easier, and you don't need the same amount of evidence to prove the case. 
  9. Can I Collect Money From The Criminal Defendant To Compensate Me For My Harm?  It Depends.  First, most DA's will only pursue out of pocket losses (think property damage, hospital bills, therapy bills) once their is a conviction.  What this means is that a crime victim typically cannot receive money for the hell the event has caused them (think: pain, anxiety, embarrassment, shame, humiliation, and interference with daily activities).  In a civil case you can be awarded money for all the hell the person put you through.   In limited circumstances the DA may be able to get an award of a "compensatory fine" that allows the victim to collect money for non-out of pocket losses.  However this is rarely done.  You should speak to a Civil Crime Victim's lawyer, such as myself, if you are interested in pursuing this.  Call 503.224.1658.
  10. Can I Have A Civil Case While the DA Is Prosecuting the Criminal Case, Or Do I have to Wait?   A crime victim in Oregon can have a civil case and a criminal case in the court at the same time.  However, that doesn't mean the cases will be on the same track.  Lawyers would be different, dates and hearings would be different, and judges may be different in the civil and criminal case.   There are numerous strategies that people consider regarding when to file a civil case, so you should consult with a Civil Crime Victim's lawyer. 
  11. Can A Civil Lawyer Get a Settlement With the Person Being Charged with a Crime Before Filing a Lawsuit?  Yes!  It is often very helpful to have a civil lawyer  representing the crime victim, so the Civil Lawyer can attempt to resolve the case before filing a Civil Lawsuit.  Sometimes this can occur while the DA is still prosecuting the wrongdoer in the criminal case.  
  12. I Believe A Corporation or Government Entity Caused Some of My Harm, Can I File A Civil Lawsuit Against Them Even if an Actual Person Committed the Crime?  Yes, if the evidence merits it.  This happens all of the time.   As a Civil Crime Victim's Lawyer I have filed a lawsuit against multiple corporations and a rapist in the same lawsuit.   We sued the corporations because they negligently hired the rapist and my client was raped while he was on the clock.   This scenario can come up with teachers sexually assaulting or molesting children, DHS failing to protect children, Hospitals allowing physicians to work after receiving complaints the physician had sexually assaulted a person, a bar that hired a bouncer that beat a person senseless, and a bar or social host that over-served a DUII Driver that caused a crash.   These are just a few of the countless examples.  
  13.  Can I File A Civil Lawsuit After The Wrongdoer Is Convicted of A Crime?  Yes!  In fact most of the time that is when most civil lawsuits are filed against the wrong doer.  Just because a person is convicted doesn't mean you can't still pursue a civil lawsuit against them to seek money to compensate you for the hell they put you through. 
  14. The DA Said The Statute Of Limitations  Ran on The Case, Can I Still File A Civil Lawsuit?  It depends.  Sometimes the criminal statute of limitations for a misdemeanor in Oregon may be as short as a year.  Most Civil Personal Injury lawsuits must be filed in two years.   Therefore a Civil Lawyer may have an extra year to hold the wrong doer accountable.  Other statute of limitations involving sexual assault, molestation, sexual abuse are very complicated and a Civil Lawyer should be consulted with.
  15. If I Receive Money From The Oregon Crime Victim's Compensation Fund Can I File a Civil Case Against the Defendant(s)?  Yes.  Oregon has a fund that will pay medical bills and therapy bills for crime victims in some circumstances.  If a person receives benefits from the Crime Victim's Compensation Fund, and later collects money from the defendant in a civil lawsuit or settlement then the Fund must be repaid. 

If you or someone you know has been the victim of a crime and want to file a civil lawsuit call Oregon Crime Victim Lawyer Jeremiah Ross at 503.224.1658 for your free consultation.  Ross Law LLC is happy to assist crime victim.    Please note there are numerous differences between civil law and criminal law, and the law is constantly changing.