SCOTUS to Decide Warrantless Blood Tests for DUI

Can a person suspected of drunk driving be compelled to submit to a blood test without a warrant?  That is the question before the U. S. Supreme Court today.

Blood Draw by Joshua/Yoon Hernandez at Flickr Creative Common

In October of 2010, a Missouri man, Tyler McNeely, was stopped by the  Missouri State Highway Patrol for speeding, after having a beer at a local bar.  Noticing signs of intoxication, the patrolman requested McNeely to submit to an alcohol breath test or blood test, which he refused.

After arresting McNeely,  Cpl. Mark Winder decided to take McNeely to the hospital for a blood test to “secure evidence of intoxication,” without first obtaining a warrant.

That nonconsensual blood test — considered a “search” in legalese — is at issue in front of the Supreme Court, which is expected to clarify when and under what circumstances a warrantless search can occur in such cases.

In court papers, lawyers for Missouri say that Winder didn’t attempt to obtain a search warrant prior to the blood test in part because, “Obtaining a search warrant in the middle of the night in Cape Girardeau County involves a delay, on average, of approximately two hours.”

Winder was concerned about the rate of elimination of alcohol in the bloodstream, which diminishes over time.

It turns out McNeely’s blood alcohol level was 0.154 percent, well above the legal limit of 0.08 percent . In court, McNeely moved to suppress the evidence against him, saying his constitutional rights against unreasonable search and seizure were violated.

The trial court agreed with McNeely and found that “the natural dissipation of alcohol in the bloodstream alone was not a sufficient factor to justify a warrantless blood draw in a routine stop.”  The Missouri Supreme Court affirmed the trial court’s decision.  The Supreme Court will hear the case today.

Read the entire story by Ariane De Vogue at ABC.com.

If you believe your constitutional rights have been violated, the Lawyer Referral Service of the New Hampshire Bar Association can refer you to attorneys who specifically handle civil rights violations.  Call 603-229-0002 or submit an online referral request.

 

 

 

 

Sports Fans Permitted to Pursue Lawsuit

Sports fans have received the OK from a U.S. District Court Judge Shira Scheindlin to pursue a lawsuit against the National Hockey League, Major League Baseball and several other networks, claiming antitrust violations in how the games are packaged for broadcast on television or the internet.

The case arose from what the subscribers said were anticompetitive “blackout” agreements between service providers such as Comcast and DirecTV, sports networks and the leagues.

These subscribers contended that if they wanted to watch games from outside their home markets, they were required to buy packages that included all out-of-market games, even if they were interested only in one or a few nonlocal teams.

For example, a New York Yankees fan living in Colorado could not pay simply for access to that team’s games, but had to buy a product such as the MLB Extra Innings television package.

The subscribers sought damages and a halt to arrangements that they said resulted in “reduced output, diminished product quality, diminished choice and suppressed price competition.”

The defendants include Major League Baseball, the National Hockey League, several teams in both sports, cable TV company Comcast Corp, satellite TV provider DirecTV, Madison Square Garden Co and some regional sports networks.

Read the entire story by Jonathan Stempel at Thomson Reuters.

Photo by Dan4th at Flickr Commons

 

High Tech Options For Joint Parenting

No matter how well ex-spouses co-parent, there are always going to be issues that crop up, resulting in a potential for emotional exchanges in front of the children. These days, divorced parents have high tech options to assist with handling the details of joint parenting remotely.

 “People don’t want to talk to their exes because just the sound of their voice is irritating,” said Randy Kessler, chair of the American Bar Association’s Family Law Section and a matrimonial lawyer in Atlanta. “But they can e-mail. They can share an online calendar. They can use any number of resources on the Internet. There are even divorce apps.”

E-mail and texting alone have practically revolutionized postdivorce family relationships. “E-mail absolutely takes away the in-your-face aggravation and emotional side of joint custody,” said Lubov Stark, a divorce lawyer on the Upper East Side of Manhattan. “You just write, ‘I want to pick up Kimmy at 5, but I’m running late and will be there at 6.’ It’s the best thing ever.”

Ipad and calendar by Sean MacEntee at Flickr Creative Commons

Read the entire story by Pamela Paul at the NY Times.

Do you need help with a parenting plan?  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to a  competent and insured family law attorney to assist you.  Call LRS today at 603-229-0002 or request a referral online.

 

 

 

 

Beneficiaries and Missing Life Insurance Policies

Last week the American International Group agreed to pay $11 million to resolve a multi-state investigation by a group of state insurance regulators, into the handling of death benefit payments to beneficiaries when the policy holder dies.

AIG joined several other insurers that already settled, agreeing to check their lists of policy holders regularly against the Social Security Administration’s master “death file” database and to put more effort into locating beneficiaries.

Traditionally, insurance companies have required beneficiaries to file claims to receive benefits from life insurance policies. That has meant that claims sometimes are never filed — perhaps because policy documents were lost, or because beneficiaries did not know a policy existed. But state insurance regulators, for the past two years, have been looking into the practices of large insurers and urging them to proactively identify policies that may be due for a payout.

State regulators have charged that insurers used the Social Security Administration’s list of recently deceased people to stop making annuity payments to dead customers, but, at the same time, did not use the list to check whether any life insurance policyholders had died.

Read entire story by Ann Carrns at the NY Times.

The American Council of Life Insurers has the following tips for finding missing policies.

Missing Policy Tips

The American Council of Life Insurers does not locate missing or lost life insurance policies.  Suggestions for conducting your own search are listed below.

Conducting Your Search

If you suspect your loved one had a policy, but cannot locate it, you may want to conduct your own search using the steps provided below. As an alternative, MIB, an insurance membership corporation, offers a policy locater service for a fee. For more information about this service, visit MIB’s Web site: www.policylocator.com.

  • Check your loved one’s papers and address and telephone books to look for life insurance policies and the names of insurance agents.  Contact every insurance company with which they may have had a policy, even if you’re not sure the policy is still in force.
  • Check with the employee benefits office at their latest and previous places of employment.  Or, check with the union welfare office.
  • Check bank books and canceled checks for the last few years to see if any checks may have been written to pay life insurance premiums.
  • Check the mail for one year after death for premium notices, which usually are sent annually.  If a policy has been paid up, there will not be any notice of premium payments due.  However, the company may still send an annual notice regarding the status of the policy or it may pay or send notice of a dividend.
  • Review your loved one’s income tax returns for the past two years.  Look for interest income from and interest expenses paid to life insurance companies.  Life insurance companies pay interest on accumulations on permanent policies and charge interest on policy loans.
  • Check with the state’s unclaimed property office to see if any unclaimed money from life insurance policies may have been turned over to the state.  If, after a number of years, an insurance company holding the unclaimed money cannot find the rightful owner, it turns the money over to the state. The National Association of Unclaimed Property Administrators’ website (www.naupa.org) includes links to each state’s unclaimed property office. For multi-state searches, www.missingmoney.com combines information from most, but not all, state unclaimed property databases.
  • Of course, you may wish to contact life insurance companies directly to see if a policy exists.  Each state insurance department has a listing of life insurance companies licensed to do business in its state.

Contacting the Company That Services Your Life Insurance Policy

If you are the owner or beneficiary of a life insurance policy written long ago, you may need help locating the life insurer that services and pays claims on the policy.

Over the years, a policy owner may lose touch with the life insurer due to frequent moves, or the company that issued the policy may have changed its name or merged with another company.

Two sources of information can assist you in finding the life insurance company that currently services your policy:

  • The state insurance department of the state in which the insured person resided at the time he or she bought the insurance policy.
  • Best’s Insurance Reports, available in the reference section of many larger libraries. This annual update lists insurance company names and addresses, as well as insurers’ name changes, mergers and other changes.

The best way to avoid problems with life insurance claims is for policy holders to discuss the policies with their beneficiaries.  Copies of the policy should be kept in a safe deposit box or with a lawyer or financial adviser, and make sure your beneficiaries know how to access them.

The Lawyer Referral Service of the New Hampshire Bar Association can refer you to an attorney to assist you with your estate planning needs.  Call 603-229-0002 or request a referral online.

 

Insurance Advice – Storm Loss Information

New Hampshire Insurance Department

For Immediate Release:

October 29, 2012 – Concord, NH

Hurricane Sandy is expected to make landfall today in New Jersey and the resulting storm’s main impact is expected to reach New Hampshire around mid-afternoon on Monday.  We are anticipating high winds and heavy rain, leading to the potential for water in the roadways, flying debris and downed power lines.   At these times, it is critical to be prepared with the information your insurance adjuster will need to quickly process your claim if you suffer an insured loss.

NH Insurance Commissioner Roger Sevigny said “We stand ready to assist New Hampshire residents affected by storm damage from this storm with information, assistance and referral services. We hope the public will think of us when looking for information on what to do after suffering a property loss. We will do whatever we can to help find the right resources and information to assist New Hampshire residents to recover from this natural disaster.”

The New Hampshire Insurance Department offers these tips:

Making Repairs

  •  Make the repairs necessary to prevent further damage to your property (cover broken windows, leaking roofs and damaged walls). 
  •  Don’t have permanent repairs made until your insurance company has inspected the property and you have reached an agreement on the cost of repairs. An insurance company might deny a claim if you make permanent repairs before the damage is inspected. 
  •  Separate damaged and undamaged articles and do not throw away damaged property until an insurance adjuster has seen it, unless authorities require you to dispose of it.
  • Take photographs of damaged property, especially those things you must dispose of, like spoiled food or wet carpeting.
  • Get more than one bid for your repairs. Ask for at least three references. Check with the Better Business Bureau or the Attorney General’s Office about the contractor. Ask for proof of necessary licenses, building permits, insurance, and bonding. Record the license plate number and driver’s license number of the contractor.
  • Be wary of contractors who demand up-front payment before work is initiated or payment in full before work is completed. If the contractor needs payment to buy supplies, consider going with the contractor and paying the supplier directly.
  • Save all receipts, including those from the temporary repairs covered by your insurance policy.  Be prepared to provide the claims adjuster with records of any improvements you made prior to the damage.

Know Your Policy

Understand what your policy says. The policy is a contract between you and your insurance company. Know what’s covered, what’s excluded and what the deductibles are.

Check all policies for opportunities for reimbursement, like loss of food due to spoilage due to electrical outages, falling tree damage and similar losses that could be covered by auto, homeowner or other policies.

File Claims as Soon as Possible

Don’t let the bills or receipts pile up. Call your agent or your company’s claims hotline as soon as possible. Your policy might require that you make the notification within a certain time frame.

Provide Complete, Correct Information

Be certain to give your insurance company all the information they need. Incorrect or incomplete information will only cause a delay in processing your claim.

Keep Copies of all Correspondence

Whenever you communicate with your insurance company, be sure to keep copies and records of all correspondence. Write down information about your telephone and in-person contacts, including the date, name and title of the person you spoke with and what was said. Also, keep a record of your time and expenses.

Ask Questions

If there is a disagreement about the claim settlement, ask the company for the specific language in the policy that is in question. Find out if the disagreement is because you and the insurance company interpret your policy differently. If this disagreement results in a claim denial, make sure you obtain a written letter explaining the reason for the denial and the specific policy language under which the claim is being denied.

Don’t Rush Into a Settlement

Ask the adjuster for an itemized explanation of the claim settlement offer. If the first offer made by an insurance company does not meet your expectations, be prepared to negotiate to get a fair settlement. If you have any questions regarding the fairness of your settlement, seek professional advice.

Contact the New Hampshire Insurance Department

If you have a dispute with your insurer about the amount or terms of the claim settlement, contact the New Hampshire Insurance Department for assistance using this toll free number: 1-800-852-3416 For more information, go to the New Hampshire Insurance Department web site at www.nh.gov/insurance.

Before the Storm

It’s never too late to get prepared. A home inventory can help make the claims process easier following a storm. For an inventory checklist and other disaster preparedness tips, visit the NH Insurance Department web site www.nh.gov/insurance.

Photo by US Fish & Game Wildlife Services - Northeast Region

Photo by US Fish & Game Wildlife Services – Northeast Region

If your claim is denied, and you are unable to resolve the issue through the NH Banking Department, the Lawyer Referral Service of the New Hampshire Bar Association may be able to help with a referral to a competent and insured attorney who specifically handles insurance claim matters.  Call 603-229-0002 or request a referral online.

BBB Tips For Short-Term Home Rentals

Turning your home into a short-term rental may be a good solution when you are looking to make some extra money. These types of rentals can be advantageous to both the homeowner and the renter. The Better Business Bureau suggests the following tips for homeowners who want to rent out their property:

1. Decide who will manage the property. If you decide to manage the property yourself, make sure you live close enough and are capable of handling any emergency issues that arise. If you don’t live close, make sure you know someone who can help take care of your property and address any issues a guest may have.

If you decide to use a management company, research the organization first at bbb.org. Get all fees involved with listing your property and booking your rental in writing. Request detailed descriptions, in writing, of all the additional services to be provided and how and when you can expect to receive payment. Also, consider whether or not the company has its own insurance policy to cover any damages caused by the tenant.

2. Write up a contract. BBB advises having an attorney go over the details of the contract. The contract should include:

a. Check in and checkout times

b. Whether smoking or pets are permitted

c. Details of any security or damage deposits, whether they are refundable and under what circumstances

d. A cancellation and rate change policy

e. The maximum occupancy and any fees associated with exceeding the limit

f. Parking restrictions

g. The renter’s contact information

3. Check state and city law. Various cities and states have their own rental and property laws. Check your city’s law on short-term rentals to make sure you’re not in violation.

4. Research renters. Get the appropriate contact information for renters and check them out. Consider a Google search or use an online screening service.

5. Check your insurance coverage. Ensure you have enough property or casualty insurance should anything go wrong. Also consider the costs of lost, stolen or damaged items and ensure your security deposit covers all the “what-ifs.”

6. Consult your rental agreement. If you rent your home or apartment, your contract could prohibit subletting. Be sure to check with your landlord or HOA about short-term visitors.

Read the entire article by the Better Business Bureau.

Whether you are a landlord or a tenant, having an attorney review the rental agreement can save you time and money down the road.  The Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to an insured attorney experienced in landlord/tenant issues.  Call 603-229-0002 or request a referral online.

The Lawyer Referral Service of the NH Bar Association is not a member of, nor is it endorsed by the Better Business Bureau.

NH Court to Rule on Cellphone Use While Driving

The New Hampshire Supreme Court will decide whether talking on a cellphone while driving can justify a conviction for criminally negligent homicide, despite the fact that cellphone use while driving is legal in NH.

Lynn Dion, of Franklin, NH was convicted of criminally negligent homicide, in the death of 36 year old Genny Bassett, on June 28, 2009.   Dion’s cellphone records showed half a dozen calls during her 37 minute drive, the last one as she approached the bridge where Bassett and a friend were walking.

Dion said she never saw the women in the freshly painted crosswalk. Dion braked when she heard a loud pop and glass showered into her car. Her vehicle had hit Bassett’s right leg and Bassett’s head hit the passenger side of the windshield, fracturing her skull and causing a fatal head injury. Gonnella was knocked to the ground and temporarily lost consciousness.

Merrimack Country prosecutor George Waldron told jurors there was no other plausible reason but cellphone distraction for Dion to have hit them.

Dion’s lawyer claims on appeal that because talking on a cellphone while driving is not illegal in New Hampshire, such conduct is not enough to convict someone of criminally negligent homicide.

‘‘There was no law in 2009, nor is there any law in New Hampshire today, that prohibits or restricts drivers from operating a personal vehicle while talking on the phone,’’ attorney Allison Ambrose wrote in her brief.

The state argues on appeal that conduct doesn’t necessarily have to be illegal to be considered blameworthy. Senior Assistant Attorney General Susan McGinnis cites in her brief a 1992 ruling in which the court upheld the conviction of a man who crossed into the breakdown lane and killed a woman.

The case marks the first time the court will address cellphone use in the context of a criminally negligent homicide conviction. The justices will hear arguments Oct. 17 at Monadnock Regional High School as part of an effort to expose a broader audience to the court’s role.

Read the entire story by Lynne Tuohy of the Associated Press.

Photo by Lord Jim at Flickr Creative Commons

Having a competent and experienced attorney review your case is crucial if you want to successfully appeal your felony conviction.  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to several criminal appeals attorneys who fulfilled additional education and experience requirements in order to receive referrals from LRS for felony law cases.  Call 603-229-0002 today or request a referral online.

No Thing Left Behind in a Patient

Every year there are an estimated 4000 cases of surgical items left behind in patients after surgery, and the vast majority of them are sponges used to soak up blood.  Doctors often use dozens of them inside a patient to control bleeding.

Many different items are mistakenly left behind in patients such as clamps and scalpels, but sponges account for about two-thirds of the items.

When balled up, soaked in blood and tucked inside a patient, a 4-by-4-inch cotton sponge is easy to miss, especially inside large cavities. Abdominal operations are most frequently associated with retained sponges, and surgeons are more likely to leave items in overweight patients.

Hospitals traditionally require that members of a surgical team, usually a nurse, count — and then recount, multiple times — every sponge used in a procedure. But studies show that in four out of five cases in which sponges are left behind, the operating room team has declared all sponges accounted for.

In recent years, new technology and sponge-counting methods have made it easier to remedy the problem. But many hospitals have resisted, despite the fact that groups like the Association of Operating Room Nurses and the American College of Surgeons have called on hospitals to update their practices.

As a result, patients are left at risk, said Dr. Verna C. Gibbs, a professor of surgery at the University of California, San Francisco.

“In most instances, the patient is completely helpless,” said Dr. Gibbs, who is also the director of NoThing Left Behind, a national surgical patient safety project. “We’ve anesthetized them, we take away their ability to think, to breathe, and we cut them open and operate on them. There’s no patient advocate standing over them saying, ‘Don’t forget that sponge in them.’ I consider it a great affront that we still manage to leave our tools inside of people.”

Now hospitals have a more technological approach at their disposal. They can track sponges through the use of radio-frequency tags. In a study published in the October issue of The Journal of the American College of Surgeons, researchers at the University of North Carolina at Chapel Hill looked at 2,285 cases in which sponges were tracked using a system called RF Assure Detection. Every sponge contained a tiny radio-frequency tag, about the size of a grain of rice. At the end of an operation, a detector alerts the surgical team if any sponges remain inside the patient. In the U.N.C. study, the system helped recover 23 forgotten sponges from almost 3,000 patients over 11 months.

Read entire story by Anahad O’Connor of the New York Times.

When doctors and nurses make mistakes, it can have a devastating effect on your life.  The Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to an experienced attorney who has maintained specific education and experience standards in Medical Malpractice law.  Call 603-229-0002 for a free consultation, or fill out our online request form.

ABC News is Being Sued Over “Pink Slime” Reports

Beef Products, Inc., a South Dakota meat processing plant has filed a 1.2 million dollar defamation suit against ABC News, accusing it of misleading viewers into believing that “pink slime” is unsafe.

In court papers, the company said ABC falsely told viewers that its beef product was not safe, not healthy and not even meat, resulting in the 31-year-old company’s loss of hundreds of millions of dollars in profit and roughly half its employees.

“The lawsuit is without merit,” Jeffrey Schneider, senior vice president of ABC News, a unit of Walt Disney Co, said in a statement. “We will contest it vigorously.”

Six individuals were also sued, including ABC News anchor Diane Sawyer and the reporters Jim Avila and David Kerley.

ABC conducted a “sustained and vicious disinformation campaign,” Beef Products’ lawyer Dan Webb, chairman of Winston & Strawn and a former U.S. attorney in Chicago, said at a press briefing.

“To call a food product slime is the most pejorative term that could be imagined. ABC’s constant repetition of it, night after night after night, had a huge impact on the consuming public.”

The other defendants are Gerald Zirnstein, a former U.S. Department of Agriculture microbiologist credited with coining the term “pink slime;” former USDA employee Carl Custer and former Beef Products employee Kit Foshee. All appeared or were quoted in ABC’s reports.

William Marler, a lawyer for Zirnstein and Custer, said: “The complaint is completely bogus and frivolous, and we will defend these public employees vigorously.”

Read entire story by Jonathan Stempl at Reuters.com

Beef Products, Inc. has accused ABC of interfering with it’s business dealings with grocery chains and of product disparagement.  If you feel your business has been negatively impacted by false or misleading statements by others, the Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to a competent attorney who specifically handles defamation matters.  Call 603-229-0002 or complete the online request form.

Ground Beef

What is Jury Nullification?

Jury nullification generally refers to a jury’s decision to acquit a defendant even though the jurors believe the accused to be factually guilty of the crime.  Reasons include sympathy with the accused or distaste for the particular law being enforced.

Earlier this month, a Belknap County Superior Court Jury unanimously acquitted Doug Darrell, a 59-year-old Rastafarian charged with marijuana cultivation, after his lawyer, Mark Sisti, argued that a conviction would be unjust in light of the fact that Darrell was growing cannabis for his own religious and medicinal use.

It’s a legal concept known as jury nullification, a power that experts say has resided in the U.S. Constitution since the nation began but is rarely applied in modern courtrooms.

And it’s the basis for a new state law that permits the defense in all criminal cases “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

Chuck Temple is a professor at the University of New Hampshire School of Law, where he is director of the criminal practice clinic. In his 27 years of practice, he said, he has always asked judges to instruct juries about nullification — but has never had a judge do so.

Temple said the new law, which takes effect Jan. 1, “changes the landscape of how criminal cases will be argued.”

Before, he said, “in the vast majority of criminal cases, there would be no arguments regarding jury nullification. … Now, it’s going to be an everyday occurrence in criminal jury trials.”

Read the entire story by Shawne E. Wickham of the NH Sunday News.

Are you a suspect in a criminal investigation?  The time to obtain the advice of an attorney is before you are arrested.  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to competent and experienced criminal law attorneys who have achieved specific education and experience standards with felony cases.   Call 603-229-0002 or request a referral online.