March 24, 2011

Drunk Driving Apps???

Officially, as of today, there is an "app" available on your smartphone for every possible topic. Everyday, there seems to be a new controversial app that incites the public to force Apple and Droid to remove the app, such as the "gay cure" app and the "babyshaker" app. Now pressure is mounting on Apple to remove an app called checkpoints, which along with similar apps, allows users to identify police DUI checkpoints so that they can be re-routed or avoided.

According to a letter from US Senators Lautenberg, Reid, Schumer and Udall, there are several apps with a registered 10 million users! The apps all commonly feature the ability for users to point out road blocks and and police checkpoints that are searching for drunk drivers. Other users who are leaving the bar inebriated can open the app to make sure they are not driving into a drunk driving patrol.

Obviously, our Senators above are looking to have any such app removed immediately because of the risk to public safety. After all, drunk driving related fatalities exceed 40,000 a year!

March 21, 2011

Rhode Island to Consider Tougher Seatbelt Laws

Although similar attempts have been made in the past, the Rhode Island legislature is once again considering a bill to toughen state seatbelt laws. It goes without saying that seatbelts can save lives and reduce the severity of injuries in serious auto accidents, yet thousands still fail to buckle up every time they get in their car.

Under the current laws, the police can issue a citation for failure to wear a seatbelt, but only if they stopped you for another moving violation. In other words, the police can not pull over an adult driver (the laws are different for drivers under 18) if the only law he or she is breaking is failure to wear a seatbelt.

Under the new proposal, police would be allowed to make a traffic stop solely for seat belt use and issue a $75 citation if caught operating without a seatbelt. Thirty States already have similar laws, but previous attempts to pass such a law in Rhode Island have failed. This time around, however, there is $4 million dollars in federal money available if the State should pass such a law.

What I like about this newly proposed law is that it prevents the police from conducting a search of the vehicle unless a violation other than the seatbelt was also committed. In other words, police will not be able to use lack of a seat belt to conduct random unwarranted searches of vehicles and persons, unless additional probable cause exists.

March 15, 2011

Traumatically Induced Cataracts

I do not often hear inquiries about traumatically induced cataracts, but I recently had a conversation with a fellow attorney who was speaking of a case he settled with traumatically induced cataracts. I thought that it was an interesting topic to write about and an injury that many might be unfamiliar with.

Traumatic cataracts can occur when the eye lens is damaged by blunt trauma or penetrating eye injury. Such an injury can occur in a car accident from the impact of the airbag or windshield and is particularly a danger for those who wear glasses. The glasses, or contact lens, can pierce the eye lens capsule which may eventually result in cataracts. Because of the severity of impact required for this type of injury, it will generally occur in very serious car accidents with significant injuries such as head trauma or facial lacerations.

Cataracts are a very serious disability that severely limits vision and often require surgery. If you have suffered this unique injury following a serious car accident, contact our office to discuss your status and a potential claim for damages.

March 12, 2011

Have an Attorney Review Your Music Contracts

The cost of an attorney can be prohibitive for young musicians or bands starting out. I understand that in the early stages a band is so excited for an opportunity that they will sign whatever contract comes to them in hopes of making it big. I have also heard a lot of artists say that "the contract seems pretty straightforward." I ensure you that in the music industry nothing is "pretty straightforward". If it were not drafted in lengthy "lawyer speak" it would not take a 12 page contract to license one song from a band. Do not make the mistake of assuming that you understand every provision in the contract.

As an attorney who has reviewed hundred of recording, publishing, licensing, and management contracts, I must tell you that you absolutely must have an experienced entertainment lawyer review the contract. If you take your music and your band seriously, you can not afford to blindly enter into contracts that you do not understand. I have seen contracts that tie up the artist for several years without a chance to exit. I have seen contracts that grant the record company or manager power of attorney. I have also seen contracts that wrongfully take all the rights to music created and recorded by you. Furthermore, many of these contracts offer nothing in return. There is often no financial advance, no intellectual support, and no promise to promote the band or your music.

I can review most contracts and provide a detailed opinion letter as to its strengths and weaknesses for much less than you might expect. I will make it absolutely clear if it is a contract you need to avoid. In most cases, I will have the response to you within a week. It is an incredibly small price to pay for a service that may save your bands career and save you hundreds of thousands of dollars if the song becomes a hit.

Furthermore, I can review contracts for artists around the Country. While I am admitted to practice in Rhode Island and Massachusetts, the language of music contracts is often universal and I can review a contract offered to an artist anywhere.

Continue reading "Have an Attorney Review Your Music Contracts" »

March 9, 2011

Did You Know That You Can Refuse a Field Sobriety Test?

If you are pulled over for suspicion of driving under the influence, you may be aware that you are allowed to refuse to take a breathalyzer test. If you refuse to take a breathalyzer test, you will be charged with refusal to submit to a breathalyzer test and will be subject to additional penalties, including a six month license suspension. The benefit of a refusal to submit is that the police will not be able to introduce chemical evidence of your intoxication.

Many people, however, fail to realize that even the field sobriety test is voluntary. You are under no obligation to submit to a field sobriety test when asked by the police. If you refuse, the police will be forced to make a decision whether to arrest you based on what little evidence that they have observed (i.e. slurred speech, bloodshot eyes, etc.)

Most people will submit to a field sobriety test because a) they think that they have to; or b) they feel that they can pass the test. As to part "A", I have already informed you that you do not have to submit to the test. As for part "B" - DO NOT ASSUME THAT YOU CAN PASS THE TEST!! Even someone who is completely sober or had a single drink can fail a field sobriety test because it is difficult. I know that if I were asked, even without drinking, that I would have a terribly tough time standing on one leg for thirty seconds without wobbling. In addition, the police officer will be making you nervous and this will make it more likely for you to make a mistake.

Furthermore, the field sobriety test is entirely subjective. There is no scientific basis for this test. Instead, police officers are given a number of signals to look for to identify a drunk individual. However, there is no magic number to the amount of mistakes that you can make and still pass the test. If you still do not believe me, ask a police officer friend of yours how many people suspected of drunk driving actually pass the field sobriety test.

Based on the way you were driving your vehicle, or based on your speech patterns and conduct, the police officer may still decide to arrest you if he feels that he has probable cause. However, by giving the police little additional evidence to support the arrest, you will put yourself, and your criminal defense attorney in a better position to win at trial.

Continue reading "Did You Know That You Can Refuse a Field Sobriety Test?" »

March 9, 2011

Did You Know That You Can Refuse a Field Sobriety Test?

If you are pulled over for suspicion of driving under the influence, you may be aware that you are allowed to refuse to take a breathalyzer test. If you refuse to take a breathalyzer test, you will be charged with refusal to submit to a breathalyzer test and will be subject to additional penalties, including a six month license suspension. The benefit of a refusal to submit is that the police will not be able to introduce chemical evidence of your intoxication.

Many people, however, fail to realize that even the field sobriety test is voluntary. You are under no obligation to submit to a field sobriety test when asked by the police. If you refuse, the police will be forced to make a decision whether to arrest you based on what little evidence that they have observed (i.e. slurred speech, bloodshot eyes, etc.)

Most people will submit to a field sobriety test because a) they think that they have to; or b) they feel that they can pass the test. As to part "A", I have already informed you that you do not have to submit to the test. As for part "B" - DO NOT ASSUME THAT YOU CAN PASS THE TEST!! Even someone who is completely sober or had a single drink can fail a field sobriety test because it is difficult. I know that if I were asked, even without drinking, that I would have a terribly tough time standing on one leg for thirty seconds without wobbling. In addition, the police officer will be making you nervous and this will make it more likely for you to make a mistake.

Furthermore, the field sobriety test is entirely subjective. There is no scientific basis for this test. Instead, police officers are given a number of signals to look for to identify a drunk individual. However, there is no magic number to the amount of mistakes that you can make and still pass the test. If you still do not believe me, ask a police officer friend of yours how many people suspected of drunk driving actually pass the field sobriety test.

Based on the way you were driving your vehicle, or based on your speech patterns and conduct, the police officer may still decide to arrest you if he feels that he has probable cause. However, by giving the police little additional evidence to support the arrest, you will put yourself, and your criminal defense attorney in a better position to win at trial.

Continue reading "Did You Know That You Can Refuse a Field Sobriety Test?" »

March 7, 2011

The Majority of Dog Bite Victims are Children

Dog bites are very common in the United States. On average, over four million people are bitten by dogs each year. Nearly a million of those people suffered injury severe enough to require medical attention. Most concerning, however, is that roughy 80% of dog bite victims are children under 10. In fact, dog bites are one of the most common causes for visits to the emergency room by children.

There are a number of reasons why a child is more prone to attack from a dog. Children are at the animals eye level and are seen by the dog as less of a threat than an adult. Also, children, unaware of the danger, are more likely to taunt or tease animals which results in an attack.

A dog bite can have serious and permanent consequences. As dogs are prone to attack the face, it is quite common for a child to suffer facial scarring and/or injury to the eyes. In fact, one study indicated that when very young children (under 4) are attacked by dogs, injury to the eyes occurs in about 15% of cases.

It is imperative to exercise caution when your child is around dogs. It does not matter if it is a strange or familiar dog as statistics suggest that children are most often attacked by the family pet. The laws in Rhode Island and Massachusetts are strongly in favor of the dog attack victim and the owner of the pet may be responsible if your child is attacked. Like other personal injury claims, the victim of a dog attack is entitled to:

  • Past and future medical expenses;
  • Lost wages or loss of earning capactity;
  • Money for scarring or permanent disfigurement;
  • Pain and suffering.

Continue reading "The Majority of Dog Bite Victims are Children" »

March 3, 2011

Deval Patrick to Suggest Medical Malpractice Reform in Massachusetts

Despite ample evidence (here, here and here) that medical malpractice lawsuits are not the cause for soaring health care costs and poor patient care, Massachusetts Governor Deval Patrick is proposing a bill intended to reduce medical malpractice lawsuits. The Governor, taking a page from steps taken in other States, is proposing a bill to amend medical malpractice law in Massachusetts. Under the proposal:

...doctors in Massachusetts would be able to apologize to patients -- without the risk that their apology could be used against them later, in court. The state would also implement a six-month "cooling off period," so that hospitals and patients could try to resolve problems without lawsuits.

President Obama, as part of his healthcare reform and recently discussed at the State of the Union Address, is also suggesting potential reforms. One such suggestion is the creation of a Health Court which will remove the jury from the process (despite the Constitution guaranteeing the right to a trial by jury) in favor of a single Judge. The intent is to streamline medical malpractice awards because juries often have a wide range in the amount of money that they award.

It has been said on numerous occasions... malpractice reform will only result in lesser quality care for patients, reduced ability to exercise Constitutional rights in open Court and WILL NOT reduce health insurance costs. A number of independents studies continue to show that eliminating medical malpractice lawsuits all together would save approximately 1% of the total cost of healthcare. One Percent!!

March 1, 2011

What is the United States Supreme Court Doing to the Confrontation Clause?

A criminal defendant has the Constitutional Right to confront his accusers in open court. This is referred to as the Confrontation Clause in the United States Constitution. The purpose of the clause, for one, is to prevent false accusations by requiring that the complaining witness appear in Court and testify against the accused. It also allows the defense an opportunity to show or demonstrate that the complaining witness is lying (if he is lying), or not credible.

The United States Supreme Court ruled today on Michigan v. Bryant, and may have complicated the Confrontation Clause. In this case a shot and dying man told police at the scene that he was shot by Richard Bryant. The victim died from his wounds before trial. The police testified as to what they were told, namely that the victim identified Richard Bryant as the shooter. Bryant was convicted at the trial, but the Michigan Supreme Court overturned the conviction stating that the judgment ran afoul of the Confrontation Clause. Today, the Supreme Court, in a 6-2 ruling, held that the conviction was valid and hearsay evidence (the testimony of the police) can be used when a victim of violent crime is unable to testify. The admission of the testimony has to do with the purpose of the statement. Justice Sotomayor, writing for the majority, said:

...the state court had made a mistake in considering Mr. Covington's statements to be "testimonial" and hence subject to the Confrontation Clause. Testimonial statements, she explained, are ones solemnly made to establish facts about past events.

The primary purpose of Mr. Covington's statement was something else, Justice Sotomayor wrote. It was to aid the police in addressing an "ongoing emergency," given that the person who shot Mr. Covington had a gun and was on the loose.

The testimony may have been allowed based on the "dying declaration" hearsay exception. A dying declaration will allow testimony that is otherwise hearsay, if:


  1. The declarant is unavailable;

  2. The declarant's statement is being offered in a criminal prosecution for murder, or in a civil action;

  3. The declarant's statement was made while under the belief that his death was imminent; and

  4. The declarant's statement must relate to the cause or circumstances of what he believed to be his impending death.

However, the prosecution never raised this issue, nor did the supreme Court in today's decision. So now the interplay between a dying declaration and the Confrontation Clause, are completely in turmoil.

Justice Scalia wrote a scathing dissent of the decision, and while I never believed that I would agree with Justice Scalia on anything, I believe he is correct here. There already exists an exception for such evidence to come into evidence. If the testimony is not properly entered, we should not be creating further exceptions and loopholes for the admission of tainted evidence. In the end, a conviction based on no more than the words of a police officer allegedly recanting the words of a dying man, who may or may not have been delirious from pain or loss of blood, is troubling.

February 24, 2011

Lawmaker Proposing Stricter Racial Profiling Laws

Rhode Island enacted the Racial Profiling Prevention Act in 2004 (under R.I.G.L. 31-21.1) in response to similar statutes passed in most States. The unfortunate reality is that racial profiling exists and happens everyday, everywhere. The racial disparity in the number of traffic stops, arrests, convictions, and length of sentence between whites and all other races can not be ignored. Some statistics from Amnesty International are hard to be ignored:

Racial profiling is a proven failure in the 'War on Drugs.' Statistics show that using racial profiling to interdict highway-bound drug couriers is not just wrong, but ineffective. A survey by the Department of Justice in 1999 reveled that while officers disproportionately focused on African American and Latino drivers, they found drugs more often when they searched whites (17%) than when they searched African Americans (8%). A similar survey in New Jersey found that although people of color were searched more frequently, state troopers found drugs in vehicles driven by whites 25% of the time, by African Americans 13%, and by Latinos 5%. According to a study of the US Customs Service's practice by Lamberth Consulting, when Customs agents stopped using racial profiling to target potential smugglers and began focusing on race-neutral factors such as behavior, they increased the rate of productive searches by more than 300%.

The Rhode Island General Assembly admitted that racial profiling existed in R.I.G.L. 31-21-2.2 (c) "In many communities nonwhite drivers in Rhode Island, subjected to discretionary searches, are twice as likely as whites to be searched." They also admit that racial profiling causes fear, anxiety, humiliation, and resentment among people unjustifiably treated as criminal suspects and can result in a loss of confidence and public trust in the police and criminal justice system.

The new proposed laws look to take an even tougher stance to combat racial profiling. Some of the suggested components include:

  • requiring officers to document in writing their probable cause for conducting a search during a traffic stop
  • bar police from requesting documentation other than license and registration without reasonable suspicion of criminal activity
  • bar officers for asking passengers for identification without probable cause
  • restrict searches on juveniles

While probable cause for search and seizure always plays a role in a criminal defense case, those who feel they have been subjected to racial profiling are also allowed to sue for damages in civil court.

February 20, 2011

Don't Wait For the Police Report Before Contacting Your Attorney

This week a new client came into my office following a very serious car accident. He suffered significant injuries and was rushed to Rhode Island Hospital. The accident happened over a week ago and he told me that he thought he had to wait for the police report before contacting an attorney. For my client, the delay did not effect the case, but it occurred to me that other people may also be under the belief that they need to wait for the police report.

This is absolutely untrue. In fact, in order to ensure that things go smoothly and that you receive fair compensation, it is best for your personal injury attorney to get started right away on your case. For my clients, I begin working cases immediately after the consultation. In addition, my office handles the property damage claim and we can get started on that right away so that you are not without your car for longer than necessary.

Your lawyer will obtain the police report when it becomes available. Depending on where in Rhode Island your accident occurred, the police report can take anywhere from 2-7 days to become available. It is not worth waiting this much time before calling your attorney. After all, police reports are helpful to identify insurance information and confirm the facts of loss, but they rarely make a major difference in a personal injury case.

Continue reading "Don't Wait For the Police Report Before Contacting Your Attorney" »

February 16, 2011

Herniated Disc Following an Auto Accident

A herniated disc is one of the more common serious injuries to occur following an auto accident. It is a potentially life changing injury that may require high risk spinal surgery. It is a more serious injury than ordinary whiplash and must be treated as such by your attorney.

What is a Disc Herniation?

Each of us has a small gel like cushion (the disc) between each vertebrae in our spinal column. This disc is what allows us to bend, twist, and turn our spine without pain. In a serious auto accident, the shock to the spine can cause this disc to rupture. This causes a great deal of pain for two reasons. First, you no longer have the necessary cushion to protect the vertebrae from "rubbing" against each other. Second, the herniated disc can move inside the spinal column and rub against spinal nerves causing a great deal of pain not only to the back, but radiating into the arms and legs. If your pain extends away from your back and into your limbs, your doctor will likely order an MRI to confirm the existence of a herniated disc.

The Insurance Company Will Almost Always Deny These Claims

If you have suffered a bulging disc (a disc injury that has not completely ruptured) or a herniated disc, you need to have an experienced personal injury attorney who understands how insurance companies think and who is willing to file a lawsuit to ensure you receive fair compensation. This is because insurance companies frequently deny that a herniated disc is related to an auto accident. Here's why...

The vertebral discs, like every other part of our body, tends to break down as we age. People as young as 30 can already show signs of disc deterioration and a high percentage of the population already have bulging discs. Men and women who are athletic or work in physical occupations are very likely to show some evidence of disc damage even before an auto accident. For this reason, insurance companies will always argue that the disc injury was pre-existing and unrelated to the auto accident.

Don't Let the Insurance Companies Ignore Your Disc Herniation

Most auto accidents result in damage to the soft tissue of the neck and back, a so-called whiplash injury. A disc herniation is not the same as whiplash and your settlement amount should not be the same as a whiplash victim, either. As a former insurance adjuster, I know how the insurance companies approach spinal injury claims, and I will use that knowledge to obtain the best possible result for you.

Continue reading "Herniated Disc Following an Auto Accident" »

February 14, 2011

Does Our Country Need Comprehensive Criminal Justice Reform?

The simple answer to the above question would appear to be, yes. Prisons are overcrowded, millions of free citizens live with years of probation hanging over their head, prisoner reform does not work, and the Courts and public defenders in many States are completely overwhelmed.

A Bipartisan group composed of lawyers, judges, lawmakers, and civil rights groups called the Constitution Project, have issued their suggestions for comprehensive overhaul of the criminal justice system. While there was not unanimous support for every recommendation, some of the proposed reforms include:

  • Mandatory recordings of police interrogations
  • Improvements to and increased financial aid to Public Defenders
  • Increased efforts to improve prisoner reform and transition back into the world
  • Push Congress to create a bipartisan criminal justice commission
  • Evaluate and eliminate racial and ethnic disparity in criminal charges and sentencing
  • Address the current conditions inside the prisons

The criminal justice and prison system is in dire straits and is unlikely to change any time soon. The unfortunate reality is that politicians do not win votes by assisting prisoners and criminal defendants.

February 7, 2011

Trying Defendants Without Them Present in Court?

The strange idea actually comes from a Bristol County Massachusetts District Attorney. As with many counties across the country, Bristol County Massachusetts suffers from a high number of no-shows to Court. Defendants arrested or released on bail (most often personal recognizance) simply fail to show up for their next Court date. A bench warrant is almost certain to follow, meaning that the defendant can be arrested and imprisoned at any time. Absent an arrest, the underlying charges remain open while the defendant refuses to show for Court.

It is a big problem and I would be willing to guess that the number of existing bench warrants in Rhode Island and Massachusetts is staggering. A Massachusetts District Attorney, with seeming disregard for the Sixth Amendment of the Constitution, has suggested a novel approach to this growing problem... Proceed with the Defendant's trial without him!

The idea is to try criminal defendants who do not show up for their Court date, in absentia. In their absence. Since most of these defendants do not have criminal defense attorneys representing them, it all but ensures a conviction. Nevertheless, any conviction under such a statute would almost certainly be reversed as a Constitutional violation.

The Sixth Amendment of the Constitution ensures that a defendant has the right to confront his or her accusers:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

I can not see how any proposed statute to this effect could survive a Constitutional challenge. We simply can not waive our constitutional freedoms away, or have them brushed aside because of a failure to assert them.

February 4, 2011

Understanding A Plea of Nolo Contendre or No Contest

One of the most frequent questions I hear from criminal defense clients is: "What is the difference between a plea of guilty and a plea of nolo contendre?" There is quite a bit of difference, actually, and you should speak with your criminal defense attorney to discuss which is the best plea option for your case.

Nolo Contendre comes from the latin meaning, "I do not wish to contend." This is where the term "no contest" comes from. By pleading nolo contendre you are neither admitting or disputing the charges, you are telling the Court that you do not wish to fight the charges. It is, in essence, a guilty plea and the sentence will be imposed as such. The difference between nolo contendre and an ordinary guilty plea is whether the offense will count as a conviction in the State of Rhode Island.

If you plead guilty to a crime, it is a conviction in the State of Rhode Island. Under certain circumstances, however, you can plead nolo contendre instead, and the crime might not be considered a conviction in the State of Rhode Island. This could be a crucial difference during a job hunt when the employer asks if you have ever been convicted of a crime.

Under Rhode Island General Law 12-18-3, if you plead nolo contendre and are placed on probation, so long as there is no violation of the probation, then the offense will not be considered a conviction for any purposes. This means that you can rightfully tell current or prospective employers that you have never been convicted of a crime, and evidence of that crime likely can not be used against you in subsequent legal proceedings.

Pleading nolo does not always guarantee that there will be no conviction. If the plea is for a crime of violence, or if the sentence includes time to serve in the ACI, then even a nolo plea will be a conviction in the State of Rhode Island. There are other circumstances and factors that can effect your decision whether to plead nolo or guilty, but it is definitely worth exploring with your criminal defense attorney. Many misdemeanors for non-violent crimes will be plead out with nolo contendre rather than a straight guilty plea.

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