For serious accidents involving catastrophic injury or death, it is advantageous for criminal and civil attorneys to work together to get the best possible outcome for the client.
Drugs cars and cooperation
A college freshman is driving on the highway when they strike a motorcycle head on, instantly killing the motorcyclist. Upon investigating the accident, police find unmarked prescription opioids in the student’s vehicle for which the student does not have a prescription. The student is arrested and after obtaining a warrant, police take urine and hair samples from the student. The tests are positive for the opioid (pain killer), and the student is then charged with felony motor vehicle homicide (based on intoxication).
This is the typical scenario where a criminal defense attorney and insurance defense attorney may work together to get the best possible outcome for the client. Often when the insured is in an accident that causes serious bodily injury or death, a potential liability for the insurance company and the insured could be in the millions of dollars. While the insured may not have the resources to mount a criminal defense, the insurance company may likely be willing to invest in defending the case from the onset.
In our scenario, the student has been charged with a felony motor vehicle homicide or manslaughter.
The following are grounds that can be used to fight the charge:
What caused the accident?
Under Nebraska law, if the driver committed a traffic violation resulting in the death of another, the case is charged as motor vehicle homicide. However, the state must prove beyond a reasonable doubt that the driver’s actions caused the death of the victim rather than the victim’s actions. In this case, an accident reconstructionistwould be important to determine what caused the accident.
Anytime there is a serious accident, law enforcement will generally construct their own accident reconstruction, but those reconstructions are often tainted by the rush to get traffic moving again and the bias of the law enforcement officer who is investigating. While the criminal defense attorney usually wants an accident reconstruction specialist to work on the case, most individuals cannot afford the tens of thousands of dollars an expert may require. However, a civil defense attorney knowing there are potentially millions of dollars at stake is likely willing to work with the criminal defense attorney and even fund the expert.
Forensic toxicologist
The student in our scenario tests positive for opioids. However, this does not necessarily mean the person was intoxicated at the time of the accident. A positive test for opioids in the urine or hair simply means that at some point opioids were present. However, the test seldom provides any information whether the defendant was under the influence of a narcotic at the time of the accident.
A criminal defense attorney can utilize a forensic toxicologist to demonstrate that there’s no proof that the insured was under the influence of opioids at the time of the crash. The civil lawyer may be able to file a motion to eliminate and keep that harmful information out of a civil lawsuit. While the information about the student illegally possessing opioids is damaging, it is not relevant to whether the student was intoxicated at the time of the crash.
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Drug recognition experts (DRE)
In our scenario, if the student is not injured from the crash, an officer who arrives on site may attempt to administer DRE field tests. DRE field tests are similar to DUI field tests. The problem with the DRE tests is that they are highly inaccurate and while they are admissible, can be attacked on many fronts.
Once again, a forensic toxicologist or pharmacologist could be extremely helpful in attacking the opinion of a DRE. This is extremely important because individuals involved in a serious accident may have suffered a head trauma or some type of shock which will affect the DRE test.
There are several other reasons why civil attorneys may want to get involved with criminal defense attorneys early in the process such as the ability to participate in a criminal deposition prior to civil depositions, potential access to BRADY materials which is exculpatory evidence that the prosecutor must turn over in a criminal case but might be hesitant to turn over to a civil lawyer.
When tragedy strikes, it doesn’t differentiate between criminal law and civil law. The entire tragedy must be addressed by a skilled lawyer who understands the stakes. When criminal and civil lawyers work together they can often achieve optimal results for their client whether it be the defendant, the insured, or the insurance company.
If you or a loved one are facing a case with criminal and civil legal issues, contact the aggressive criminal defense and civil attorneys at Berry Law.
