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Parker Layrisson's "Ask an Attorney" Articles
Do you have a question for a future "Ask an Attorney" column? Submit your question to Mr. Layrisson.
Can police take my blood by force at a DWI sobriety checkpoint?
Can the police stop and ticket me for texting and driving?
How do I choose the right lawyer for my case?
How can I protect my family from dangerous drivers before an accident happens?
How can I protect my rights after being injured in an auto accident?
Should I treat a DWI citation like any other traffic ticket?
Can my boss fire me for reporting my company's violation of the law?
What can I do about an insurance adjuster stonewalling on my damage claim?
Can my landlord evict me for a single late rent payment?
Can police take my blood by force at a DWI sobriety checkpoint?
Yes, if they obtain a warrant first. In fact, this occurred in Tangipahoa Parish last week when local police officers, prosecutors, and judges teamed up for a "No Refusal Weekend" targeting suspected drunk drivers.The 5th Amendment to the United States Constitution protects citizens from being compelled to testify against themselves in criminal cases. Also, the 4th Amendment protects Americans from unreasonable search and seizures. However, courts have ruled that these constitutional protections do not extend to DWI defendants' blood samples when courts issue search warrants based on probable cause. Therefore, when police, prosecutors, and judges collaborate to detain drivers who refuse breathalyzer testing, draft search warrants for blood samples, and review and sign the warrants, involuntary blood testing is allowed.
Under Louisiana’s DWI law, Revised Statute 14:98, a driver commits a crime when his blood alcohol concentration (BAC) is 0.08 or higher. Blood sample testing is more accurate and reliable than breath testing at determining BAC. Thus, a driver whose blood sample reveals a 0.08 BAC is easier to convict than a defendant whose breathalyzer test shows an equally high BAC.
Therefore, blood sample test results are the single most compelling piece of evidence available in DWI cases. Of course, even where blood was obtained by police, a good DWI defense lawyer can challenge a DWI prosecution on any number of other issues (validity of the traffic stop; improper arrest procedures; lack of probable cause; etc.). However, the bottom line is that a drunk driver who submits blood -- whether voluntarily or against his will -- is more likely to face DWI conviction than one who submits breath only or no chemical sample at all.
This summer, local police are cracking down on DWI. From the Ponchatoula Police Department to the Louisiana State Police, law enforcement agencies of all sizes are conducting roadside sobriety checkpoints on a regular basis. Now that prosecutors and judges have agreed to join police on the midnight shift, the summer heat is hotter than ever for drunk drivers.
Do yourself (and the rest of us) a huge favor by staying off the road if you are intoxicated.
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© 8/02/10 J. Parker Layrisson
Can the police stop and ticket me for texting and driving?
In a word, yes. Text messaging while driving is illegal in Louisiana. It is also extremely dangerous.
Louisiana Revised Statute 32:300.5 prohibits drivers from "using a wireless telecommunications device to write, send, or read a text-based communication." The fine, $175 for first offense, increases to $500 for subsequent offenses. Fines can be doubled if an accident is involved.
Texting messaging while driving is far more dangerous than mobile phone talking and driving. Studies have shown texting drivers to be 23 times more likely to be involved in a crash or near-crash than non-distracted drivers. Texting takes a driver's focus away from the road for an average of 4.6 seconds -- enough time to travel the length of a football field at 55 mph!
In years past, the crime of texting and driving was considered a secondary offense, meaning that police officers could not pull you over for that violation alone. However, effective August 15, 2010, text messaging while driving becomes a primary offense. The upshot is you can be stopped and ticketed for texting while driving despite the absence of other traffic offenses.
Considering the obvious dangers and legal liability associated with texting and driving, keep your hands on the wheel and your eyes on the road until you reach your destination.
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© 7/22/10 J. Parker Layrisson
How do I choose the right lawyer for my case?
The most important issues in selecting the right an attorney are experience, qualifications, and professional reputation. There are many sources of information about attorneys: the Internet, advertisements, friends, other lawyers, etc. However, while each of those can be helpful and informative, the single best way to determine whether a lawyer is right for your case is to talk to the attorney directly.Most attorneys will speak to you on the telephone or in person at no charge to answer basic questions before formal legal representation begins. This process is important because it allows you to determine whether you like and trust the lawyer and it permits the attorney to decide whether he wants to handle your case.
Do not be afraid to formally interview your lawyer. This will show the attorney that you take your case (and his job) very seriously.
Ask thoughtful, direct questions. Demand straight answers. Consider the information you obtain, and go with your instincts. It is important to be both comfortable with and confident in your attorney.
The following questions should assist you in making an informed decision on who will represent you:
How much experience does the lawyer have?
Do not simply ask how many years the attorney has practiced law; question him about what he has been doing all those years. With regards to experience, quality is as important as quantity. For example, if you need an injury lawyer, ask the attorney how many similar injury cases he has handled, how many of those cases went to trial, what results has he achieved in those cases, etc. If your case is criminal in nature, ask whether the lawyer has worked as a prosecutor, with other law enforcement agencies, or for the judiciary.
What are the lawyer’s qualifications?
Here, start with questions about education and training; then move onto prior work history; then cover any other related accomplishments. Where did the lawyer go to school? What were his grades? Has he continued his education in the specialized fields applicable to your case? Has he clerked for a judge? Did the lawyer’s past work in the public sector or other law firms result in specialized expertise? Is he active with any law journals, bar associations, or professional groups? Has he published any relevant books, articles, columns, etc.?
What is the lawyer’s reputation among judges and other lawyers?
This topic is awkward to address and difficult to assess, but extremely important. If you have access to judges or other lawyers, bluntly ask them what they think of the attorney in question. If not, begin by asking the lawyer if he has ever been disciplined by the bar. Also ask the attorney to provide you with his Martindale-Hubbell peer rating. Ideally, you would like to hire an AV-rated lawyer, someone recognized by judges and lawyers alike as having achieved the height of professional excellence in legal ability and ethical standards.
If you dedicate yourself to a thorough attorney-client interview focusing on the lawyer’s experience, qualifications, and professional reputation, your chances of choosing the right lawyer for your case will increase tremendously.
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© 8/17/09 J. Parker Layrisson
How can I protect my family from dangerous drivers before an accident happens?
The single best way to protect your family from dangerous drivers before an accident occurs is to purchase as much uninsured/under-insured motorist bodily injury insurance coverage, also known as UM insurance, as you can afford.To understand why UM insurance is so critically important, imagine the worst -- that your wife and children have been seriously injured in a car wreck caused by a reckless drunk driver. Your wife has injured her head and spine, and she needs emergency neurological surgery. It will be months, if not years, before she is out of bed and ready to return to work. Likewise, your kids are hurt and hospitalized indefinitely. The medical costs are astounding: over $10,000 a day for ICU treatment; more than $5,000 per day for additional hospitalization; thousands more for X-rays, CT scans, MRI, and other diagnostic tests; tens of thousands for outpatient surgeries; and thousands more for physical therapy, rehabilitation, and prescription medications. Finally, your wife's lost wages and additional out-of-pocket costs are staggering.
Who will pay for these extraordinary expenses and the pain, suffering, and distress you and your family have endured through no fault of your own? The drunk driver? His insurance company? Your insurer?
Under Louisiana law, the person who caused the harm is liable to pay for your damages. Legally, the reckless drunk driver is responsible to your family for all damages. However, if the drunk driver is broke, he cannot pay you. If he goes bankrupt, he will not pay you. Even the best lawyers cannot recover damages for severe injuries from a deadbeat driver that lacks money and insurance. Thus, you should never depend solely on the driver who caused the accident to cover your bills.
Of course, Louisiana law requires all drivers to carry automotive liability coverage. This is a contract between the driver and an insurance company that requires the insurer to pay damages on the driver's behalf when he causes a wreck that hurts someone else, like your family. However, our state only requires $10,000 of insurance coverage (the lowest mandatory minimum in the country) and many drivers carry no insurance at all. So you should not count on the drunk driver's insurance for help either.
It is clearly unwise to rely on the other driver and his insurance company to protect your family from possible automobile accident losses. To truly protect the ones you love, you should take matters into your own hands by buying lots of UM insurance. UM insurance is a contract between you and your car insurance company that protects your family against damages caused by uninsured motorists, under-insured motorists, and hit-and-run drivers. So if the drunk driver who injured your family had no insurance, had minimal insurance policy limits of only $10,000, or if he fled the scene without providing any insurance information or identification, your UM insurer must pay for your damages up to the limits of your UM policy. Therefore, you should immediately buy as much UM coverage as you can afford.
UM insurance is cheaper than liability insurance and worth every penny.
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© 6/10/09 J. Parker Layrisson
How can I protect my rights after being injured in an auto accident?
There are several simple steps you can take to protect your rights after a motor vehicle accident: (1) get medical treatment; (2) preserve accident and injury evidence; (3) refuse to talk to the other driver’s insurance adjuster; and (4) contact a personal injury lawyer.Under Louisiana law, any person who causes you harm is liable to pay for your damages. That means that if a reckless driver caused a car accident that resulted in your injuries, that other driver must repair your vehicle, pay your medical bills, replace your lost wages, cover your out-of-pocket expenses, and compensate you for your physical and mental pain and suffering, among other things. Where the other driver’s automobile insurance or other liability insurance applies, insurance companies employ claims adjusters, trained risk management professionals who represent the insurance companies’ interests – not yours!
First and foremost, you should attend to your injuries by seeking immediate medical attention from a doctor. Go to an emergency room, family practice, after-hours clinic, chiropractor, or other licensed health care provider. Thereafter, follow your doctor’s advice about follow-up treatment and go to every scheduled medical appointment. Injuries must be proven through medical records and expert testimony; it is not enough for you to simply say you are hurt.
Also, you should collect all of the information you can from accident witnesses and other drivers, including names, addresses, license plate numbers, telephone numbers, insurance info, and police info, etc. Save all the documents you receive that relate to the accident and your injuries: accident reports; photos of the accident scene, your vehicle, and your injuries; names and contact information of witnesses; medical reports; medical bills; and receipts for prescriptions, vehicle repairs, and other related out-of-pocket expenses. Damages must be proven with actual evidence; the insurance company will not believe your word without supporting documentation.
Additionally, you should refrain from discussing the details of the accident or your injuries with anyone except the police, your doctors, and your lawyer. Do not count on insurance adjusters who call you on the telephone to deal fairly or protect your rights in any way. Think of the usual line from police movies: “Anything you say can and will be used against you in a court of law.” Although you are not a criminal, the same principle applies: loose lips sink ships! Adjusters and other witnesses can twist your words and use them against you later on. Therefore, do not give a statement to the other driver’s insurance adjuster. Also, do not sign any insurance company forms.
Finally, if you have been injured in an automobile accident through no fault of your own, you should contact a Louisiana personal injury attorney for a free consultation. Lawyers typically charge a contingent fee in personal injury cases, meaning that you do not pay anything up front and the lawyers do not get paid until you get paid by settlement or judgment.
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© 7/06/09 J. Parker Layrisson
Should I treat a DWI citation like any other traffic ticket?
Unlike typical traffic tickets, a citation for driving while intoxicated (DWI) poses an urgent and considerable threat to your freedom, wealth, and reputation. Consequently, you should immediately hire a qualified DWI defense lawyer to guide you through the complicated process. Failure to hire the right attorney in time could forever prejudice your rights.In Louisiana, DWI is a serious crime. It is punishable by imprisonment, fines, probation, and suspension of driving privileges, among other penalties.
If you have been arrested for DWI, you face two separate legal proceedings: (1) criminal prosecution in city or district court; and (2) administrative driver’s license suspension by state’s office of motor vehicles.
Criminal prosecution is the more important of the two legal proceedings because conviction can result in jail time, fines, probation, community service, and other burdensome penalties. DWI conviction can also tarnish your permanent criminal record, resulting in lost employment, educational, and personal opportunities. Conviction can further haunt you by drastically increasing penalties in future DWI cases. Finally, DWI criminal conviction can cause your insurance rates to skyrocket, costing you thousands in additional premiums.
In most cases, the district or city court will schedule the first mandatory criminal court appearance, the arraignment, within a few months of the DWI arrest. At arraignment, the judge will read you the charges, ask you to enter an initial plea, and assign you subsequent court dates for motions, pre-trial conference, and/or trial. After the arraignment, you have only 15 days to file written motions with the court requesting obtainable evidence and asserting relevant defenses.
The administrative driver’s license suspension process moves even faster than criminal court. Under Louisiana law, refusal to take or failure to pass a chemical breath test results in an automatic suspension of your driver’s license by the Louisiana Department of Public Safety, Office of Motor Vehicles. Typically, the arresting officer will confiscate your license upon arrest.
To challenge the driver’s license suspension, you must request a hearing before an administrative law judge within only 15 days of arrest. You should also subpoena the arresting officer(s) to appear at the hearing. In addition to providing your only opportunity to reclaim your full driving privileges, the administrative law judge hearing usually presents the first (and best) opportunity to question the arresting officer about your DWI arrest and review the police report.
Considering the harsh ramifications of DWI conviction and the short 15-day deadlines applicable in both the criminal court and administrative proceedings, you should retain a qualified DWI defense lawyer as soon as possible to fight your charges. Making the mistakes of not hiring a lawyer, hiring the wrong lawyer, or even hiring the right lawyer too late can doom your case forever.
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© 7/15/09 J. Parker Layrisson
Can my boss fire me for reporting my company's violation of the law?
Probably not. Louisiana's “whistleblower” statute, Revised Statute 23:967, prohibits employers from retaliating against employees who report or threaten to report their employer for breaking the law. In fact, if you were fired for "blowing the whistle" on your company’s illegal activity, you may be entitled to file a claim for civil damages.To assist in answering your question, the authors of this column have consulted Joseph F. Lavigne, an accomplished New Orleans lawyer who practices with the labor relations and employment law section of Louisiana's largest law firm, Jones Walker. Mr. Lavigne summarized our "whistleblower" statute as follows:
“La. Rev. Stat. 23:967 makes it unlawful for an employer to terminate an employee who reports or threatens to report his employer for violating the law. Before an employee can bring this claim, however, several prerequisites must be met. First, the employee must claim that his employer violated the law. Second, the employee must notify his employer of the law it is violating, and third, he must claim that he was fired because he reported or threatened to report that violation of law, he provided information or testimony regarding the violation of law, or refused to participate in the violation of law.”
Indeed, employers who violate the “whistleblower” statute are subject to civil liability for their affected employees' damages, reasonable attorney's fees and court costs.
Louisiana's “whistleblower” statute is particularly important to protecting our environment from harmful commercial polluters. For an example, consider the following hypothetical situation:
Imagine our favorite newspaper columnist, Old Hardhide, discovered his young new editor dumping toxic newspaper ink into the fertile waters of Bedico Creek. What could the alligator commentator do about it? Well, under the “whistleblower” statute, he could advise his boss that polluting is illegal and report the violation to Bedico “Mayor” Don Steadman, local wetlands warrior Ben Taylor, or the appropriate government authorities, without losing a single paycheck. Thanks to La. Rev. Stat. 23:967, Ole Pinchpenny could not respond by firing the “tattle-tail.” Indeed, under the “whistle-blower” statute, Old Hardhide could protect his favorite swimming hole keep his job at the same time.
So, if your company violates the law and you wish to report it, follow the steps provided by Mr. Lavigne above and you will be protected from employer retaliation by the “whistleblower” statute. If you have already been fired for reporting your company's lawbreaking, promptly consult an attorney about filing a “whistleblower” statute civil action.
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© 11/17/05 Jean-Paul & Parker Layrisson
What can I do about an insurance adjuster stonewalling on my damage claim?
When making an insurance claim, you can either deal with the insurance company directly or hire an attorney to handle your claim. Considering that the adjuster works, for the insurance company - not you - it makes sense to protect your interests with capable advocacy. When dealing with insurance adjusters, the most important thing you can do is make sure that the person asserting your claim is knowledgeable about your insurance policy, damage cost estimates, and (especially) the Louisiana Insurance Code.The insurance, code requires insurance companies to demonstrate good faith and fair dealing toward the people they insure. Indeed, it provides that insurers have an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims. In short, the law prohibits insurance adjusters from “stonewalling” on your claim, but it is up to you or your lawyer to “keep them honest.”
Different types of insurance claims – injury, property, automobile accident, hurricane damage, etc.— present different statutory rules and remedies. Consequently, it is important to be well-informed on a variety of insurance statutes and the accompanying case law. Depending on the type of insurance claim you are maintaining, the insurance adjuster's unnecessary delays may entitle you to recover funds beyond your actual damages.
For example, under the insurance code, if you are making a property damage claim on your automobile, the insurance company must pay you within 30 days after receiving satisfactory proof of your loss. If the insurer fails to pay timely, you may be entitled to collect statutory penalties and attorneys' fees in addition to your losses. This could mean significantly more money in your pocket.
Under another example, if you are asserting a home repair claim and the adjuster knowingly undervalues the cost of replacement materials (remember, construction costs are way up since the storms), a different type of statutory penalties may apply. Again, the overall value of your claim could increase considerably as a result of a special statute: Knowing the law and conveying your knowledge to the insurer can increase the value of your settlement and expedite the adjusting process by enhancing your bargaining power. If an insurance adjuster knows you will aggressively pursue maximum statutory penalties in court if his or her insurance company violates the law, he/she will be less likely to illegally “stonewall” or “shortchange” you.
Some folks say good fences make good neighbors (and some insurance companies claim to be “like a good neighbor”). This timeless principle of protection clearly applies to the process of insurance adjusting. If you surround your claim with a noticeable knowledge of insurance law, your “good neighbor” will be less likely to cross the line.
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© 10/27/05 Jean-Paul & Parker Layrisson
© 10/27/05 Jean-Paul & Parker Layrisson
Can my landlord evict me for a single late rent payment?
Probably so. Under Louisiana law, landlords are generally entitled to evict tenants who fail to pay the rent on time.The Louisiana Civil Code provides that a lessee (tenant or renter) is bound to pay rent to a lessor (landlord) in accordance with the terms of their lease (rental agreement). According to statutory law, if a tenant fails to pay the rent when due, his or her landlord may dissolve the lease agreement and regain possession of the premises.
Consequently, if you agreed to pay the rent by the first day of each month, but you failed to get it in on time (even just once), your landlord probably has the legal right to evict you.
Of course, there are exceptions to this general rule. For example', the actual terms of your lease agreement may explicitly prevent your landlord from evicting you for a single late payment. Some rental contracts permit late payment if the tenant pays the rent and an additional "late charge." Also, if you have developed a pattern of chronically paying rent late and your landlord habitually accepts belated payments without protest, you may have impliedly amended the terms of your lease agreement to permit tardy payments. Finally, if a devastating act of God—say, Hurricane Katrina— prevents you from paying rent timely, the courts will probably accommodate your one-time delay and refuse to evict you.
However, in general, if your lease provides an unambiguous "due date" and you fail to pay by that date, you have opened the door for your landlord to evict you.
In the event that your landlord chooses to enforce his or her right to evict you, he/she must do so in the manner provided by law. That means the lessor must petition the court for possession of the premises, not take the law into his/her own hands. Usually the lessor is required to formally put the lessee in default and provide the tenant with written notice to vacate the premises which allows at least five days to move out. However, many lease agreements contain a waiver of the default/notice requirement. Ultimately, it is the court and its officers (not the landlord) who physically evict the tenant.
In summary, the actual terms of your lease agreement determine whether your landlord may evict you for a single late rent payment. However, unless your lease states otherwise, Louisiana law provides that lessors may evict lessees for late rental payments. Thus, you should pay your rent on time every month or have a moving van on standby!
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© 10/13/05 Jean-Paul & Parker Layrisson