Utah change in legal BAC limit to 0.05 may save lives

This blog post addresses a change in DUI law designed to prevent wrongful deaths and serious injuries in automobile accidents involving alcohol impaired drivers. Earlier this week a new law went into effect in Utah lowering the legal BAC to 0.05. Other states will surely be watching to see what effect this change has in saving lives in DUI related traffic accidents.

The USA Today (link to story here) published an interesting piece regarding some of the statistics regarding DUI accidents and fatalities pertaining to the lower 0.05 BAC limit. The story cites and links to a study (link to study on National Institutes of Health website here) by James Fell and Robert Voas which “concluded that a .05 BAC limit would prevent 11 percent of fatal crashes involving alcohol and save nearly 1,800 lives each year.”

The USA Today story further cites NTSB (National Transportation Safety Board) statistics which show that when a person has a BAC between 0.05 and 0.079 that person is seven times more likely to be in a fatal accident than a person with no alcohol in his blood.

They also cite statistics from the CDC (Centers for Disease Control) and NHTSA (National Highway Traffic Safety Administration) which show a person can start exhibiting impairment from alcohol with a BAC as low as 0.02 and that driving skills worsen considerably when a person’s BAC reaches 0.05.

Of particular note in the story, though 67% of fatality DUI accidents involve drivers with BACs of 0.15 and above, in 2016 there were 2,017 alcohol related fatalities nationwide involving drivers with BACs of under 0.08 (the legal limit currently in Georgia).

It will be interesting to see what effect this change has on traffic fatalities in Utah in 2019. If it has any significant impact on saving lives I would predict other states will soon follow by changing their laws. The USA Today story notes that most developed countries already have stricter DUI limits such as Utah’s new 0.05 legal limit.

If you or a loved one have been injured or killed in a Georgia traffic accident with a DUI driver, please contact Gwinnett County based personal injury lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Georgia Traffic Fatalities for New Year's Travel Period

The Georgia Department of Public Safety has issued the final statistics regarding automobile accidents and fatality wrecks for the New Year’s travel period which began at 6:00 PM, Friday, December 28, 2018, and ended at 11:59 PM, Tuesday, January 1, 2019.

In total 18 people lost their lives in traffic crashes in Georgia during this recent holiday travel period.

These fatal crashes were investigated by the Georgia State Patrol, Dougherty County Police, Loganville Police, Atlanta Police, Rockdale County Sheriff’s Office, Chatham County Police, Gwinnett County Police, Newton County Sheriff’s Office, and DeKalb County Police.

The Georgia State Patrol alone investigated 550 traffic wrecks that resulted in 223 injuries and seven fatalities. They also made 368 DUI arrests and issued 6,971 citations during the New Year’s travel period.

Here is hoping you and your loved ones had a safe New Year’s celebration and will have a happy and prosperous 2019!

If you or a loved one have been injured or killed in a Georgia traffic accident, please contact Gwinnett County based personal injury lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

When can punitive damages be awarded in a Georgia lawsuit?

Georgia Punitive Damages Law

The place to begin when researching punitive damages in Georgia personal injury and wrongful death cases is the plain language of the pertinent statute, O.C.G.A. § 51-12-5.1. Punitive damages may be awarded in Georgia personal injury and wrongful death lawsuits only when there are "aggravating circumstances." See O.C.G.A. § 51-12-5.1(a). Punitive damages are not for deterring a certain type of behavior in society at large, but rather "to penalize, punish, or deter" a particular defendant. Id. This blog post by Lawrenceville, Gwinnett County, Georgia, based personal injury and wrongful death trial attorney Richard Armond gives an overview of punitive damages law in Georgia. 

What evidentiary standard must be met for a Georgia jury to award punitive damages?

Clear and convincing evidence. This is a higher standard than is required for a jury to find a defendant liable for general and special damages. The typical civil standard is "preponderance of the evidence," which is a simple balancing test where if the evidence is slightly greater than 50% against a defendant then that defendant can be held liable. 

Punitive damages, however, "may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." See O.C.G.A. § 51-12-5.1(b).

Clear and convincing evidence is defined as "evidence that will cause the jury to firmly believe each essential element of the claim to a high degree of probability. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence (but less than beyond a reasonable doubt). See Georgia Suggested Pattern Jury Instruction # 02.040, Fifth Edition.

Are there punitive damage caps depending on the type of Georgia personal injury or wrongful death lawsuit?

Yes.

Product Liability Cases:

In product liability cases there is no limit or cap to the amount of punitive damages which can be awarded under Georgia law. However, punitive damages can only assessed one time against a particular defendant anywhere in the State of Georgia. Further, 75% of the punitive damages awarded go to the State of Georgia, less a proportionate part of the costs of litigation, including reasonable attorney's fees. See O.C.G.A. § 51-12-5.1(e).

A major reason for this is the policy behind punitive damages. Georgia laws states that punitive damages are awarded "not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant." O.C.G.A. § 51-12-5.1(c).

Specific Intent to Harm Cases and Cases where the Defendant was Drunk or High:

In cases where it is shown that the defendant specifically intended to do harm (example: an assault with a baseball bat) to the plaintiff, or that the defendant was negligent while "under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired," no cap exists in Georgia on punitive damages. See O.C.G.A. § 51-12-5.1(f).

Further, no requirement exists under Georgia law in specific intent to harm/drunk and high cases in which the punitive damages get divided between the state and the plaintiff as is the case with products liability cases. See O.C.G.A. § 51-12-5.1(f).

Finally, punitive damages in specific intent to harm cases can only be awarded against an active tortfeaser (example: a bar knowingly serves a person too much alcohol and lets him drive drunk...only the drunk driver can have punitive damages awarded against him even if the bar is liable for its negligence under dram shop laws for general and special damages). See O.C.G.A. § 51-12-5.1(f).

All other Georgia Tort Cases:

The vast majority of Georgia personal injury and wrongful death cases, however, will unfortunately fall under the catch-call category of all other Georgia tort cases not listed above. For those cases punitive damages are capped under Georgia law at $250,000. See O.C.G.A. § 51-12-5.1(g).

Conclusion:

If you or a loved one are the victim in a Georgia personal injury or wrongful death case, punitive damages are something that should be explored. The complaint (the lawsuit you file) must specifically pray for the award of punitive damages or else you cannot pursue them at trial. See O.C.G.A. § 51-12-5.1(d)(1). An experienced attorney is needed to handle cases with potential punitive damages so that this potential source of recovery is handled properly.

If your or a loved one have been injured or lost in a personal injury or wrongful death case in Georgia, please contact Gwinnett County based personal injury and wrongful death lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Saving Georgia Lives: NIH recommends lowering legal BAC limit

New BAC recommendation may save lives and prevent serious injuries and wrongful deaths in Georgia

The National Institutes of Health (NIH) is recommending lowering the legal blood alcohol concentration from .08 to .05. Should this recommendation be followed in Georgia I would hope that it would result in saving innocent lives from drunk drivers on Georgia roads. We need less wrongful death and serious injury lawsuits in Georgia and such a measure may help.

A link to the Newsweek version of the story can be accessed here. The story notes that according to the NIH, when the legal drinking age was increased from 18 to 21 in 1980 there was a significant decrease in alcohol-related accidents and fatalities. However, the reductions have plateaued in recent years and the belief is that the reduction of the legal BAC limit will further prevent DUI accidents and deaths. They also recommend other measures such as increasing alcohol taxes, decreasing the hours alcohol can be sold, and preventing the sale of alcohol to people who are already visible intoxicated (a potential Georgia dram shop claim). 

What really stands out in the Newsweek story is the staggering figures at the end:  according to the CDC, "alcohol-impaired driving kills someone every 51 minutes and alcohol-related car crashes cost more than $44 billion a year." Less than every hour someone in the United States dies in an alcohol-impaired driving crash. 

Let's hope something can be done to prevent more deaths and serious injuries at the hands of drunk drivers in Georgia. It will be up to the Georgia General Assembly to pass such a measure into law if it ever happens.

If you or a loved one have suffered an injury or loss in a Georgia car wreck, please contact Gwinnett County based injury lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Stay Safe on Georgia Roads on New Year's Day

Georgia State Troopers are stepping up enforcement of DUI laws over the holidays and that is for good reason. 

Major holidays are cause for celebration, but too often persons consume alcohol and then get behind the wheel. Depending on the source of the statistics different holidays are ranked the most dangerous days of the year to be on the roads, but regardless of the source certain major holidays consistently rank near the top. With New Year's Eve right around the corner, please keep in mind the dangers of driving while under the influence of alcohol and drugs.

It is safest to stay home on New Year's Eve, but if you go out to celebrate at a party do not drink and drive. Even if you remain sober or have a designated driver, it is not a bad idea to avoid driving and stay at a hotel or friend's home to avoid traveling after midnight. According the Insurance Institute for Highway Safety, in the years 2010-2014 New Year's Day was the second deadliest day of the year on United States roads behind only Independence Day. On average there were 118.2 deaths on New Year's Day in that time span, just behind the 118.4 average of Independence Day. That is nearly 28 deaths more than the average day. Further, on a typical day 35% of fatality accidents involve at least one driver, pedestrian, or bicyclist with a blood alcohol concentration over Georgia's legal limit of 0.08 g/dL, while on New Year's Day that percentage spikes to 62%.

Please keep in mind the dangers of driving after the clock strikes midnight and we ring in the new year. Have a safe and prosperous 2018.

If you or a loved one have suffered an injury or loss in a traffic accident, please contact injury lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Olevik a/k/a Plevik Georgia DUI Case Impact on Criminal and Civil Cases

In the recently decided case of Olevik a/k/a Plevik v. State, S17A0738 (Ga. Sup. Ct., decided October 16, 2017), the Supreme Court of Georgia held that under Article I, Section I of the Constitution of the State of Georgia, “Paragraph XVI protects against compelled breath tests and affords individuals a constitutional right to refuse testing.” Id. at p. 48 of the slip opinion. This case may have a major impact on Georgia DUI (O.C.G.A. § 40-6-391) criminal prosecutions, and may have some effect on Georgia civil lawsuits where DUI offenders cause injuries.

Georgia has DUI implied consent statutes (most pertinent for this brief summary:  O.C.G.A. §§ 40-5-55, 40-5-67.1, and 40-6-392) in which DUI suspects, once placed under arrest, are typically read an implied consent notice in which they are informed that Georgia law requires them to consent to a state-administered chemical test of their blood, breath, urine, or other bodily substances to determine if they are under the influence of alcohol or drugs. Further, they are informed that if they refuse the testing their driver's license will be suspended.

Case law for decades up until the Olevik a/k/a Plevik decision held that although the Georgia General Assembly provided a statutory right to refuse implied consent testing, the legislature through O.C.G.A. § 40-6-392(d) had limited that right to allow for admission of the refusal in any criminal trial. In other words, it was not a right such as a federal constitutional Fourth Amendment right to refuse consent to a search in which a suspect's refusal could not be used against him at trial. In Georgia DUI trials, when a suspect refused an implied consent test, that refusal was admissible in evidence to show that a test would have shown intoxicating substances and to demonstrate a consciousness of guilt.

The Olevik a/k/a Plevik opinion seems to indicate that there is now a Georgia constitutional, as opposed to a federal constitutional or Georgia statutory, right to refuse implied consent testing. This right is based on greater self-incrimination protections afforded people in Georgia under Article I, Section I, Paragraph XVI of the Georgia Constitution than those protections given under the Fifth Amendment of the United States Constitution. The argument now is that with a constitutional, as a opposed to a mere statutory, right to refuse implied consent testing, breath test refusals should not be admissible into evidence at criminal trials.

However, this is a very undetermined area of Georgia law at this time. Prosecutors are now arguing that the holding of the Georgia Supreme Court in Olevik a/k/a Plevik is found at page 36 of the slip opinion which states, "[a]ccordingly, we overrule Klink and other cases to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right." Prosecutors are focusing on the word "such" in page 36 to claim that the holding, which, as cited in the first paragraph of this blog post above from page 48 of the slip opinion does not contain the word "such," means that there is only a constitutional right to refuse compelled breath testing. Defense attorneys are obviously arguing that it cannot be any clearer when the Court announced its holding at page 48 that there is a constitutional right to refuse in Georgia. 

It appears that there is likely now a constitutional right to refuse testing in which a refusal of a breath test cannot be used against a DUI suspect in a criminal trial. This is because compelled breath testing was already unlawful prior to this new decision. However, the law is unsettled and will be clarified in subsequent opinions in the next year.

This can have a major impact on DUI criminal prosecutions as breath test refusal cases may be harder to prosecute. It may also result in more police departments obtaining search warrants to draw blood samples in the future when suspects refuse breath tests. In civil cases, it can potentially make those existing DUI injury cases more difficult to settle as some DUI prosecutions that would have resulted in convictions may end up with crucial evidence inadmissible and less bargaining power when the question of whether a liable party was driving under the influence is still at issue. However, in civil cases, DUI breath test refusals in Georgia should still be admissible as criminal self-incrimination rights should not prohibit a police officer from testifying about a DUI driver's refusal in a civil trial.

If you would like to speak with an attorney about a DUI injury or fatality case, please contact Richard Armond at (678) 661-9585 for a free consultation today.

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585.The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Safety Tips for One of the Most Dangerous Nights: Halloween

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585.

Halloween is next Tuesday. Let's take a minute to review some basic safety tips to keep your children safe. According to CDC statistics kept between 1975 and 1996, child pedestrian fatalities are four times higher on Halloween evening when compared to all other evenings during the course of the year. Halloween has become in recent years as much of an adult holiday as a child holiday. NHTSA reports that on Halloween in 2012 48% of crash fatalities involved drunk drivers compared to 31% on an average day that year and that 28% of those crashes involved pedestrians compared to 14% on an average day. When trick-or-treating please remember:

  • Children should be accompanied by an adult
  • Older children should travel in groups   
  • Trick-or-treaters should have flashlights, glow sticks, and reflective articles of clothing
  • Don't wear disguises that obstruct vision
  • Stay on sidewalks or off the roadways
  • Walk facing traffic
  • Look both ways before crossing and use crosswalks and intersections to make crossings
  • In addition to looking, listen for traffic
  • Never come out into the street from between parked cars or run into the street
  • Parents should establish a time for their older children to return home and should have set check-in times by mobile phone

Halloween should be a fun night for children. The tips above are by no means all-inclusive. Please remember to use common sense to keep your children safe on Halloween. If you or a loved one have been injured in a Halloween accident contact attorney Richard Armond at (678) 661-9585 for a free consultation today.

The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Georgia Dram Shop Statute

Attorney Richard Armond of The Armond Firm, LLC, is licensed to practice law in the State of Georgia. Based in Lawrenceville, Georgia in Gwinnett County, he handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. Call him for a free consultation at (678) 661-9585.

Dram shop laws refer to laws that hold liable establishments that serve alcohol to patrons who then drive and injure or kill innocent victims. The Georgia dram shop statute is O.C.G.A. § 51-1-40. The pertinent part of the statute is subsection (b) which provides:

“(b) A person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons; provided, however, a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, or who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage. Nothing contained in this Code section shall authorize the consumer of any alcoholic beverage to recover from the provider of such alcoholic beverage for injuries or damages suffered by the consumer.”

In other words, when a person in Georgia is injured or killed by a driver who was driving under the influence of alcohol, in addition to recovering damages from the DUI driver, the person or business that either sold, furnished, or served the alcohol to that driver may also be held liable and may be an additional source of recovery. O.C.G.A. § 51-1-40(b) applies when alcohol is sold, furnished, or served:

(1)

a.  Willfully, knowingly, and unlawfully to a person under 21 years of age, OR

b.  Knowingly to a person who is in a noticeable state of intoxication;

(2) Knowing that such person (either the under 21 person or the noticeably intoxicated person) will soon be driving a motor vehicle; and

(3) when the sale, furnishing, or serving is the proximate cause of the injury or damage.

The statute further provides a defense to the person or business serving the alcohol to under 21 persons when relying on an identification showing the person was 21 or older. In any dram shop case there will be significant battles during the course of negotiation or litigation regarding each of the three elements outlined above. It is very important to have a lawyer representing you if you have been injured by a DUI driver as dram shop cases can be very complicated to prove. While a battle, dram shop laws are a potential source of a significant increase in recovery to victims of DUI drivers who often have significant losses. Many victims of DUI wrecks sustain life-altering injuries, and, unfortunately, there are way too many DUI Vehicular Homicide wrecks in Georgia.         

If you or a loved one have been injured or killed in DUI motor vehicle wreck in Georgia, contact attorney Richard Armond at (678) 661-9585 for a free consultation today.

The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.