Category Archives: Criminal Liability

New anti-texting legislation to take effect in West Virginia

The new texting-while-driving legislation which was passed in West Virginia is set to take effect on Friday, June 8, 2012.  West Virginia is now the 41st state banning texting-while-driving.

However, the law does not apply just to texting, but also to talking on the cell phone.  On June 8 texting or using a hand-held cell phone becomes a secondary offense – meaning that cops are not supposed to pull you over just for that offense, but they can ticket you for that offense if they pull you over for some other reason.  On July 1, 2012 it becomes a primary offense.

At this point it is important to make sure new vehicles you buy are equipped with bluetooth hands-free cellular technology.  If not, you will want to buy a bluetooth headset if you must talk on your cell phone while driving.

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What is the law on texting and driving in West Virginia?

As of right now, unlike other states, texting and driving is not illegal in West Virginia.  However, for drivers under the age of 18, cell phone use while driving is illegal, which includes texting.  There is legislation currently under consideration in WV which would make texting and driving a traffic infraction.  However, it has not yet been adopted, partially because it also criminalizes texting while parked in traffic.  There was recently an article in the Charleston Gazette on the legislation, which included some of the following information:

As drafted, texting while driving would be a primary offense — meaning that police officers could pull over drivers for texting, without observing any other traffic violations. However, there would be no court costs or driver’s license points assessed for a conviction.

Under the bill, drivers who pull over to the side of the road to read or send text messages would not be in violation of the law.

However, as currently drafted, drivers could be cited for texting while on a roadway, even if they were stuck in a traffic backup, and their vehicles were not moving.

Both nationally and in West Virginia, texting and driving is a substantial cause of serious injury and death in car wrecks.  Essentially, texting and driving is driving while distracted.  The federal government actually has a website which informs people about the dangers of distracted driving.  It contains some of the following information:

Research on distracted driving reveals some surprising facts:

  • 20 percent of injury crashes in 2009 involved reports of distracted driving. (NHTSA).
  • Of those killed in distracted-driving-related crashed, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes). (NHTSA)
  • In 2009, 5,474 people were killed in U.S. roadways and an estimated additional 448,000 were injured in motor vehicle crashes that were reported to have involved distracted driving. (FARS and GES)
  • The age group with the greatest proportion of distracted drivers was the under-20 age group – 16 percent of all drivers younger than 20 involved in fatal crashes were reported to have been distracted while driving. (NHTSA)
  • Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)
  • Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)

Police-reported data from the Fatality Analysis Reporting System (FARS) and the National Automotive Sampling show that:

  • In 2009, there were 30,797 fatal crashes in the United States, which involved 45,230 drivers. In those crashes 33,808 people died.
  • In 2009, 5,474 people were killed in crashes involving driver distraction (16% of total fatalities).
  • The proportion of fatalities reportedly associated with driver distraction increased from 10 percent in 2005 to 16 percent in 2009. During that time, fatal crashes with reported driver distraction also increased from 10 percent to 16 percent.
  • The portion of drivers reportedly distracted at the time of the fatal crashes increased from 7 percent in 2005 to 11 percent in 2009.
  • The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group – 13 percent of all 20-to-29-year-old drivers in fatal crashes were reported to have been distracted.
  • Of those drivers reportedly distracted during a fatal crash, the 30-to-39-year-old drivers were the group with the greatest proportion distracted by cell phones. Cell phone distraction was reported for 24 percent of the 30-to-39-year-old distracted drivers in fatal crashes.
  • Light-truck drivers and motorcyclists had the greatest percentage of total drivers reported as distracted at the time of the fatal crash (12% each). Bus drivers had the lowest percentage (6%) of total drivers involved in fatal crashes that were reported as distraction-related.
  • An estimated 20 percent of 1,517,000 injury crashes were reported to have involved distracted driving in 2009.

The National Motor Vehicle Crash Causation Survey (NMVCCS) is a nationally representative survey specifically focused toward documenting events and conditions leading up to crashes.

  • NMVCCS captures distraction as an associated factor to the crash and/or as the critical reason that made the crash imminent. Driver distraction was coded as the critical reason in 18 percent of the crashes. Data describing the specifics of the distraction — for example adjusting the radio or eating — are included in this data set.

Another method for collecting pre-crash data is through naturalistic driving studies, in which vehicles are equipped with cameras and data recording equipment.

  • During NHTSA’s 100-Car Naturalistic Driving Study, driver involvement in secondary tasks contributed to more than 22 percent of all crashes and near-crashes recorded during the study period.

Data Sources

The following NHTSA data sources were used in the research:

  • Fatality Analysis Reporting System (FARS)
  • National Automotive Sampling System (NASS) General Estimates System (GES)
  • National Motor Vehicle Crash Causation Survey (NMVCCS)
  • The 100-Car Naturalistic Driving Study
  • National Occupant Protection Use Survey (NOPUS) of Driver Electronic Use
  • Motor Vehicle Occupant Safety Survey (MVOSS)

Please understand that although texting and driving is not yet a traffic infraction in West Virginia, it is punishable through civil liability in a personal injury lawsuit.  One of the first things we do as WV car wreck attorneys is to subpoena cell phone information for drivers who may have been using cell phones at the time of the car accident.  In close liability situations this can seal the deal.  In other situations, it helps ensure that our clients cannot be threatened with potential liability issues at trial.

Civil Liability of Police Departments and Officers in West Virginia for Auto Accidents Resulting From Pursuit Situations

Here is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia a few weeks ago which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).  

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.  

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).  

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers 

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

Note:  If you or a loved one has been injured in an auto accident involving a police department, or other governmental, vehicle, please know that recovering compensation for those injuries is made infinitely more complicated due to immunity and causation problems.  It’s extremely important that you speak with an attorney who has experience with these types of cases.  I offer free consultations and (potentially) accept these types of cases in all 55 West Virginia counties.  Call me at 1-888-54-JBLAW.

 – John H. Bryan, West Virginia Car Accident Attorney.

Mother Takes Blame for 26 Year-Old Son After Child Hit by Car – Issue of Eyewitness Testimony

From the Register-Herald today, the full article for which can be found here.

In Nicholas County, a 64 year old woman named Shirley Gilles is expected to be charged with filing a false police report. According to investigators, her 26 year-old son hit and critically injured a 12 year-old child who was walking to school. The child was taken to CAMC via HealthNet helicopter.

The son, Justin Gilles, was driving on a suspended license. He left the scene and then returned with his mother, who told investigators that she was the one driving. However, an eyewitness reportedly told police otherwise.

Eyewitness testimony becomes very important at this point. However, eyewitness testimony is also very unreliable compared to other forms of evidence. When I was in law school, a criminal clinic professor showed the entire class a video of a man walking out of a building carrying a box. Then he drops the box walking down the steps of the building, after which another person stops to help him. Then the professor stopped the video and began asking the class questions about what they remember seeing. There were about 25 different versions of what the people looked like, what color clothes they were wearing, how old they looked, and what actually happened in the video. The moral of the story is, that we don’t realize how inherently unreliable eyewitness memories can be. In the above case however, it would be pretty difficult to confuse a 64 year-old woman with a 26 year-old man. It probably has happened though, and certainly an experienced trial lawyer can muddy the waters in front of a jury.

– John H. Bryan, West Virginia Car Accident Attorney.

Crash Victim in Critical Condition

From the Wheeling Intelligencer:

Crash Victim in Critical Condition

By GABE WELLS Staff Writer
POSTED: March 26, 2008 Save | Print | Email | Read comments | Post a comment

WHEELING — The driver in an early Tuesday crash that critically injured a Triadelphia woman was exceeding the speed limit by at least 35 mph, an investigator said today. The Wheeling man behind the wheel reportedly admitted to drinking alcohol prior to the crash.

Justin M. Kearns, 22, of 6 Romney Road, Wheeling, was traveling at least 70 mph in a 35 mph stretch of National Road in Elm Grove at about 12:30 a.m. Tuesday when the 1999 Acura left the road, struck a bus shelter and rolled on its top, according to Wheeling Police Department Sgt. Bill Goldbaugh.

Heather Miller, the passenger in the vehicle, is still being treated in intensive care at the Ohio Valley Medical Center, hospital Public Relations Director Maggie Espina said today. Miller, who is believed to be in her early 20s, was extricated from the vehicle by the Wheeling Fire Department.

According to the city police report, Kearns told an officer at the crash scene he had “a few drinks earlier in the day.” Kearns initially left the scene of the crash, but he returned and told Wheeling police he’d gone to get help. Before leaving the scene, Kearns reportedly told one witness, “Find the girl, I don’t know where she’s at.” Another witness told police the vehicle driven by Kearns was “flying around a turn toward National Road,” prior to the crash.

Kearns was arraigned Tuesday by Ohio County Magistrate Harry Radcliffe on a charge of DUI with injury, and he has since been released from the Northern Regional Jail after posting $5,000 bond. Goldbaugh said the crash is still under investigation.

DUI Driver Kills Passenger in Brushfork Crash

From the Bluefield Daily Telegraph:

Crash kills one

Police charge Va. man with DUI causing death

By CHARLES OWENS

Bluefield Daily Telegraph

BRUSHFORK — A Bluewell man died early Friday morning following a single-vehicle accident on Airport Road near Bluefield.

Justin Keith Matusevich, 21, of Bluewell, a passenger in the vehicle, died at Bluefield Regional Regional Medical Center shortly after the 4 a.m. crash, according to a report by Sgt. Stan Cary of the Mercer County Sheriff’s Depart-ment.

Cary said a vehicle operated by Paul Joseph Quesenberry, 21, of Falls Mills, Va., went off the road to the right, overcorrected, flipped and landed in the parking lot of the Airport Tavern. Matusevich was ejected from the vehicle, according to the report.

Cary said Quesenberry was arrested and charged with DUI, DUI causing death and possession of a controlled substance following the accident.

Quesenberry was taken to the hospital following the crash, but later released, a sheriff’s department spokeswoman said.

Quesenberry was arraigned on the charges Friday before Magistrate Jerry Flanagan, who set bond at $5,000. Quesenberry was released on bond, according to a magistrate court clerk.

Flanagan set a preliminary hearing in the case for March 20.

Cary was assisted in the investigation by Deputy W.R. Rose and Senior Deputy W.C. Wilborn. Further details were not available Friday.

Truck Driver Indicted in Fatal Nicholas County Wreck

From the Beckley Register-Herald:

Truck driver indicted in fatal wreck

Chrissy Boone
Register-Herald Correspondent

SUMMERSVILLE — A grand jury called by a special prosecutor has indicted a Pennsylvania truck driver in connection with an accident in Nicholas County a year ago that killed a Fayette County man.

The grand jury indicted Richard Cyphert, 34, of Knox, Pa., on charges of negligent homicide and failure to maintain control in the Feb. 27, 2007, death of Tommy F. Ramsey Jr., 30, of Edmond, on U.S. 19 near Mount Lookout.

Special prosecutor Tom MacAulay of Raleigh County presented the case to the grand jury. MacAulay was assigned to the case after Ramsey’s family persisted in pursuing charges against Cyphert. Nicholas County Prosecutor Mark Hudnall declined to present the matter to a grand jury, stating he did not believe there was enough evidence to support a conviction.

According to the accident report completed by Nicholas sheriff’s Cpl. Walter Shafer and Deputy Jarod Lane, Ramsey, driving a pickup truck, was following a tractor-trailer driven by his cousin, Eddie Orval Ramsey Jr., 26, of Edmond. Eddie Ramsey’s tractor-trailer had experienced mechanical problems earlier, and both he and his cousin were traveling south on U.S. 19 at about 50 mph with their flashers on.

The accident report said Tommy Ramsey’s pickup truck was then struck in the rear by Cyphert’s tractor-trailer, pushing the pickup into the back of Eddie Ramsey’s tractor-trailer.

The accident report said the roadway was dry and weather conditions were clear. Cyphert was not cited.

Negligent homicide is a misdemeanor that carries a penalty of a year in jail.