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Ask Our Lawyer - November 2008

Recall this Case??? How far will some go to cover their ass? – A “some cops” phenomenon, and a good ending.

The story starts out ok. A cop gets a lead, does some footwork, develops a theory – and nabs a suspect. But what happens when the footwork is off the mark? What should happen then? I would like to think that the cop would fess up and put it right.

Here is a sad tale. Brian is an A.B.A.T.E. member, a dedicated State employee, living the life of a good American. He is so good that he has never even had a speeding ticket.

Part of Brian’s job is to take salvage copper to a salvage yard, and return the receipt and the check to his boss. While doing his job, and trying to work his way up the ladder, Brian noticed that a drum of copper wire remnants from a rewire job was missing. Brian reported the missing drum of copper wire salvage to his supervisor. Brian’s supervisor did the right thing and reported the theft to the authorities.

This is where the story goes terribly wrong. An immediate visit by the investigating police officer over the loss of $27.62 worth of salvage copper wire seemed to prove that police business was slow – perhaps quotas were down? Things got heated between Brian and the officer right after “Hello.” The cop then, collecting his “evidence,” went to the copper buying place and got the film showing Brian delivering a drum of copper. The investigating officer saw two barrels on the film and jumped to the conclusion that Brian had palmed the funds from the second barrel. The cop then reported his suspicions to the State. Brian was then retired from his job and charged with a crime of theft. Now, Brian has no job, no money, and no lawyer [except maybe me]. It has been a while since I have done the criminal defense thing, but if ever there was a case a lawyer should get involved with, it is this kind of case.

Sometimes you have an instinct, and sometimes you have the facts, and in this case Brian has both on his side. Brian did not take anything, and we have promised to help him prove it, and maybe with a little footwork we can get this charge dismissed, get his job back, and most importantly, we at A.B.A.T.E. can help right a terrible wrong.

JUST IN: The case again Brian Hunt was dismissed by the state. The reason: the state had absolutely no evidence, zip, zero against Brian. But remember the bad part about this case – Brian was fired from his job because of these bogus charges. What should be done now? If there is any justice in this world Brian should have his job back – so A.B.A.T.E. will see what it can do about that. Stay tuned again.

P.S.: Without the good detective work from A.B.A.T.E. LEGAL’s Michelle Hammond, justice would not have happened.

C.D.L.- Hell

Q: A.B.A.T.E. Legal has received numerous calls from members holding CDL licenses who get tickets while on their bikes. In most cases, the member has an exemplary driver’s record driving commercially. The usual question to us is “can I be eligible for a deferral program if I get a ticket while riding my bike and not driving the commercial truck for which I have a CDL license?”

A: Unfortunately, that is way too logical for most states. The bugaboo at the heart of this matter is a federal funding program which basically bribes states to enforce stringently any CDL infractions. Bikers, does this sound familiar? Enforcing this is understandable in light of the potential damage that an 18 wheeler can do to the traveling public. But it is also obvious that the same concern no longer applies to a CDL license holder while riding/driving his personal vehicles. While the states may have a vested interest in insuring that all laws are strictly enforced, the state and the federal enforcement personnel have no business in punishing infractions outside the envelope of CDL activities. As you know from the case in Ohio on which we reported recently, we have advised our members to fight each one of these alleged infractions in an effort to draw attention to a simple matter of justice. CDL holders are entitled to a diversion program for infractions occurring outside the scope of their CDL activities.

Another C.D.L. Concern

Q: I received a ticket for disregarding an automatic signal yesterday. The police officer said I drove through a parking lot to avoid it. I pulled into the parking lot to call my employer per my company’s rules and regulations. I was heading towards an intersection. About a half a block away I turned on my left signal light. About 50 feet from the intersection, I turned left into the drive of an empty parking lot on the corner. I proceeded through the parking lot to the exit on the parallel street. I stopped at the walkway and waited for traffic to pass (about 10 seconds). Then I turned left out of the parking lot. I signaled and stopped, so I did it legal, didn't I? Can I get it deferred? (I'm a class B CDL driver) Can I fight it in court with your help?

A: Yes, no and yes. Unfortunately, the federales have bribed state governments with matching funds to strictly force alleged violations of CDL license holders. I understand the public policy in strictly enforcing speed limits and rules of the road for commercial vehicles. We have received other questions from CDL license holders who have received tickets for excessive speed while riding their motorcycles. How is it fair that these CDL license holders are not eligible for a diversion program that the operator license holders are eligible for especially when they “off duty” and on the personal time.


Here is how the federal scheme works. Unless the state vigorously enforces CDL violations, they will receive reduced funds. At this writing the federales do not go for any type of diversion program involving CDL alleged violations. Interestingly, no one has thought to separate the CDL violations from violations of CDL license holders while using a personal vehicle like a motorcycle. So the answer to the first question is apparently no. Now for the second question. The law requires that all traffic signals be obeyed. In your instance, per our telephone conversation, you have advised that you had pulled into the lot to call your employer on your cell phone fifteen minutes prior to start of work per company rules. Actually you should be commended and encouraged to do exactly what you did. The world is better off with cell phone users off to the side in an empty parking lot making a call as opposed to on the roadway making that call. In any event, a copy of your cell phone records and a copy of the company rules requiring this case should be provided. Additionally, get an affidavit from your employer establishing the time that you were to report at work and their record of receiving your call. With all of this, you should prevail.

Barbarians and Apathy at the Gate

In 410 A.D. Alaric, King of the Visigoths, marched from the north to Rome. He knocked on the gate and basically said give me your stuff or I will burn the place down. They didn’t and he did. Haunting the world ever since is the question of how that could have happened to the most powerful country in the world, and selfishly, could that happen to us some day? Signs of what may have happened to the Romans have been appearing here. Until recent times, being a senator, a congressman/congresswoman, a governor, etc. was a good as it gets, and was the aspiration of many youth. Recently, the latest generation of politics and politicians have become just that. Apathy had set in. Many of us aspire to do what we want in our personal lives without the bother of public service. The presidential election at hand has changed the way people feel about public service, especially our youth. Everyone it seems is engaged regardless of what side of the fence you are on.

Perhaps an intensely engaged electorate, where many aspire to be a roman general, a roman tribune, etc., would have stopped Alaric. That same engagement here and now should stop the current variety of Alarics. Surely, none can doubt that the intensity in this year’s election has generated engagement of most of us. And maybe, just maybe, we are safe from the Alarics – for now.

Rights – Totaling a Motorcycle

Q: My wife and I were in a motorcycle accident that wasn't our fault. After getting an estimate and talking to an adjuster, the adverse driver’s insurance company wants to total the bike. Repairs they say will exceed the value of the bike. BULLS**T! (Pardon my French). After the accident, I rode the bike 65 mi. home. I wired up a working left rear turn signal and now I drive this bike almost daily. I compiled a list of parts that would not be on the bike from the factory when new. The recent Kelly Blue Book is $4,375. The extras added by previous owner and myself are $3,878. The total estimate is $3,700. Now, to my mind, a bike that is totaled is unrepairable. If the bike is driveable, it is repairable. Totaling this bike is a lie and continuing to make me the victim and is not an option. I intend to fix it and see her in court!

I need to know how I stand on this totaling issue legally. Everyone I talk to can't understand the totaling of the bike. I intend to fix it, save parts, receipts and keep track of my time. I appreciate your insight on this matter of totaling of the bike.

A: I agree with you, so hold your ground. What we have here is a failure to agree. Check with them to see what they will pay you and allow you to keep the bike. It comes down to a simple difference in evaluation of your property that was damaged by the negligence of their insured. If it turns out you can repair the damage for less than their final estimate – good deal. For a lesson using the Value Books, remember this: most insurance companies use the NADA guide book for values. Many auto/motorcycle dealers use the Blue Book to sell to you, but they use the Black Book when they buy from you. The NADA usually is a split between the Blue Book and the Black Book. Remember this: you bought retail, so if you get paid for your loss fairly – you should be paid retail. I also recommend that you check the values on Ebay and other internet sources. If you have more questions, call us.

ROADHAZARD.ORG WORKS!

Roadhazard.org continues to get results! Occasionally, we get follow-ups from people who have reported hazards. Here are a couple of recent ones:

From Indiana
Rod:

I wanted to let you know that the road hazard has been "repaired". It is a bit of a speed bump now, but it is definitely better than the crater that is was.

Once again, thank you so much for all that you do!

Mike K.

P.S. I have told many people about Roadhazard.org. What a great public service!

And here’s one from Illinois
John let us now about a hazard in Sangamon County and reported: “it is fixed.”

Brief, but to the point and appreciated. Keep those reports coming!

 

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services

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