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Ask Our Lawyer - November 2007

Q: I was recently stopped for operating a motor vehicle while intoxicated. I refused the chemical test. After I refused the chemical test, a judge issued a court order to take my blood. Can you explain to me how the law can circumvent the Bill of Rights? To me this is a constitutional issue.

A: From the information you provided, it sounds like the police may have acted within the requirements of the law. First, some background: most states have enacted “implied consent” laws into their statutes relating to drivers licenses. Crazy as it sounds, the courts have held that driving is a privilege, not a right, and not subject the Bill of Rights. In effect, by obtaining a license, you have consented to submit to a chemical test if you are stopped on suspicion of operating a motor vehicle while intoxicated. If you refuse the chemical test, your license will be suspended.
That brings us to your case. In many states, courts have ruled that once a chemical test is refused, the police can obtain a search warrant from a judge in order to obtain a blood sample. Once that warrant has been obtained, the police can have blood drawn for a chemical test to determine intoxication. From your description, it appears that is what happened. The United States Supreme Court has held that drawing blood and deriving evidence from that blood sample does not violate the self-incrimination protections of the Fifth Amendment. State courts, building on that holding, have stated that blood drawn as a result of a search warrant does cannot be excluded unless there is a specific provision in the implied consent statute to the contrary.

How Jack Did It

Q: How did Jack Stevenson of A.B.A.T.E. of Illinois do it?

A: As you may recall, we reported last month about a problem with “borrowing” of A.B.A.T.E. funds by a chapter officer. Jack Stevenson, through some quick work, found out that the chapter account had numerous ATM transactions, unauthorized by the chapter. Jack quickly closed the account. The former A.B.A.T.E. officer who removed the funds was removed from the account. Next was a trip to the local police department, to introduce himself and file a report. He also filed a report at each town of the ATM transactions. Jack did his detective work and located the missing “borrower” and reported that to his new friend at the police station. The police paid a visit and he confessed to “borrowing” the money. Here’s the deal that was struck: the “borrower” handed a Cashiers Check to the commander for a little more than we figured he took, saving himself a lot of grief from an A.B.A.T.E. organization who would have pursued him to the end of time.
What’s significant here is that Jack made early contact with the police and let them know that he was available to provide what ever assistance they needed and that he would be a witness. He let them know that this was important, not only to him, but to a large number of people in the community, and that they would see this matter through to justice.
You can avoid some of these problems by requiring dual signatures, enacting a resolution disallowing ATM transactions for the account (a copy of which should be sent to the bank), and requiring a bond for all chapter officers with access to the account. Then, if you have a loss, it is a bonding company headache, not an A.B.A.T.E. headache.

The NTSB wakes up and gets it Wrong with Motorcyclists

Q: What’s with the NTSB and where have they been all of these years?

A: After long silence, the NTSB began making recommendations about motorcycle safety. Since its creation, the NTSB has investigated 124,000 aviation crashes, 10,000 surface transportation crashes (including rail, pipeline and mass transit) and, get ready for this, a whopping six motorcycle crashes. That's a half dozen motorcycle investigations over the past 40 years or just .15 motorcycle crashes a year to put it in government statistic speak.
Unfortunately, the recommendations are woefully inadequate and based on shaky research. The only new findings this lengthy but flimsy set of recommendations are based on were developed after a two day NTSB organized symposium just one year ago and the findings from investigating a paltry six crashes over the past forty years.
One curious omission in the recommendations was in the area of education. There wasn't even as much as a whisper of education or training, which was a very big part of the two day super symposium last fall. A failure of this magnitude calls into question the dedication of the NTSB to real motorcycle safety improvements.
The disappointing part is that most of the government agencies and the at-large motorcycle community had been in agreement working together on motorcycle safety and crash avoidance not injury reduction. Calling for helmet laws just is not the silver bullet the NTSB believes it to be. Crash avoidance should and must have a higher priority than injury reduction.
The NTSB had an opportunity to engage the motorcycle community in a positive way and build on the work that has already happened. They chose to ignore the history, states rights and any and all motorcycle education possibilities.
These issues are important, since the NTSB will be sending their hired gun lobbyists and professional staff to the states that were mentioned in the recommendations. Unlike NHTSA,
the NTSB is not subject to a lobby ban, meaning they can lobby your state as they wish for what they wish, all the while using taxpayer money. Make your governors and governor highway safety representatives aware of this. Let them also know how the NTSB reached it's recommendations with little or no input from the motorcycle community. Let them know that your state doesn't need to take half baked advice from an agency in Washington DC. This is just another incident of bureaucrats in Washington DC trying to ram regulation down the throats of all 50 states.

When good kids have growing pains and stores go bad

Q: My teenage daughter was recently caught shoplifting. She was arrested and questioned and questioned by the police. We also received a letter from the store, asking for an exorbitant amount of damages. We are not sure if this is standard or if they are pushing for more than they should. I know that we will have to go to court as well and are not sure if there will be court costs involved. The total of the merchandise that was taken was under $100.00, but the store is asking five times that amount. Is that fair?

A: It is not be fair, but is probably legal - for now. For some reason, a lot of kids seem to go through this phase. Our office receives many calls like yours each year. You have to remember that there are two things going on here: one is the criminal case, filed by the state against your daughter, while the other is a civil action for money damages that the store is threatening. Under the law in some states, a retail merchant is allowed to sue for a specified amount of damages, no matter what the dollar amount of the loss was, or even if the store recovered the merchandise. In addition, they may be able to ask for attorney fees, as well. In many instances I have recommended not paying when the demand comes from a collection agency. The amount they want to extract is extortionate. Your best bet may be to pay and use it as a life experience for you daughter. I am unhappy that anyone can extort money from parents of teenagers, and in your case, since all merchandise was returned – what is the store’s loss? Finally, you may want to ignore this request until you determine what the court wants in the criminal case. Usually, the court will offer a diversion program so this will not appear your daughter's record.

A.B.A.T.E. Legal News of Note

Congratulations to Mick Peek, longtime A.B.A.T.E. Legal Services attorney, who was recently admitted to the Florida Bar! Well done, Mick!

Let me know what you think

Legs Korte of Illinois proposes that we start monitoring the prosecution of motorists who kill bikers. We could use the A.B.A.T.E. Lawyer site as a forum for reporting on and following the status of cases involving the death of a biker in a traffic collision. I envision the project as a monitored forum, similar to a newsgroup, allowing for comments and contributions from interested persons. That way, if the Prosecutor fails to do the right thing we can rate that Prosecutor come election time. Let me know if you think this is a idea worth pursing.

Rod Taylor, Charter Member of MRF, Member of A.B.A.T.E. OF OHIO, INDIANA AND ILLINOIS

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

Remember, injured A.B.A.T.E. members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ?%, 40% or even 50% of your recovery. And, A.B.A.T.E. members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

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