A lot of people have the impression that if something goes wrong with a medical procedure, it’s easy to sue your doctor for big bucks. But medical malpractice cases are, in fact, extremely tough to win.

In deciding if your case is worth pursuing, you must consider:

• Liability
• Damages
• Who would pay those damages

Liability

To determine if someone is liable – that is, legally responsible – for your injuries, you need to figure out if a health care provider was negligent and if so, whether that negligence caused your injury. Just because your case turned out poorly doesn’t necessarily mean that a doctor was negligent. The key factors in determining negligence are:

• The accepted standard of care – what is the accepted method of care for doctors in this particular circumstance tempered by what is common within the geographic area. A rural doctor’s resources will often not be as extensive as a metropolitan hospital
• Whether that standard was followed
• If the standard of care wasn’t followed, whether not following that standard caused the injury.

Negligence can occur at various stages. A health care provider may:

• Misdiagnose a problem
• Fail to treat the injury or illness properly
• Administer the wrong medication
• Fail to adequately inform a patient about the risks of a procedure or about alternative treatments

Even if you can prove that a doctor was negligent, you don’t have a case unless you can document that the negligence caused your injury or worsened your condition. In a case involving misdiagnosis of cancer that caused a patient’s death, for instance, the health care provider may argue that the illness was terminal and that nothing could have been done anyway.

Damages

If you establish liability you are entitled to damages, which can include compensation for medical bills, lost wages and pain and suffering. The damages may cover losses you’ve already suffered as well as future medical bills and lost wages.

Damages vary widely depending on each person’s situation – even two 42-year-old women who both lose their right index fingers through botched surgical procedures may see very different outcomes. The amount of damages you receive depends on how the injury affects your earning potential and quality of life. So a concert pianist and an avid bowler may get more for a missing finger than a lawyer and confirmed couch potato whose life won’t be as disrupted. A good trial lawyer who takes a look at the witnesses, the individual and the medical circumstances can estimate the potential damage awards.

Damages must be substantial for lawyers to take on a case, because of the huge expenses involved – it’s not unusual for a lawyer to dole out $30,000 to $50,000 before the case is resolved. Many medical malpractice cases require two or three doctors to serve as expert witnesses to support the injured patient’s case – doctors who may charge upwards of $1,500 an hour to review records or answer attorneys’ questions.

Malpractice claims tend to be a fight to the death; they’re settled less often than most other cases, which means more time and expense.

Even if you decide you can establish liability, the person or organization you’re suing must have the resources to pay damages for your case to be worthwhile. Usually, this isn’t an issue in the case of a doctor, hospital or clinic. The vast majority of health care providers are insured and the insurance company steps in to cover the loss in the event of a medical malpractice claim.

Statutes of Limitation

Keep in mind that you have a deadline to file your claim. The statute of limitations varies by state, but is typically about two years. That time often starts running at the moment of the negligent act, but other factors may come into play, such as when you learned of the negligence and when you stopped receiving treatment. You also may have to consider other filing deadlines if, for instance, your case involves treatment by a government agency, such as a county hospital.

Medical Malpractice Lawsuits

Malpractice cases tend to take a long time. They require lots of research, and insurance companies and providers are generally reluctant to settle, because they typically win at trial. They also know they can weed out the small cases by making them too costly to pursue.

Regardless of how seriously you’ve been injured, it’s unlikely your lawyer can tell you how successful your case will be straight off. That requires review of the medical records and consultations with experts.

About 90 percent of all cases settle before they go to trial. Although that rate is somewhat lower with medical malpractice cases, there’s still a chance your case will settle.

In some states, you may be required to first try to resolve your case through mediation or arbitration . That can mean anything from sitting in front of a panel in a hotel conference room to meeting with an arbitrator in a courtroom. In some instances, the process may result in a speedier, cheaper resolution. In others, it’s a waste of time. Your lawyer or other people who have pursued similar cases can tell you what to expect.

If a lawyer agrees to take your case, it will be probably be handled on a contingency basis, which means you might not have to pay anything up front, but your lawyer will expect anywhere from 30 percent to 50 percent of whatever damages you may receive. Keep in mind, though, that regardless of whether your claim is successful, in some states you may be liable for the significant up-front costs of acquiring your records and consulting with experts. Make sure you agree at your first meeting on how to handle those expenses.

And, if you lose the case, in some instances you may sued by the defendant for the costs they incurred while fighting the case. (I have no idea “what” these instances are however.)

Meeting with a Medical Malpractice Lawyer

During your first meeting, you’ll be asked to sign release forms giving your lawyer and experts access to your medical records. Generally, your lawyer will have a medical professional – many times a nurse consultant – review the case to determine if there’s evidence of malpractice. If there is, the next step is to retain a specialist who can testify if the case goes to court.

Your case may continue for years, especially if it goes to trial and is appealed. During this time, there may be periods during which you hear from your lawyer or law office staff every day and there may be several week stretches where you hear nothing at all while both sides wait for court dates or filing deadlines.

Some states have caps on the amount of damages that you can recover in medical malpractice lawsuits.If you’re suing your regular doctor, you’ll want to talk with your lawyer about whether you want to continue treatment at that clinic or find someplace else. The most important consideration, of course, is ensuring you get the best health care possible.

Finally, if you’re considering contacting a medical society or board regarding the doctor and care you received, check with your attorney first. If the medical board fails to find fault with the care provided the determination may be used in the defending the doctor in your case.

Questions For Your Attorney

• How do I know if I have a medical malpractice suit?
• What do I have to prove and what protections do doctors have?
• How often should I check with my lawyer to find how my case is going

Kevin O’Keefe is a plaintiffs’ attorney and founder of Prairielaw.com

It is true that most people have no idea how to file a claim until that day comes where they are faced with the need. Online there are also many frequently asked questions that you can read and see if you can get some answers that way. This will also show you that you are not alone in your search as others before you have felt the same way. Take time to educate yourself so you understand all the details about filing a personal injury claim. It is also important that you should know not to have any concerns about making a claim against your employer but if are having trouble with this, you can also find advice on how to handle it. Remember that it also does not matter if you are a full time or part time worker, you have the right to gain compensation for your injury. Filing a claim is not as hard as it might seem and there is a time limit, so don’t wait too long to connect with someone who can help you.

Retrieved from World Health Talk
http://worldhealthtalk.net/what-you-should-know-about-a-personal-injury-claim/

March 24, 2011|By DANA DiFILIPPO, difilid@phillynews.com 215-854-5934

Philadelphia police have discovered that four breathalyzer machines routinely used to test motorists for alcohol and drug impairment were improperly calibrated, throwing at least 1,147 recent or ongoing DUI cases into uncertainty.

“We screwed up, folks. We screwed up, plain and simple, and now we’re paying for it,” Police Commissioner Charles Ramsey said yesterday morning at a news conference at police headquarters.

District Attorney Seth Williams promised that anyone whose case included evidence from the improperly calibrated machines will be permitted a retrial. His office is mailing letters to affected defendants. This comes at a time when court officials are crusading to cut a crippling backlog in a clogged court system in which some cases linger in limbo for months or even years.

None of those at yesterday’s news conference dared guess how much the retrials – or possible lawsuits – could cost the cash-strapped city.

“Our interest is justice, not merely convictions,” Williams said.

The breathalyzer blunder irked both drunk-driver defenders, who questioned whether innocent people have been wrongly jailed or punished, and activists against drunk-driving, who worry that the mess could give hundreds of drunk drivers a free pass.

“[Criminal] consequences are based on the [Breathalyzer] readings, and if you have readings based on a badly calibrated machine, you could affect not only innocents, but someone could get a more severe penalty than they deserve,” said Joseph Kelly, the Port Richmond-based DUI attorney who alerted police to the problem late last month after finding the discrepancy in a client’s paperwork. “They could lose their [driver's] license or go to jail because of a [faulty] machine that should have never been used.”

But Carol Heimerl, a victims’ advocate with the Philadelphia chapter of Mothers Against Drunk Driving, countered: “Certainly we don’t want licenses returned to repeat offenders and people who were driving with a blood-alcohol content above the legal limit.”

Police initially thought that one machine caused the problem, affecting 416 DUI cases. But as they tested more machines, they uncovered more problems. By Tuesday, they determined that five of the department’s eight machines had been miscalibrated, although one had not been in service.

That added up to at least 1,147 arrests dating from September 2009 through November 2010, Ramsey said. That accounts for more than 10 percent of the 10,000 DUI arrests the city averages a year.

Ramsey blamed the bungle on one officer who was responsible for calibrating the machines. That officer has been reassigned. An internal investigation is under way.

“The error was human error,” Ramsey said. “It is inexcusable. Period. Should not have happened.”

A Pennsylvania State Police trooper who specializes in breathalyzer calibration visited Philadelphia yesterday to test its eight machines. Ramsey took the machines out of service but by last night they had been recalibrated.

by Connie Cone Sexton – Feb. 26, 2011 10:07 PM

The Arizona Republic

Scott Bundgaard, the majority leader of the Arizona state Senate, was briefly taken into custody on suspicion of domestic violence Friday but was released because he was immune to arrest under rules of the Arizona state Constitution.

Aubry Ballard, who Phoenix police said is his girlfriend and was involved in a fight with Bundgaard, was arrested on one count of assault.

Bundgaard, R-Peoria, and Ballard had minor injuries, said Phoenix police Sgt. Tommy Thompson.

Thompson said police responded to a call at about 11:20 p.m. Friday of a man pulling a woman out of a gold vehicle, which was stopped northbound next to the median on Arizona 51, just south of Cactus Road.

When officers arrived, they said Bundgaard, 43, and Ballard, 34, his passenger, showed marks of a physical altercation, “which constituted an act of domestic violence,” Thompson said. After being taken into custody, Bundgaard told officers that because he is an Arizona state senator, he is immune from arrest. Thompson said the department confirmed Bundgaard’s statement and he was not arrested.

The case will be submitted to the prosecutor’s office for review. The immunity was not a “trump card,” Thompson said. “The only thing it did was not allow him to be booked into jail.”

In an interview Saturday evening, Bundgaard said he had not been involved in a domestic violence incident Friday and has never been accused of domestic violence.

“It’s not acceptable to assault anyone for any reason,” he said. Bundgaard said he had been dating Ballard about seven months and said she had attacked him.

Bundgaard said he had participated Friday in a National Kidney Foundation of Arizona charity event, Dancing with the Stars Arizona 2011. As he was leaving, he said his girlfriend accused him of inappropriately touching his dance partner.

As he drove Ballard home, he said she started throwing his clothes out of his car on the freeway. He stopped to retrieve the items and then said Ballard “yelled that she was going to take my car and moved into the driver’s seat. I immediately returned to the car and asked her to get out. She refused. I had no choice but to pull her from the driver’s seat which resulted in marks on her knees. I had also had no choice but to stop her from punching me and risking highway safety, all of which resulted in a black eye for me and a busted lip.”

In an interview with The Republic, Bundgaard called Ballard a “good woman with a good heart. I’m not going to hire a lawyer. The best thing to do is learn from this and forgive this and move on.”

Ballard, whose LinkedIn profile lists her as director of operations and sales for a non-profit organization, was booked into a Maricopa County jail on suspicion of one count of assault. She was released late Saturday afternoon and later gave a statement. Ballard said she has been trying to understand what happened. “I’m still trying to get my mind around a few things,” she said. “Scott’s actions, the 17 hours I spent in jail awaiting processing, my bruises, scrapes and soreness and his statements to the media.

“I’m not a public figure. Nor am I someone who wants to see her private life made public. At the same time, I value my reputation. I’ve always been a strong believer in the truth. I have a lot of thinking and praying to do before I decide what to do next.”

In an earlier statement Saturday, Bundgaard said he has “never inappropriately touched a woman and never would. Period,” he stated. “I was not intoxicated. There was no ‘domestic violence.’ Such conduct is offensive to me as it should be to all people. I waive any and all ‘legislative immunity.’ If I did something wrong, charge me. I did not.”

Bundgaard said his friends and family are surprised by the matter. They know “it’s just not my character.” He apologized “to any and all for what has taken place.”

He is sorry that Ballard was hurt. “When I physically removed her (from the car), if she has scrapes on her knees, I’m sorry about that,” he said. “But when you’re being punched in the face and she’s trying to jerk the wheel and exit, that’s a dangerous situation.”

Bundgaard said he was unhappy that the police handcuffed him but said “they did the best they could under the circumstances.”

Thompson said although Bundgaard was not arrested Friday “it does not mean that he will not face those charges.”

Thompson said Article Four, Part 2, Section 6 of the state Constitution allows for immunity for members of the Legislature unless it is a “felony, act of treason or breach of the peace.” The immunity is only allowed during a legislative session or 15 days before it begins.

The alleged incident between Bundgaard and Ballard “did not rise to a felony,” Thompson said. Thompson wasn’t sure of the implication of Bundgaard waiving his immunity. “The only immunity was against him being arrested at that point,” he said.

In 1988, Gov. Jan Brewer, then a state senator, was involved in an alcohol-related car crash.

Department of Public Safety officers, after learning that Brewer was in the legislature, told her that she had immunity from arrest. No charges were filed in the case. Brewer said at the time she had been drinking but was not impaired.

Bundgaard, who serves on the finance, judiciary and rules committees in the Senate, was first elected to the Arizona legislature in 1994 to represent District 19 in the state House.

In that first run for office, the then 26-year-old candidate discussed being placed on two years’ probation in the 1980s for a burglary at a grocery story where he worked.

In an earlier interview with The Republic, he said he had been “in a bad judgment situation.”

His record was expunged after he completed two years of probation, and his rights to vote and run for office were restored.

Bundgaard specialized in tax, finance and business-related bills during his earlier years at the Legislature. After one term in the House, he was elected to the Senate in 1996, where he became chairman of the Finance Committee and helped engineer a menu of business and personal income tax cuts. Bundgaard was an architect in 2000 of the bill creating the Arizona Tourism and Sports Authority, which tapped voter-approved funds to build University of Phoenix Stadium and renovate spring-training facilities. He resigned to run for former U.S. Rep. Bob Stump’s seat in 2002, but lost the GOP primary to Rep. Trent Franks, who still holds the seat.

Arizona Republic reporters Mary K. Reinhart and Kristena Hansen contributed to this report.

Read more: http://www.azcentral.com/news/election/azelections/articles/2011/02/26/20110226bundgaard-arrest-violencebrk.html#ixzz1FCRLDYVl

Too drunk? Your car won’t go along for the ride.

By Ashley Halsey III
Washington Post Staff Writer
Friday, January 7, 2011; 10:51 PM

The technology developed in the past decade to sniff out terrorist bombs eventually could be used to combat another scourge: drunk drivers.

Researchers funded by auto manufacturers and federal safety regulators are working on sensory devices – to be installed as standard equipment on all new vehicles – that would keep a vehicle from starting if the driver has had too much to drink.

“We’re five to seven years away from being able to integrate this into cars,” said Robert Strassburger, vice president for safety for the Alliance of Automobile Manufacturers, a trade group for the world’s major auto companies.

The new technology would not require that the driver blow into a tube, like the interlock devices some states require after drunken-driving convictions. Instead, either a passive set of sensors permanently installed in the vehicles or touch-sensitive contact points on a key fob or starter button would immediately register the level of alcohol in the bloodstream.

Less clear is whether such technology – which presumes that all drivers are potential drunks – will antagonize some car buyers, and it’s uncertain how much it would cost.

But that’s a marketing problem for down the road.

Alcohol was a factor in 10,839 highway deaths in 2009. In the past two decades, it accounted for 268,442 deaths. And 10 percent of people in the United States recently admitted to being drunk behind the wheel in the past year, a poll found.

Drunken driving “remains the leading cause of fatalities on America’s roads, killing more than 10,000 people in 2009,” said David Strickland, administrator of the National Highway Traffic Safety Administration. The “technology presents a new opportunity for us to dramatically lower drunk-driving deaths and has the potential to save literally thousands of lives every year.”

Strassburger, whose group is part of the development task force, said the goal is to have an operating model in two years.

The objective is to produce a device that will react in less than a second and function without maintenance for a least 10 years or 157,000 miles.

“We haven’t met our criteria yet, but we feel comfortable that we will,” said Susan Ferguson, a longtime safety expert who is leading the research. “Speed, accuracy and precision are the three key criteria.”

Right now, she said, the sensors that detect alcohol levels in the air can be made to react within five seconds after a driver gets into the vehicle. The touch-detection system currently takes 20 to 30 seconds to determine blood-alcohol content.

“But the next generation of solid-state electronics will bring it down a lot,” she said. One detection method could collect data via infrared beam. The sensors have proven accurate, but consistent, repeatable accuracy needs to improve.

Strassburger said the cost per vehicle hasn’t been established, “but obviously it has to be relatively low.” It “has to be in line with other safety systems,” he said. “We want the public to understand the need and how they benefit.”

The technology is a direct offshoot of the quantum advances in sensory detection since the Sept. 11, 2001, terrorist attacks. The ability of machines to scan people, packages and luggage for tiny trace elements that would expose a terrorist threat has expanded exponentially.

“Now your typical explosive trace detection system is based on rapidly evaluating minuscule molecular substances,” said Richard Bloom, an anti-terrorism expert who chairs the Aviation Security and Emergency Management Committee of the Transportation Research Board. “If you can do that with explosives, you should be able to do that with any kind of detection, including alcohol and drugs.”

Telltale devices that determine when someone has been drinking have been developed in the past decade and are in widespread use. One celebrity, Lindsay Lohan, has worn a SCRAM bracelet, which measures blood-alcohol content every 30 minutes through a person’s perspiration. For the same type of technology to be used in cars, researchers want a response within one-third of a second.

The task force developing the system is a partnership between the Automotive Coalition for Traffic Safety and NHTSA. The initial $10 million research grant, provided by NHTSA and carmakers, paid for the first two years of research. More money from Congress is being sought so the project can continue for the final three years, becoming something that functions consistently in a vehicle.

“We’re not at the finish line, but we can see the finish line,” said Chuck Hurley, a longtime safety advocate who recently retired as chief executive of Mothers Against Drunk Driving. It “will take us about $12 million more per year. The public needs to get behind this.”

The new technology could collide with the desire of many people who want to have a drink or two without fear that they won’t be able to drive home.

Automatic speed cameras have been around for several years. Although speeding leads to about 13,000 highway deaths a year, state legislatures have been reluctant to deploy the cameras in numbers significant enough to slow traffic.

Given that a poll found that 10 percent of Americans said they’d driven drunk in the past year – and 5.5 percent of them said it was more than once – will there be political resistance to a device that would have required one in 10 Americans to call a cab or walk home?

“It establishes a situation where you are guilty until proven innocent every time you get into your car,” said Sarah Longwell of the American Beverage Institute, which opposes universal use of the devices. “Most Americans would say: ‘Absolutely not. I don’t drive drunk, and you’re not going to put that in my car.’ ”

Longwell said her group would back universal use if devices were set at the legal 0.08 drunken driving threshold, but she believes they will be set far lower. “Americans are 100 percent behind the fact that you shouldn’t drive drunk,” she said. “But they’re not ready to give up the glass of wine with dinner, the beer at a ballgame or a champagne toast at a wedding.”

But Hurley said the aim is to stop drivers whose blood-alcohol content exceeds the limit. “If we were really neo-prohibitionists, you’d know it,” he said.

Longwell, who has lobbied widely against mandatory interlock laws, said advocates of universal use fear public reaction, and should. “The car companies, no matter how much they are supporting this now, they’re not going to do it if people are furious about it,” she said.

© 2011 The Washington Post Company

Brewer suspected of DUI in 1988 crash; case not pursued

Oct. 27, 2010 12:00 AM

The Republic obtained state Department of Public Safety records describing a 1988 car crash involving Jan Brewer, who was then a state senator.

AZ Fact Check looked at several issues in those documents, including whether Brewer was at fault in an alcohol-related crash and whether she received special treatment. Brewer confirmed the basic details of the crash, as did the widow of the man Brewer hit. The DPS has not reproduced the records; The Republic

obtained the records from another source.

WHAT WE’RE LOOKING AT: Was Brewer involved in an alcohol-related crash, and was she at fault? ANALYSIS: On May 4, 1988, a car driven by Brewer rear-ended a van on Interstate 17. The van’s driver, William Holland, was not injured in the crash. Brewer also emerged unscathed, though there was significant damage to her car. DPS officers at the scene believed Brewer was intoxicated. Unsteady on her feet, her breath smelling of alcohol, Brewer failed a series of field sobriety tests.

Brewer was placed in handcuffs and taken to a DPS station, where she was supposed to undergo a test to determine her blood-alcohol level. But no test was ever performed. After a discussion with a DPS lieutenant, two officers drove Brewer home. At the scene, Brewer told officers she had “one scotch.” Later, at the station, she said she had had two. At the time, she denied being drunk. And the case never went to a judge or jury. The DPS, after learning that Brewer was a state senator, told her that she had immunity from arrest. No charges were filed in the case. Brewer, who says she remembers the crash vividly, maintains that she was not impaired.

Brewer told different stories about what led to the crash. She told officers on the scene that a car had rear-ended her, pushing her car into Holland’s, and then driven away. But officers found no damage to the back of Brewer’s car, and they noted that a layer of dust on the bumper was undisturbed. The next day, Brewer told the Phoenix Gazette that a white truck had swerved in front of Holland, suggesting that he had suddenly braked. “I guess I might have been following too closely or something,” she said at the time. BOTTOM LINE: Officers at the scene said Brewer was intoxicated, but she denies it. The investigation was halted before they made an official determination. The report says that from the officer’s initial investigation, “it appears that she was the at-fault vehicle as she rear-ended the vehicle in front of her.”

WHAT WE’RE LOOKING AT: Did Brewer receive special treatment from the DPS, and did she get immunity from prosecution? ANALYSIS: According to his widow, Holland called the DPS in the days after the crash to ask whether Brewer would face any consequences. The person he spoke with said that Brewer had immunity from arrest.

Brewer was released because, according to the arresting officers, she was protected from arrest by her status as a lawmaker in session. Brewer did not ask for immunity, nor did she mention that she was a senator, according to reports. “It wasn’t my decision,” Brewer said. “I never asked for legislative immunity.”

Brewer said lawmakers arrested on charges of “serious” crimes should not be exempt from arrest. “We are no different from anybody else in this state,” she said. “We all, I think, are citizen legislators.” The Arizona Constitution does exempt lawmakers from arrest during the legislative session – with the exception of cases involving treason, a felony or breach of peace.

A similar provision exists in the U.S. Constitution. It arose as a way to protect lawmakers from retaliation by political enemies, who might otherwise arrest them on trumped-up charges to keep them away from their duties. But charges still could have been filed after the session ended, said Paul Bender, a professor of constitutional law at Arizona State University. “Legislative immunity would not justify them in dropping the charges,” Bender said. “It doesn’t say ‘privileged from prosecution.’ ” Had she been charged with a DUI involving a crash in which no one was injured, it would have been considered a misdemeanor at the time. Generally, the DPS would forward cases to the Maricopa County Attorney’s Office for prosecution. A spokesman for the County Attorney’s Office says it never received a complaint from the DPS.

DPS officials have not responded to a request for information about the case, including what policies were in effect at the time with regard to arrests of lawmakers and why they did not pursue the case. BOTTOM LINE: It appears that officers were right not to arrest Brewer while lawmakers were in session. But it is unclear why officers did not complete their investigation and pursue charges. AFTERMATH: In the years since the crash, Brewer has acted repeatedly to increase penalties for DUI offenders. As a state senator in 1990 she voted for House Bill 2433, which, among other provisions, required that drivers who were found to be under the influence have their licenses revoked. In 1993, she voted for House Bill 1003, which increased the minimum jail sentence for a first offense from 24 hours to 10 days.

This year, as governor, she signed Senate Bill 1420. The bill significantly increases penalties for juveniles who violate DUI laws. “I think we’ve become more aware that bad things happen when you drink and drive,” Brewer said. “As we become older, we get more responsible. We understand that’s not a good thing. I believe no one should be drinking and driving. And I take it seriously – I took it seriously then, and I certainly take it seriously today.”

Holland, whose widow said he developed heart problems while serving in the Korean War, died of heart disease less than a year after the crash.

- Casey Newton

Sources: DPS records from 1988; interviews; Arizona Constitution regarding “privilege from arrest; civil process”; legislative voting records.

Drivers on Prescription Drugs Are Hard to Convict

By ABBY GOODNOUGH and KATIE ZEZIMA

The accident that killed Kathryn Underdown had all the markings of a drunken-driving case. The car that hit her as she rode her bicycle one May evening in Miller Place, N.Y., did not stop, the police said, until it crashed into another vehicle farther down the road.

The driver could not keep her eyes open during an interview with investigators, according to the complaint against her, and her speech was slow and slurred. But the driver told the police that she had not been drinking; instead, the complaint said, she had taken several prescription medications, including a sedative and a muscle relaxant.

She was charged with vehicular manslaughter and driving under the influence of drugs — an increasingly common offense, law enforcement officials say, at a time when drunken-driving deaths are dropping and when prescriptions for narcotic painkillers, anti-anxiety medications, sleep aids and other powerful drugs are rampant.

The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.

The behavioral effects of prescription medication vary widely, depending not just on the drug but on the person taking it. Some, like anti-anxiety drugs, can dull alertness and slow reaction time; others, like stimulants, can encourage risk-taking and hurt the ability to judge distances. Mixing prescriptions, or taking them with alcohol or illicit drugs, can exacerbate impairment and sharply increase the risk of crashing, researchers say.

“In the past it was cocaine, it was PCP, it was marijuana,” said Chuck Hayes of the International Association of Chiefs of Police. “Now we’re into this prescription drug era that is giving us a whole new challenge.”

The police also struggle with the challenge of prosecuting someone who was taking valid prescriptions.

“How do we balance between people who legitimately need their prescriptions and protecting the public?” said Mark Neil, senior lawyer at the National Traffic Law Center, which works with prosecutors. “It becomes a very delicate balance.”

Some states have made it illegal to drive with any detectable level of prohibited drugs in the blood. But setting any kind of limit for prescription medications is far more complicated, partly because the complex chemistry of drugs makes their effects more difficult to predict than alcohol’s. And determining whether a driver took drugs soon before getting on the road can be tricky, since some linger in the body for days or weeks.

Many states are confronting the problem as part of a broader effort to keep so-called drugged drivers, including those under the influence of marijuana and other illegal drugs, off the road.

“We have a pretty clear message in this country that you don’t drink and drive,” said R. Gil Kerlikowske, President Obama’s top drug policy adviser, who wants to reduce drugged-driving accidents by 10 percent over the next five years. “We need very much to have a similar message when it comes to drugs.”

There is no reliable data on how many drivers are impaired by prescription drugs, but law enforcement officials say the problem is growing so quickly that states are putting hundreds of police officers through special training to spot signs of drug impairment and clamoring for better technology to detect it.

Even the prevalence of drug-impaired driving is unknown, since many states combine the arrest data with that for drunken driving. Mr. Kerlikowske points to a 2007 survey by the National Highway Traffic Safety Administration, which screened 5,900 nighttime drivers around the country and found that 16.3 percent tested positive for legal or illegal drugs.

The tests could not determine which drivers were impaired by drugs, but Mr. Kerlikowske said the results suggested a problem that had “flown below the radar” for too long.

“You don’t want to scare people,” he said, “but you certainly want to make them aware of the dangerousness. You can be as deadly behind the wheel with prescription drugs as you can with over-the-limit alcohol, and you are responsible for your own actions.”

In interviews, law enforcement officials around the country said anyone who drives while taking prescription drugs is at risk of arrest, not only those who drive recklessly. In one recent case near Bangor, Me., a pickup truck on a rural road was not swerving, speeding or otherwise hinting that its driver was impaired. A police officer stopped the truck because of its noisy muffler, then saw that the driver’s eyes were bloodshot and his speech slurred.

A Breathalyzer test found that the driver, Chester Annance, had not been drinking. Yet he was arrested based on the officer’s suspicion that he was on drugs, and a blood test later found opiate painkillers in his system.

Mr. Annance was convicted this month of driving under the influence of drugs. He received seven days in jail, a three-year license suspension and a fine. He is appealing the conviction.

“You don’t need to wait for a crash to happen before you charge someone,” said R. Christopher Almy, the district attorney in Bangor.

Defense lawyers say that in their zeal to make a statement about drug-impaired driving, the police are casting too wide a net and unfairly punishing people who are taking prescriptions as directed.

Tara Jenswold-Schipper, an assistant attorney general in Wisconsin, said she usually stuck to cases where drivers had mixed drugs, exceeded the proper dose or taken controlled medications without a prescription.

In one such case in that state, a former physician slammed his S.U.V. into a Honda Accord in April 2008, killing the pregnant driver and her 10-year-old daughter. Prosecutors said the physician, Mark Benson, had high levels of the sleep aid Ambien in his system, as well as Xanax, an anti-anxiety drug, and oxycodone, an opiate painkiller. Mr. Benson was sentenced to 30 years in prison.

Defendants can try to prove that they did not realize their medication would affect their driving, prosecutors said, but that argument may not hold up if the bottle had a warning label.

“Would you go home and start a chain saw and cut down a tree?” said Lt. Col. Thomas C. Hejl, the assistant sheriff in Calvert County, Md. “Why should you get behind the wheel of a vehicle when the same medication has the same side effects?”

Unable to prove impairment with blood tests, prosecutors in drugged-driving cases rely heavily on the testimony of “drug recognition experts,” law enforcement officers trained to spot signs of impairment in drivers. But there are only about 7,000 such officers nationwide, Mr. Hayes said, not nearly enough to respond to every traffic stop that may involve drugs.

“When they are involved,” he said of the experts, “our chances of convicting people are much higher.”

But persuading a jury to convict someone of impaired driving due to prescription drugs remains difficult except for the most egregious cases, said Douglas F. Gansler, the attorney general in Maryland.

“Because most people on the jury will also likely be taking prescription drugs for some ailment,” Mr. Gansler said, “whether it’s Lipitor or allergy pills or whatever it might be, they might think, ‘I don’t want that to become criminal.’ ”

http://www.nytimes.com/2010/07/25/us/25drugged.html?scp=2&sq=drugs&st=cse#

Governor Brewer signs legislation into law

by Alia Beard Rau – Apr. 16, 2010
The Arizona Republic

Starting later this summer, U.S. citizens 21 and older can begin carrying a concealed firearm without a permit in Arizona.

Gov. Jan Brewer signed Senate Bill 1108 into law Friday afternoon. It eliminates the requirement for a concealed-carry weapons permit, but does require gun owners to accurately answer if an officer asks them if they are carrying weapon concealed. It also allows officers to temporarily confiscate a weapon while they are talking to an individual, including during a traffic stop.

“I believe strongly in the individual rights and responsibilities of a free society, and as governor I have pledged a solemn and important oath to protect and defend the Constitution,” Brewer said in a news release. “I believe this legislation not only protects the Second Amendment rights of Arizona citizens, but restores those rights as well.”

The law goes into effect 90 days after the Legislature adjourns for this session, which could happen in the next couple of weeks.

http://www.azcentral.com/news/election/azelections/articles/2010/04/16/20100416arizona-concealed-weapons-bill16-ON.html

Jaxon Van Derbeken, Chronicle Staff Writer

Wednesday, April 7, 2010

The retired criminalist at the center of San Francisco’s drug lab controversy said Tuesday through her attorney that she will refuse to testify in a drunken driving case, asserting her right against self-incrimination.

Deborah Madden’s intention to invoke the Fifth Amendment is the latest fallout from a growing scandal that has forced local prosecutors to drop hundreds of narcotics cases.

The attorney for the alleged drunken driver had subpoenaed Madden – who is suspected of skimming drugs from the lab – because she had tested equipment used to measure suspects’ intoxication.

Madden’s attorney, Paul DeMeester, said the subpoena represented nothing more than an opportunistic bid to tarnish his client and the drunken driving case. Madden, he said, will refuse to testify about her time at the lab in that case or any other while she is under investigation.

The dustup over the misdemeanor drunken driving case underscores that Madden, 60, performed all sorts of tasks at the San Francisco crime lab in addition to testing drug evidence. It may also be a glimpse at things to come as prosecutors and defense attorneys try to contain, and exploit, the fallout.

Madden now faces unrelated cocaine possession charges filed in San Mateo County, but has not been formally charged with stealing drugs from the San Francisco lab.

Meanwhile, the drug lab has been shut since March 9 amid the Madden allegations and an independent audit that found the lab was sacrificing quality for quantity in testing drugs.

Many legal challenges

Madden’s history with the lab – detailed in 2,700 pages of documents that have not been disclosed – has rapidly become a target of legal challenges for lawyers in both federal and local cases. Prosecutors have dropped 250 cases before trial and are expected to drop hundreds more.

In one federal case against Dennis Cyrus Jr. – convicted last year and awaiting sentencing on 16 felonies, including three murders, in a federal drug racketeering case – the defense sought to reopen the issues surrounding Madden and the crime lab and asked to further delay sentencing.

The defense hopes to challenge the drug charges that are the basis of many of the federal offenses against Cyrus.

Prosecutors on Tuesday offered to allow only a two-month delay, but stressed in a court filing that the “the recent issues surrounding the SFPD Drug Laboratory raised by the defense cast no doubt on any of Cyrus’s multiple federal convictions.”

Prosecutors noted that Madden played only a limited role in the case against Cyrus, who faces three life-without-parole prison terms.

In the drunken driving case set to go to trial, Madden’s role was limited to testing equipment. The officer who arrested the defendant, not Madden, ran the repeated tests that showed the defendant was legally drunk.

In what may be the first in a string of court appearances, Madden was summoned to San Francisco court on Tuesday to be questioned about her role in the testing. But her lawyer told Superior Court Judge Newton Lam that she will assert her Fifth Amendment right.

“She would never have been subpoenaed if it were not for the current brouhaha,” DeMeester said after court. “If anyone wants to question her about the lab, sorry, the Fifth Amendment protects against that.”

The prosecutor, Maria Shih, told the judge she has no intention of calling Madden to the stand in the case against Robert Thomas, 41, who is held on his second drunken driving offense in 10 years.

Deputy Public Defender Maria Lopez told Lam she called Madden to answer for her role in testing instruments that implicated her client. Lopez added that she has a separate motion to seek 2,700 pages of documents related to the lab and Madden. Prosecutors have not responded to that request.

May face pressure

Lopez said Madden may be able to refuse to respond to some questions, but may be ordered by the judge to answer others.

Today, Madden will likely be called back to court to formally assert her refusal to testify.

E-mail Jaxon Van Derbeken at jvanderbeken@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/04/07/BAL11CQLFE.DTL

This article appeared on page C – 1 of the San Francisco Chronicle

Five Surprise residents decided two fired Surprise police officers should get their jobs back.

The city’s Personnel Appeals Board voted to overturn the Surprise Police Department’s termination of Michael Kennedy and Richard Yost, citing a lack of consistency in discipline meted out to officers.

Kennedy and Yost were fired in January after a Police Department investigation found they disobeyed a sergeant’s order not to confront a resident.

The man had claimed Kennedy took a laminated photo and 50 cents after an October arrest.The board voted 3-2 in Kennedy’s favor and 4-1 in Yost’s favor. It was the first time the city’s personnel board had been used for employee appeals.

When the decisions were announced after an emotional eight-hour hearing, about two dozen police officers and residents ran to Kennedy and Yost. There were hugs, cheers and tears.

Kennedy ran and leaped into the air in Surprise City Council chambers.

“I’ve never been more happy in my life. I can’t wait to go back to work,” Kennedy said. Later, a city official told him not to speak to the media.

Yost declined to comment.

Surprise Police Chief Dan Hughes said he respected the decision.

“They got a second chance,” he said. “They’ll make the best of it; we’ll make the best of it.”

The police chief said he appreciated that the board approved the police department investigation.

Board members said the investigation was fair and displayed “sufficient proof” of violations. The board also agreed the officers should have known they could be disciplined for their actions because they violated police department policies.

Assistant City Attorney Misty Leslie argued Friday that the officers willfully disobeyed their sergeant’s order 10 minutes after he told them not to go to the resident’s home.

Hughes was the only person to testify for the city although a handful of Police Department managers, including Sgt. Bert Anzini, attended.

The case started with an order last November from Anzini, who told Kennedy not to go to the home without him.

Kennedy, a two-year officer, has said he misunderstood Anzini’s orders when he decided to go to the Surprise man’s home.

A police department investigation found Yost disregarded the sergeant’s order by parking near the man’s home while Kennedy talked to him.

Yost, a three-year Surprise officer, said he didn’t violate his supervisor’s order because he never went to the man’s house. Yost said that he parked nearby, in an area he was assigned to patrol, because he wanted to ensure Kennedy’s safety.

Both officers said the Surprise resident involved had a history of threatening police officers.

The Surprise Police Employees Association requested a review of Anzini’s actions in the case. An El Mirage lieutenant who reviewed the investigation documents in late March cleared Anzini of any wrongdoing.

Phoenix-based attorney Judith Abramsohn told the board that the police department should have chosen a division manager to conduct the investigation into Kennedy and Yost’s actions, according to city policy.

Abramsohn gave examples of cases where other officers disobeyed orders and received written reprimands.

Two Surprise police officers testified on Kennedy and Yost’s behalf.

Officer Evan Becher drew cheers when he said Anzini’s orders about confronting the Surprise resident did not appear to be serious, but that an order he gave to officers that they write 10 citations per month was more direct.

Leslie objected to Becher’s statement.

In her closing statement, Leslie said it was clear the officers had violated the sergeant’s orders and that conduct warranted their termination.

Kennedy then gave a tearful statement, saying he never meant for Yost to lose his job. Abramsohn was last to speak, arguing that the officer’s terminations were unfair.

The officers’ actions didn’t warrant termination, Board Member Ted Grove said before the vote: “I can’t go home and tell my wife that I voted to terminate an officer’s employment

because of the facts that were presented.”

Severin Hall, vice president of the police association, said after the hearing the group was happy with the board’s decision. Association leaders said they planned to meet with Human Resources Manager April Reynolds to discuss several issues brought up during the hearing, including claims of inconsistent discipline.

Reynolds said she will meet with Kennedy and Yost next week to discuss the process of bringing them back to work.

Kennedy and Yost will receive back-pay and their employee benefits will be restored, she said.

by Michael Ferraresi – Mar. 4, 2010 04:28 PM
The Arizona Republic

Phoenix police on Thursday announced the department is reviewing its process of disciplining officers accused of drunken driving.

A department spokesman said the decision to review the policy began months before the Jan. 3 arrest of a Phoenix officer who was stunned with a Taser and cited with driving under the influence following a tussle with Gilbert police.

Seth Castillo, 27, is still on patrol, Phoenix police Sgt. Tommy Thompson said.

Lab results showed Castillo had a 0.17 blood-alcohol level. The legal limit is 0.08. He was cited and released, though he faces misdemeanor DUI-related charges.

Castillo admitted to a Gilbert officer to drinking two 24-ounce beers and taking prescription Ritalin before officers found him passed out and slumped into the passenger seat of his SUV, according to police records. When officers woke Castillo, he made a threatening move and was stunned with the Taser, police said.

Castillo was never placed on paid administrative leave, though his actions prompted an internal investigation. Officers accused of felonies are often placed on paid administrative leave while cases like Castillo’s are handled by the officer’s supervisors, Thompson said.

Following the finding of the jury, a criminal court judge fined Powell $300 and suspended his license for 90 days. Powell is also required to complete a DWI education program.

Powell had argued that he was not driving drunk in Manhattan when he was stopped by police in March of 2008. Police countered that Powell was driving erratically and a preliminary, roadside breath test showed the presence of alcohol, though under the .08% threshold for New York DWI. Powell refused to submit to a more precise blood alcohol test at the police booking station.

Powell has contended that police targeted him because of his position and family legacy in politics. He said, “the fact is that, again, when a cop lies, we can all be guilty of something.”