Assault and battery are intentional torts that are often used interchangeably as if they are one single course of action. While it is true that assault and battery often occur together, they are two different torts with their own common law requirements.
An assault occurs when there is a willful attempt or willful threat made by the defendant to inflict injury upon the plaintiff or a third party. The common law elements of an assault include: an unlawful attempt, with the present ability, to commit a battery. Bodily injury does not have to occur in order for there to be an assault. Assault is simply the infliction of imminent fear on the plaintiff, where the defendant is physically capable of harming the plaintiff or third party.
A battery has occurred when a defendant willfully and unlawfully uses forceful violence or makes offensive contact with a plaintiff or a third party. The common law elements of battery include: the causing of bodily injury, offensive touching, and the intentional causing of harm to another person.
Although battery is a specific intent crime, the defendant does not have the authority to determine whether or not their actions are considered a battery. In other words, it is irrelevant whether or not the defendant considered his actions to be harmful or offensive. Even if the defendant hits the plaintiff as part of a practical joke that the defendant considers to be harmless, a battery has nonetheless occurred if the court considers the contact to have been harmful or offensive.
Consent is often used as a common defense to battery. Plaintiffs who consent to batteries prior to their occurrence, have a lesser chance of their accusations prevailing in court. The plaintiff’s consent to battery must be given without coercion. In addition to freely given consent, the law assumes that people give implied consent to ordinary and customary batteries that occur commonly throughout everyday life. For instance, a plaintiff who attempts to sue a defendant for battery after the defendant bumps into him in a crowded facility would have little chance of winning the suit. In this case, the court will hold that the plaintiff gave implied consent for the battery to occur.
By Christopher Adkins
In North Carolina, many speeding tickets are able to be reduced to improper equipment, which is a non-moving violation. Improper equipment is a lesser-included offense to a speeding ticket, and is typically obtained through plea-bargaining with the prosecutor in the county where the ticket was received. The benefit of having a speeding citation reduced to improper equipment is that you will not receive any points on your driver’s license, and you will not receive any points on your insurance.
In 2011, the State of North Carolina created an additional surcharge of $50.00 that is assessed for improper equipment violations. Thus, currently, most improper equipment reductions carry a fine of $263.00 total, which is often more than the fine if you simply pay off your citation. Even with this additional expense, it is still more beneficial to take a reduction to improper equipment in order to save points from being assessed against your driver’s license, and a car insurance increase. Improper equipment, as stated before, is a non-moving offense and carries no insurance points.
Can I handle this myself, or do I need an attorney to handle this for me? You do not need an attorney to handle your citation for you. You may appear in court and request a reduction on your own behalf. Doing this will save you from paying attorney fees, but will require you to spend your time in court, and you may not receive the results you want. The prosecutor, for example, may convince you that it is better to take a different type of reduction, which may not be as beneficial to you. An experienced traffic law attorney would be able to know if the reduction being offered is in your best interests. One of the biggest benefits for most people in hiring an attorney to handle their speeding ticket is avoiding having to appear in court.
If you would like to speak with an experienced traffic lawyer, please contact Adkins Law for a free traffic consultation. Adkins Law has locations in Huntersville and Ballantyne for your convenience.
While protecting the public from dangerous individuals is one of the goals of the American court system, the system does have some flaws. Recently, an issue with the bail method was noticed with the case of one individual who has been held at Rikers Island for seven years without bail and is still awaiting trial. Carlos Montero was with two friends when one fatally wounded a man during a robbery in 2008. The right to a speedy trial does not apply to murder cases and Montero is stuck waiting for his trial behind bars in pretrial detention. His seven-year stay has cost the city more than $1 million so far. Montero denies being at the scene of the crime but will continue to be held while there is a fight over DNA evidence. Montero has tried to have his case tried separately with no success and his lawyer will not ask for bail because it is extremely unlikely since this is a murder case.
Montero has been imprisoned without conviction of the crime and has been denied bond. If he is eventually found innocent he will have served years in one of the most dangerous prisons in the US for no reason. The current US bail method requires defendants wanting to leave jail to put up cash or property to ensure that they will return to court to face trial for their accused charges. However, more than 6 out of 10 jail inmates are still there awaiting trial. This is an incredibly large amount of people who are stuck in prison without a conviction, wasting their time and state resources. Pretrial incarceration takes $9 billion taxpayer dollars each year. Research even shows that individuals that are incarcerated pretrial actually receive harsher punishments that people that are released on bail pretrial.
The current bail system pushes defendants to plead guilty in order to be released faster than waiting for trial whether they are really guilty or not. In Montero’s case he has repeatedly been offered a plea deal but has denied in order to maintain his innocence. He is resisting the offer even though his trial date has yet to be determined. It is unknown how long Montero could remain in prison. This then becomes a question not only about the fairness of the bail system but about the effectiveness of the Due Process Clause of the Constitution and the right to a fair and speedy trial.
By Elspeth Crawford
The intentional torts of assault and battery are often grouped together as if they are one single cause of action. While it’s true that the two frequently appear beside one another, they are two entirely different torts with their own discrete set of requirements.
An assault occurs when a defendant gives a plaintiff the impression that they are going to harm him, but for an assault to be actionable the defendant need not actually harm the plaintiff. Assault has two requirements. First, the person committing the assault must act with the intention to cause a harmful or offensive contact with the person of the plaintiff or a third party. Second, the person committing the assault must act in such a way that the plaintiff has the imminent apprehension of contact.
A battery occurs when a defendant intends to cause a harmful or offensive contact with a plaintiff or a third person and actually does cause such a contact. Basically, if you are touched in way that is considered harmful or offensive, the person who touched you has committed a battery.
Consent is a defense to battery. Plaintiffs who consent to batteries before they happened have little chance of prevailing in court. In addition to freely given consent, the law assumes that people consent to ordinary and customary batteries that occur commonly throughout everyday life. For example, a plaintiff who sues a defendant for battery after the defendant bumps into him in a crowded subway car would likely not win the case because the court will hold that the plaintiff gave implied consent for the battery to occur.
While assault and battery are separate causes of action, they very often occur together. If plaintiff perceives that a defendant has raised his fist to strike him, and then the defendant actually does strike him, the defendant has committed both an assault and a battery. If you have been the victim of an assault, a battery, or both, you can bring one or more causes of action to recover.
If you’ve received a citation, or were arrested and charged with a misdemeanor, you may wonder what options you have and what your journey will be like moving forward. A misdemeanor is one of three types of offenses, and carries a penalty more serious than an infraction, but less serious than a felony. The summons or citation will state what the charges against you are, and the scheduled day and time of your initial court appearance.
If you know that you would like to contact a lawyer concerning your charges, you probably want to do so before your initial court hearing (also known as an arraignment). By doing so, your lawyer can guide you on your plea and possible penalties before you are before the judge. If you wish to represent yourself, you will need to familiarize yourself with the law and proceedings surrounding the offense with which you’ve been charged. If you wish to be represented by a lawyer but cannot afford one, you will be given the opportunity to apply for a court-appointed lawyer at your initial hearing.
If you fail to present yourself at your arraignment, you may be charged with an additional offense known as failure to appear. This is a misdemeanor, and if committed, a court will likely issue a warrant for your arrest.
On the day of the arraignment, you should arrive to the courthouse at least 15 minutes early and dress conservatively and professionally. You are often required to check in at the clerk’s office. Before your hearing, you are given a legal rights form which explains your rights before your case is called by the judge.
Once your case is called, the judge will tell you what the charges are against you and the possible penalties from those offenses. Then the judge will ask if you need court-appointed legal representation, which are only available is jail time is a possible penalty. If you do want a court-appointed lawyer, you will have to fill out a form and answer questions about your finances to make sure you qualify.
Next in the hearing, the judge will ask you if you plead guilty or not guilty. If you do not know which to plead, ask the judge to reschedule your initial appearance so you can talk to a lawyer. If you plead not guilty, it will allow you time to talk to a lawyer before your next appearance and requires the prosecution to prove its case. If you plead guilty, you admit that you committed the charges against you, you give up your right to trial, and you give up your right to remain silent. The judge will then decide your sentence.
If you pled not guilty, you have the right to a bench or jury trial. If you choose a bench trial you will only be before a judge and he or she will decide if you are guilty. These typically can take place in an hour or so. In a jury trial, the decision of guilty or not guilty is determined by six members of the community and could last a couple of days.
Before any trial, a pretrial conference takes place. Either you or your attorney will receive a notice of the date and time. You must attend the pretrial conference, and also have the opportunity to discuss plea bargaining with the prosecution. Any other issues that need to be resolved are done so at this conference.
After either a bench trial or jury trial, the judge will decide the sentence. Sometimes the judge will do so the same day as the trial, but sometimes sentencing may be scheduled for a different day. The judge will ask if there is anything you have to say before he or she decides your penalty. For misdemeanors, penalties include jail (usually only up to one year), driver’s license suspension, fines, court costs, community service, probation, and restitution, which is money paid to the victim to cover costs they incurred. Typically the penalty is effective immediately at the time of sentencing.
If you can't appear at the scheduled time, contact your attorney or the court as soon as possible. If the court is contacted ahead of time and if you have a good reason, the court may reschedule your case. The court requires compelling reasons before it excuses a failure to appear.
The concept of confirmation bias occurs when a bias unconsciously influences the outcome of a test or observation. Instead of conducting a test objectively, someone is selectively looking for information or clues to confirm their pre-existing beliefs and hypotheses.
Why is confirmation bias important in DWIs? Confirmation bias can play a large factor in a DWI arrest. Police officers are graded on their productivity. This is what drives most police officers to take more enforcement action. Knowing they have to be productive to meet their unspoken quotas, officers are often proactive in their enforcement activities.
Consider a police officer that gets behind a vehicle, runs the tag, and discovers the driver has had previous DWI convictions. Based on the driver’s record, the officer may assume the driver to be intoxicated. The police officer will look harder for a reason to justify a traffic stop. If the officer is able to initiate the traffic stop, that officer will immediately begin to look for signs of impairment, which may or may not be there.
In a situation such as this, typically, the officer will request the driver to submit to a roadside breath test. This is usually conducted before any standardized field sobriety tests (SFSTs) are conducted. The reason for this is because the officer knows it isn’t worth his time to conduct SFSTs if the driver doesn’t blow above a 0.08 during the roadside breath test. Often, an officer won’t initiate SFSTs unless the driver is above a 0.10 roadside. The officer knows that once they place the subject under arrest and transport them for their evidentiary breath test, their BAC may drop. The average person’s BAC drops between 0.015 to 0.018 per hour.
Although this technique, which is very commonly used, is not recommended by NHTSA, it is extremely effective. The officer will both save time and quickly determine whether the traffic stop will yield a DWI arrest. The problem is that a preliminary roadside breath test creates confirmation bias during the SFSTs. If the driver blows over a 0.08 during the preliminary breath test, the officer will look hard while conducting the SFSTs to find the clues he needs for arrest. Not only is this not good practice, the entire SFST battery will be jaded. The officer will not be conducting the tests objectively, but will be looking a reason to justify the arrest, whether one truly exists or not.
Often, if confirmation bias can be established, the probable cause for the arrest may be negated. If the probable cause for the arrest is negated, the DWI charge may be dismissed. If you have more questions concerning confirmation bias in a DWI arrest, contact a DWI lawyer.
Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County and the Lake Norman area. If you need to speak with a DWI attorney in Huntersville NC, contact Adkins Law to schedule an appointment with a DWI lawyer.