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.
By Christopher Adkins
If you have been out drinking and are stopped by the police while driving home, what should you do? I will give you the most lawyerly answer possible: IT DEPENDS. I say that because it really does depend on a number of things. How much have you had to drink? Have you eaten anything recently? How long of a period of time were you drinking? How much do you weigh? These are all factors that will weigh into determining your BAC and whether you may legally drive.
If, for example, you are a 200 pound man who had two 5% ABV beers with dinner over a one hour period before driving, your probably okay to drive. A rough estimate of BAC in that situation would put you somewhere around a .03 to a .04. If you had, however four 5% beers over that same time period, you might be somewhere around .08 to .09 and it probably would be best not to drive. A woman who weighs 120 pounds, who consumes four 5% beers over the period of an hour might be as high as a .17 to .18. These aren't exact numbers, of course, as alcohol may affect people differently. It does give you an idea, however, of what kind of factors may play into determining your BAC.
In that scenario, if you were the 200 pound man who had two beers over the course of an hour, it might be wise to submit to an Alcosensor test and standard field sobriety tests. It may show the police that you are indeed sober and that you are able to drive a vehicle. If you were the 200 pound man who consumed four beers over the course of an hour, I would not submit to any testing whatsoever. In that situation, all you would be doing is providing the police with evidence to use against you in court.
You also have to consider the field sobriety tests that you are taking. Some people and attorneys might tell you that they are designed to trip you up. This isn't true. They are designed to allow the officer to make his best determination as to your BAC and ability to operate a motor vehicle. Determining BAC and whether someone is sober enough to drive is NOT an exact science. The police officers are doing the best they can with the training they are provided. This being said, the fact that this testing is NOT an exact science works to your advantage.
Many people don't realize the certain factors that may considerably throw off a field sobriety test. The Horizontal Gaze Nystagmus test (HGN), for example, may be thrown off entirely if the subject has sustained a traumatic brain injury (TBI). A TBI may cause resting nystagmus and the artificial triggering of nystagmus at levels not found in average people. This may also be true if the subject is wearing contacts, has to take off his prescription glasses, or has had eye surgery. All these factors may produce false positives for HGN.
Both the Walk and Turn (WAT) and the One Leg Stand (OLS) may be thrown off if a subject has sustained previous injuries to their legs or lower body. A person who has a sprained ankle, for example, will not be able to walk or stand the same way as a person who has not. Also consider what type of footwear the subject is wearing and the surface in which the subject is taking the test. If a subject is trying to perform the WAT in high-heels on a slight incline, they probably aren't going to perform the test as well as a subject in sneakers on a flat surface.
All these factors must be considered before agreeing to take any type of field sobriety test. If you absolutely know that you've had too much to drink, I would not advise that any person submit to a field sobriety test. In these cases, the testing will only serve to be used as evidence against you in court.
One of the rarest, but most effective, tools a person may use when they are stopped by the police after they have been drinking is the pre-arrest test. As discussed in the pre-arrest test section, North Carolina allows a person to be transported, un-arrested, to provide a breath sample. As this is a rarely exercised right, many police officers are unsure of the procedures that they must follow when a person requests a pre-arrest test. If the police officer doesn't follow the procedures correctly, or unlawfully places you under arrest after you request a pre-arrest test, you may be able to win your case in court. Even once you are transported to a location to provide a breath sample, you may refuse to exercise the pre-arrest test. At this point, the officer will have to decide whether they want to arrest you and how to best proceed in collecting evidence against you. This will inevitably pose difficulties for the officer.
If you are arrested roadside and transported to provide a sample of your breath, always request that a witness come observe your test. You are provided this right and a witness may observe you give your breath sample if they are able to get to the testing site fast enough. In no case will the testing procedures be delayed more than 30 minutes when you request that a witness come observe your test. If, however, a witness arrives in time to see your test, and is denied the ability to come watch you blow, you may have established a defense as your rights may have been violated. Requesting a witness may also provide you with a little more time to try and sober up. If you are on the cusp of a .08, time is important.
If you suffer from gastroespphageal reflux disease (GERD), and this affected you ability to provide an adequate breath sample, you also may be able to establish a defense against your DWI charge. Burping before your breath test, or digestive conditions, such as GERD, may lead to the presence of residual mouth alcohol. Residual mouth alcohol occurs when alcohol you have digested is burped up into the mouth. Residual mouth alcohol will substantially alter the results of any breath test that you submit to. It is important to note if you suffer from digestive conditions or remember burping before providing a breath sample.
If you are arrested for DWI, you are processed through jail and released as fast as possible. This is because you have the statutory right to seek an independent chemical analysis upon your release. After being released, you may go to a hospital or other alcohol testing facility and pay to have your own independent alcohol test. You may use the results as evidence of your alleged BAC. If possible, do seek to go to a hospital to get an independent blood alcohol test immediately upon your release. Although this may only serve to confirm the results taken by the police, at least you have an independent test that may prove your BAC was lower than the state is alleging. Also be sure to note if you aren't released soon after your arrest and subsequent testing. This may set the grounds for a defense for a Knoll Motion. If you aren't released soon after your DWI arrest, you aren't able to seek your independent chemical analysis, and thus you were deprived of your statutory rights.
As with any legal issue, it is important to document exactly what happened to the best of your recollection as soon as you are able to. This will help strengthen your defense. Ultimately, it is your decision as to what is best for you if you have been stopped by the police and having been drinking. If you do drink before you drive, even the occasional one or two drinks at a social event, you need to be educated as to your rights so you are able to make an informed decision. I can't advise you directly whether you should take a specific test or not. I will say, based on over a thousand DWI investigations and hundreds of DWI arrests, it is usually best to avoid admitting to anything, avoid taking any tests, and avoid saying much at all. The best strategy is to be polite, respectful, and assertive as to your rights.
Contact Adkins Law if you need to speak to a DWI attorney / DUI attorney. A DWI lawyer from Adkins Law will be happy to give you a free DWI consultation. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.
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
False imprisonment, sometimes called false arrest, is a form of injury involving, as the name implies, the unlawful restraint by one person of the physical liberty or freedom of another person.
In general. In order to sue over a false imprisonment, a plaintiff needs two things. First, they must have been detained or restrained against their will. Second, the restraint must have been unlawful.
Plaintiffs in false imprisonment cases may be entitled to a variety of different kinds of damages.
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.
By Elspeth Crawford
It’s so easy to Tweet. All you have to do is find something worth sharing, perhaps an interesting article or a thought about the last place you ate lunch or a picture of your new cat, find a way to express the information in less than 140 characters and hit ‘Tweet’. And then it’s out there, swimming among thousands of other Tweets for anyone on the World Wide Web to see.
And according to the New York City Criminal Court, it can be used against you in a court of law.
The case at issue, People v. Harris, involves a protester named Malcolm Harris who was involved with the Occupy Wall Street Movement last year. In October of 2011, he and several of his 99-percenter brethren were arrested for disorderly conduct as they attempted to cross the Brooklyn Street Bridge in contradiction of a police order. Now, prosecutors want to subpoena three months worth of Harris’ Tweets in the hopes of divining why he attempted to cross that bridge. Both Harris and the legal team at Twitter have tried to stop the subpoena. In striking them down, Judge Matthew A. Sciarrino, Jr. has pushed the law surrounding the legal status of Tweets in some interesting new directions.
To start, Judge Sciarrino held in an April 20 ruling that Harris, who had filed a motion to quash the subpoena requesting his Tweets, did not have standing to make such a request, which is to say that he wasn’t legally allowed to ask that the subpoena be stopped. To back this up, Sciarrino quoted extensively from Twitter’s own Terms of Service, which provide that by posting a Tweet the tweeter grants to Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Judge Sciarrino read this and other provisions to mean that “…Tweets the defendant posted were not his.” Instead, the Tweets effectively belong to Twitter to do with them as they wish.
In this case, Twitter did not wish to hand the Tweets over to the court. In its own motion to quash the subpoena, Twitter argued that Harris’ Tweets were protected by the Fourth Amendment, which secures the right of the people to be free from “unreasonable searches and seizures.” Sciarrino rejected this argument, saying that the Amendment does not cover Tweets due to their incredibly public nature. He analogized Tweeting to a man yelling something out his window above a crowded street, reasoning that if a passerby were later called to testify as to what the man said, they could do so because the man made it public information by screaming it to anyone who happened to be in earshot. Tweets are public statements, and according to Sciarrino there can be no reasonable expectation of privacy in posting one. If the government wants to get their hands on a Tweet for purposes of a trial, they can.
And honestly, a much of this isn’t particularly shocking. Twitter is an inescapably public forum. Tweeting something means you want it to at least be read by your followers and, more likely, by anyone else who happens to be interested in the topic. Every Tweet is published for all round the world to see, so to turn around after posting one and claim that no one’s allowed to look at it seems to run counter to common sense. Sciarrino also goes out of his way to distinguish Tweets, which are public, from private messages and e-mail, which are private and deserving of higher levels of protection. Also, the ruling is pretty well versed on the subject of Twitter and includes some good descriptions of what the service is and what it does, which goes against the conventional wisdom that all judges are technophobes who would prefer to write their rulings with ink and quill if it weren't for those meddlesome young people.
Even if some of the decisions here get overturned on appeal, it’s frankly nice to have some clarification on issues which up to this point have remained mainly in the realm of speculation. More and more lawyers are claiming to be “social media specialists” but because the law in that area is so unformed it’s often not clear just what that means. Rulings like this at least provide some clarity. Do you think Tweets should be protected by the Fourth Amendment? Can people expect to maintain control over information they post to the public at large? Let us know in the comments.