Washington Injury Law Blog

A tough new cell phone law takes effect Thursday, June 10, 2010.  The law makes using a cell phone without a hands free device a primary offense punishable by a $124 fine.  Hopefully we’ll see a reduction in the number of Washington car accidents linked to cell phone use.

My friend Dave who is a Washington State Trooper tells me the police are chomping at the bit for this one.  Dave has seen people wave at police with one hand while the other is holding a cell phone to an ear.  Really, come on people!  There will be no grace period.  Expect loads of police out issuing tickets tomorrow.

What does a primary offense mean?  It means the police can pull you over based on that offense alone.  Previously the cellphone hands free law has been a secondary offense meaning the police had to have another reason for pulling you over, like speeding, before they could ticket on the cell phone use.  Not anymore.  Now all police will need to see is you with a phone in your hand and bingo, ticket time.  The phone doesn’t even need to be to your ear, just in your hand.

Teenager’s Beware, the new laws is harsh for you. Teenagers are completely banned from using cellphones, both talking and texting, until they have a full driver’s license.  If a teenager has a learner’s permit or intermediate driver’s license its illegal to use a cellphone in the car period, end of story.  This is a great idea.  Teenage driver’s are the least experienced and need to focus their attention on driving not texting their friends.

A recent study at the University of Washington found that on a daily basis 1 out 16 drivers is using a handheld cellphone on Washington roads.  During rush hour the number climbs to 1 out 13 drivers is using a handheld cellphone while driving. Here in Kirkland I think those numbers are very low, seems more like 1 out 5 cars.

The recent UW study observed nearly 40,000 drivers from February 12-28, 2010.  Drivers were seen making calls, texting, and otherwise using their phones in one hand and driving with the other hand.  The study also found that drivers who were using their cellphone were almost always alone in the car.

Many studies have documented the ways cellphones distract drivers. Distracted drivers cause many of Washington’s car accidents each year. Hopefully, this new law will help reduce those numbers.

Drive safe!

Max Meyers

A U.S. Supreme Court decision this week has ended decades of campaign finance law.  The court ruled that corporations may spent as much money as they want on federal political elections.  Although, they can’t donate directly to candidates they can run their own ads against or for any candidate.  Let the flood begin!

The conservative block of the court in 5-4 ruling said that corporations have the same free speech rights as individuals.  President Obama called the ruling “a major victory for big oil, Wall Street banks, health-insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  The ruling is being viewed as a big win for Republicans and big money corporations.  Money will pour into presidential now from large companies.  Every commercial on TV during a federal election is probably going to be a political ad.  I’m going to love my DVR so much during the next Presidential election.

We can expect companies to endorse certain candidates based upon support for certain issues important to company profits.  While opponents may feel a chilling effect against taking a strong stand on an issue, like National Park oil drilling.  The candidate can expect a flood of TV ads against him/her from the oil companies. 

Here in Washington state we won’t see much change in state elections.  Washington already does not have any limits on how much corporations can spend to support Washington state candidates.  Companies cannot give money directly to a candidate but can run independent ads of their own in support or opposition of a particular political candidate.  

What I see here is a continuation of the U.S. Supreme Court’s shift towards more conservative rulings.  The additions of Justices Roberts and Justice Alito are swinging the court from a more liberal trend to a more conservative trend.  This has happened throughout the history of the court.  The pendulum swings back and forth from liberal to conservative and back again.  In my opinion we will continue to see decisions in favor of corporations at the expensive of individuals for many years to come. 

Max Meyers, Esq.

Washington state law requires you to use a hands free device with your cellphone when driving and prohibits texting while driving.  The problem with these laws has been that a violation was classified as a secondary offense.  Secondary offense means that a policeman can only pull you over if you commit some other traffic infraction that is a primary offense, like speeding and improper lane change.

Washington State Sen. Tracey Eide of Federal Way has proposed changing the cellphone and texting laws to make violations a primary offense.  That means you could be pulled over when that cellphone is to your ear or even in your hand.  The basic fine would be $124, but that would increase if you caused a car accident that injures someone. 

Sen. Eide has a friend who was t-boned and injured in a car accident with a teenage driver who was talking on a cellphone.  Research has shown that driving while talking on a cell makes you as likely to cause a car accident as someone who is driving drunk with a BAC of 0.08 and 23 times more likely to crash if you’re texting. 

My reaction to this is FINALLY!!  The cellphone and texting laws as they currently stand are a joke.  Nobody obeys them because there’s no real threat of being stopped by the police.  I still encounter idiots on cell phones every day I drive on Washington roadways, and I’ll admit at times I’m one of those idiots.  Why, because I have no fear of a traffic ticket, which could raise my car insurance rates and cost me some cash.  

I hope the proposed law passes.  All you have to do is look at the seat-belt law history to see this change will force people to change their behavior.  Washington currently has the second highest seat-belt usage rate in the country at 96.5%.  That wasn’t the case when the seat-belt law violation was a secondary offense.  The seat-belt law was changed to make failing to click it an automatic ticket.  Now look at us, dedicated seat-belt users.      

Drive safe,

Max Meyers, Esq.

Think getting pulled over for drinking and driving in Washington state was scary before, think again!  You could be subject to an involuntary blood draw if you’re pulled over for a DUI.  The Washington state Supreme Court recently handed down a decision that allows police to force you to give a blood sample following a DUI stop.

The court said that police may obtain a search warrant for a blood alcohol test even if the driver has refused to take a voluntary breath test.  The court found that obtaining a warrant for a driver who decline the breath test does not violate consent law, due-process rights or legal fairness doctrines.  That is unbelievably scary to me!

You have to right to refuse a breath test, which carries an automatic penalty of losing your driver’s license for one year.  But now regardless of your consent refusal police can get a warrant for a blood test, which by the way they don’t have to tell you they are getting the warrant.  If effect your refusal to a breath test is meaningless because the police can get around your refusal by forcing a blood test instead.  Appalling, really appalling!!  DUI laws are now so harsh that you would be crazy to drink and drive in Washington state. 

For practical purposes the police will likely only seek blood test warrantrs in the most serious DUI cases, most likely involving serious injury or fatal car accidents.  You could also see it used on repeated offenders where a felony DUI charge may be pursued.

Winter is out of here! The deadline in Washintoin state for taking studded snow tires off your car is today, March 31st. If you’re caught by the police with studded tires on your vehicle after today you may receive a $124.00 traffic ticket. Of course the ticket would likely be classified as a non-moving violation, which means your insurance rates are unlikely to go up. But who needs the hassle or the fine!

Now bring on the SUN!!

As Kirkland Personal Injury Attorney serving the entire Seattle and Puget Sound area I often see confidentiality clauses  being required by defendant corporations and their insurance companies before they will agree to a settlement. When this happens my client’s left with the hard choice of going to trial, where you never know what really will happen, or take the sure thing even if you cannot warn others about the danger or conduct of the defendant.

I see this most often in the employment law area of my law practice, which includes failure to pay wages, wrongful termination, discrimination and sexual harassment.  This is also very common in cases involving defect products, think Vioxx or any of the other drugs that have killed people for years but confidential settlements kept it all secret.

Washington state Sen. Adam Kline has proposed Senate Bill 5886, which would ban confidentiality requirements as a condition to settle a lawsuit. Sen. Kline wants to make sure the courts aren’t protecting dangerous products that could hurt other people. I think that’s a great idea. Most of my clients want to warn others so they won’t get hurt like they did, but defendants fight tooth and nail against it. Why? Because they would have more exposure to lawsuits and would actually have to spend the money to fix their dangerous product. Can you smell the greed?

More power to Sen. Kline, his bill has my vote!

Max Meyers, Esq.

Source:   Seattle Times, 2.24.09 – Courts Should Protect public from bad products

Did you break the law on the way to work this morning? The new hands free cell phone law took effect in Washington state today, July 1, 2008. You may only speak on a cell phone while driving if you have a headset, earpiece, speaker, or other hands free device which allows you to keep both hands on the steering wheel. No more phone to ear while driving with one hand.

As Kirkland car accident attorney I often have cases where my client was hit by someone distracted by cell phone conversation. Please help make the roads safer by not talking on a cell phone while driving period. A distraction is a distraction regardless of hands free device or not.

The fine if caught will is $124.00. However, there is a big limitation in enforcing the new law. Police cannot pull you over for having a cell to your ear alone. To be cited for the cell phone the police have to have another reason to stop you, like speeding, improper land change, running a red light, etc. 

BEWARE – the Washington State Patrol is conducting a “special emphasis” patrol and will be actively looking for violators of this new law.

Hang up that cell phone and drive Safe!

Sen. John McCain finally explained his plans for appointing federal judges if elected and it’s scary in my view. As a Republican he is conservative by nature and appears to be pandering to the conservatives in the party with his judicial appointment views.

McCain vows to appoint judges who are faithful to the Constitution and do not engage in what he calls “the common and systematic abuse of our federal courts.”  He is against what he calls “activist judges” whom he feels decide cases based on personal beliefs rather than the law. I believe this is an over exaggeration on McCain’s part. In ten years of law practice I have not read a federal cases where the judge did not have a basis in law for the decision being made.

There are a couple of camps that judges fall into when discussing decision making philosophy. One camp is the very conservative “strict construction” and the other is the “living document” philosophy.  According to the strict construction camp if it is not specifically written in the Constitution or law then it cannot be. So unless a law grants a specific legal right in the words of the law no legal right exists. This can be troublesome when talking about interpreting the meaning of the U.S. Constitution, which was written over 200 years ago.

For example it is generally accepted by everyone that you as a person enjoy the right to a certain amount of privacy that flows from the U.S. Constitution. However, the Constitution does not specifically say that. The 4th Amendment says you have the right to be free from unreasonable searches and seizures by the government (that’s the police), but it does specifically say you have the right to privacy. However, the federal courts have interpreted the 4th amendment to also mean that inherit in the right to be free of unreasonable searches is an underlying privacy right.

It can get even more dicey when we start trying to apply new technology issues to the wording of the Constitution. The framers of the Constitution in all likelihood had no concept that one day people would walk around with wireless computers with electronic information of every kind stored on them which could be freely transmitted over the airwaves with the push of a button. Without privacy laws your private information may be freely accessible to anyone who wants it without your knowledge or right to object.

According to the “living document” camp the wording of the Constitution or other laws are examined in their entirety. If a question is not addressed by the actual words, then the underlying assumptions or basis for the law can be accessed to find the answer to a new legal question not foreseen when the law was originally written. I subscribe to this school of thought because I believe our Constitution and laws need to keep up with the times.

The pursuit  of truth and justice should be the most important job of the courts. Interpreting laws as narrowly as possible, like the conservatives tend to do, does not promote the pursuit of justice. Times shift and change quickly, and new and novel legal questions confront federal judges everyday. God forbid, you should find yourself before a judge deciding such an issue and he/she rules against you, denying justice, because Congress failed to keep up with the changing times and change the law as was needed.

There are three branches of government, legislative (Congress), judicial (Courts) and executive (President). Each branch checks and balances the others. If one branch is not happy with an action of another branch, then corrective other action can be taken. In the case of the courts deciding a case that Congress disagrees, Congress can enact a new law to correct a mistake they believe the court made. Congress does this with amazing speed when they feel it is important, otherwise law changes are be excruciatingly slow if ever made.

It all boils down to whether you want to keep the rights we have currently or risk losing more rights, like choice to have an abortion or be free from homeland security putting a video camera in you bedroom. If McCain is elected it looks like we’ll be losing some of those rights we’ve become accustomed to enjoying.

As a Kirkland Washington personal injury lawyer I often see cases where a child is injured by a defective product. In the news recently you may have heard that children’s toys can contain scary levels of dangerous chemicals. Washington Governor Christine Gregoire took a big step this week and passed a strong new toy safety  law which limits the amount of dangerous chemicals contained in toys. The new toy law is called the Children’s Safe Products Act.

Testing has found some toys made in China and other countries can at times have high levels of lead, cadium, or phthalates. These chemicals are often found in the paint or outer coating of the toys, which is what comes in regular contact with kids skin or mouth.

The new safety rules include:

• Limit total lead to 90 parts per million by July 1, 2009, 40 ppm by July 1, 2010, if achievable. (Federal standards limit the lead in surface paint on toys to 600 ppm)

• Limit total cadmium to 40 ppm by July 1, 2009.

• Limit six specific phthalates to 1,000 ppm by July 1, 2009.

• Set limits that apply to children’s toys; cosmetics and jewelry marketed to children under the age of 12; products used for teething babies; and car seats that are made or sold in Washington.

Hopefully, the flow of toxic toys in Washington will be significantly reduced by this new toy safety law.

Source:  Seattle PI, April 2, 2008

Airline passengers took another hit on Tuesday when a Federal appeals court tossed out the State of New York’s law requiring airlines to give food, water, clean toilets, and fresh air to passengers stuck in delayed planes.

The Court concluded that the law was well-meaning but stepped on and interfered with federal law governing air carriers. The Court went on to say that only the federal government has the authority to pass such regulations. The New York passenger bill of rights law was being watch by Washington legislators and much of the country for guidance on enacting similar laws in all states.

At this point it is unlikely any other State will pass a passenger bill of rights law. Once a federal court has issued a ruling on a new legal issue  - other federal courts will look to that court decision for guidance, and will likely follow its lead. For example – if Washington passed a passenger bill of rights law – a federal lawsuit would be filed and the 9th Circuit Court of Appeals – which decides Washington cases involving federal law issues – would likely follow this federal decision about New York’s law.

Airline Passenger Bill of Rights is now for all intensive purposes dead at the State level. Only action by the federal government – i.e. the U.S. Congress – will be able to stop the airline abuses that passengers suffer when stuck in a plane on the ground for hours on end . Let’s hope the next U.S. President will help us because Bush is unlikely to sign such a law even if passed by Congress.

Source: Seattle PI