Drunk Driving Accidents: Victim's Rights

In this podcast episode, Josh and Aaron talk about a unique aspect of drunk driving cases – victim’s rights. Turn in to learn more about punitive damages, the rights and powers granted to victims of crimes, and how the experienced drunk driving accident attorneys at FVF Law help their client’s voices be heard.

FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

Intro: Thank you for tuning into Summary Judgment where Austin Personal Injury attorneys, Josh Fogelman and Aaron von Flatern of FVF Law discuss the ins, outs and in betweens of personal injury cases.

Aaron Von Flatern: Alright, welcome back to Summary Judgement. This is Aaron von Flatern, co-founder of FVF Law. I’m here with my law partner, Josh Fogelman. Josh, today we’re talking about drunk driving accidents again, right? We talked about it in a prior podcast. Today we’re going to go over a unique aspect of it that pertains to victim’s rights and how that can actually help personal injury lawyers prosecute these unique claims. So Josh why don’t you start us off with a little background about why we even are here talking about this as a unique aspect of these cases.

Josh Fogelman: Yeah, well, I think as we kind of touched upon during our last podcast about drunk driving accidents, there’s a really unique aspect of drunk driving accidents that is worth discussion and worthy of development by a personal injury lawyer on behalf of a client, which is this element or this aspect of punitive damages, which basically, as we discussed last time, allows a person who’s been victimized by a drunk driving accident to not just secure financial compensation for their harms and losses, but also to recover these punitive damages or these penalty damages that are designed to deter that type of wrongful conduct in the future. But of course, to prove the wrongful conduct, you have to find out a lot of details about what was going on with the drunk driver on that night, and also… We also always like to investigate and find out where the drunk driver was coming from because we frequently find, particularly in catastrophic driving accident cases where there’s a real serious injury or even a death, the drunk driver themselves have insufficient funds or insurance policies or assets from which we can recover in order to try to make our clients whole. And one of the big roadblocks that we frequently hit when we’re trying to investigate drunk driving accident cases is trying to get access to that information. Where were they drinking? What were the circumstances leading up to the crash itself?

Because a lot of that information is protected under the Open Records Act, because there is usually an ongoing criminal investigation associated with a drunk driving accident, so we don’t really get to dig and poke and prod and get the type of information from the state that is really relevant and germane to what we’re trying to prove. And so what we’re trying to do, aside of course from helping our clients navigate through their role and responsibilities in the criminal aspect of the case, through the criminal procedure in the criminal justice system, we like to figure out any points of leverage that we might be able to find so that we can have access to the critical information that we need in order to do the best we can for our clients.

Aaron Von Flatern: Yeah, I think it’s important to point out that as a firm, we’ve always avoided the word victim. Sometimes it kind of has a negative connotation to it, and people think, well, we’re over here whining when actually what we’re trying to do is just to enforce the safety rules that keep our community safe. But in this particular context, victim is a very important word because it gets you access to an entire world of information. That’s really what we’re talking about here, is information. We’re facing roadblocks with the Prosecutor’s Office, with the police, and the defendant him or herself usually has a lawyer who is sitting there telling them to plead the fifth and not give any information out, so we’re sitting here trying to put the pieces together. And the idea that your client might be considered a victim under the law gives you a unique standing, I guess I should say, to be able to start to push and get some of that information that would otherwise be withheld. So can you describe how someone might actually wield that power?

Josh Fogelman: Yeah, absolutely. So by virtue of the Texas Constitution, victims of crimes have been granted certain rights, and then the Texas legislature has sort of taken that grant of power and expanded the scope and further define what those rights are, and the rights are really quite numerous and far reaching. So for purposes of this podcast, I think I’d like to just sort of focus on those that are really important to our aspect of the job from a personal injury lawyer standpoint, the things that we most commonly talk to our clients about that we find helpful in our ability to represent them. But if anybody wanted to really get a full thorough list of what those rights are, they’re found in the Texas Code of Criminal Procedure in chapter 56 or you can just Google it and find a lot of information on the state websites. But generally speaking, the prosecuting office, which is usually going to be either the County Attorney’s Office or the District Attorney’s office, depending on the nature and severity of the crime, whether it’s a misdemeanor drunk driving offense or whether it’s a felony drunk driving offense, they have a crime victim coordinator.

They have someone within the office whose job it is to make sure that they’re reaching out and talking to the crime victims and helping them understand what their full rights and responsibilities are as victims of the crime. The most important ones that my clients tend to focus on and want to know about and become involved in are the right to be present at any in all public court proceedings that are related to the offense. They can actually be a warm body in the court room, as well as the right to be involved in or at least informed of any relevant procedural developments in the criminal case, which includes as a really major part of that, the right to provide what we call a Victim Impact Statement. And what’s hugely important about the victim impact statement is oftentimes, particularly with alcohol-related offenses, because our county attorneys and district attorneys are so busy with other what they consider to be larger crimes and drunk driving is so rampant in our community, oftentimes these drunk driving cases just get sort of processed and plea bargained out. In other words, the prosecutor’s office reaches some sort of a deal with the drunk driver, but by virtue of the crime victim’s rights, a victim impact statement is something that the prosecutor and the judge are required to consider as part of either the plea bargaining process or if it does proceed to some sort of a criminal trial as part of the actual sentencing process.

And so what’s really important to know about this is the victim has a voice, and with that voice comes power. Because ultimately, if the criminal is looking to get some sort of a favorable deal, trying to get their criminal case closed, and they’re on the brink of reaching a deal, the crime victim or the victim’s family in some circumstances can really raise a stink about it and make their voice heard and known. And oftentimes, by being allowed and by being a squeaky wheel, we can leverage our way into working with the prosecutor’s office or the criminal defense attorney to have access to some of the information that we might not otherwise have while the criminal investigation is ongoing, such as where the drunk driver had been drinking, so that we might be able to consider pursuing a dram shop claim. And we’ve had a lot of success being able to do that within the time limits that are imposed by law, so that we could get a lawsuit on file or at least begin investigating a dram shop case or a case against the bar for over-service. That has opened the door to successful recoveries for our clients.

Aaron Von Flatern: Now, that’s right. I’ve had cases where I’ve had to call the criminal defense attorney and first make an appeal to the defendant and say, “Look, this person really hurt a family, really devastated somebody’s life. It’s time for them to cleanse their soul and give us some information. You tell us where they were drinking that night, the minimum requirement to be a good person here.” But usually that doesn’t work, and so then the next discussion is, my client is going to have this discussion with the prosecutor. My client has a voice and is at the table. When the prosecutor is deciding whether or not to recommend a plea deal to the judge, the prosecutor is going to ask, “Has there been any restitution? Has the defendant caused a harm that can’t be put back together again? And that’s where we like to come in and help our clients complete those victim impact statements. And so if you’re sitting there with one of those in front of you right now, pick up the phone and call a lawyer who can guide you through it, because it’s important that you establish that this is not just some fender bender. If you’ve got future harms, spinal problems for life potentially, you need to establish those in that record for the prosecutor and you need a lawyer to probably guide you so you don’t say it in a way that might harm you in a civil proceeding later. And so I’m getting into the weeds a little bit, Josh, from a high-level view on this, what’s the bottom line recommendation?

Josh Fogelman: Yeah, bottom line recommendation is, if you’ve been hurt or a family member has been seriously injured in a drunk driving accident, figuring out the proper avenues for securing recovery for the inevitable financial and quality of life harms and losses that occur as a result of that is critically important and figuring it out is really challenging, so talking to someone who’s been down that road before, who understands the laws and understands the appropriate avenues and the nuances, will make a tremendous difference in the outcome of your case.

Aaron Von Flatern: That’s right, that’s right. Well, thanks for listening. This has been another episode of Summary Judgment and hopefully tune in next time to get some good information about trucking accidents.