Blogs from February, 2020

If you or someone you know has ever been injured while using a commercial product, the manufacturer or seller of that product could be legally responsible for that injury. In product liability cases, companies are held liable to compensate persons injured by their products for monetary losses you sustained as a result, including hospital bills, as well as the pain or disfigurement you suffered.

However, liability for injuries stemming from the use of a product is limited to cases where the product contained a dangerous defect. Such defects can result from errors or failings in the design or manufacturing process.

Liability for Design Defects

Generally, the manufacturer of a product is responsible for creating products that are considered reasonably safe when used for its intended purposes. If a product is unreasonably dangerous as a result of how it was designed, its manufacturer can be held liable for resulting injuries.

In Virginia, a manufacturer is liable for a defectively designed product if the plaintiff can prove the following elements:

• The product was unreasonably dangerous for any reasonably foreseeable uses
• The product was unreasonably dangerous at the time it left the manufacturer’s hands

Virginia courts have held that a product is unreasonably dangerous if “an alternative design is safer overall than the design used by the manufacturer.”

For example, if a car manufacturer knew that adding rubber insulation around the fuel tank of one of its vehicles would eliminate the risk of explosion in rear-end-collisions—but chose not to adopt such a design—the manufacturer may be liable for the injuries and deaths resulting from such an explosion.

The Virginia Supreme Court has also recognized that government standards and industry practices and customs “are highly relevant on the question of whether the manufacturer’s design was negligent because they permit an inference that the manufacturer exercised (or failed to exercise) ordinary prudence.”

In a product liability case involving airbags, the Virginia Supreme Court held that “A design is not safer if the proposed modification would expose operators and bystanders to an overall greater risk of injury or death than under the challenged design.”

The Law Offices of Daniel J. Miller Is Committed to Protecting Your Rights

If you have any questions or concerns about your legal rights and interests when it comes to a personal injury matter, you should seek the advice of an experienced attorney from The Law Offices of Daniel J. Miller. We have the knowledge and in-depth understanding of Virginia personal injury law to help you obtain monetary compensation for any injuries you received as a result of another person’s wrongdoing.

Please call us at (757) 267-4949 or contact our office online for a free consultation about your case.

If you are pulled over under suspicion of drinking and driving, the best way to protect yourself is by understanding your rights. Regardless of whether or not you have actually done something wrong, you should know what Virginia’s laws on field sobriety tests are.

What You Can Do if You are Pulled Over

When you get pulled over on suspicion of driving while intoxicated, the officer may ask you to perform a field sobriety test. Only if you are completely sure you will pass, should you proceed. These tests are voluntary; however, you have the right to refuse them. In fact, refusal is almost always in your best interest. Remember, the court cannot use your refusal as evidence against you.

One type of field sobriety test is the preliminary breath test (PBT). During a PBT, an officer will ask you to breathe into a breathalyzer that measures our blood alcohol concentration (BAC). The problem with breathalyzers is that they are not always accurate and can give false readings. With that being said, an officer can still use that as evidence to determine whether they have probable cause to arrest you for a DUI.

What You Can Do if You are Arrested

The only time you are required to take a breath test is if you have already been arrested for DUI. Due to Virginia’s “implied consent” laws, you automatically consent to a drug test or a measuring of your BAC when you are arrested. This must be done within three hours of driving either through a breath test, blood test, or both.

If you refuse this mandatory test after being arrested for a DUI, you face serious consequences. First, your license will be suspended for one year, and second, your refusal can be used against you in court. At this time, the arresting officer must give you this information right away.

If you repeatedly refuse a breath test, your charges will be more severe each time. For those with a refusal violation within the last ten years, they face a three-year license suspension and a misdemeanor charge.

Refusing a Breathalyzer Test

Many states have adopted the system of implied consent. Essentially, if you are arrested under suspicion of a DUI, the authorities assume that you’ve agreed to a blood alcohol test. Police can’t force you to take the test, but they can charge you for refusing.

Breathalyzer tests should not be administered on the road. Police give these tests at the police station after they make an arrest.

Penalties for Refusing a Breath Test in Virginia

First Offense

Your first refusal is considered a “civil offense.” It normally results in an extra year added to a license suspension. Police could also use it to hit you with other DUI-related punishments.

Two or More Offenses

If you have two or more breath test refusals within a 10 years, you can be formally charged with a crime. Multiple refusals result in a first-degree misdemeanor charge. Penalties include up to 1 year in jail and fines as high as $2,500. Since this is a DUI-related offense, you could also face a 3-year license suspension, even if you were driving sober.

Preliminary Breath Test (PBT)

You should also know that there is another test police can give, the preliminary breath test. This can be administered on the side of the road. Police use a breathalyzer device for these tests, but the results are not admissible in court. They are used to help build probable cause against you.

Refusing a PBT is legal. Police, however, can be tricky with a PBT. You can’t be directly arrested for refusing it, but your refusal could give them more “probable cause” to believe you are drunk driving. They’ll scrutinize you more closely, looking for any reason to believe you are intoxicated.

If you refuse a PBT and wind up arrested, consult an attorney right away. They can closely investigate your arrest, and if they find an abuse of power, they may be able to have your case thrown out.

Defenses Against Implied Consent

If you’ve refused to take a chemical test and been charged for doing so, here are some defense strategies you can discuss with your attorney.

Lack of Probable Cause

Remember, there’s a reason why the police wanted to test you in the first place. You were already arrested for drunk driving, and the breathalyzer test is just a part of that arrest. To get at the heart of your refusal, you can challenge the motivations behind your arrest.

For instance, there may have been no good reason to assume you were drunk. You may have been speeding or even driving recklessly, but those behaviors do not automatically indicate inebriation. Perhaps the police claim they smelled alcohol on your breath, but they didn’t take your medical history into account. Some conditions like diabetes can create smells that mirror alcohol.

Your attorney should take a close look at the details of your arrest. If there was flimsy probable cause for an arrest and subsequent chemical test, these facts can be challenged in court.

Abuse of Power

Police often use trickery to secure their arrests. They can lie about the evidence, for example. A close examination of exactly what they said during your arrest is important. They may have made promises that mislead you into believing you could refuse the test. Perhaps your arrest included threats or even a degree of entrapment. If the police abused their power during your arrest, your refusal of a chemical test may have been justified.

No Refusal

Misunderstandings happen, especially between the authorities and the accused. It’s possible that you consented and were ready to take the test, only to find yourself suddenly charged with a refusal. Once again, make sure your attorney thoroughly investigates every detail of your arrest. You should not be charged on a miscommunication or a technicality, and your lawyer should expose these inconsistencies in court.

Ultimately, it is up to you whether you want to take or refuse a chemical test in a DUI case. Just be aware that refusal comes with consequences. Refusal also does not shield you from a DUI charge. Chemical testing is just one piece of evidence police can use, so consider all the potential outcomes before refusing testing.

If you are arrested for suspicion of DUI, contact The Law Offices of Daniel J. Miller immediately at (757) 267-4949">(757) 267-4949. We are here to protect your rights.

What Is Child Abuse?

Under Virginia law, a person commits child abuse if they assault or beat a child. This includes physical, sexual, and sometimes psychological abuse. Furthermore, a parent or any adult who stands in loco parentis—Latin for “in place of the parent”—and neglects a child such that the child suffers injury or is placed in serious risk to their safety and welfare may be liable for committing child abuse.

The consequences of child abuse can be very severe, ranging from criminal punishment to civil or administrative penalties. Such penalties include liability for damages and having one’s children removed from their custody.

Virginia Mandatory Reporting Laws

In general, a person standing in loco parentis with respect to a child is obligated to take certain steps to ensure the child’s safety and wellbeing. Of course, the parents of a child have a legal duty to protect their children from certain harms. However, someone who has assumed the responsibility of caring for a child in the absence of the child’s actual parents or guardians, will be held to the same duties as a parent.

The duty to take reasonable steps to ensure that a child is free from abuse may include the duty to inform law enforcement authorities about possible instances of child abuse. This duty is triggered after a responsible adult has witnessed facts that would lead a reasonable person to conclude that child abuse has occurred.

Under Virginia Code § 22.1-291.3, teachers and other school employees are required to report suspected child abuse. Furthermore, school employees are immune from civil or criminal liability for making reports that turn to be inaccurate, unless they made the report with reckless disregard for its truth or falsity, or for some malicious purpose—such as getting the alleged abuser into trouble.

Other than teachers and school staff, there are other jobs where a person is required to report suspected child abuse.

According to Virginia Code § 63.2-1509, you are required to report child abuse if you occupy one of the following professions:

• “any person licensed to practice medicine or any of the healing arts;
• any hospital resident or intern, and any person employed in the nursing profession;
• any person employed as a social worker or family-services specialist;
• any probation officer;
• any teacher or other person employed in a public or private school, kindergarten or nursery school;
• any person providing full-time or part-time child care for pay on a regularly planned basis;
• any mental health professional;
• any law-enforcement officer or animal control officer;
• any mediator eligible to receive court referrals pursuant to…;
• any professional staff person, not previously enumerated, employed by a private or state-operated hospital, institution, or facility to which children have been committed or where children have been placed for care and treatment;
• any person 18 years of age or older associated with or employed by any public or private organization responsible for the care, custody, or control of children;
• any person who is designated a court-appointed special advocate…;
• any person 18 years of age or older who has received training approved by the Department of Social Services for the purposes of recognizing and reporting child abuse and neglect;
• any person employed by a local department…who determines eligibility for public assistance;
• any emergency medical services provider certified by the Board of Health …, unless such provider immediately reports the matter directly to the attending physician at the hospital to which the child is transported, who shall make such report forthwith;
• any athletic coach, director, or other person 18 years of age or older employed by or volunteering with a private sports organization or team;
• any administrators or employees 18 years of age or older of public or private day camps, youth centers, and youth recreation programs; and
• any person employed by a public or private institution of higher education other than an attorney who is employed by a public or private institution of higher education as it relates to information gained in the course of providing legal representation to a client.”

Need Legal Representation? The Law Offices of Daniel J. Miller Can Help

Adults who assume the responsibility for a child’s wellbeing have a legal duty to report child abuse. To better understand the nature of this duty, you should consult a skilled lawyer from The Law Offices of Daniel J. Miller. Our legal team has years of experience handling various legal issues in connection with Virginia family law, including mandatory reporting requirements for child abuse.

To arrange for a free initial case evaluation, call The Law Offices of Daniel J. Miller at (757) 267-4949 or make an online request for a consultation today.

The Criminal Consequences of Breaking Traffic Laws

Each state has a comprehensive set of laws regulating automobile and pedestrian traffic. Anyone who has received a ticket for speeding or jaywalking has committed a criminal offense. The severity of the penalty depends on the violation. For example, speeding is typically considered to be a citable offense warranting no jail time, but only a relatively low fine. In contrast, reckless driving may be punished as a class 1 misdemeanor or a more serious offense if it results in serious bodily injury.

The Civil Consequences of Traffic Violations

The violation of state traffic law does not trigger civil liability by itself. The civil justice system is designed to rectify harms committed between persons. For example, the act of speeding alone does not necessarily imply that another person was harmed—although many people may be offended by the act in certain situations. It is only when a traffic violation results in an injury to another person or their property that the violator may be held civilly liable.

In general, a person is liable for negligence if they injure someone as a result of their failure to take reasonable steps to avoid that harm. All persons are held to a minimum standard of care to avoid causing harm to others.

For example, if a person was driving down the road at a reasonably safe speed and distance from under the circumstances, but was unexpectedly struck by lightning, causing their car malfunction and careen into another car, they are probably not liable for negligence.

However, if a person collided with a car because they were responding to a text message on their phone and failed to notice that the vehicle in front of them suddenly stopped, they likely liable for negligence. That is because a reasonable person would understand that diverting one’s attention from the road in front of them is not safe.

Generally, the plaintiff has the burden of proving that the defendant breached their duty of care. This requires them to present evidence in court as to what a reasonable person would do in similar circumstances.

Traffic laws, such as those prohibiting drivers from texting while driving, can be used as evidence of the applicable standard of care in a negligence case. When a person violates a traffic law, they are considered negligent per se—a Latin term meaning “in itself”—and they are liable for damages if such a violation was the legal and proximate cause of another person’s injury.

For More Answers, Consult an Attorney from The Law Offices of Daniel J. Miller

If you’ve been injured as a consequence of the negligent or wrongful conduct of another person, you might be entitled to a legal remedy. For a better understanding of your legal rights, you should get in touch with an experienced attorney from The Law Offices of Daniel J. Miller. We have experience handling a variety of legal disputes involving personal injury law, including automobile accidents.

Contact our law firm at The Law Offices of Daniel J. Miller or visit us online to schedule a free initial consultation about your rights today.

Sham Marriages

The notion of a “sham marriage” concerns marriages entered into primarily for some ulterior purpose. Typically, sham marriages involve what are known as “green card marriages.” Under federal immigration law, the foreign spouse of a U.S. citizen can get a spousal visa to enter the United States and obtain lawful permanent resident status. This status often associated with a card that allows them to leave and enter the country without a U.S. passport.

Federal law provides that marriages entered into for the purpose of evading immigration laws are considered “sham marriages” and may result in the denial of an immigrant visa for the foreign spouse, their removal from the United States, and possibly criminal penalties for the U.S. citizen.

Joke Marriages

Joke marriages involve situations where the parties got married in jest, or on a dare, but had no intention of actually being bound in matrimony. For example, if the parties went to Las Vegas and had the idea of experiencing a quick and cheap chapel wedding for fun—maybe as a result of getting intoxicated—but had no intention of assuming the rights and responsibilities of a real married couple at the time, it is considered a joke marriage.

The Legal Consequences of Sham and Joke Marriages

Generally, invalid marriages are grounds for an annulment. However, state law—rather than federal law—governs the issue of whether a marriage is valid. For example, Virginia law provides that a marriage is valid without regard to the reasons why the couple got married, as long as they intended to attain a marital status.

Virginia family law only requires a couple to:

• Get a valid marriage license
• Have a ceremony performed by a marriage commissioner
• File the marriage with a circuit court clerk for public records.

As a result, a sham green card marriage does not necessarily mean that the marriage is invalid under Virginia law. However, such a marriage may be “voidable,” meaning that the parties can choose to get an annulment on that ground.

As mentioned above, Virginia law requires the parties to intend to assume marital status when they entered into their marriage for their union to be legally valid. If the parties had no such intent, it might be annullable as a joke marriage. Additionally, marriages entered into for the purpose of avoiding social embarrassment are void if the parties never lived together as a married couple.

Call The Law Offices of Daniel J. Miller for Quality Legal Advice

Are you concerned about your legal duties and rights regarding an issue related to Virginia family law? If so, it is in your best interest to consult a licensed attorney at The Law Offices of Daniel J. Miller. Our team of dedicated lawyers has more than two decades of collective legal experience litigating and negotiating The Law Offices of Daniel J. Miller cases involving Virginia domestic relations and marriage law.

To schedule an initial consultation, please call us at (757) 267-4949 or contact our firm online today.