Courts in Florida have held that defendants in wrongful death lawsuits can invoke their Fifth Amendment right during the civil litigation process if compelling that testimony could potentially amount to self-incrimination in the pending criminal case. However, as noted in the 1976 U.S. Supreme Court decision in Baxter v. Palmgiano, the Fifth Amendment doesn’t guarantee negative inferences against a defendant in a civil lawsuit when they refuse to answer pertinent questions regarding the evidence against them. This doesn’t mean the judge or jury in the civil DUI injury lawsuit can simply point to defendant’s refusal to answer questions and declare that alone as basis for a decision in plaintiff’s favor. However, the court is entitled to draw inferences against a defendant who chooses to invoke the Fifth Amendment right to silence. In U.S. ex rel. Bilokumsky v. Tod in 1923, the U.S. Supreme Court ruled that, “silence is often evidence of the most persuasive character.”

Fort Lauderdale DUI injury lawyers can use this to their advantage in drunk driving civil litigation. How Long Does a DUI Injury Defendant’s Right to “Plead the Fifth” Last?

The supreme court in Alaska recently dealt with this issue in the case of Graham v. Durr. In that case, defendant struck and killed two pedestrians after losing control of his vehicle. He was arrested two counts each of second-degree murder and manslaughter and one count DUI.

Months later, the families of those pedestrians filed DUI wrongful death lawsuits against both the driver and his employer. Defendant refused to respond to a portion of plaintiff’s complaint, asserting his Fifth Amendment right to remain silent. Soon thereafter in the criminal case, he pleaded guilty to the second-degree murder charges in a negotiated plea deal with prosecutors. He then did provide the civil lawsuit plaintiffs with initial disclosures, but still refused to provide the factual basis of his defense or the identity of those possibly responsible, again invoking the 5th Amendment. He was sentenced in the criminal lawsuit and, as plaintiff would later point out, participated in an interview with a probation officer wherein he admitted he caused the crash, submitted oral and written statements in that presentence report and expressed remorse at his sentencing hearing. He was sentenced to 32 years in prison.

A few months later, defendant filed a notice of appeal in the criminal case, arguing the judge made several evidentiary mistakes and his sentence was excessive. He requested his sentence be vacated and the matter remanded for resentencing. Around this time, plaintiffs sent a list of questions they wanted answered for the civil case discovery process. Defendant refused, citing his pending appeal and Fifth Amendment privilege. His attorney asked plaintiffs whether they would prefer to proceed with the deposition of defendant – knowing he would not answer key questions – or postpone it until the criminal case had played out entirely. That deposition didn’t happen.

Another discovery request sent by another plaintiff was again rejected on the basis of the 5th Amendment. That plaintiff moved to compel defendant to participate in discovery and refuse his privilege against self-incrimination as an excuse not to answer key questions. Plaintiffs argued that, No. 1, plaintiff wasn’t appealing a finding of guilt in the criminal case, only the sentencing. They noted that in Alaska, a defendant who is resentenced cannot receive a sentence that is more than the original. They argued defendant waived his right to plead the Fifth when he made statements of guilt at the sentencing hearing, and that even if he did retain his Fifth Amendment privilege, he should be compelled to testify anyway because there was no risk he’d be placing himself at greater risk in the criminal case appeal. Defendant argued he retained his Fifth Amendment right until his appeals were exhausted and he’d had a chance to seek all post-conviction relief.

The Alaska Supreme Court sided with defendant, at least with regard to retaining his right to silence until the appeals process was over. It declined to make a decision with regard to whether he was entitled to it until he had explored all post-conviction relief avenues, saying that issue wasn’t ripe.

Although this ruling has no direct impact on Florida DUI injury lawsuits, it is quite possible that if and when confronted with a similar conflict, the supreme court in Florida will look to the precedent set by sister courts in other states.

Call Fort Lauderdale DUI Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Graham v. Durr, Oct. 26, 2018, Alaska Supreme Court

More Blog Entries:

Appeals Court Backs Florida Injury Lawsuit Plaintiff, Ruling General Negligence, Not Medical Malpractice, Oct. 30, 2018, Fort Lauderdale DUI Injury Lawyer Blog

The answer depends on the underlying circumstances, but generally, you will want to explore:

• The at-fault driver/ insurance;
• The owner of the vehicle/ insurance;
• The employer of the at-fault driver (if he or she was working);
• The establishment that served the at-fault driver alcohol.

That last one – which falls under Florida’s dram shop law – will only work if the drunk driver was either under 21 or known to the establishment to be habitually addicted to alcohol. Per F.S. 768.125, those are the only circumstances under which an establishment may be held accountable for the injurious actions of a drunk driver.

The goal of a dram shop law is to stop commercial establishments from over-serving people who might not be capable of determining when they’ve had too much to drink. However, there are many people who say it doesn’t go far enough. In fact, there are many other states that allow injured victims of drunk drivers to sue establishments that continued to serve alcohol to patrons whom they knew or should have known they were drunk.

Although that is not the case in Florida, there are some plaintiffs who continue to test the boundaries of the statute. One example of this was seen in the recent case of De La Torre v. Flanigan’s Enterprises, Inc., DBA Flanigan’s Bar and Grill.

According to court records, a woman was drinking at a bar one night in December of 2011. While there, she got drunk. At one point, the employees stopped serving alcohol to her and provided her with water in an attempt to “sober her up.”

Soon after, the driver got into her vehicle, crossed into oncoming traffic and struck a vehicle. Inside that vehicle were plaintiffs, and they were seriously injured.

The bar had an internal policy – not required by law – that was supposed to help stop patrons from driving away from the premises drunk. It involved either taking the patron’s keys and/or calling law enforcement to do so or contacting a taxi or sober driver for the employee.

However, on this night, the workers did not take this action.

Plaintiff sued the bar, alleging it had undertaken a voluntary duty to prevent the driver from leaving drunk, and that it was negligent in performing this duty.

The bar moved to dismiss the case, arguing the lawsuit was precluded by F.S. 768.125, and it had no statutory duty to stop an over-21 person about whom they had no prior knowledge of a history of alcohol abuse. Trial court agreed and dismissed the action.

Plaintiffs appealed. Although conceding that none of the statutory exceptions were applicable in this case, they contended liability wasn’t predicated on the sale of alcohol, but rather by the fact that the bar had undertaken a duty of care. Known as the so-called “undertaker’s doctrine,” it was noted in the 2009 Florida Supreme Court case of Wallace v. Dean.

It can be invoked when a person gratuitously or for consideration renders services to another as necessary for the protection of a third person and/or that person’s things and is therefore liable to that third person for physical harm resulting from his failure to exercise reasonable care in that undertaking.

However, Florida’s 4th District Court of Appeal ruled that the undertaker’s doctrine did not apply in this case. Florida law doesn’t require business owners ensure the safety of intoxicated persons who leave the premises and to impose that additional requirements on those who attempt to enact policies to reduce drunk driving would, the court ruled, be unfair and counterproductive.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

De La Torre v. Flanigan’s Enterprises, Inc., March 9, 2016, Florida’s 4th District Court of Appeal

More Blog Entries:

Report: U.S. Drivers are Distracted More Than Half the Time, March 20, 2016, Fort Lauderdale DUI Injury Lawyer Blog