When a Florida drunk driver causes serious injury to his or her passengers, occupants of other vehicles or non-occupants, such as pedestrians and bicyclists, it is likely that driver will be named as a defendant in both a criminal and civil case. As Florida DUI injury lawyers at The Ansara Law Firm can explain, these are two totally different processes in different courts pursued for different purposes. However, that does not mean one will have no impact on the other. One of the most notable is the issue of compelling defendant’s testimony in a civil lawsuit, which then becomes public record that can be used against him or her in the pending criminal case. But of course, the Fifth Amendment to the U.S. Constitution gives those accused of criminal wrongdoing the right to remain silent to avoid self-incrimination. That silence and refusal to answer questions cannot be used against them for the jury to infer wrongdoing.
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.
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