Opinion – New DUI laws not tough enough

The Dover Post Wednesday reported that Governor Markell signed two bills designed to toughen up DUI laws for repeat offenders.  House Bill 168 increases penalties for serious repeat offenders, and provides for in-patient treatment for those who need it. House Bill 174 creates the crime of vehicular assault third degree, a class B misdemeanor.

As a personal injury attorney who often represents the injured victims of drunk drivers, I find it frustrating that the General Assembly made it a class B misdemeanor to drive drunk and hurt somebody. A class B misdemeanor? Really? 

Although the potential sentence for a class B misdemeanor under Delaware law is up to six months in prison, the truth is that it would be exceedingly rare for someone to get a six month sentence on a class B misdemeanor conviction. The Truth In Sentencing (TIS) Guidelines published by the Delaware Sentencing Accountability Commission (SENTAC) do not recommend jail time for class B misdemeanors.  Rather, the presumptive sentence merely includes a fine, court costs, and payment of restitution to the victim for things such as medical bills or replacement of property that was damaged.

Here’s a better idea: we have drug asset forfeiture laws. Get caught with drugs in your car, and you may find that the State of Delaware takes your car from you. Why not have an automobile forfeiture law for repeat DUI offenders? Get caught driving drunk three times and you’re out – your car belongs to the Diamond State. It seems to me that would stop a lot of drunk drivers before they get to their 4th, 5th or even 6th DUI offense.

Opinion of Ben Schwartz only.


Chris White’s killer gets 25 years

Last Friday, the Superior Court of Delaware sentenced Jesus Pinkston to 25 years behind bars for killing well loved Delaware attorney Chris White. Chris was a good friend and the director of Delaware Community Legal Aide Society, Inc. In the humble opinion of this writer, 25 years is about 75 too few. See  the full story here.

Affidavits for UIM Claims

Ben Schwartz - Delaware LawyerRecently, I have had several discussions with other Delaware personal injury lawyers who indicated they do not regularly obtain affidavits for use in UIM claims. This is like skipping through a mine field. As Plaintiff’s counsel, when you receive a policy-limit settlement offer from the liability carrier, you must obtain a number of items to perfect a UIM claim. You must obtain a certified copy of the declarations page from that BI policy. Also, you must require the BI adjuster to secure an affidavit of the at-fault driver (and anyone else who may bear any liability) to the effect that there is no other insurance that would apply to the accident.

In order to be eligible to receive UIM benefits, an injured party bears the burden of establishing that they exhausted all applicable policies of bodily injury liability coverage. 18 Del.C. § 3902(b)(3). To see a recent example, see Sivakoff v. Nationwide, No. 781, 2010 (Available at courts.delaware.gov under 2011 Supreme Court opinions). There, the Court threw out the Plaintiff’s UIM claim because there were two bodily injury policies and Plaintiff only exhausted one. Plaintiff was therefore ineligible for UIM benefits.

Don’t go skipping — get those affidavits!