What is Modified Comparative Negligence?

 

Road accidents are a fairly common sight in Nevada’s roads. It is a regular sight to read about crashes caused by drunk drivers or reckless pedestrians. Collisions caused by lead drivers may not be as common, but they still pop up from time to time.

In most crashes, the fault lies in only one party or another, regardless of whether or not they started the crash directly. However, Nevada recognizes that there are circumstances where all parties involved led to the crash in one way or another. In such cases, the state awards damages to select parties under the Modified Comparative Negligence rule.

What is this Rule?

Comparative negligence is a legal rule that reduces the amount of damages a plaintiff in a road accident can receive proportionate to how much they contribute to the accident in the first place. That is, if a person seeking damages caused part of the accident in the first place, they will receive only a fraction of the possible reparations. This stands in contrast to contributory negligence, a doctrine that bars reparations even if the plaintiff only if their part in the accident was minimal.

There are currently three types of comparative negligence in effect across the United States today. They are:

• Pure comparative negligence, which subtracts the reparations from the amount of damages inflicted by the plaintiff (i.e., only getting 20% reparations if the accident was 80% their fault)

• ‘Threshold’ comparative negligence, where the plaintiff can only receive reparations if their contribution to the collision is not greater to the other parties. This is Nevada’s current rule, with a damage/negligence threshold of no more than 50% for the plaintiff.

• ‘Parity’ comparative negligence, where the plaintiff’s contribution should not be the same value as the combination of all the other involved parties. 

Note that the terms used for the two types of comparative negligence are conjectural, based on their nature.

Threshold?

As stated earlier, Nevada follows a modified comparative negligence doctrine based on a 50% threshold. If the plaintiff breaches that threshold, they are barred from recovering any reparations from the accident. Also remember that the court has the final say in the amount recoverable for the plaintiff, regardless of how large or small the percentage of negligence is.

In any case, this can be a better situation than being in a handful of states that still implement the contributory negligence doctrine. These states include:

• Alabama

• Maryland

• North Carolina

• District of Columbia

Special Circumstances

There are special circumstances where the responsibility of the crime is placed squarely in the defendant instead of being shared between the parties involved. Such cases are the prerogative of the courts and may or may not be based on the circumstances of the case. Two examples include:

• Failure to follow protocol or policy (i.e., failing to provide safety equipment or guidelines that would have saved an otherwise careless plaintiff)

• Failure to follow societal or judicial norms (like not holding a minor responsible for consenting to sexual activities with an adult, because it was society’s duty to protect the minor in the first place)

Get in touch with a defense attorney to better understand how Nevada’s modified comparative negligence doctrine works.

Who Writes Your Presentence Investigation Report in Las Vegas?

 

The pre-sentencing process is an important interlude between the conviction and the actual application of penalties for a defendant. It is during this period that the presentence investigation report is conducted. The presentence investigation determines what level of penalties are appropriate for a defendant’s crime, based on important information gathered from the defendant and/or their associates.

Such an important document can only be handled by important individuals within the justice system. As a matter of course, the presentence process is handled by officials from Nevada Parole and Probation, a division of the state’s Department of Public Safety. Let’s look at the people who are involved in writing a presentence investigation report in Las Vegas.

Probation Officers

Probation officers are expected to lead in compiling a PSI report as they will interact with the convicted individual on a regular basis. They are thoroughly trained to gather the information efficiently and comprehensively so that nothing is overlooked. Usually, the officer handling the report also becomes a defendant’s assigned probation officer after the sentence is carried out.

Mental Health Specialists

Maintaining a defendant’s mental well-being is still important even when they are serving time. As such, mental health professionals are assigned to interview the defendant and determine if they are mentally prepared (or mentally sane) enough for the possible penalties that befit the crime they were charged with. They can also add suggestions in the report about how to handle a defendant’s mental and emotional state throughout the post-sentencing. Psychiatrists may furnish a medical regimen to ensure that the defendant remains mentally fit, while psychologists can suggest psychotherapy sessions with the defendant.

Medical Professionals

 Medical professionals investigate a defendant’s medical status and background to determine whether or not they are physically prepared to handle the penalties that they’ll be sentenced with. They may conduct health tests that cover different aspects of the body, like weight, blood pressure, medical history and diet, among others. They can also determine if the defendant will need unique add-ons like changed eating habits, unique exercise routines, or a possible transfer to a more accommodating detention facility if the current one disagrees with their physical well-being.

Family and Marriage Therapists

These individuals can conduct a more intensive investigation into the defendant’s personal relationships. They may look into family history, possible divorces and separations, and child support dues that the defendant may have. They may also interview the victims and determine the emotional effect that the crime has had on their family.

These are just four types of professionals that are directly involved with writing a presentence report. Others may be called in depending on the circumstances of your charge and conviction. Consult your defense attorney for more information.

What's the Difference Between Aggravating and Mitigating Factors in a Case?

 

If you’ve read transcripts of court proceedings or watched courtroom dramas, you might have heard the terms ‘aggravating factor’ and ‘mitigating factor’. They appear quite often in more serious criminal hearings, like sexual assault and murder cases.

These terms aren’t just legalese written in records for their own sake. They can affect the severity of a crime and a person’s guilt, and can lead to harsher or lighter punishments, depending on which is more plausible. Let’s look at the differences between Aggravating and Mitigating Factors in a case.

What’s Aggravating?

Aggravating factors increase the severity of a crime and a defendant’s guilt. An increasing number of these kinds of factors can elevate a charge from a lower classification to a higher one up the chain automatically. A confirmed link to the defendant could make it more difficult to have the charges dismissed.

Aggravating factors vary in level and severity depending on the case. They can be as simple as confirmed premeditation for the crime to the intentional use of deadly weapons and force. Other factors can also be taken into account, like an increased risk of re-offending, a previous criminal record, and the defendant’s current mental condition.

What’s Mitigating?

On the opposite end, mitigating factors intend to reduce the severity of a defendant's crime. A greater number of mitigating factors can lessen the impact of the charge and open the defendant to lesser penalties.

Much like aggravating factors, mitigating factors can vary in level depending on the charge. At worst, they can reduce your sentence; at best, they give you a chance to achieve a dismissal even for the worst crimes. Such factors may include the defendant’s background, circumstances out of the defendant’s control, or the defendant’s admission of guilt.

How They Interact

Both factors can affect the outcome of any criminal hearing significantly. As stated earlier, aggravating factors increase the severity of a crime, while mitigating factors reduce it. A defendant must always aim to have more mitigating factors to avoid the worst penalties and/or get a dismissal.

One must remember that Nevada courts must find enough aggravating factors before they can elevate a person’s sentence. Multiple mitigators can invalidate the effect of one heavy aggravating factor, protecting the defendant from the worst convictions. However, there are instances where the aggravating factor is so serious that no number of mitigating factors can reduce its effect.

Factors affecting your charge can spell the difference between a dismissal and a direct transfer to death row. Ask your legal counsel about how to handle these features in your case.

Additional Tasks To Do When on OR Release

 

An own cognizance release is a legal process where a previously-booked defendant can avoid jail time and bail by submitting a written document guaranteeing that they will be on their best behavior outside of prison. The defendant swears on oath that they will follow all the rules of a defendant on bail while they are out of jail. In a way, it’s like being on bail without having to pay.

Usually, being on OR release means that the defendant must stay up to date with all court hearings and regularly report their whereabouts to a case officer monitoring them. Of course, there are other things a defendant may be required to do as part of their dues. Let’s look at some such tasks to do when on OR release.

Drug and/or Alcohol-related Items

This one is usually for those facing a DUI or drug case. The court will require the defendant to be clean or sober for the duration that they are out, except if they require to ingest prescription medication. They may also be required to strap on some alcohol and drug monitoring devices, as well as submit to surprise tests. The defendant may also be required to attempt a substance abuse rehab program even when the court hearing is in order.

Assault/Domestic Violence/Harassment Items

Defendants facing domestic violence and physical assault charges will be required to avoid getting in contact with other parties concerned to the case while they are out. They will also be barred from visiting locales related to the complaint, such as their place of residence (if they are married or living together), their place of work (if they are co-workers), or just about any place with many people (if they pose a risk to the public). In most extreme situations, the defendant may be put under home detention and only allowed to visit certain places under supervision.

Items Related to Law Enforcement

You can expect to be subjected to several police searches for the duration that you are out on OR rules. These searches do not require a search warrant, so avoid resisting if you do not wish to be arrested. You will also be required to report to a probation officer about your activities from time to time. Failure to do so can tip off the authorities that you are missing on your duties.

Miscellaneous Items

Certain cases that have OR options require other kinds of responsibilities so that the defendant can stay out of jail. For example, the defendant may be required to observe curfew hours for as long as they are required. They may also be required to avoid travel outside of Nevada, as well as wear a monitoring device to keep authorities in the know about their current location.

Different charges have different requirements for their OR releases to be granted. Talk to your lawyer about the different own recognizance requirements that you may need.

How To Deal With Warrants in Las Vegas

 

Picture this: one day you just find out that there is a warrant out for you in Las Vegas. You are either out-of-state, or are in an area where the concerned law enforcement have not reached you yet. Going back to Las Vegas can and will lead to an immediate arrest, and you are unprepared for the eventuality. In such situations, a seasoned defense attorney can help.

Defense lawyers are also trained to handle arrest warrants aimed at their clients. They can handle arrangements to make the arrest go smoother and easier for a defendant. Let’s look at how your lawyer can deal with warrants in Las Vegas.

Handling an Arrest Warrant

Arrest warrants authorize police officers to apprehend you anytime, anywhere, so long as it is within legal limits. Officers can visit you at your home or place of residence, or they can meet you at the airport and take you in. Any attempts to avoid facing the cops can be perceived as an attempt at resisting arrest, and can lead to worse consequences afterward.

Your defense lawyer can work with the prosecutor to smooth out the arrest process when the warrant is issued. They will arrange a surrender-and-walk-through procedure where you can report to the court handling the charges against you, get booked, and arrange for the corresponding bail. You are then temporarily free while both the prosecution and your lawyer handle the specifics of the case prior to the hearing.

Working On a Bench Warrant

A Bench warrant can be an additional burden to an already taxing criminal case. This warrant authorizes your arrest if you fail to appear on a court date for the charges against you, or if you violate other court rules. The consequences of a bench warrant arrest can complicate an already tricky criminal hearing.

Fortunately, most defense lawyers can formally request the court to quash the warrant. The court will then allow a hearing where your lawyer can argue your case. If successful, you can avoid any additional penalties and your criminal hearings can proceed as normal.

Always accept a warrant reasonably; failure to do so can add more legal headaches down the line. Consult with a Las Vegas lawyer so you can better understand how to handle an arrest warrant against you.

Other Situations Where You Can Work with a Public Defender

 People face criminal charges in Las Vegas regularly, but not everyone can afford the services of a veteran defense attorney. In such cases, people turn to veteran public defenders instead. These lawyers represent clients without expecting immediate compensation, and can be just as good as private practices when push comes to shove.

Public defenders are oftentimes listed in most criminal proceedings like felony or gross misdemeanor hearings. They are not limited to such cases, however. Let’s look at other situations where you can work with a public defender in Las Vegas.

Parole Hearings

Prison inmates don’t always have financial assistance from outside. As such, most inmates can’t really afford to have legal counsel when summoned for a parole hearing. In such cases, the prisoner can request for a public defender to represent him during the hearings. Many public defenders are trained in dealing with prisoner rights and can effectively argue for the merits of paroling an inmate.

Juvenile Trials

Many minor defendants come from families who would have a hard time paying for a lawyer. As such, many juvenile trials involve public defenders representing these minors. As many cases in juvenile courts take less time to be heard than in adult courts, seeking a public defender over a private firm is more cost-efficient in the long run. The pay-later scheme also works as a plus.

Involuntary Commitment Hearings

An involuntary commitment involves the confinement to a medical institution of a person suffering from a treatable mental disorder against his or her wishes. This cannot be accomplished unless the court determines through a legal hearing that there are grounds to confine the individual. Public defenders have the expertise to handle such sensitive cases, and are more affordable in certain cases when compared to private firms.

Parental Termination Proceedings

Parental termination refers to the removal of a person’s rights to be a parent or legal guardian of another person. This is often an issue between spouses, problems with a legally-recognized guardian, or a case involving an abusive family. Perceived neglect is one of the most common reasons why parental termination charges are filed. In some instances, the neglect is involuntary and is the result of financial troubles. Public defenders can help in such cases if the defendant is short on funds.

Public defenders can cover a lot of legal hearings thanks to their experience. They can be a reliable alternative for people who can’t afford the services of a private defense attorney. Read up more on public defenders to see what other services they can provide for you.

How a Litigation Is Considered Frivolous

Courts throughout the country handle scores of cases on a regular day, ranging from routine charges to landmark hearings. However, there are instances that the court receives a litigation that is so out-of-depth that it wastes the court's time and resources. These instances refer to a frivolous litigation, a kind of lawsuit, charge, or claim that lacks legal merit but is nonetheless submitted to the court for consideration.

There are many factors to help courts identify when a litigation is frivolous. A number of the most prominent ones are listed below.

Legal Fantasies

The first and most prominent factor for a frivolous claim is the lack of legal grounds to support the claim. This could either be due to the improper interpretation of a particular law, the citation of an outdated or unadopted law or amendment, or plain ignorance of established legal statutes. In extreme cases, the litigant adopts an absurd method of interpreting the law in the belief that it shields them from the effects of said law. Methods like specific capitalization, selective reading of court opinions on similar cases, and outright rejection of state and federal institutions as illegitimate are commonplace for frivolous litigants.

Outrageous Motions

These kinds of frivolous cases not only lack any legal merit but fly in the face of fact and common sense. Such kinds of litigation range from filing motions that are not recognized in any competent court of law, utilizing excess legal jargon even in the improper context, requesting extreme remedies for relatively minor crimes, or suing another party based on trivial, unrelated, or imagined matters. For example, a case where a customer sues a restaurant for failing to live up to a 'satisfaction guaranteed' motto and asking millions of dollars in damages payment can be considered frivolous due to the excess damages and the trivial 'offense' incurred.

Bad Faith

Some frivolous motions are not filed for their own merits. Often, there are frivolous lawsuits filed that are intentionally detrimental to another party, or to the court itself. These so-called 'bad faith' lawsuits aim to harass or embarrass the other party into cowering to their demands or leaving them be to pursue their unlawful actions. In many cases, bad faith lawsuits are filed to shut down the operations of the court or other government entity via a series of false and frivolous claims. Common bad faith litigants include tax protestors and anti-government entities who do not recognize state and Federal institutions and who only respect county-level law. Because of how such frivolous claims clog up the legal system and operational capability of government institutions, such actions are often called collectively as paper terrorism.

People should not take frivolous litigation lightly, even if most of the time they end up to be absurd and inconsequential. Conversely, don't let yourself become enjoined to a legal action that will end up being frivolous in the end. Always consult with a competent criminal defense lawyer before making any filings in court.

Why Your Nevada DUI Record Sealing Request was Denied

For a person dealing with a Nevada DUI record (especially those affected by a third DUI conviction), record-sealing is a surefire way to help get their life back on track. Unless their criminal record is sealed, they will have a difficult time getting a job, applying for school or a bank account, or most importantly, reinstating their driving license. Record Sealing allows these individuals to remove the record from their personal file, enabling them to return to their normal life (although higher law enforcement still has access to it for future cases).

Unfortunately, there are many ways why your Nevada DUI record sealing request can be denied. A number of the most common reasons are listed below.

• The statutory length of time was not satisfied (NRS 245)
• There are other pending cases that have not been resolved
• For a former member of the armed forces, you have a Dishonorable Discharge on your record
• You were convicted of severe crimes like child abuse or sexual assault, and/or you are a registered sex offender
• Your petition was incomplete (either brought about by missing documents or other past cases were not included in the petition)

Keeping an eye out on possible hurdles to your record sealing petition is a must if you do not want to waste all your effort for nothing. Consult with a Las Vegas attorney to get a better idea of how to conduct a record sealing petition properly.

What Happens to Embezzled Property in Nevada

Embezzlement as defined by the Nevada Revised Statutes (NRS) is a type of theft crimewhere the thief steals money or properties of the company for their own good. Common examples are siphoning money from the cash register or surreptitiously taking goods from storage to be brought home later. There are also less prominent acts of embezzlement like deliberately defaulting on car rental dues.

Embezzlement comes with its prerequisite penalties for the convicted, including jail time and some severe fines. However, once and all is said done, one question reminds: What happens to embezzled property in Nevada?

• First and foremost, the property is seized by law enforcement as evidence during the embezzlement hearing. It will remain in the possession of the courts until the legal proceedings are complete.
• The owner of the embezzled property is notified through appropriate channels regarding the discovery of their possessions. They are also notified if the accused related to the case has been convicted, plans to prosecute fall through, and/or the case is dropped.
• The embezzled property is delivered to the owner by a peace officer. Usually the transfer is facilitated by the payment of appropriate court fees to release these objects to the original owner.
• Failure to claim the embezzled money or property within six months will mean the turnover to the county treasurer or sheriff of the metropolitan police where they will be put up for auction, be given to charity, or ultimately be destroyed if they are deemed illegal or harmful.

Embezzlement is a serious economic crime that has serious implications on both the convicted and the victim. Consult with a Las Vegas defense attorney if you wish to know more about this crime and how to avoid being accused of it.