In the United States, the federal government generally considers a crime punishable with incarceration for one year or less to be a misdemeanor. All other crimes are felonies. Many states also follow this.

The distinction between a felony and misdemeanor has been abolished by most other common law jurisdictions (e.g. Crimes Act 1958 (Vic., Australia) s. 332B(1), Crimes Act 1900 (NSW., Australia) s. 580E(1)). Those jurisdictions have generally adopted some other classification, e.g. in Canada, Australia, the Republic of Ireland and the United Kingdom, the crimes are divided into summary offenses and indictable offenses.

In some jurisdictions, those who are convicted of a misdemeanor are known as misdemeanants (as contrasted with those convicted of a felony who are known as felons). Depending on the jurisdiction, examples of misdemeanors may include: petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespass, vandalism, drug possession, DUI and other similar crimes. In the United States, misdemeanors are crimes with a maximum punishment of 12 months of incarceration, typically in a local jail (again, as contrasted with felons, who are typically incarcerated in a prison). Those people who are convicted of misdemeanors are often punished with probation, community service or part-time imprisonment, served on the weekends.

Misdemeanors usually do not result in the loss of civil rights, but may result in loss of privileges, such as professional licenses, public offices, or public employment. Such effects are known as the collateral consequences of criminal charges. This is more common when the misdemeanor is related to the privilege in question (such as the loss of a taxi driver’s license after a conviction for reckless driving), or when the misdemeanor involves moral turpitude – and in general is evaluated on a case-by-case basis. One prominent example of this is found in the United States Constitution, which provides that the President may be impeached by Congress for “high crimes and misdemeanors” and removed from office accordingly. The definition of a “high crime” is left to the judgment of Congress.

Within classes of offenses, the form of punishment can vary widely. For example, the US federal government and many U.S. states divide misdemeanors into several classes, with certain classes punishable by jail time and others carrying only a fine. When a statute does not specify the class, it is referred to as an unclassified misdemeanor. Sometimes this is done when legislators wish to impose a penalty that falls outside the framework specified in the classes.

Some offenses, though similar in nature, may be felonies or misdemeanors depending on the circumstances. For example, the illegal manufacture, distribution or possession of controlled substances may be a felony, although possession of small amounts may be only a misdemeanor. Possession of a deadly weapon may be generally legal, but carrying the same weapon into a restricted area such as a school may be viewed as a serious offense, regardless of whether or not there is intent to use the weapon.

“The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories.” Gonzales v. Duenas-Alvarez, 549 U.S. __ (2007) (citations omitted).

A felony may be punishable with imprisonment for one or more years or death in the case of the most serious felonies, such as murder. Indeed, at common law when the British and American legal systems divorced in 1776, felonies were crimes for which the punishment was either death or forfeiture of property. In modern times, felons can receive punishments which range in severity; from probation, to imprisonment, to execution for premeditated murder or other serious crimes. In the United States felons often face additional consequences, such as the loss of voting rights in many states; exclusion from certain lines of work and difficulty in finding a job in others; prohibition from obtaining certain licenses; exclusion from purchase and possession of firearms, ammunition and body armour; and ineligibility to run for, or be elected to, public office. In addition, some states consider a felony conviction to be grounds for an uncontested divorce. All of these losses of privileges, including others noted explicitly by the judge in sentencing, are known as collateral consequences of criminal charges. Finally, if a felon is not a U.S. citizen, that person may be subject to deportation after sentencing is complete.

Civil sanctions imposed on United States citizens convicted of a felony in many states include the loss of competence to serve on a grand or petit jury or to vote in elections even after release from prison. While controversial, these disabilities are explicitly sanctioned by the Fourteenth Amendment to the United States Constitution, a Reconstruction-era amendment that deals with permissible state regulation of voting rights.

The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. In Australia and the United Kingdom, it is ‘on the balance of probabilities’. For this reason it is often easier for a family to seek retribution against someone who kills a family member through tort than a criminal prosecution. However, the two actions are not mutually exclusive; a person may be prosecuted criminally for causing a person’s death (whether in the form of murder, manslaughter, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action (as in the O.J. Simpson cases). Wrongful death is also the only recourse available when a company, not an individual, causes the death of a person; for example, historically, families have tried (both successfully and unsuccessfully) to sue tobacco companies for wrongful deaths of their customers.

In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person. Some jurisdictions have recognized a common law right of recovery for wrongful death, reasoning that “there is no present public policy against allowing recovery for wrongful death.” Jurisdictions that recognize the common law right to recovery for wrongful death have used the right to fill in gaps in statutes or to apply common law principles to decisions. Many jurisdictions enacted statutes to create a right to such recovery. The issue of liability will be determined by the tort law of a given state.

The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient’s estate.

The defendant is the health care provider. Although a ‘health care provider’ usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.

1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2. A duty was breached: the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or the thing speaks for itself).
3. The breach caused an injury: The breach of duty was a proximate cause of the injury.
4. Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease.

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible.

The fact-finder will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge’s instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified “just because somebody with a diploma says it is so” (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. In the United States, two models for evaluating the proposed testimony are used:

The more common (and some believe more reliable) approach used by all federal courts and most state courts is the ‘gatekeeper’ model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. Before the trial, a Daubert hearing will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert’s “testimony rests on a reliable foundation and is relevant to the task at hand.” (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

* Whether a “theory or technique . . . can be (and has been) tested”
* Whether it “has been subjected to peer review and publication”.
* Whether, in respect to a particular technique, there is a high “known or potential rate of error”
* Whether there are “standards controlling the technique’s operation”.

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule’s incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical. A problem with Daubert is that the presiding judge may admit testimony which derives from highly contested data. The judge may expand the limits contained in the “school of thought” precedent. Papers that are self-published may be admitted as the basis for expert testimony. Non-peer reviewed journals may also be admitted in similar fashion. The only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training.

Many states also require that a certificate of merit before a malpractice lawsuit is filed which requires a report from a medical doctor that the doctor accused of negligence breached the standard of care and caused injury to the Plaintiff.

The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.

In one particular circumstance, physicians, particularly psychiatrists are held to a different standard than other defendants in a tort claim. Suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another’s suicide, he /she is not responsible for damages which occur after the act. An exception is made for physicians. Although there exists no protocol or algorithm for predicting suicidality with any level of certainty, courts throughout the United States have found physicians to be negligent. Furthermore, damages are routinely assessed based on losses which would hypothetically accrue after the act of suicide.

1 The age of the client

The age of the client is important especially when dealing with fatal accident claims or permanent injuries. The younger the injured victim with a permanent injury the longer that person has to live with the PSLA. As a consequence, the greater the compensation payment. In fatal accident claims, generally the younger deceased, the greater the dependency claim by the partner and children.

2 The nature and extent of the injuries sustained.

Solicitors will consider “like for like” injuries with the case in hand and similar cases decided by the courts previously. This is known as precedents. Generally speaking decisions from the higher courts will bind the lower courts. Therefore, judgments from the House of Lords and the Court of Appeal have greater authority than the lower courts such as the High Court and the County Court. A compensation award can only be right or wrong with reference to previous judgments. Sometimes it is a matter of opinion of how much an injury claim is worth and the skill of the solicitor is persuading the opponent and ultimately the judge that their assessment is right.[citation needed] Solicitors must be careful when looking at older cases when quantifying a claim to ensure that the award is brought up to date and to take into account the court of appeal case in Heil v Rankin. Generally speaking the greater the injury the greater the damages awarded.

3 Sex of the client

Generally speaking damages for personal injury for males and females are the same. However where there can be a difference weighted in favour of females is where the injury results in permanent scarring to the skin. Where the scarring is clearly visible such as the face, legs, and arms, females will usually obtain an greater amount of compensation than males. The compensation reflects the general assumption that females will be affected more than males by scarring and thus will be awarded more. However each case will be decided on its own particular facts. For instance a male model who sustains a scarring tissue to his face may obtain just as much as a female.

4 Personal attributes and fortitude of the client

This heading is inextricably linked with the other points above. Where two clients are of the same age, experience and suffer the same injury, it does not necessarily mean that they will be affected the same. We are all different. Some people will recover more quickly than others. The courts will assess each claim on its own particular facts and therefore if one claimant recovers more quickly than another, the damages will be reflected accordingly. It is important to note here that “psychological injuries” may also follow from an accident which may increase the quantum of damages.

When a personal injury claim is settled either in court or out of court, the most common way the compensation payment is made is by a lump sum award in full and final settlement of the claim. Once accepted there can be no further award for compensation at a later time unless the claim is settled by provisional damages often found in industrial injury claims such as asbestos related injuries.

Special damages

Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs, etc. They are seen in both personal and commercial actions.

Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate problems) and consequential or economic losses resulting from lost profits in a business. Special damages basically include the compensatory and punitive damages for the tort committed in lieu of the injury or harm to the plaintiff.

Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. This can often result in a different measure of damages. In cases where it is possible to frame a claim in either contract or tort, it is necessary to be aware of what gives the best outcome.

The most common types of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, defective product accidents and holiday accidents. The term personal injury also incorporates medical and dental accidents (which lead to numerous medical negligence claims every year) and conditions that are often classified as industrial disease cases, including asbestosis and mesothelioma, chest diseases (e.g., emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease, and chronic obstructive airways disease), vibration white finger, occupational deafness, occupational stress, contact dermititis, and repetitive strain injury cases.

If the negligence of another party can be proved, the injured party may be entitled to monetary compensation from that party. In the United States, this system is complex and controversial, with critics calling for various forms of tort reform. Attorneys often represent clients on a “contingency basis,” in which the attorney’s fee is a percentage of the plaintiff’s eventual compensation, payable when the case is resolved. Oftentimes, having an attorney becomes essential because cases become extremely complex, such as in medical malpratice cases.

In England and Wales, under the limitation rules, where an individual is bringing a claim for compensation, court proceedings must be commenced within 3 years of the date of the accident, failing which the claimant will lose the right to bring his or her claim. However, injured parties who were under the age of 18 at the time of their accidents have until the day prior to their 21st birthdays to commence proceedings. A court has the discretion to extend or waive the limitation period if it is considered equitable to do so. Legal Aid for personal injury cases was largely abolished in the late 1990s and replaced with arrangements whereby the client would be charged no fee if her or his case was unsuccessful (known as No win, no fee).

No win no fee is the term used to describe the Conditional Fee Agreement (CFA) between a law firm and their client. In a Personal Injury claim, this is an agreement between the client and their lawyer, which will enable the lawyer to take on a personal injury case on the understanding that if they lose the case, the client will not have to pay their lawyer’s costs.

However if the lawyer wins the case they will be entitled to their standard fee plus an uplift referred to as a success fee. In English law, the success fee cannot be greater than 100% of the lawyer’s standard fee.

With a portable and quick alcohol breath test, the police can test all drivers (if the law permits), and process the cars one by one as in a conveyor belt. When there is no quick test, a more complicated routine is necessary. Upon suspicion, the stopped driver is required to exit the vehicle and take a roadside sobriety test that requires the demonstration of both mental and balance skills. If the officer determines that the test has not been passed, the driver is then required to take an alcohol breath test (referred to as a Breathalyzer test in the United States).
[edit] Legality

At a sobriety checkpoint, drivers are necessarily stopped without reasonable suspicion, and may be tested summarily and without probable cause. Jurisdictions that allow sobriety checkpoints often carve out specific exceptions to their normal civil protections, in order to allow sobriety checkpoints.

Driving under the Influence of alcohol is a special type of crime, as driving with a blood alcohol content (BAC) over a set limit is defined as the crime; it is not necessary to drive recklessly or cause an accident in order to be convicted. To determine BAC accurately, it is generally necessary for the driver to subject themselves to tests that are self incriminating, and drivers sometimes exercise their right against self incrimination to refuse these tests. To discourage this, some jurisdictions set the legal penalties for refusing a BAC test to equal or worse than those for a failing a BAC test. In other jurisdictions, the legal system may consider refusing the roadside alcohol breath test to be probable cause, allowing police to arrest the driver and conduct an involuntary BAC test.

The Fourth Amendment to the United States Constitution states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Thus the Constitution would appear to prohibit people from being stopped without a search warrant or at least without probable cause that they have committed a crime; however, the warrant requirement only attaches should the search be unreasonable and the Supreme Court, as shown below, decided that such stops are not unreasonable under certain circumstances.

The Michigan Supreme Court had found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement.

Dissenting justices argued that the Constitution doesn’t provide exceptions. “That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion”, dissenting Justice Brennan insisted.

Chief Justice Rehnquist argued that an exception was justified because sobriety roadblocks were effective and necessary. On the other hand, dissenting Justice Stevens countered that “the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.”

Although the U.S. Supreme Court has found sobriety checkpoints to be constitutionally permissible, eleven states have found that sobriety roadblocks violate their own state constitutions or have outlawed them.  Opposition to sobriety roadblocks is generally stronger among civil libertarians, conservatives and libertarians.

In approving “properly conducted” checkpoints, Chief Justice Rehnquist implicitly acknowledged that there must be guidelines in order to avoid becoming overly intrusive. In other words, checkpoints cannot simply be set up when, where and how police officers choose. As often happens in Supreme Court decisions, however, the Chief Justice left it to the states to determine what those minimal safeguards must be, presumably to be reviewed by the courts on a case-by-case basis.

In an effort to provide standards for use by the states, the National Highway Traffic Safety Administration subsequently issued a report that reviewed recommended checkpoint procedures in keeping with federal and state legal decisions. (“The Use of Sobriety Checkpoints for Impaired Driving Enforcement”, DOT HS-807-656, Nov. 1990) An additional source of guidelines can be found in an earlier decision by the California Supreme Court (Ingersoll v. Palmer (43 Cal.3d 1321 (1987)) wherein the Court set forth what it felt to be necessary standards in planning and administering a sobriety checkpoint:

• Decision making must be at a supervisory level, rather than by officers in the field.
• A neutral formula must be used to select vehicles to be stopped, such as every vehicle or every third vehicle, rather than leaving it up the officer in the field.
• Primary consideration must be given to public and officer safety.
• The site should be selected by policy-making officials, based upon areas having a high incidence of drunk driving.
• Limitations on when the checkpoint is to be conducted and for how long, bearing in mind both effectiveness and intrusiveness.
• Warning lights and signs should be clearly visible.
• Length of detention of motorists should be minimized.
• Advance publicity is necessary to reduce the intrusiveness of the checkpoint and increase its deterrent effect.

There are many ways that a person could give themselves the illusion that they are more sober. Drinking coffee increases awareness; therefore, the drinker believes that they are more sober. In reality, the person is still impaired for the purposes of driving, as their coordination, reaction time, etc. are still affected by the alcohol. Eating various dehydrated and salty products such as crackers, chips and pretzels may settle the stomach allowing the consumer to feel more sober when, in reality, they are simply keeping their blood sugars from crashing, as drinking without the consumption of food would.

Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the “drunk tank”) until they are deemed sober enough to be released on bail or on his “own recognizance” (“O.R.”). A date to appear in court for an arraignment will be given to them. If they cannot make bail or is not granted O.R., they will be kept in jail to wait for the arraignment on remand.