Author: admin

woman with pain and suffering damages from accident

How Are Pain and Suffering Damages Determined?

Posted on

If you have been injured in some type of accident, whether it be a car accident, a slip and fall, or something else, you know that the pain involved can extend far beyond the physical. Being in pain, living with pain, undergoing sometimes invasive medical treatment, and the impact all of this can have on a person’s life can be substantial. That is why injury victims can make a claim for pain and suffering damages in a personal injury action. While pain and suffering is very real, it can also be more complicated to calculate. Unlike economic damages, such as past and future medical bills, lost wages, and loss of earning capacity, pain and suffering falls into the non-economic category of damages. This is because these bills and receipts, the hard numbers, used in calculating economic damages are not available in determining pain and suffering damages. How then are pain and suffering damages determined? We will discuss the answer to this question here

How are pain and suffering damages determined?

There are several methods that can be employed in order to determine pain and suffering damages. The most commonly used method is referred to as the “multiplier method.” In the multiplier method, the total actual damages award is calculated. Actual damages are those deemed necessary to properly compensate the injured person for the harm sustained as a direct result of the injuries incurred. Actual damages are also referred to as “compensatory damages. Once the actual damages have been calculated, the amount is multiplied by the “multiplier.” The multiplier is meant to reflect the degree of seriousness associated with the injured party’s pain and suffering, as well as other damages suffered. The multiplier generally falls in the range of 1.5 to 5. For extreme injuries, the multiplier may even reach upwards of 6 or 7.

In the multiplier method, there are several factors that are considered when determining what multiplier should be used. The clarity with which a driver’s fault can be determined may be a factor. The severity of the injuries sustained and the period of recovery are significant factors. Additionally, the level of proof to substantiate the level of pain and suffering experienced can also play a significant role in determining the multiplier.

To substantiate a claim for pain and suffering damages, there is a variety of evidence that can be employed. For instance, medical records and notes from treating physicians may be presented in support of pain and suffering damages. Furthermore, the injury victim’s testimony, as well as testimony from friends and family members, can play a critical role in the determination. Doctor testimony, as well as testimony from other experts in the medical field, may also be used to support a claim for pain and suffering damages.

Personal Injury Attorney

Pursuing full and fair compensation for the losses resulting from being injured in an accident can feel like an uphill battle. The insurance companies will be fighting you at every turn. At the Law Offices of Bryce Cook, we stand up for our clients and fight to see to it that they are properly compensated for their losses. Contact the Law Offices of Bryce Cook today.

commercial truck

What Are the Potential Penalties for a Commercial Driver Facing a DWI Charge?

Posted on

The stakes are high when a person faces a DWI charge. Penalties are severe and can have far-reaching consequences well into the future. This is even more true for commercial drivers facing DWI charges. In order to operate a commercial motor vehicle in the State of Arkansas, a person must have a commercial driver’s license (CDL). The responsibility of safely operating these oversized vehicles that may be carrying hazardous substances on occasion cannot be understated. This is why CDL drivers up against DWI charges face even more serious consequences than other drivers.

Potential Penalties for a Commercial Driver Facing a DWI Charge

In order to obtain a CDL, a driver must acquire specific endorsements and be subject to certain restrictions, all of which can vary depending on the type of CDL. The driver must successfully pass tests and meet other requirements to obtain a specific type of CDL. Having a CDL is a great responsibility. As previously mentioned, these oversized vehicles can wreak havoc on the roads when not safely operated. That is why CDLs can even be revoked as a result of things like improper operation or criminal convictions.

Because of the added responsibilities CDL drivers have on the road, they are held to higher standards in many regards. For instance, a driver of a commercial vehicle is considered to be legally intoxicated if their blood alcohol (BAC) level is .04 or greater. This is well below the standard applied to drivers of non-commercial vehicles.

There are a number of serious potential penalties CDL drivers face when being involved in DWI or a related offense. For instance, there can actually be several different DWI related offenses that can result in CDL revocation for one year. A CDL holder can have the license revoked for refusing to submit to a chemical test. The CDL can also be revoked if the holder is convicted of a DWI. Additionally, the CDL can be revoked for the driver being convicted of a DWI while operating a commercial vehicle. If the DWI was committed while the CDL driver was transporting hazardous materials, the CDL will be revoked for three years. If a CDL holder commits a second offense, the CDL will likely be revoked for life. Unfortunately, revocation of a CDL can be a particularly difficult penalty as it impacts a person’s livelihood. Without a CDL, a driver will likely find himself or herself out of a job. If it is a second offense, the penalties increase. The CDL holder, if convicted, will face imprisonment of 30 days and up to one year as well as a minimum of 60 days of community service and fines ranging from $400 to $3,000.

CDL holders facing a first time DWI offense face imprisonment for up to one year. Furthermore, they face at least 30 days of community service and fines ranging from $150 to $1,000.

CDL drivers must report all traffic convictions to both the state and to their employer. If the CDL driver fails to report a conviction, they face a 90-day revocation of the CDL. If it is a second offense, it will be a one year revocation period. If it is a third offense, it will be a lifetime revocation.

DWI Defense Attorney

Are you a CDL driver facing a DWI charge? If so, you are up against some very serious potential consequences. For help to fight your DWI charge, get in touch with the Law Offices of Bryce Cook. Contact the Law Offices of Bryce Cook today.

Posted in DWI
man refusing to take a breathalyzer test

What Happens if You Refuse a Breathalyzer Test in Arkansas?

Posted on

Many of us may have heard varying opinions on what to do if ever pulled over on suspicion of DWI. So may say to refuse a Breathalyzer test. Others may caution against this. The truth is that there are likely to be repercussions either way and much of what happens will depend on the specific facts and circumstances of the situation. To make an informed choice about whether or not to submit to a breathalyzer test should you be pulled over on suspicion of DWI in Arkansas, you need a better understanding of the laws involved and what can happen should you refuse such a test.

What Happens if You Refuse a Breathalyzer Test in Arkansas?

In most situations, you can refuse a breathalyzer test if you are pulled over by a law enforcement officer and the officer can do nothing to physically force you to submit to the test. The exception to this rule, however, is if there is a search warrant that has been issued by a judge. Before you refuse, however, know that Arkansas, as are other states, has an “implied consent law.” An implied consent law means that if you are driving in the State of Arkansas you have implicitly consented to submit to a chemical test should you be requested to do so by a law enforcement officer.

Violation of Arkansas’s implied consent law is not without consequences. In fact, your refusal to submit to a chemical test is a charge separate from any driving while intoxicated charge (DWI) you may face. This means that, regardless of what happens with being charged or not charged with DWI, should you refuse a Breathalyzer test, you will still face a six-month suspension of your driver’s license if it is your first offense. If it is your second offense that happened within 5 years of the first offense, your license will be suspended for two years. If it is your third offense that happened within 5 years of the first offense, then your license will be revoked for three years. If it is your fourth offense within 5 years of the first offense, then your driving privileges will be revoked for your lifetime.

While it is true that your blood alcohol content (BAC) is important evidence in any DWI case you find yourself in, refusing a breathalyzer test does not mean you will be automatically exonerated. Some drivers try to beat a DWI by refusing to submit to a chemical test, but there is no guarantee that this will be effective and your refusal will result in the suspension of your license, at the very least.

While often a key piece of evidence in the prosecutor’s DWI case, refusal to submit to a chemical test can also be used against a driver at trial. Refusal may not prove intoxication, but a prosecutor will absolutely assert that the refusal is indicative of the fact that the driver was trying to hide the fact that he or she was intoxicated while driving.

DWIDefense Attorney

It is important to know your rights and know the consequences of your actions. The Law Office of Bryce Cook is not only here to answer your legal questions and concerns but is prepared with experience and knowledge of the criminal justice system to fight for you against any criminal charge you may face. Contact the Law Offices of Bryce Cook today.

Posted in DWI
man charged with aggravated assault

Common Defenses in Aggravated Assault Cases

Posted on

In Arkansas, there are several levels of assault. There is assault in the first, second, and third-degree. There is also aggravated assault, which is the most serious. Aggravated assault is, in fact, a felony (Class D). The other levels of assault are misdemeanors. To be convicted of aggravated assault, a person must have shown an extreme disregard for the value of human life while engaging in conduct that created substantial danger of death or serious bodily injury to another person; displaying a firearm in a way that created substantial danger of death or serious bodily injury to another person, or prevented the breathing or blood circulation of another through the application of pressure to the throat or neck or blocking the nose or mouth.

The potential penalties faced by a person charged with aggravated assault are severe and can include time in state prison for no more than 6 years. This maximum may be increased, however, should there be further aggravating circumstances attached to the charge. There is also the potential to be hit with up to $10,000 in fines, probation, community services, as well as court-ordered restitution to compensate the victim for any necessary medical and related expenses. Fortunately, an aggravated assault charge need not turn into a conviction. There are several viable defenses that can clear a person from these types of charges.

Common Defenses in Aggravated Assault Cases

As it is with any criminal charge, the precise defenses available largely rest on the specific facts and circumstances of a case. In every case, of course, the burden of proof lies with the State. The State is tasked with proving the defendant’s guilt beyond a reasonable doubt. This means prosecutors must be able to prove the state of mind of the person charged with aggravated assault along with every single factor the charge requires.

Because of the substantial burden the State carries, one of the most common criminal defense strategies is simply to undermine the strength of the State’s case. To poke holes in its weakness and create that reasonable doubt. There are also several affirmative defenses that are commonly asserted in aggravated assault cases. Affirmative defenses essentially mean that the defendant did commit the act involved in the charge, but it was not a criminal act because other circumstances present.

For instance, self-defense is a commonly asserted affirmative defense in aggravated assault cases. In order to assert self-defense, defense counsel must be prepared to prove that:

  • There was a threat of unlawful force against the defendant;
  • The defendant had a real and honest perceived fear of harm to themselves;
  • The defendant in no way harmed or provoked the other party; and
  • There were no reasonable means of escaping the situation.

So, with self-defense, the defendant is asserting that yes, the aggravated assault did occur, but it was only because they were in fear of harm to themselves and there was no other way to reasonably get out of the situation safely. This is similar to another commonly asserted defense to an aggravated assault charge which is the defense of others. With the defense of others, however, it is not a real and honest perceived fear of harm the defendant has for themselves, but, instead, to someone else.

Criminal Defense Attorney

Facing a criminal charge can make a person feel defeated even before any trial occurs. Know that there are ways to successfully defend yourself against a criminal conviction. The Law Office of Bryce Cook rigorously defends clients facing criminal charges in order to make every effort to prevent that criminal charge from turning into a criminal conviction. Contact the Law Offices of Bryce Cook today.

injured man at work

What Does It Mean that Arkansas is a Modified Comparative Negligence State?

Posted on

Personal injury law may sound like something that you do not need to know about or get involved with, but, should you be injured in a motor vehicle accident, having a basic understanding can be very helpful. For instance, did you know that establishing liability is a critical element in pursuing compensation in a personal injury claim? In order to establish liability, you must be able to demonstrate that another party involved in the accident was negligent in causing your injuries. Negligence plays a central role in a personal injury case. It is important for you to have a basic understanding of what it is and how it can impact your right to recover compensation for your injuries.

Arkansas as a Modified Comparative Negligence State

In its most general sense, negligence is a failure to act with a level of care expected of a reasonable person under similar circumstances. To prove negligence, a plaintiff, the injured party bringing the claim, must be able to show that:

  • The other party owed him or her a legal duty
  • The other party failed to uphold, or “breached,” that duty
  • The plaintiff suffered an injury
  • The other party’s breach of duty was the direct cause of the plaintiff’s injury

While in many accident cases, one party will be held responsible for causing the accident which led to injury, other times multiple parties will be found to carry part of the fault. How this could impact your right to recover compensation will depend on state law.

Arkansas is referred to as a “modified comparative negligence state.” This means that each party will be assigned a percentage of fault if they contributed to causing a crash. A party’s right to recover will be limited by the percentage of fault they are assigned. The modified comparative negligence standard applies in Arkansas when an accident victim is determined to be no more than 49 percent at fault for the crash. This means that those individuals assigned 49 percent or less of the fault may recover compensation for their injuries, but the award will be reduced by their percentage at fault. For instance, if a plaintiff is found to be 10 percent at fault for causing an accident resulting in $10,000 in damages, that plaintiff will be entitled to receive $9,000. 

Arkansas is considered to be a modified comparative negligence state because it has a 50 percent bar rule. If an accident victim is found to be 50 percent or greater at fault in causing an accident, he or she will be barred from recovering compensation for injuries sustained in the accident. This is more in line with a contributory negligence rule. In a pure comparative negligence state, a plaintiff can be found 99 percent at fault in causing an accident and still have a right to recover that remaining 1 percent available to them in damages.

Personal Injury Attorney

The specific personal injury laws of each state can have a substantial impact on your right to recover compensation for losses sustained as the result of an accident. At the Law Offices of Bryce Cook, we are well versed in all relevant personal injury laws and we use that knowledge to be effective advocates for our clients. Contact the Law Offices of Bryce Cook today.

woman with a delivery service business

How Is a Business Valued in an Arkansas Divorce?

Posted on

One of the central issues that must be resolved during divorce proceedings is the division of marital assets. This can not only be one of the most contentious issues to address, but it can also be one of the most complicated. The task first begins with the court determining what assets are to be deemed marital and which will remain separate. The separate property will remain in the ownership of the respective spouse. The marital property will be subject to equitable division, meaning it will be fairly, but not necessarily equally between the parties. In some instances, a business, in whole or part, will be considered part of the marital estate. This means that the business will have to be valued prior to deciding how the assets will be divided.

The Value of Businesses in Arkansas Divorces

Valuing a business requires a complex and detailed analysis. Often, an independent expert business appraiser is retained by one or both sides in order to evaluate the value of a business. In the alternative, the parties may agree to jointly retain a single neutral business appraiser.

There are so many factors at play and so many things, like the future, which is unknown, that makes valuing a business not an exact science. It is more of a hypothetical exercise based on the available data. In fact, there are several different business valuation methods that are employed by business appraisers. The most common methods are:

  • The asset approach: With the asset approach, the business appraiser reaches the value of the business through the basic accounting premise that the value will be equal to the business’s assets minus its liabilities. Assets to be included in this calculation may be tangible or intangible. Tangible assets would include things such as inventory on hand, property owned by the business, and accounts receivable. Intangible assets would include things like goodwill, meaning the business’s established presence in a community, its reputation, and its dedicated customer base.
  • The market approach: With the market approach, the business appraiser works to determine what the business would sell for at the time of the appraisal. This process involves comparing the business to other, similarly situated businesses, that have recently been sold. Obviously, the difficulty with this approach may be if there are no businesses similar in nature that have recently been sold.
  • The income approach: With the income approach, the business appraiser uses historical information in employing specific formulas used to predict the business’s expected cash flow and profits. Factors considered in these formulas include things such as the rate of risk or return or future benefits generated by the business. The approach is most commonly employed in business valuation.

Divorce Attorney

Not only can division of the marital assets be incredibly personal and emotionally charged, but it can also have a profound impact on the financial future of the parties. The Law Offices of Bryce Cook will help see to it that your best interests are protected the entire time. We are here for you. Contact the Law Offices of Bryce Cook today.

Couple looking over their divorce documents

Factors that Go Into Property Division

Posted on

Each state has its own set of laws addressing how property is to be divided incident to divorce. Arkansas is an equitable distribution state meaning that, in a dissolution of marriage, marital property will be divided in a manner that is equitable, or fair. While state law asserts that equitable generally means that marital property will be equally divided, that is not necessarily always going to be the case. A judge who feels that an equal division would be unfair after considering a variety of factors may deviate from an equal split of the marital assets.

Property Division in a Divorce

It is first important to note that parties to a divorce do have the ability to divide marital property as they see fit by signing a Marital Separation Agreement. This is also known as a Property Settlement Agreement and it must be approved by a judge. In many cases, however, divorcing parties are unable to reach an agreement on how to divide the marital assets and, thus, require judicial intervention.

Arkansas judges are tasked with first determining which property is considered marital and which is considered separate. Marital property will be subject to equitable division while separate property will remain in possession of the spouse who owns it. Through the discovery process, each party must provide the court with relevant information regarding property and assets. The judge will then decide what property is marital and what is separate.

Separate, or non-marital property, is usually property acquired prior to marriage. Property may also be considered separate even if it was acquired during the marriage, but this is generally the exception to the rule. For instance, if items were bought or exchanged with separate property, they will usually still be considered separate property. Inheritances and gifts received during the marriage are also generally considered to remain separate property as are proceeds from a workers’ compensation claim or certain proceeds from a personal injury claim.

Once the property has been categorized as marital or separate, the court will begin the task of dividing the marital assets. In order to accomplish an equitable, or fair, division of the assets, a judge will take a number of factors into considerations. These factors include:

  • The length of the marriage
  • The occupation of each spouse
  • The employment skills of each spouse
  • The employability of each spouse
  • The mental and physical health of each spouse
  • The age and stage in life of each spouse
  • The amount and sources of income of each spouse
  • The division of the marital debt
  • The contribution of each spouse in acquiring and preserving marital property
  • The federal income tax consequences of the property division

After weighing these factors, as well as other factors found to be relevant in seeing to an equitable division, a judge will render a decision as to how the marital property will be divided.

Divorce Attorney

The Law Offices of Bryce Cook is committed to protecting and advocating for the best interests of our clients. The division of marital assets and debts in a divorce can have a profound impact on a person’s stability and financial future. We are here to zealously represent your best interests. Contact the Law Offices of Bryce Cook today.

 

Cash and handcuffs representing bail

What Factors Are Considered in a Bail Hearing?

Posted on

After an arrest, a suspect is taken into custody. After being taken into custody, bail is usually set soon thereafter, usually at the initial court appearance. While bail is most often set according to a pre-established schedule, judges have the ability to raise or lower standard bail. In the alternative, a judge may waive bail altogether or release a defendant on their “own recognizance.” When considering how to set bail and whether to deviate from the standard bail amount, the judge will consider a number of different factors. Here, we discuss some of those factors.

Factors in a Bail Hearing

While there are no findings of fact at a bail hearing, a judge is not ruling on the guilt or innocence of the suspect, a judge must evaluate several factors to determine the likelihood that the suspect will be law-abiding and return to court as necessary if released. The judge is permitted to consider the apparent weight of the evidence levied against the suspect in reaching this decision.

A judge, or magistrate, will consider the nature and circumstances surrounding the criminal charge. Usually, if narcotics or violence are involved, then this will weigh against reducing bail or waiving it altogether. The criminal history of the accused will also play a role in bail decisions as will whether or not the accused was on parole or probation at his or her time of current arrest. Should the accused have a criminal history, a judge will consider his or her record of making required court appearances.

Additionally, a judge may consider whether the defendant has any history relating to drug or alcohol abuse as well as his or her physical and mental condition. To evaluate whether the accused is a flight risk, financial resources available to the defendant may be evaluated as will his or her ties to the community. When a defendant has strong ties to the community, such as a home and a family, it is seen as less likely for him or her to try and flee.

On top of evaluating the reliability of the defendant and whether or not the defendant is likely to comply with attending the requisite court hearings, a judge will evaluate what type of risk to the community may be present should the defendant be released from custody. Should the defendant be seen as a serious threat, a judge may decide that he or she should be held without bail.

In the alternative, if a court decides that the defendant is not a threat to the community and is likely to return to court when required, he or she may be released upon certain conditions. Conditions of release without bail may include:

  • Travel restrictions (including surrendering his or her passport)
  • Requiring the defendant to maintain or seek employment
  • Undergo drug and alcohol testing
  • Undergoing medical or psychological treatment
  • Enrollment in an educational program
  • Observing a curfew
  • Complying with periodic check-ins from authorities
  • Executing a bond agreement

Criminal Defense Attorney

The issue of bail impacts a defendant’s freedom and it is set right at the beginning of criminal proceedings. If you have been arrested, do not wait to get in touch with the Law Offices of Bryce Cook. The sooner you do, the sooner we can begin to protect your rights and fight any criminal charges you may face. Contact the Law Offices of Bryce Cook today.

Divided house keychain

How Is Property Divided in an Arkansas Divorce?

Posted on

The divorce process will address several key issues in order for the marriage to dissolve and the parties start a new chapter in their lives. One of the issues central to divorce is division of property. It can also be one of the more contentious subjects to broach. While some couples are able to reach a mutually agreeable arrangement for property division that a judge will approve, many others are unable to do so and this means that the court will decide how property is divided for them. Each state has laws in place to address how property will be divided in a divorce. In Arkansas, courts follow an equitable distribution model regarding property division. This means that the property will not necessarily be divided equally, but what the court sees as fair in light of the circumstances.

Arkansas as an Equitable Distribution State

As an equitable distribution state, Arkansas courts attempt to fairly divide marital property in a divorce. Fairly may be an equal 50-50 split, but this is not always the case. The first step a court takes in dividing property in a divorce is to determine which property is marital and which property is separate. In most cases, marital property will include those assets and debts either spouse acquired during the marriage. There are exceptions to this rule. Property will generally be considered separate if a spouse owned it prior to marriage. If the property was acquired during the marriage by gift or inheritance, it will also be considered separate. Other examples of property acquired during the marriage that will still be considered separate include:

  • Things purchased with separate property
  • Interest and earnings on separate property
  • Value increases on separate property
  • Workers’ compensation benefits
  • Personal injury claim proceeds

In some cases, the commingling of assets can transform what would otherwise be considered separate property into marital property.

Once property has been categorized as separate or marital, the marital property will be subject to equitable division by the court. In order to help ensure that the division is equitable, or fair, the court will consider several factors, including:

  • The length of the marriage
  • The age and health of each spouse
  • The occupation and income level of each spouse
  • The earning capacity and potential of each spouse
  • Each spouse’s contributions to acquiring and maintaining marital property
  • The federal income tax consequences of the property division

These are the kinds of considerations the court will take into account in an attempt at fairly dividing the marital assets and debts.

Arkansas Divorce Attorney

Division of the marital property will have a substantial impact on your financial future and well-being. Get an advocate by your side that you trust. The Law Offices of Bryce Cook are committed to the best interests of our clients. If you are considering divorce, talk to us about your options going forward. Contact the Law Offices of Bryce Cook today.

Cashier taking money from store.

What Is Considered Felony Theft in Arkansas?

Posted on

The State of Arkansas defines theft as the taking of another person’s property with the intent of depriving the owner of the property or exercising unauthorized control over the property of another. Theft will also include transferring a property interest without authorization. This is the overarching definition of theft under Arkansas law. There are several different types of theft offenses a person may be charged with depending on the circumstances surrounding an alleged crime. Felony theft is an extremely serious criminal charge. The particular class of the felony theft charge will largely depend on the value of the property stolen and other aggravating circumstances. The penalties for felony theft are severe. A conviction for felony theft will not only land you with substantial fines and extended periods of incarceration, but it will also follow you well into the future on your criminal record.

Felony Theft

There are several different classes of felony theft in Arkansas. The class of the crime will largely rest on the value of the property or services stolen. The value is determined using the reasonable fair market value at the time of the theft. Alternatively, it may be determined using the reasonable replacement value of the property in a short period of time following the theft.

Should the value of items stolen be less than $1,000, the theft will, in most cases, be considered a misdemeanor. However, the charge will be raised to a Class D felony if the theft was one in a series of three or more thefts that occurred within a three day period. The theft will also be bumped up to a Class D felony if the stolen property value was between $100 and $500 and occurred during a state of emergency. There are other circumstances where the value of the stolen property may fall below $1,000 but will still be classified as a Class D felony. In most cases, however, theft will be considered a Class D felony should the stolen property value fall between $1,000 and $5,000.  The penalties for a Class D felony may include up to 6 years imprisonment and fines up to $10,000.

Generally speaking, felony theft will be considered a Class C felony if the value of the stolen property falls between $5,000 and $25,000. Like the Class D felony theft, there are other circumstances that may warrant this heightened charge despite the property value falling below the established range. For instance, if the stolen property exceeded $500 in value and was stolen during a state of emergency, it would fall into the Class C felony theft category. Penalties for a Class C felony include 3 to 5 years imprisonment and fines of up to $10,000.

There is also Class B felony theft. This involves property stolen that is valued at $25,000 or more. Additionally, theft will be considered a Class B felony, regardless of the value of the stolen property, if the theft involved something like the threat of serious bodily injury or the destruction of someone else’s home, among other circumstances. Penalties for a Class B felony include 5 to 20 years imprisonment and fines up to $15,000.

Criminal Defense Attorney

A felony theft charge is not a thing to take likely. A conviction means prison time. It means substantial fines. It means the rest of your life will be impacted. Get defense counsel you can trust. The Law Offices of Bryce Cook is committed to zealously advocating on behalf of our clients. Contact the Law Offices of Bryce Cook today.