Drinking Under Influence

WHEN DUI (Driving Under Influence) BECOMES A FELONY
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A felony is a crime punished by imprisonment in the state prison, for over one year. The length of punishment is determined by a low, mid and high term, usually 16months, 2 years, and 4 years, respectively. A DUI can be misdemeanor or a felony depending on a number of factors, such as whether injury occurred and / or whether there are prior DUI convictions. DUI convictions and punishments are guided by the California Vehicle Code

Some DUI felonies are also referred to as wobblers. Wobblers are punishable either by confinement in county jail or incarceration in state prison. Wobblers differ from straight felonies not only in the punishment imputed, but also in the post-conviction relief available. If a wobbler is punished by incarceration in county jail and probation is imposed upon release, then the defendant may petition the court to reduce the felony to a misdemeanor under 17 (b) of the California Penal Code. If granted, the conviction will be considered a misdemeanor; however it is still priorable as a felony under the Three Strikes Law. VC Section 23153.

When Blood Alcohol Content (BAC) is below .08%

If the driver of a vehicle drives while under the influence of alcohol or drugs (or a combination of the two), commits an act forbidden by law or neglects any duty imposed by law in driving the vehicle which was the proximate cause of the traffic collision and injures someone other than himself, then the DUI is considered a felony. However the driver must be at fault for the traffic collision otherwise if not at fault of traffic collision then the driver shall be charged with violation of VC 23152 (a) a misdemeanor.

When BAC is at or above .08%

It is unlawful for any person to drive with a .08% blood alcohol content and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle which was the proximate cause of bodily injury to any person other than himself, then the DUI is considered a felony. However the driver must be at fault for the traffic collision otherwise if not at fault of traffic collision then the driver shall be charged with violation of VC 23152 (b) a misdemeanor.

The courts have determined that if the driver undergoes a chemical test which reflects a BAC of .08% or greater within 3 hours of driving, then it is a rebuttable presumption that the driver had a BAC of .08% or greater at the time of driving.

An Employer is Liable for the Wrongful Acts of the Employee

AN EMPLOYER IS LIABLE FOR WRONGFUL ACTS OF EMPLOYEE

When a master employs a servant to do something for him he is responsible for the servant’s conduct as if it were his own. If the servant commits a tort in the course of his employment, then the master is a tortfessor as well as the servant. The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorized by him or for wrongful modes of doing authorized acts if the act is one which, if lawful, would have fallen within the scope of the employee’s employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer’s interest or property. R.O Iyere v Bendel Feed and Flour Mill Ltd (2008) SC 309.

The fact of the case was that the Appellant was the Plaintiff in this case instituted at Ekpoma High Court, Edo State in Nigeria while the Respondent was the defendant. The plaintiff’s claim before the court was for N5m being special and general damages in that the plaintiff while working in the Defendant’s Feed and Flour Mill at Ewu, had his right upper hand caught in the defendant’s running machine in circumstances entitling the plaintiff to call in aid the maxim of res ipsa loquitur in establishing the claim in negligence against the Defendant. He was employed by the defendant as Silo Assistant in its factory at Ewu, Edo State. While on duty in the factory on August 7, 1991, he along with his co-workers, were discharging a truck load of fish meal into the company’s silo through a conveyor. There was a blockage in the conveyor and the operator; one Agbator, told the plaintiff to go into the underground to clear the blockage. He went down as directed and as he was clearing the blockage, Agbator the operator, started the machine without ensuring that the plaintiff had completed the clearing work and come out of the underground. As a result, the plaintiff’s hand was twisted in the machine and he started to shout to attract the attention of his co-workers to his plight. He was eventually rescued. As a result of the incident, his right hand was twisted and broken.

The respondent, as Defendant did not deny that the incident occurred to the Plaintiff. It also did not deny that the plaintiff suffered the injuries to his right hand. The case for the defense was that the plaintiff was not sent to clear any blockage on the conveyor as he alleged. It was, however, admitted that the plaintiff was employed to work as silo assistant.

The learned trial judge in his reserved judgment delivered on March 13, 1998, dismissed the plaintiff’s claim in its entirety on the grounds that the plaintiff failed to join Agbator as a party. The plaintiff was dissatisfied with the judgment and his appeal to the Court of Appeal was also dismissed. Still dissatisfied, the Appellant appealed to the Supreme Court.

ISSUES
*Whether failure to join the Respondent’s duty operator, one D Agbator, as a Defendant in the action against his master is fatal to the Appellant’s claim.
*Whether the Court of Appeal was right to dismiss the Appellant’s claim founded on negligence.
The present appeal falls within the first category of joint tortfessor, i.e. employer and employee. The common law principles which govern the relationship of an employer and his employee in respect of torts committed by the latter is well stated in the Halsblury’s Law of England, vol. 45(2) fourth edition, paragraph 817:
In further analysis, I may go on to say that it can hardly stand to reason to suggest, say in case of accident of a commercial vehicle that once the offending driver is not joined along with the owner, the action automatically becomes incompetent, improperly constituted and unmaintainable. Although the doctrine of joint tortfeasors in law of negligence postulates, in appropriate cases, that the commission of the same tort or wrongful act by the servant binds his master, this does not by all means impute that both must fail, sink or rise together.

The law is that where several persons are jointly liable, the plaintiff is at liberty to select and sue anyone or any number of them as he can recover his claim in full from those he sued. The issue of contribution among such persons to meet the claim is their internal affair.

Further, in a case involving tortfeasors, the plaintiff is at liberty to choose his victim; he may decide to sue either of the master and servant separately or both them jointly. See Salmond on the Law of Torts, page 443.

HELD
The appeal was allowed and the decision of the lower court which affirmed the decision of the trial court was set aside. Judgment was entered in favor of the Plaintiff/Appellant and was entitled to damages of 3.8million naira.