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Fraud Requires Deceitfulness and Reliance

Liability for fraud exists when six elements are proven: (1) knowingly, recklessly, or without reasonable grounds, (2) making a material misrepresentation (3) to deceive another (4) who reasonably relies on the misrepresentation (5) causing that person (6) actual damages. This article discusses the third element, deceitfulness, and the fourth element, reasonable reliance.

Deceitfulness

To be potentially liable for fraud, a person must intend to deceive another or recklessly not care whether another will be deceived. The state of mind is known as scienter. Scienter, in Latin, means knowledge. In other words, to be potentially liable for fraud, a person must know, or ought to know, that he or she is being deceitful for an evil purpose.

All false statements are not deceitful. Many are mistakes. Some do not have an evil purpose. In a book of fiction, the author makes many false statements (e.g., claiming that fictitious characters exist and that fictitious events have occurred), but he or she does not intend to deceive another into believing that those false statements are true. The author is not being reckless because reasonable persons understand that fiction is a literary form. Almost by definition, fiction parallels reality instead of duplicating it.

Reasonable Reliance

To be a victim of fraud, those who receive a false statement must reasonably rely on it to their detriment. A person need not be the intended recipient of a false statement to be a victim of fraud, as long as the person’s reliance was reasonably foreseeable to the maker of the statement. If fraud is committed intentionally, it is reasonably foreseeable that there will be harm to many people. If fraud is committed unintentionally, it is not reasonably foreseeable that there will be harm to many people.

In most states, if a person makes a statement knowing that it will be passed along to a limited number of people, and the statement is false, he or she may be held liable to one or more of the limited number of people.

Defenses Related to Deceitfulness and Reliance

Because a person alleging fraud has the burden of proving that he or she reasonably relied on a material misrepresentation, contributory negligence and assumption of the risk are not defenses to intentional fraud. Contributory negligence and assumption of the risk are defenses to unintentional fraud. Before a person can legitimately allege reliance on a statement, that person first has, in essence, a duty to make a cursory examination of the facts and to not overlook obvious clues indicating that the statement is not true.

Tough California DUI Laws

The most frequent violent crime committed in California is driving while under the influence of alcohol. The statistics are appalling.

California has an unenviable record of having the highest number of wrongful deaths caused by drunk drivers. In fact, the statistics show that on average, every year, over 42,000 people are killed in alcohol-related crashes nationwide. In California, the yearly number of those killed in crashes is 4,229, with 36% of those being alcohol-related deaths or 1,509; a staggering number of needless deaths.

It would then make sense that the laws in the Golden State are as tough as the dickens and that California leads the nation in DUI arrests. Law enforcement is deadly serious about stopping drunk drivers from killing others. Thanks to the state having two statutory offenses for DUI, it is easier to make more arrests.

The first offense is called DWI, DUI or OWI, meaning driving while intoxicated or impaired, driving under the influence or operating a vehicle while impaired. No matter what it is called, charges laid for these offenses are based on police observations that include slurring while talking, driving erratically and possibly a roadside sobriety test. Other things will likely happen at the same time and they may include immediate suspension, a field sobriety test and checking ignition interlocking devices installed in the vehicle (if any).

The second offense is referred to as being “illegal per se.” This simply means that a person is driving with a blood alcohol content of 0.08% or higher. This has actually been an offense since 2002 in all 50 states.

The thing to remember about going to court in California is that offenders may find themselves facing a wide variety of penalties depending on the charges, e.g. causing death, personal or property damage and injury. Generally speaking, a first-time offender may face jail time and/or probation from three to five years, pay a fine and lose his or her license for six months. This tends to vary with the specifics of the case and each case is different given the circumstances, so “one shoe does not fit all” when it comes to punishment on conviction.

Second offenses within seven years of the first offense may face more jail time, fines of up to $10,000 and suspension of driving privileges for not less than three years. Again, the facts of the case will make the difference in how it is handled when or if it does get to court.

Interestingly enough, there are two schools of thought on automatically finding drivers guilty. Some attorneys feel a driver then loses his or her right to have a trial by jury. On the other hand, there are lawyers who argue that legal per se is a preventative measure to stop a drunk driving death every 30 minutes. Suffice it to say that the “jury” is still out on this issue and in the meantime, the DUI justice system carries on.

If the convicted offender chooses to continue to drink and drive, each subsequent offense nets longer jail terms and higher fines. If that person hits his or her fourth charge, this is considered to be a felony DUI. Felony DUIs definitely require the expertise of a skilled attorney.