Free ABA Guide to Automobiles

Automobiles

Contents
Introduction
Buying a New Car
Buying or Selling a Used Car
Lemon Laws & Other Consumer Laws
Warranties
Recalls
Automobile Leasing and Renting
Inspections
Repair &Service Contracts
Your Auto and the Police
Insurance
Where to Get More Information

INTRODUCTION

SO, YOU PLAN TO BUY A CAR. The thought might excite you, or maybe it makes you
anxious. But no matter how you feel about it, the bottom line is that you are about to make
a major purchase to part with a substantial amount of hard-earned dollars for an item that
is going to be around for a while.
Buying a New Car
As with any other big-ticket item, it is important to do your homework – decide in advance
what kind of car you need, and how much you can afford to spend. Think about size – a
big family car or a jazzy sports car? Think about options – do you care if you have power
everything, or do you mind cranking open your windows yourself? Do you prefer cloth,
vinyl, or leather seats? What features are important to you?
After you have analyzed your needs and your finances, you are ready to being
looking. Before you start pounding the pavement, check out some of the consumeroriented
publications that have information on cost, reliability, comfort factors, and other
features of many cars. The Internet, your local library and bookstores should have many of
these references. Also, see the “Where to Get More Information” section at the end of this
chapter.
Advertising\Sales Practices
Q. What information should an automobile ad include?
A. This is an area largely regulated by statute, and it varies from state to state. In some
places, the ad must state the number available of that type of vehicle. Other items that may
be required include price, dealer and factory-installed options and warranty terms. In
addition, if the vehicle is “on sale,” the ad should state the date the sale ends.
“BAIT AND SWITCH” ADS
“Bait and switch” is advertising a vehicle that the dealer does not intend to sell. Usually
this is done to lure the unsuspecting customer toward buying an unadvertised, often
higher-priced vehicle. The ad draws the customer into the showroom, but the advertised
car is not available at that time or stated price.
If you suspect that you have been the victim of such advertising, contact the consumer
protection division of your state attorney general’s office. If they have received a number
of reports about this kind of advertising, they may file a claim against the dealer on behalf
of all of the duped customers. If they find that yours is an isolated incident, they may still
help you pursue an individual claim. In either case, it may be possible to hold the dealer to
providing the vehicle at the publicized price.
Q. What if the ad omits details?
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A. If the dealer knows of important facts about the vehicle, but fails to reveal them, the
law may consider that as a deceptive act that could enable you to cancel the deal and even
recover damages in court. Clearing up the missing facts later does not erase the dealer’s
deceitful act. (For more information, see the “Lemon Laws and Other Consumer
Protection Statutes” section that appears later in this chapter.)
The New Car Contract
Q. Must a car contract be in writing?
A. Yes, according to the Statute of Frauds of the Uniform Commercial Code (UCC). The
UCC, which is in effect in some form or another in every state but Louisiana, regulates
sales of goods and securities and governs many kinds of commercial transactions. Since it
has been adopted, with minor variations, by every state legislature except Louisiana’s, it
governs most auto transactions in the country, and it will be referred to often in this
chapter.
The UCC says any sale of goods of five hundred dollars or more must be in
writing and signed by the party against whom enforcement is sought. If the contract is
challenged, the courts will not be permitted to enforce it unless it is in writing.
TERMS THAT THE CONTRACT SHOULD INCLUDE
The sales contract should describe the car and include the vehicle identification number
(VIN). You can find it on the driver’s side of the dashboard near the windshield. The
contract also should state whether the car is new, used, or has had a previous life as a
demonstrator, rental car or taxicab. In addition, the contract should include price terms
consistent with your oral agreement, and details on any trade-in you will supply, including
mileage and the dollar amount credited. Insist on a cancellation provision that enables you
to get your deposit back. The contract should state the warranty terms very clearly. (See
the “Warranties” section of this chapter.) The contract’s financing terms
should state price, deposit, trade-in allowance, annual percentage rate of interest (APR),
and length of term.
Q. Who signs the contract?
A. Besides you, either an authorized salesperson or a supervisor or manager signs it.
Before you sign, make sure you understand and accept all the contract terms, because
you’ll probably have to abide by a contract you have signed, even if you have not read it.
Read the contract carefully. Ask questions. Cross out blank spaces to avoid any additions
after you sign. Make sure that the dealer’s promises appear in the contract. Do not sign
until the contract satisfies you. The contract you sign binds you, and escape from the
contract is both difficult and expensive.
Q. May I change a seller’s preprinted contract?
A. Yes, if the seller agrees. If you do change terms, cross out the unwanted language, and
write or type in the substitute terms. Both you and an authorized dealer representative
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should initial the changes. Handwritten or typed changes to both copies of a printed
contract overrule printed terms.
Q. May I cancel the contract even after I sign it?
A. It depends. If you were a minor when you signed it (under 18 in most places), and you
contracted with an adult, you can dodge the agreement at any time for any reason while
you are still underage, or within a reasonable time after reaching the age of majority, as
long as the car is not considered a “necessary” akin to food or clothing. For example, if
you are a minor but you are out on your own, and you must have the car in order to get to
the work that supports you, the car will be considered a necessary, and your youth will not
be an acceptable excuse for you to cancel the contract. The law protects inexperienced
young people from being bound by bad deals with tricky adults. Most car dealers know
this rule, however, so they will avoid contracting with a minor. These dealers will insist
that the car be bought by, or in the name of, a financially responsible adult.
Q. How else may I get out of the contract?
A. If, for example, the car you buy is not what the dealer promised, the dealer may have
breached its warranty. (See the “Warranties” section in this chapter.) If so,
then you might attempt to cancel the contract because of the breach. Or you might try
canceling for no reason. However, you risk losing your deposit. The dealer also might file
a lawsuit to recover lost profits, for time spent with you and on your car, and other
damages.
WHAT HAPPENS TO YOUR DEPOSIT IF YOU CANCEL THE CONTRACT?
If you cancel the sales contract, what happens to your deposit depends on the stage of the
transaction and on the contract terms you signed. The earlier in the deal, the more likely
the dealer will refund your deposit and the less likely you will be sued. Some states entitle
you to a refund if, for example, you decide to cancel before the dealer representative signs
the contract. Some states also allow you to get a refund if you cannot get financing,
despite your best efforts, provided the contract is subject to getting financing.
Q. If we wind up in court in a contract dispute, may I offer information in addition
to the contract?
A. The court, under the “parol evidence rule,” may ignore any additional routine terms that
don’t appear in your original document. Consistent additional terms that explain or
supplement, but don’t change the contract’s meaning, may be considered by the court.
Generally, though, the court confines itself to the “four corners” of the document that you
present. The court assumes that both parties read and understood the contract before
signing it, and disallows prior inconsistent terms that vary or contradict the contract. You
may be able to present evidence of an oral agreement made after the written agreement.
Also, you may admit outside facts to prove that there actually was no contract or to prove
that fraud induced you to sign.
Q. What if I want to add something after I sign the contract?
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A. Ask the dealer to write a contract addendum (a supplement), or write it yourself. Both
parties should sign it. Make sure that whoever signs for the seller has the legal power to do
so. Mention the original contract in the addendum, state that everyone should consider it
an inseparable part of the original contract and that the addendum overrides any
inconsistent terms in the two documents. This will help you avoid the parol evidence rule
discussed above.
Bank Loan Versus Dealer Financing
Q. What if I do not have enough cash to buy my new car, even after my trade-in?
A. Then you need financing. Banks, credit unions, loan companies, and car dealers are all
potential funding sources. Interest rates will vary among these options. Shop around for
the best deal by comparing the various loan terms and annual percentage rates (APRs).
The APR is the actual interest you will have to pay on the unpaid balance of the loan, and
may depend partially on your credit history. For further information on comparing terms
and APRs, see the “Consumer Credit” chapter.
Q. What must the creditor tell me?
A. The creditor (the person or institution to whom you will owe money) must inform
consumers of
1. the annual percentage rate (this must be conspicuous, for example printed in red or in
much larger type than the rest of the document);
2. how the creditor sets the finance charge;
3. the balance on which the creditor computes the finance charge;
4. the dollar amount of the finance charge (this also must be conspicuous;)
5. the amount to be financed (the loan);
6. the total dollar amount that will be paid (loan plus finance charge); and
7. the number, amount, and due dates of payments.
MAKING SURE A CREDITOR TREATS YOU RIGHT
The Truth in Lending Act (TILA) protects consumers. Congress passed it in 1969 to
ensure that consumers get enough facts to enable them to make an informed decision
about financing. It applies to consumers who seek credit for money, property, or services
for personal, family, or household purposes. (TILA does not cover business, commercial
and agricultural credit. It applies to financing for personal, family or household uses.)
Creditors, either people or organizations, who regularly extend consumer credit that is
payable in more than four installments are subject to the Act, as are creditors who require
(or may require) a finance charge.
Q. What if the creditor does not follow the rules?
A. Creditors who disobey the rules may have to pay you any actual damages that you
have sustained. For example, if you paid more than you should have, you may be able to
recover the excess. They also may have to pay your court costs and lawyers’ fees, as well
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as a fine to the state. In a class action lawsuit with many complainants, the penalty paid
to the government could be much larger.
Q. What is the maximum APR that I have to pay?
A. That depends on the laws of the state in which you live or where the deal occurs.
States that regulate “usury” allow different maximum APRs, depending on their laws.
Remember, an APR is negotiable, though a creditor may not exceed a statutory upper
limit.
Title
Q. When do I get title to my car?
A. In most states, in any sale of a car, new or used, title passes when the previous owner
endorses the certificate of title or ownership over to the new owner. Check with your
local Department of Motor Vehicles for the law in your state. Many state DMVs have
information available on line.
Q. Suppose I sign the contract, but do not yet have title. What if something happens
to the car?
A. The answer depends on who has the risk of loss. Usually, the party who possesses the
vehicle bears the risk and is more likely to have insurance against the loss. Under the
Uniform Commercial Code (UCC), which is discussed below and on pages 3, 7, and 13-15
if the seller is a merchant (for example, a car dealer), the risk of loss
passes to buyers when they receive the car.
If the seller is not a merchant, as in a private sale of a used car, the risk passes to
the buyer on “tender of delivery.
Q. What is “tender of delivery”?
A. Tender of delivery occurs when the seller actually tries to deliver the car, or makes the
vehicle available for a pick-up arranged by a contract.
Q. What if I have title but the dealer still has the car?
A. A merchant seller who keeps physical possession may bear the risk of loss long after
the title has passed and after the dealer has received payment.
Q. May the risk of loss move from the seller to me?
A. Yes, the Uniform Commercial Code (UCC) provision governing risk of loss allows
this. A sales contract that specifies when the risk of loss passes will override the standard
UCC provision.
Q. How may I lose title?
A. You may lose title if you fail to make your payments as they become due. The
creditor is then permitted to repossess your car.
THE RIGHT TO REPOSSESSION
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When you buy a car on credit, you may have to give the creditor rights in your property
(the car) that are superior to the rights of your other creditors. When you are loaned the
money, you sign a “security agreement,” which gives the creditor a “security interest” in
your car (the collateral). You are agreeing to give the creditor a lien on the car. If you
don’t pay, the creditor may try to get the car back and apply its value toward your debt.
Q. So if I don’t pay, can the secured creditor just come and take my car away?
A. Afraid so. The only limitation on automobile repossessions is that the repossessor
does it without breaching the peace. In many states, the creditor does not even have to
sue the debtor, or notify the debtor of the default before reclaiming the vehicle.
Q. What is a breach of the peace?
A. A breach of the peace generally is any act likely to produce disorder or violence, such
as an unauthorized entry into your home. If you protest strongly enough when a
repossessor appears, it may create a breach of the peace, and any repossession may be
invalid.
Q. What happens after the repossession?
A. Eventually, the creditor has the right to resell. However, before that happens, the
debtor has the right to buy back the car (in legal terms, redeem the collateral).
Q. How does redemption work?
A. The debtor must pay the entire balance due, plus any repossession costs and other
reasonable charges. Watch out for consumer credit contracts containing acceleration
clauses. These force the debtor to pay the entire outstanding debt, not just the amount of
overdue payments. Because a default and repossession have already occurred, it is
unlikely that the debtor will have enough money to pay the entire balance. Redemption
rarely takes place.
Q. What if I do not redeem the car?
A. The UCC gives the creditor two choices. First, it may sell the car to satisfy the debt. If
the profits from the sale are not enough to pay expenses and satisfy the debt, you would
be liable for the difference. The only limitation placed on the creditor by the UCC is that
the sale be “commercially reasonable.” As the UCC is applied in some states, that means
first getting court permission to hold a sale. The sale may be public or private. However,
the creditor must give you reasonable notice of the time, place, and manner of the sale. If
it is a public sale, you have the right to take part (bid on the car). If the sale produces too
much money, the creditor must pass that along to you. For example, if the amount of debt
and expenses totals $5,000, and the creditor gets $5,600 from the sale of the car, the
overage of $600 is due to you and the UCC obliges the creditor to refund the money to
you.
Q. What is the second choice?
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A. The creditor may keep the car to satisfy the debt fully. The law refers to this as “strict
foreclosure.” There is no duty to return excess money in a strict foreclosure. Creditors
seldom use it, because dealers want to sell, not keep, cars.
USED VEHICLES
Buying and selling a used car has some unique features, but it is similar to buying a new
car. The advertising rules are largely the same, so you must still beware of “bait and
switch” ads that look too good to be true.
Basically, the law about forming and executing the contract for purchase or sale is the
same for new and used cars, and the car’s title transfers via the same mechanism. Lenders
may examine the purchase a little more closely to ensure they receive adequate collateral
for their money, but the procedure for getting the money does not change. As with a new
car, if you fail to pay, you lose it to the “repo” man.
Buying or Selling a Used Car
Q. What is a used vehicle?
A. It is a vehicle that was driven farther than the distance necessary to deliver a new car
to the dealer or to test drive it.
Dealer Versus Private Sale
Q. Should I buy from a dealer or a private seller?
A. Go with whoever gives you the best deal and with whom you are most comfortable.
Some experts believe you may be better off buying from a private seller. They think a
private seller may give a more accurate description of the car’s faults based on personal
knowledge, and you may get a lower price from a private seller. Private sellers, however,
seldom give warranties, which dealers sometimes offer. (See the “Warranties” section in
this chapter.) Also, some states have regulations governing used car sales
that may apply only to dealers.
Q. Do I need a written contract if I buy from a private seller?
A. If you are paying more than $500, you should have a written contract. Courts usually
cannot enforce an oral contract to sell a car for over $500 under the Statute of Frauds.
Even under $500, it is always best to put the contract in writing if you are not going to
conclude the deal immediately with a Bill of Sale (see next question).
Q. Do I need to get anything else in writing?
A. You should have a Bill of Sale. Many states require you to present a Bill of Sale to
register your car. A Bill of Sale also may serve as a receipt. The Bill of Sale should
contain the:
· date of the sale;
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· year, make, and model of the car;
· Vehicle Identification Number (VIN);
· odometer reading;
· amount paid for the car, and in what form (cash, check, and the like); and
· buyer’s and seller’s names, addresses, and phone numbers.
The seller should sign and date the Bill of Sale, and both you and the seller should get a
copy.
SPECIAL RULES FOR USED CAR DEALERS
The Federal Trade Commission has issued a Used Car Rule for dealers. Under the rule,
“dealers” are those who sell six or more used cars in a twelve-month period. The rule
forbids used car dealers from misrepresenting the mechanical condition of a used car or
any warranty terms, and prohibits them from representing that a car comes with a
warranty when none exists. They must make available the terms of any written warranty
they provide, and they must post a “Buyers Guide” on the side window of the car.
Q. What is the Buyers Guide, and what must it say?
A. Information contained on the Buyers Guide includes:
· whether or not the car comes with a warranty. If there is a warranty, the specific
coverage must be outlined;
· whether the vehicle comes with implied warranties only, or is sold “as is,” that is,
with no warranties at all;
· a statement that you should request an inspection by an independent mechanic before
you buy;
· that you should get all promises in writing; and
· what some of the major problems are that may happen in any car.
If you do buy a used car from a dealer, you are entitled to receive a copy of the
actual Buyers Guide that was posted in your car. If you have negotiated any changes in
the warranty, it should be noted on the Buyers Guide. The Buyers Guide becomes part of
your contract, and its terms override any conflicting terms in that contract.
Q. Are there other facts that a seller must tell the buyer?
A. The seller, whether a dealer or a private individual, should be truthful about the car. If
the buyer is disappointed because it is not as described or does not perform as it was
supposed to, a breach of warranty action may arise against the seller who has deceived
the buyer. If possible, the seller should provide the buyer with the car’s complete service
records.
Q. Does the seller have to tell the buyer the car’s mileage?
A. Yes, federal law entitles the buyer of a used car to receive a mileage disclosure
statement from the seller, even if the seller is not a dealer. On request, the seller must give
a signed written statement to the buyer stating the odometer reading at the time of
transfer. The statement also should certify the odometer’s accuracy, to the seller’s
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knowledge. If the seller knows it is incorrect, the seller must admit it. Refusal to provide
such a statement, or illegally tampering with the odometer, exposes the seller to stiff
penalties.
Q. Are there other ways to find out about a car’s history?
A. Yes. Internet websites now make it easy to find services that will provide you, on line
or by telephone, mail or fax, with detailed repair, odometer and histories for many used
cars on the market. To some extent this is done in cooperation with participating used car
dealers. The information is retrieved based on the car’s VIN number. Search the Internet
for “used car history” or “vehicle history” and compare the prices and offerings of these
services. Feel free to confront the seller if the information in a vehicle history report is
inconsistent with what you have been told about a car. And, of course, any seller who
refuses to inform you of the VIN in question should be avoided.
INSPECTION BEFORE THE SALE
Not only are you allowed to take the car to your mechanic before the sale is final but you
should. The Buyers Guide sticker, which applies to used car dealers, urges you to do so.
If the seller, whether a dealer or a private party, will not allow your mechanic to inspect
the car, do not buy it unless it is such a good deal that you will not mind paying for car
repairs later.
Seller Withdrawing from the Deal
Q. May I get out of a contract to sell my used car?
A. The same contract laws that govern a new car purchase also cover a used car
purchase. Again, it depends on the stage of the contracting process and on the contract’s
language.
Q. May a court force me to sell my car to a buyer after I have decided I do not want
to sell?
A. Probably not. In legal jargon, courts try to “leave the parties as they find them,” and
usually will not force a buyer to make a purchase or a seller to sell an item. If the car is an
antique or unique in some way, however, the court might order the seller to perform the
contract (specific performance). In cases like this, money damages might not suffice to
satisfy a buyer who wants your specific car. Because the buyer cannot reasonably find a
substitute for this car, the seller will have to take the money, and the buyer will get the car.
LEMON LAWS AND OTHER CONSUMER LAWS
Lemon Laws
What can you do if the car you just bought is a real “lemon”? What if the car you
purchased is in the repair shop almost as much as in your garage? To protect consumers
from such situations, most states have passed some form of “lemon laws,” which usually
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apply to new cars purchased for personal, family, or household use. These laws entitle you
to a replacement car or a refund if your new car is so defective that it is beyond
satisfactory repair by the dealer. You must, however, give the dealer a reasonable
opportunity to repair the car.
How do you know if the law considers your car a lemon? States vary in their
specifics. Do an Internet search for “lemon law” along with the name of your state to see if
your state has a law – if it does, chances are that a government agency or a private law
firm or consumer protection organization has posted a website on the topic. As a general
rule, a lemon normally is a car that continues to have a defect that substantially restricts its
use, safety, or value, even after reasonable efforts to repair it. This often means four repair
attempts on the same problem or a directly related problem within six months or one year
(the time period varies by state). Or, it might mean the car is out of commission for more
than thirty nonconsecutive days during either: (1) The year after the dealer sold it; or (2)
the duration of any express warranty, whichever is shorter.
Q. What must I do to make lemon laws work for me?
A. First, you must notify the manufacturer, and, in some states, the dealer about the defect.
Second, you should keep a copy of every repair or service receipt you are given. This
serves as your record that the required number of repair attempts has been made, and is
especially important if your car’s defect had to be repaired at another garage or in another
city because it was physically impossible to drive the car back to the seller’s repair
location.
Most states require that you go through an arbitration procedure before you can get
a replacement or refund. Some states sponsor arbitration programs, which may be more
objective than those run by manufacturers. Arbitration is usually free, and results often are
binding only on the manufacturer; if you don’t like the result, you can still take the
manufacturer to court. Some states require arbitration only if the manufacturer refuses to
give you a satisfactory replacement or a refund. You also may have the option of
bypassing arbitration and going directly to court.
If you successfully pursue a lemon law claim, you may get a refund of what you
paid for the car, as well as reimbursement for things like taxes, registration fees, and
finance charges. If you choose, you may get a replacement car. Be sure that it is of
comparable value to the lemon it is replacing, and that it satisfies you completely.
Q. Do lemon laws cover used cars?
A. Yes, they cover used cars in a growing number of states. In some places, the law
applies both to dealer and private seller purchases.
The laws may have a connection with the safety inspection sticker requirement.
(See the “Inspections” section later in this chapter on page 20.) These sticker laws
usually protect you if two conditions occur. First, the car must fail inspection within a
certain period from the date of sale. Second, the repair costs must exceed a stated
percentage of the purchase price. Then you are permitted to cancel the deal within a
certain period. You probably will have to notify the seller in writing of your intention to
cancel, including your reasons. You must return the car to the place of sale even if it
requires towing. If the seller offers to make repairs, you can decide whether to accept the
seller’s offer or get your money back.
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Q. What if the car passes the safety inspection but still turns out to be a lemon (by
requiring costly repairs or repeated repair attempts for the same problem)? Is it still
considered a lemon?
A. It might pass the safety inspection and still be a lemon. Some state laws define “lemon”
for used cars the same way they do for new cars: by using a formula of repair
attempts/time spent in the shop. These laws protect buyers of used lemons in much the
same way as buyers of new lemons. (See the previous questions and answers for details.)
Q. May I drive the car while we are deciding whether or not it is a lemon?
A. Yes, you may drive the car (if it is drivable), but be aware that, if the car does indeed
turn out to be a lemon, the law usually allows the seller to deduct a certain amount from
your refund based on the miles you have driven. This applies to both new and used car
sales.
Other Consumer Protection Laws
ADDITIONAL PROTECTION FOR CAR BUYERS
Other statutes protect car buyers besides lemon laws:
· the federal Anti-Tampering Odometer Law prohibits acts that falsify odometer
mileage readings (the Maine Attorney General has a useful site on this topic at
http://www.state.me.us/ag/clg10.htm) ;
· the federal Used Car Law requires that dealers post Buyers Guides on used cars;
· the federal Automobile Information Disclosure Act requires manufacturers and
importers of new cars to affix a sticker, called the “Monroney label,” on the
windshield or side window of the car. The Monroney label lists the base price of the
car, the options installed by the manufacturer, along with their suggested retail price,
how much the manufacturer has charged for transportation, and the car’s fuel economy
(miles per gallon). Only the buyer is allowed to remove the Monroney label.
By far, the statutes providing the strongest protection are those prohibiting unfair
and deceptive acts and practices. Every state has enacted such laws. Car buyers may
recover from the seller (the dealer and/or the manufacturer), regardless of who might have
done the deceiving.
Q. What is an unfair or deceptive practice?
A. The Federal Trade Commission (FTC) defines “unfair conduct” as that which, although
not necessarily illegal,
· offends public policy as established by statute, common law, or other means;
· is immoral, unethical, troublesome, or corrupt; and
· substantially injures consumers (or competitors or other businesspeople).
“Deceptive conduct” is behavior that could have caused people to act differently
than they otherwise would have acted. It does not have to involve the product’s qualities,
but it might include any aspect that could be an important factor in deciding whether to
buy the goods. An example would be stating that the engine has six cylinders when it
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really has four. The quality may be fine, but the buyer may have been seeking a car with a
six-cylinder engine. The FTC regulations are the basis of many states’ laws.
Q. Must the unfair or deceptive act be intentional?
A. No, in most states, the seller does not even have to know about the deception. Rather,
the court considers the effect that the seller’s conduct might possibly have on the general
public or on the people to whom the seller advertised the product.
Q. What must I do in order to use an unfair and deceptive practices statute?
A. In many states, you must make a written demand for relief before you sue. The law
allows the seller one last chance to make good.
If you have to sue, many states require proof of “injury” before you may recover.
Loss of money or property is enough to prove this. You should be able to show that the
seller’s actions actually caused the injury. For example, only if you were determined to
buy the car no matter what the seller said would you have a hard time showing that the
seller’s conduct caused you injury or loss. If you based your decision to buy on what the
seller told you, or if you were coerced into buying something that you didn’t really want,
then you may be able to use the statute. Remember to begin the procedure before the
statute of limitations expires. This time limit varies by state, but is typically three or four
years.
Q. What happens if I win?
A. Many states permit you to recover double or triple damages, and lawyers’ fees. The
purpose of these harsh penalties is to discourage sellers from committing unfair or
deceptive acts in the future.
VIOLATIONS OF UNFAIR AND DECEPTIVE PRACTIVE LAWS
Each statute differs about what actions could violate unfair and deceptive practices
statutes. The most common violations include:
· hiding dangerous defects;
· failing to state that service is not readily available;
· not revealing that the dealer advertised the car at a lower price;
· odometer tampering;
· failure to reveal that the dealer is charging excessive preparation costs; and
· withholding facts about the car’s previous use as, for example, a racing car.
Generally, a dealer’s failure to disclose any important facts about the car, or an attempt
to make such facts too hard to see, is illegal, and could lead to your recovery under your
state’s unfair and deceptive practices law.
Warranties: Uniform Commercial Code (UCC)
Q. What is a warranty?
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A. It is a guarantee of the product’s quality and performance. A warranty may be written
or oral. Three kinds of warranties could be given by a car seller under the UCC. These are
an express warranty, an implied warranty of merchantability, and an implied warranty of
fitness for a particular purpose. A seller may also sell a car “as is.”
Q. How does a seller create an express warranty?
A. Whenever a seller makes any declaration of fact, description, or promise on which the
buyer relies when deciding to make the purchase, the seller creates an express warranty. A
seller may create an express warranty orally, in writing, or through an advertisement.
Q. What about the seller’s opinion of the car?
A. An opinion or recommendation does not form an express warranty. Sales talk, called
“puffing,” will not create an express warranty. An example is “This car runs like a dream.”
Statements such as “This car needs no repairs,” or “This car has a V-8 engine,” however,
will create an express warranty.
Q. When does the implied warranty of merchantability arise?
A. It occurs automatically if the seller is a merchant, such as a car dealer. It requires that
the car be of a quality that would pass without objection in the trade, and be fit for the
ordinary purposes for which the buyer will use it. This warranty essentially provides for
the overall quality of the car, and means that the car will do what it is supposed to do.
Most people agree that the implied warranty of merchantability is part of a new car
purchase. All states provide for implied warranties for used cars bought from dealers,
unless the warranty is disclaimed specifically, in writing, by words like “as is” or “with all
faults.
Q. How does someone create the implied warranty of fitness for a particular
purpose?
A. Suppose that you tell the seller that you need the vehicle for a special purpose, such as
towing a trailer, and the seller recommends a specific vehicle. You buy it, relying on the
seller’s skill or judgment. This creates an implied warranty that the vehicle can do what
you told the dealer you needed it to do.
Q. What if I bought my car “as is”?
A. Then you accepted the car with all its faults. Any post-sale defects are your problem. A
car may be sold “as is” through a dealer or a private person. The implied warranty of
merchantability does not automatically arise in “as is” purchases. Some states do not
permit “as is” sales for used cars.
Q. Do I get these warranties every time I buy a car?
A. Not necessarily. A seller may disclaim or change warranties. Obvious language that
mentions merchantability may exclude or modify the implied warranty of merchantability.
An obvious disclaimer in writing may exclude the implied warranty of fitness for a
particular purpose. Language such as “sold as is” cancels implied warranties. If the seller
has given you an express warranty, however, courts will not uphold any attempted
disclaimer that is inconsistent with or cancels the express warranty.
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Q. What if the seller gives me express and implied warranties that are inconsistent?
A. According to the Uniform Commercial Code, the parties’ “mutual intention” decides
which warranty takes priority. If there is no way to decide this, the following rules
determine priority:
1. Specific or technical language usually wins over descriptive language that is
inconsistent and general.
2. Express warranties override inconsistent implied warranties of merchantability.
3. Implied warranties of fitness for a particular purpose survive other inconsistent
warranties.
Secret Warranties
Strictly speaking, a “secret warranty” is not a warranty at all. Rather, it is more in the
nature of a deceptive practice that is secret because it is an unpublicized policy. A secret
warranty develops when a manufacturer knows that many cars have the same problem, but
tells dealers to charge customers for the repairs unless they complain. Unlike a recall
(discussed later in this chapter on page 17), the manufacturer is not required to notify
owners of the problem. By hiding what it knows about the defect, the manufacturer makes
a lot of money from unsuspecting consumers.
If you suspect that a warranty should have covered your car repair or that the defect is
widespread, complain to the dealer. Perhaps the dealer will fix your car without charging
you. Follow up with a complaint to the consumer protection division of your state attorney
general’s office. If they find that a secret warranty exists, the manufacturer may be
required to notify owners, to pay for repairs, and to reimburse those owners who have
already paid to fix the problem.
Remedies for Breach of Warranty
Q. What are my options if the seller will not honor its warranties?
A. If you have not already accepted the car, reject it. You may reject only within a
reasonable time after delivery of the car. What constitutes a “reasonable time” is a
question of fact to be decided by the court, if it goes that far. You must give the seller
specific information about what is wrong. You need only show the car’s
nonconformance in any way to the contract; the defect need not be major. You have
the option of allowing the dealer to attempt to remedy (“cure”) the defects within a
reasonable time. Once you reject the car, behave as if you are no longer the owner o
not drive it, except to return it. You may hold the car for the seller to reclaim, or you
may return it yourself.
These steps should enable you to reject the car. However, to take the next step and
force the seller to live up to its warranties, you may need to consult a lawyer.
Q. How do I know if I have already accepted?
A. Unfortunately, sometimes the law considers just driving the car off the dealer’s lot
as acceptance, as long as you had a chance to inspect the car, even if you do not
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discover the defect for some time. At most, you have a week or two to reject the car.
Acceptance may also occur if you take possession of the car despite knowing about its
defects.
Q. What may I do if I have accepted a car that proves to be defective?
A. First, once you have accepted, you must continue to make your car payments; for
the time being, at least, you are considered the car’s owner, and are responsible for its
costs. (You may be able to get your money back later.) You may not reject a car
already accepted, unless you accepted it based on the assumption that the seller would
repair the defect within a reasonable period. Your option now is to revoke your
acceptance. You must give the seller notice of the defect, and show that it substantially
impairs the value of the car to you.
Revocation involves a higher standard than rejection, and different states have
various standards. Generally, the defect will have to be major to allow revocation.
After revoking acceptance, you must act as if you had originally rejected the car.
Leave the car in your driveway until the seller reclaims it, or return it yourself.
Q. May I get my money back if I reject or revoke acceptance?
A. You should be able to recover your money. If your written demand for a refund is
denied, you will have to sue the seller. The seller has the right to deduct an amount per
mile driven from your refund. If your rejection is found to be wrongful, the seller may
recover damages against you.
Q. May I simply use lemon laws and consumer protection statutes instead of
warranties?
A. You may use them all. If you can prove seller fraud or deception, the unfair and
deceptive practices statute in your state will help. You could invoke the lemon laws by
showing that you tried to get the defect fixed the required number of times, or that
your car was in the shop longer than the legal minimum before you rejected or revoked
acceptance. This requires you to keep your records and receipts.
THE MAGNUSON-MOSS WARRANTY ACT
The federal government protects consumers through laws like the Magnuson-Moss
Warranty Act, passed in 1975. It applies to all cars manufactured after 1975 that
dealers sell and warrant in writing, and provides that you have the right to see a copy
of the dealer’s warranty before you buy. The information provided in the warranty will
be more detailed than that provided on the Buyers Guide, and includes an explanation
of how to obtain warranty service. The Magnuson-Moss Warranty Act also provides
remedies for breach of warranty. An aggrieved consumer can sue based on breach of
express warranties, implied warranties, or a service contract. If you win, you can
recover attorney’s fees and your court costs. Under the Act, if a written warranty is
given, then implied warranties may not be disclaimed. However, the duration of any
implied warranties can be limited. The Act mandates that if the seller does give you
written warranties, they must be conspicuously labeled as either “limited” or “full.
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Note that the Magnuson-Moss Act does not apply to “as is” sales, or to cars bought
from private sellers.
Q. What is the difference between “limited” and “full” warranties?
A. If a dealer offers a full warranty, it is promising: to replace a defective car or part
for free, within a reasonable time; that the owner will not have to do anything
unreasonable to get the repairs done; that the warranty applies to anyone who owns the
car during the warranty period; a refund or free replacement part, including
installation, if the dealer cannot fix a car or part after a reasonable number of attempts.
A limited warranty is anything else. At least one of the above promises is missing.
Most car dealers do not give full warranties on the entire car, but may do so on a
specific part, such as the battery. Most used car warranties are limited.
RECALLS
Q. What is the recall system?
A. The recall system identifies defective automobiles that are already on the road, by
notifying car owners about how to get them fixed.
Q. What defects does the recall process include?
A. Generally, it includes defects that affect the car’s safety, cause it to fall below
federal safety standards, or both, and that are common to a group of the same kind of
cars or equipment. The defect can be in performance, construction, components, or
materials found in the car or in related equipment, such as child safety seats.
Q. How does the recall process begin?
A. Many recalls result from the manufacturer’s response to owner complaints.
However, the National Highway Traffic Safety Administration (NHTSA) influences
and orders many of the recalls. The NHTSA receives safety-related complaints
through letters and its telephone toll-free hotline. (This hotline number is listed at the
end of this chapter, under “Where to Get More Information.”) When the
NHTSA registers enough complaints, NHTSA engineers perform an engineering
analysis. Then the NHTSA engineers contact the automobile’s manufacturer. The
manufacturer must either remedy the defect or launch its own defect investigation.
Q. How is a defect investigation conducted by the automobile’s manufacturer?
A. It begins with a press release, and opening a public file to receive comments and
information. If this confirms the defect and the manufacturer still will not voluntarily
recall the vehicle, agency engineers recommend an initial determination of a safety
defect to the NHTSA administrator. If approved, this results in a public hearing and
notification to the manufacturer of the basis for the finding. After the hearing, the
NHTSA decides if a final defect determination and recall is proper. Occasionally, the
NHTSA administrator first seeks the transportation secretary’s approval.
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WHAT HAPPENS IF THE NHTSA ORDERS A RECALL
If the manufacturer refuses to obey voluntarily and challenges the recall in court, it
faces a huge fine unless the court overturns the NHTSA order. Once the recall
campaign begins, the NHTSA assigns a campaign number and file. During the
campaign’s first six quarters (year and a half), the manufacturer must report its
completion rate based on the number of vehicles actually repaired. The NHTSA may
verify these figures.
Q. How effective are recall campaigns?
A. Usually about 60 percent of the vehicles targeted by the recall receive repairs.
Q. Who pays for the recall the automobile’s manufacturer or the owners?
A. The manufacturer must remedy the defect for free. This does not apply when the
first buyer bought the car more than eight years earlier. In comparison, the standard for
tires is three years.
Q. What must the manufacturer do?
A. The manufacturer has the option of repairing the defect, replacing the car, or
refunding the purchase price. If it refunds the money, the manufacturer may deduct a
certain amount for depreciation (loss in value). The manufacturer reimburses the
dealer who makes the repairs. If the manufacturer chooses to repair the defect, it must
do so within a reasonable time. Otherwise the manufacturer must replace the vehicle
or refund the purchase price.
AUTOMOBILE LEASING AND RENTING
Requirements
Q. What are the prerequisites if I want to rent or lease a car?
A. First, you must have a valid driver’s license. Increasingly, you may be required to
show a good driving record. In several states, the major car rental companies have
electronic links to government computers and are obtaining driver records (motor
vehicle reports) when someone wants to rent a car. They refuse a rental contract if the
driver has had too many accidents or violations on his or her record. Some of the
major rental and leasing companies set a rental age minimum of eighteen and require a
major credit card. Other companies rent only to credit card holders aged twenty-five or
older. The company may waive the age requirement if you have an account number in
your name through a motor club or other association, or if you have a rental account
through your business. You must sign a contract when you rent or lease a car.
Q. How does leasing differ from renting?
A. A lease is essentially a long-term rental. Leases usually have a one year minimum.
Rentals may last one day.
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LEASE OR BUY?
Whether it is better to lease or buy a car depends on many factors. A car lease means
lower monthly payments. After all, your installment payment depends on the purchase
price minus the car’s estimated value at the end of the lease term. Thus, your
installment payment does not depend on the full value of the car. Leasing usually
avoids a down payment and sales tax. There also may be tax advantages if you lease
mainly for business use. On the other hand, a leased car does not gather any equity
(cash value). Buying a car on credit does. Finally, when your lease is up, you must
return the car.
Car Lease Contracts
Q. Are there different kinds of leases?
A. Yes, several forms exist. Under the “closed-end” lease contract, sometimes called a
“walk-away” lease, the car’s value when you return it does not matter unless you have
put extreme wear on the car. You return the car at the end of the term and “walk
away.” Payments are higher than under an open-end lease because the lessor (the
leasing company) takes the risk on the car’s future worth. An “open-end” lease
involves lower payments. However, you gamble that the car will be worth a stated
price, the “estimated residual value,” at the end of the lease. If it’s appraised value at
the end of the term equals or exceeds the specified residual value, you owe nothing
and may be refunded the difference, if your contract provides for a refund. However, if
it is worth less, you pay some or all of the difference, often called an “end of lease”
payment.
Q. What will a lease cost me?
A. You probably will have to pay a security deposit and lease fee for the first month
and possibly the last. You may have to pay an initial “capitalized cost reduction.” This
is similar to a down payment when you buy a car. By paying a large amount up front,
you could, in effect, reduce your monthly payments. But by doing this, you lose one of
the advantages of leasing: lower up-front costs. Other expenses may include sales tax,
title, and license fee, though the lessor may pay them. A lease may include insurance.
If not, you must provide your own. You might have to pay for repairs and maintenance
after any warranty period expires, unless the lessor agrees to pay in your contract. At
the end of the lease term, you may have to pay an excess mileage cost if you have a
closed-end lease. (Under an open-end lease, the final appraised value of the car will
reflect any excess mileage.) Excessive wear and tear also may cost you.
Q. May I renew or extend my lease at the end of the term?
A. Yes, if your lease contained this option or you negotiated for it. Such an option may
reduce your initial costs.
Q. May I escape my lease early?
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A. You have signed a binding contract that obligates you to make payments for a
stated term. However, your contract may contain an early termination clause. This
usually requires a minimum number of monthly payments before you may cancel, and
may require you to pay a penalty.
Q. What is a purchase option?
A. It allows you to buy the car when your lease term ends. The lessor must state the
purchase price or the basis for setting this price in the initial lease contract. Purchase
options are more common in open-end leases than in closed-end leases.
Car Rental Contracts
Q. What should my car rental contracts include?
A. It should list the base rate for the rental car and any extra fees. The length of the
rental period should also appear.
Q. What extra fees could there be?
A. The rental company might offer you the Collision Damage Waiver (CDW) option.
The rental company covers damage to your rented car if you accept CDW. However,
coverage does not include personal injuries or personal property damage. Before
accepting this expensive option, make sure your own automobile, medical, and
homeowner’s insurance policies do not already protect you in an accident involving a
rented car. If traveling on business, your company’s insurance policy might cover you.
Sometimes, charging rentals on certain credit cards automatically covers you.
Other additional fees might include drop-off fees, if you leave the car in a different
city than where you picked it up. More costs might be fuel charges, extra mileage fees,
and fees for renting equipment like child safety seats or ski racks.
INSPECTIONS
States have an interest in your car beyond collecting taxes. They care equally about
vehicles meeting minimum safety standards. As a result, many states have an
inspection sticker requirement. The number of inspections required in a year vary from
state to state.
Q. What exactly does the state inspect?
A. It varies. Most states check the car’s lights, brakes, windshield wipers, and horn.
Some inspect the tires, windows, body and seat belts. Many states also test the
emission levels, taking into account the automobile’s make, model, and age.
Q. What if I am buying the car?
A. A new car should pass inspection easily. Someone other than the seller should
inspect a used car. In many states, a used car sale is not final until the car passes
inspection. In other states, failing inspection cancels the sale at the buyer’s option.
Contact your state Department of Motor Vehicles for further information.
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Q. Where do I get my car inspected?
A. States often authorize certain private repair shops and car dealers to make
inspections. A few states have government-operated inspection stations.
Q. What will happen if my car does not pass the state’s safety inspection?
A. Procedures vary, but you may get a “failed” sticker attached to your windshield.
You have a grace period either to make repairs or get your car off the road. If you do
neither, you could be subject to fines and other penalties.
Repairs: Dealer or Mechanic?
Q. Where should I take my car for repairs?
A. You can take it to a car dealer, which warranty terms may require. Other choices
include an independent garage, a franchise operation specializing in specific repairs, or
repairing it yourself. Each option has its advantages and disadvantages.
Q. What if I choose a dealer?
A. Dealers may charge more. However, they are more familiar with your make of car
than other repair shops, and may have new and better equipment to service your car.
Manufacturers want to ensure that dealerships run quality repair operations, so they
invest in training mechanics.
Q. What if I bring my car to a service station?
A. This is a good option for non-warranty work if the mechanics have adequate
training and test equipment. Parts might cost more, but labor might be less expensive
than dealer repairs. If you often use the service station, the mechanics get to know
your car. Then they might spot potential problems early.
Q. What about the highly advertised repair chains?
A. Specialty shops may repair one part of a car, such as brakes or mufflers. Or, they
may advertise complete car care services. Sheer size and volume means lower costs
than dealers and independent mechanics. If you know what repairs your car needs,
franchise shops can be a good deal.
MECHANIC QUALIFICATIONS
To help determine whether a mechanic is qualified, ask if the National Institute of
Automotive Service Excellence (NIASE) has certified the mechanic. A certified
mechanic has taken one or more written tests in areas such as engine repair and
electrical systems. The NIASE certifies a mechanic who passes all the tested areas as a
General Automobile Mechanic.
Of course, certification is not everything. Often, you can discover the best mechanics
from friends’ recommendations and word of mouth.
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The Repair Contract
Q. What should appear in a repair contract?
A. The repair contract, often called the repair order, is essential for getting a
satisfactory repair job done on your car. The repair order describes the work to be
done, and, once signed, creates a contract authorizing the mechanic to make the
described repairs.
The repair order should contain:
· the make, model, and year of your car;
· the repair date; an accurate description of the problem;
· a list of parts to be used and their charges; the amount of labor estimated to be
needed (time to be spent fixing your car);
· the rate to be charged, either per hour or the flat rate to do the work; and your
name, address, and telephone number.
The mileage and repair date are important. They verify warranty terms and
simplify service records. Also, your telephone number is critical should unexpected
problems arise. If the mechanic cannot reach you, the mechanic has to decide whether
or not to proceed, and you may have to live with the results of that decision.
Note that in many states, if you do not sign the repair order, you do not have to pay
for any services done by the mechanic.
Q. Must I receive a cost estimate for the repairs before work actually begins?
A. It is a good idea, and a required practice in some states. In those states, the final
cost must not exceed a certain percentage or dollar value of the original estimate
without the customer’s consent. Repair shops generally have the right to charge for
making estimates, but you must receive advance notice.
REPAIR WARRANTIES
The law may entitle you to some repair warranties. If the repair shop makes an express
warranty, you are protected as long as you abide by the terms of the warranty.
Likewise, if a manufacturers warranty covers the car or part, you should not have to
pay as long as you satisfy warranty conditions. Some state courts have held that the
implied warranty of merchantability covers car repairs.
Beware of “unconditional” guarantees offered by many franchise repair shops. There
are always some limitations on written guarantees. Be sure to read the fine print; there
may be special procedures that you are required to follow in order to obtain the
benefits of the warranty.
False and Deceptive Repair Practices
Most drivers don’t understand how cars work. To protect consumers against fraudulent
practices, mechanic incompetence, and overcharging, many states have enacted
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statutes specifically governing car repairs, or have included car repairs in their unfair
and deceptive practices statutes.
Q. How do the state unfair and deceptive practices statutes protect me from a
repair shop rip-off?
A. As discussed earlier, they usually require price estimates and repair orders. Also,
many states give you the right to keep or examine replaced parts, and require repair
shops to prepare a detailed invoice, which must state the labor and parts supplied,
warranty work done, guarantees, and installation of any used or rebuilt parts. In some
states, you may have the right to same-day repairs, unless you agree to a longer period
or the delay is beyond the shop’s control. Shoddy repair work must be corrected at no
charge, especially in states where the implied warranty of merchantability has been
extended to repair work. Finally, many states require repair shops to post price lists
conspicuously. If you think a repair shop has intentionally cheated you, you should
notify your state attorney general’s office and call your lawyer to discuss possible legal
action.
Q. What can I do if the automobile mechanic makes unauthorized repairs?
A. First, you may wish to complain to your state attorney general’s office, or the local
branch of the Better Business Bureau, or even to the Chamber of Commerce. For
many mechanics, their business depends on a good reputation, and they will take care
to maintain that reputation. If you do not get satisfaction, you may wish to sue if, for
example, the shop made unneeded repairs or reinstalled the original part rather than a
replacement. If the shop tried its best to correct the fault by fixing something that was
broken, though not the problem’s ultimate cause, you should pay the shop. After all,
the repair shop did fix one of your car’s problems.
The Mechanic’s Lien
Q. What if I do not pay for the repairs?
A. In most states, if you refuse to pay for completed repairs, the shop may keep your
car. For example, if you have authorized extensive work, but decide that the car isn’t
worth that much after the shop completes the work, the shop obtains a “mechanic’s
lien” on your car. The car’s actual value, and the actual cost of the repairs, do not
matter. If you abandon your car in this manner, the mechanic may ultimately sell your
car so that it can recover as much of the cost of repairs as possible.
In states that require written estimates and repair authorization, the mechanic’s lien
does not attach if the repair shop has not complied with these requirements. Of course,
if you do pay for the repairs, the repair shop must return your car.
Service Contracts
Q. What is a service contract?
A. A service contract specifically covers car repairs and maintenance for a set period
of time. Manufacturers, contract companies, insurance companies, and car dealers
offer service contracts.
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Q. Should I purchase a service contract on my automobile right away?
A. If you buy one at all, you should consider waiting until your warranty period expires.
After all, why pay extra for duplicate coverage?
HOW A SERVICE CONTRACT DIFFERS FROM A WARRANTY
Unlike a warranty, a service contract may not come from the manufacturer. Service
contracts are optional and expensive, and often, coverage overlaps the warranty
protection. Also, a service contract often contains more limitations and exclusions than a
warranty, may require you to pay a deductible fee, and might not cover all parts and labor
or routine maintenance. If a service contract is available on a used car, the appropriate box
must be checked on the Buyers Guide.
Finally, if you believe that your service contract has been breached, in addition to any
state remedies available to you, you may be able to sue under the Magnuson-Moss
Warranty Act, and recover your attorney’s fees and court costs, as well as your damages.
YOUR AUTO AND THE POLICE
Although the area of automobile law is in constant flux and the degree of protection
offered by states widely variant, there are some fundamental points to remember if the
police stops your vehicle.
The Stop
Q. What should I do once I realize that the officer is signaling me to pull over?
A. Pull over to the side of the road as quickly and safely as possible. Remain in your
vehicle until the officer otherwise directs you. Get ready to produce your license and
registration, because you may be asked to do so.
Q. The officer is at my window. Now what?
A. Stay composed and politely ask why you were stopped. If you have any doubt that you
were stopped by a real police officer if, for example, you were pulled over by an
unmarked vehicle politely ask to see the officer’s photo identification, not just his or her
badge. If you are still not certain that he or she is a real police officer you may ask that a
supervisor be called to the scene or request that you follow the officer to a police station.
The Search
Q. Suppose the officer wants to search my car?
A. Ask why the officer wants to conduct a search. If you have absolutely nothing to hide,
expediency might dictate that you let the search proceed. If you don’t want the search to
proceed, you do not have to consent. Usually, the officer is not permitted to conduct the
search unless you consent, the officer has probable cause (see below), or the officer
reasonably believes that he must search the auto for his or her own protection. Ask
courteously whether the officer has a search warrant of if you are under arrest. If the
officer replies that you are under arrest, ask for an explanation.
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Q. What if the officer insists on searching my car?
A. Don’t interfere. You can always challenge the legitimacy of the search later in court.
Q. Can the police legitimately search my vehicle without a warrant?
A. That depends on the circumstances. The police would not usually have the right to
search your automobile when you are stopped only for a minor traffic offense such as
speeding, but if the violation requires that you be taken into custody (for example, a
“Driving Under the Influence” [DUI] arrest or driving with a suspended license), the
search would generally be permitted. If the officer has arrested you, the officer does not
need a warrant to pat down your body in searching for weapons.
In general, when an arrest is not involved, the police have more latitude to search a
vehicle than to search a home. The U.S. Supreme Court recognizes an automobile
exception to the Fourth Amendment’s protection against warrantless searches. The Court
has held that a person expects less privacy in an automobile than at home. (No one ever
said “A man’s Chevy is his castle.”) The rationale for permitting warrantless searches of
cars is that the mobility of automobiles would allow drivers to escape with incriminating
evidence in the time it would take police to secure a search warrant. For a warrantless
search to be valid, however, the officer must have probable cause. (See the “Criminal
Justice” chapter for more details on this topic.)
Q. What is probable cause?
A. Probable cause, in this context, is a reasonable basis for the officer to believe that the
vehicle contains incriminating evidence, so that the officer is legally justified in searching
it.
Q. What part of the vehicle may the police search if they have probable cause?
A. Generally, the police officer may search the immediate area at the driver’s command,
that is, under and around the front seat. The law is always changing. Sometimes state
constitutions offer greater protection against searches than the U.S. Constitution.
Therefore, if you have questions about a search the police have made of your vehicle, it is
best to consult a lawyer in your state.
Q. May the officer search in my glove compartment?
A. Yes, the Supreme Court has held that such a warrantless search is permissible. The
reason is that the glove compartment is within the arrested driver’s reach.
Q. May the officer search a closed container inside my car?
A. Police are permitted to search containers or packages found during a legitimate
warrantless search of a vehicle. The container must be one that might reasonably contain
evidence of a crime for which the officer had probable cause to search the vehicle in the
first place. In 1982, the Supreme Court ruled that the police do not need a warrant to
search closed containers found in the passenger compartment of an automobile whose
occupant is under arrest.
Q. May the police search my car without a warrant after they have impounded it?
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A. The police do not need a warrant to undertake a routine inventory of an impounded
vehicle. The reason is that such an inventory protects the driver’s possessions against theft,
and also protects the police against claims of lost or stolen property. Such an inventory
also protects the holding facility from dangerous materials that may be in the impounded
vehicle, and it may aid in the identification of the arrested person.
Q. Suppose the officer sees a packet of marijuana on the back seat?
A. When the police can see evidence readily from a place in which they have a right to be,
the law does not consider it a search. Rather, it is a plain view seizure. As long as the
officer has a legitimate reason to be standing by the car and easily sees what the officer
has probable cause to believe is evidence of a crime, the officer can make the seizure.
Then the officer probably could conduct a warrantless search of the rest of the passenger
compartment of the vehicle and possibly the trunk (if probable cause exists to believe the
trunk may contain evidence).
Q. Can the police pull me over in a roadblock and demand to check my license and
registration?
A. The U.S. Supreme Court has said that such roadblocks do not constitute an
unreasonable search as long as police stop all the cars passing through the roadblock or
follow some neutral policy, such as stopping every fourth car. The police can’t single out
your car unless they have an articulable suspicion that you don’t have your driver’s license,
your vehicle is unregistered, or that you or your car are otherwise seizable for violating the
law.
Q. Is it legal to design a roadblock to catch drunk drivers?
A. Yes, provided the selection of vehicles to be stopped is not arbitrary and it minimizes
the inconvenience to drivers. Courts have upheld such roadblocks as constitutional. States’
legislatures disagree, however, about whether the prosecution needs to show that a
roadblock is the least intrusive way to enforce drunk driving laws. Also, some states
require that the ranking police officer who supervised a roadblock testify at the offender’s
trial.
Q.I got stuck in a speed trap. What can I do about it?
A. If the speed limit was clearly marked and you were exceeding it grit your teeth and pay
the fine. If you think you’ve been unfairly prosecuted, you might report the trap to your
auto club or state authorities to spare other drivers the same expense.
Q. I was stopped for speeding by a radar gun. Do those things work?
A. Courts today regularly take judicial notice of the ability of radar to measure accurately
vehicular speeds. That doesn’t mean that you can’t try to prove that the particular radar gun
in your case was poorly maintained or that its operator misread the results or was
inadequately trained to use the device, but it is an uphill fight.
Q .Aren’t “fuzzbuster” devices the best way to avoid speed traps and radar guns?
A. Depends where you drive. Some states have declared them illegal, subjecting drivers
who use them to fines.
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The Arrest
Q. What should I do if the police arrest me?
A. Better to discuss what you shouldn’t do. Do not:
· speak to anyone about your case;
· answer police queries or waive your right to advice of counsel;
· submit to a lineup or any kind of tests without your lawyer;
· dodge news photographers or cover your face (looks guilty);
· be impolite to the police.
Some people cooperate with the police by making statements in the hope that the
officer will let them go. Remember that once you have been arrested you will be charged
with an offense, and any statements you make, if incriminating, will be used against you.
Q. What do I tell my lawyer while I’m in custody?
A. Be prepared to tell your attorney where the police have taken you, where the arrest
occurred and if it was made by uniformed or plainclothes police, the charges against you,
and the amount of bail you can afford.
Q. If the police arrest me and issue a citation, can I dispose of the case in a noncriminal
way?
A. No. Once you’ve been arrested, you must go through the criminal process.
DRIVING UNDER THE INFLUENCE
Statistics indicate that at least one-third of all drivers involved in fatal accidents were
alcohol impaired at the time. Groups such as Mothers Against Drunk Driving and
legislators are spearheading a nationwide crackdown on drunk drivers that includes
passage of tougher laws, including every state hiking the legal drinking age to twenty-one.
Although it is a traffic offense, drunk driving is classified as criminal in the ordinary sense
of prohibited conduct willfully undertaken.
Q. How come police never say “you’re under arrest for drunk driving?”
A. Different states call the offense different names. These include driving under the
influence (DUI), operating under the influence (OUI), and driving while intoxicated
(DWI).
Q. Does the language really matter?
A. Yes, “operating” jurisdictions (those charging OUI), for example, do not require that
the vehicle be in motion. In most states a person may be charged with OUI if he or she is
in actual physical control. Actual physical control may be shown when the person is
seated in the driver’s seat, in possession of the ignition key, and capable of starting the
motor.
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Q. What does “drunk driving” mean?
A. The elements of the offense vary from one state to another. However, the Uniform
Vehicle Code says proof is necessary that the person is under the influence of alcohol or
drugs. Most states agree that a person is under the influence if he or she is less able, either
physically or mentally, to exercise clear judgment and to operate a vehicle with safety. As
noted above, the person must be driving or in actual physical control of a vehicle. If a
particular state’s statute includes language such as “on a public highway” or “intoxicating
liquor,” the state also must prove that point. Some states treat “driving while impaired by
alcohol” as a lesser offense of DWI.
Q. How does the state prove its DWI case?
A. The prosecution relies heavily, sometimes solely, on the arresting officer’s testimony
about the offending vehicle’s operation and the defendant’s behavior (observations of the
defendant’s appearance, speech, and an odor of alcohol), and results of field sobriety tests
and chemical tests (breath, blood, or urine). The officer might say, “The car was weaving
over the center line of the highway,” or “The driver had slurred speech, heavy odor of
alcohol, glassy bloodshot eyes, and could not walk straight.
Q. May the police force me to give a sample of my blood or my breath?
A. Every state has “implied consent” laws for chemical testing of intoxication. The law
views people who have a driver’s license as automatically agreeing to submit to blood,
breath, or urine tests to determine whether they are sober. In 1983, the U.S. Supreme
Court ruled that a driver may be forced to submit to a blood alcohol test without the
driver’s consent or a warrant and without violating the driver’s right against selfincrimination
if the driver has already been arrested for another offense, such as vehicular
homicide; the driver’s blood has already been taken for another purpose, such as medical
care; and such action is permissible under the state’s implied consent law.
While police generally will not compel you to submit to a blood test, the Supreme
Court decision discussed in the previous paragraph permits a blood test taken by force so
long as the officer has probable cause to believe that you are under the influence.
If you can refuse to take the test, should you? There is no hard and fast answer to that
question.
On the one hand, unless you are certain that you have had less than three or four drinks
in the past hour, or less than five drinks in the past several hours, common wisdom holds
that it is a good idea to refuse the tests. It generally is more difficult to convict a driver of
drunk driving if no field sobriety or chemical tests are taken.
On the other hand, if you refuse to take a breath testing device test, your driver’s
license probably will be suspended automatically for a long period of time. In some states,
for example, it will be suspended for six months, but only three months if you take and fail
the test (if you are a first offender).
Q. What are field sobriety tests?
A. Every police department has its own preferred tests. The police may ask you to do
several things after you have gotten out of the vehicle, such as standing on one foot for a
specified time or walking a straight line. The police also may ask you to touch your nose
29
with your index finger with your eyes closed and head back, and have you stare at a
flashlight or a pen so that the officer can see how your eyes respond.
Q. Suppose I fail the tests?
A. It is not like school. You cannot promise to study harder next time. A skilled lawyer,
however, may challenge whether the police administered the tests properly, or whether the
tests effectively measure what they intend to. In addition, a lawyer may present qualifying
evidence. For instance, a chronic knee injury may prevent you from supporting your
weight on one foot.
Q. How does a breath testing device work?
A. The person blows into the machine, which measures the percentage of alcohol in the
person’s body. The law considers a standard measure as legally intoxicated. This measure
might be .10 (one-tenth of one percent blood-alcohol concentration), or .08, depending on
the state. The rules vary from one state to another. However, the law often entitles the
defendant to two breath tests that must measure within .02 (or some other percentage) of
each other.
Q. If the breath-testing device hits .10, am I in serious trouble?
A. Probably, but a lawyer may show that the machine’s operator received inadequate
training, the operator’s certification has lapsed, or the operator did not maintain the
machine well. Other factors may also affect the breath testing device reading and may be
established through an expert witness. Diabetics, for example, have high levels of ketone
(a naturally occurring chemical), which could yield false results when diabetics are tested.
However, in most cases the result of a breath test will be allowed into evidence.
Q. May I change my mind after declining to take a blood or breath test?
A. There is no right for a person to change his mind once he or she has refused. The law
still considers a change of heart as a refusal so far as it concerns a license suspension. It is
a good idea to call a lawyer while you are thinking over a decision, if the police allow you
to do so. However, unless you have a statutory right to a lawyer in your state, which could
delay the test for several hours while the attorney is en route to the police station, you will
have to decide whether to submit to the test fairly soon after being asked to do so. In some
states, you must immediately decide.
THE NATIONWIDE CRACKDOWN ON DRUNK DRIVING
Tragic stories of victims killed by drunk drivers proliferate in the news media. The ranks
of groups, such as Mothers Against Drunk Driving (M.A.D.D.) and Students Against
Destructive Decisions (formerly Students Against Drunk Driving [S.A.D.D]), continue to
swell. State legislatures have responded by introducing harsh new drunk driving laws at a
dizzying clip. Society is no longer satisfied with giving offenders a slap on the wrist when
it comes to drunk driving. See websites for MADD (http://www.madd.org/) and SADD
(http://www.saddonline.com/)
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The legal drinking age is twenty-one in every state in the Union. In addition, the majority
of our states have enacted so-called “per se” laws, which prohibit a person from driving an
automobile if the person has a blood-alcohol reading of a certain amount or more. When
the per se law is used, the prosecution need not show that the person is under the
influence. Rather, the prosecution need only prove that the person was driving and
showing a blood-alcohol reading of the certain amount or more at the time. A blood
alcohol reading of .10 remains the legal presumptive level of intoxication in some states,
but a growing number of states have lowered their per se limit to .08.
Another trend nationwide among legislatures is to pass laws that create harsher penalties
for higher breath testing device results. Some states provide for enhanced penalties for
blood alcohol readings of .20 and higher. Other states have created lesser offenses, such as
driving “impaired,” with a blood alcohol level of .07.
In civil courts throughout the country, “dram shop” cases and “social host” cases are
gaining wider acceptance, and expanding the liability for negligence. Taverns, restaurants,
and individuals who furnish alcohol to intoxicated persons knowing that they are likely to
drive are liable to third persons who are injured as a result of the conduct of the
intoxicated individual.
Q. What kind of penalty am I likely to get for DWI?
A. Consult a lawyer in your state because penalties vary widely and depend on several
factors, such as whether you are a repeat offender. A number of states require minimum
penalties for first-time offenders, for example, which might involve enrollment in an
alcohol treatment program and a license suspension of a month or so. A second-time
offender might suffer a two-year license suspension or revocation of license. Some states
impound the license plates or vehicles of habitual drunk drivers, and others revoke the
licenses of habitual offenders.
This is an extremely volatile area of the law. Jail terms for first offenders are more
common than they used to be. Community service and enrollment in mandatory alcohol
programs, as well as heavy fines, are doled out by courts in various combinations with
regularity as a result of changing public perceptions about drunk driving and the efforts of
highly visible groups such as Mothers Against Drunk Driving.
License Suspension/Revocation
Q. Suppose the police stop me and I’ve forgotten my license at home?
A. Driving a motor vehicle on a public street or highway without a license is an offense in
most states. Often, a person accused of failing to have a license in his or her possession
can avoid conviction if able to produce a license in court that was valid at the time of the
police stop.
Q. What is the difference if the state suspends, cancels, or revokes my license?
A. Suspension involves the temporary withdrawal of your privilege to drive. The state
may reinstate that privilege after a designated time period and payment of a fee. You may
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also restore the privilege by remedying the underlying cause of the suspension, such as
buying automobile insurance.
Cancellation involves voluntarily giving up your driving privilege without penalty.
Cancellation allows you to reapply for a license immediately.
Revocation aims both to discipline the driver and protect the public. Revocation
involuntarily ends your driving privilege. Revocation generally is permanent until you are
eligible after a minimum period set by law to apply for a new license. The state may
conduct a reinstatement hearing. You may have to retake a driver’s license examination.
DRIVING WITH A SUSPENDED OR REVOKED LICENSE
The police probably will arrest you for driving with a suspended or revoked license. This
usually is a serious misdemeanor that carries with it a stiff fine and possibly some time in
the local jail. In some states, however, it may be a felony that lands the offender in state
prison or with a significant amount of community service to work off, particularly if the
suspension or revocation was based upon a DUI.
If you are stopped while driving with either a revoked or suspended license, you can
expect to be arrested and taken to the police station to post bond. If you cannot raise the
required amount of bond money, you will be taken to court for a bond hearing (usually
within twenty-four hours), where a judge, in his or her broad discretion, will set bond.
You will remain in jail until the bond is posted. The bond you will need to post
depends on the crime you are alleged to have committed and on your previous driving
record. A monetary bond might be set, or you might be released on a personal
recognizance bond, which requires only your signature and promise to return to court as
ordered and not to violate any other laws.
Q. If State A has suspended/revoked my license, but I have a valid license in State B,
can I drive in State A?
A. Under the law of some states, a valid driver’s license from another jurisdiction does not
enable you to drive on the highways of a state that has cancelled, suspended, or revoked
your license. However, other states have held that a license properly issued by a foreign
state under the Driver’s License Compact ends the suspension or revocation of a motorist’s
original license.
Q. What are the grounds for license suspension?
A. They vary by state. A local lawyer will be able to give you details about your state
laws. Generally, however, a state might provide that three moving violations within one
year warrant a three-month suspension. Refusal to submit to a field sobriety or breath
testing device test also will result in suspension.
Q. What are the grounds for license revocation?
A. They are based on violating specific laws, such as habitual reckless driving, drunken
driving, nonpayment of your motor vehicle excise tax, using a motor vehicle to commit a
felony, and fleeing from or eluding the police. Again, they vary by state.
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Q. Does the law entitle me to notice and a hearing before the state revokes my
license?
A. Barring an emergency, due process under the Fourteenth Amendment generally
requires notice and a chance to be heard before the state ends a person’s license privileges.
However, for certain serious offenses, the state may simply rely on the court conviction to
revoke the person’s license without the need for any hearing.
Q. What if the state charges me with an offense that requires a license suspension?
A. Unless another law says otherwise, no notice is necessary before a state may suspend
your license under the mandatory provisions of a law. As a driver, you are presumed to
know the law.
Q. If the state does notify me, what should the notice say?
A. The time, place, and purpose of the hearing should appear on the notice of a hearing to
suspend or revoke your license.
Q. Does the law entitle me to a jury?
A. No. A suspension/revocation hearing is an administrative, not a judicial proceeding.
You are entitled, however, to confront and cross-examine witnesses against you at such a
hearing. You are well advised to be represented by counsel at such a hearing.
Q. What must the state prove before a court can convict me of driving on a
suspended or revoked license?
A. The law varies from one state to another. The state, however, usually has to show that:
· the accused’s license or privilege to drive was revoked or suspended on the
occasion in question; and
· the accused was driving a motor vehicle on a public highway at the time of the
offense.
License Renewal
Q. Must I take another examination to renew my license?
A. Check with your state’s division of motor vehicles. Some states permit renewal by mail.
Most states require a vision test, and in some instances, a new photograph for renewal. A
few require a written test. Prerequisites for license renewal could include as much as a
vision test, written test, thumbprint, signature, and photograph.
Some states impose additional requirements if a driver has amassed a number of traffic
convictions or if the driver is of a certain age or has certain physical problems. Some
states require a road test for “elderly” drivers (those over a specific age that is set by state
law) prior to renewal.
Q. May a physical or mental affliction prevent me from driving legally?
A. Yes. A few states require doctors to report physical and mental disorders of patients
that could affect driver safety.
Seat Belt Laws
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Q. My kids hate wearing seat belts. Must they wear these?
A. All fifty states and the District of Columbia require children to be restrained while
riding in motor vehicles. State laws vary, however, concerning the age of the child subject
to the child restraint law. Seat belts are desirable when one considers that approximately
700 children under the age of five die in passenger vehicles annually and that 45 percent
of the deaths of children between ages one and fourteen are caused by car accidents.
Q. Do I have to wear a seat belt?
A. It depends where you live and perhaps where you sit in the car. Thanks to variations in
state law, you may only be required to strap in children up to a certain age or merely be
required to wear belts if in the front seat.
Q. May I still recover payment for my injuries if I am in an accident and not wearing
my seat belt?
A. Yes. Most states reject the so-called “seat-belt defense,” and will not permit evidence
that plaintiffs did not buckle up as proof that they were negligent in a way that contributed
to the injuries. In some jurisdictions, however, evidence of the plaintiff’s failure to use a
seat belt may reduce the amount of damages awarded to the plaintiff.
Speeding and Other Offenses
This chapter cannot possibly discuss the many traffic offenses and statutory variations that
exist among the fifty states. Generally, minor infractions are those in which a first offense
is likely to yield a fine and no jail time. Examples include parking offenses, speeding,
failure to keep to the right of the center line, driving an unregistered car, and driving a
vehicle with defective equipment. More serious offenses carry stiffer fines and the
possibility of a jail sentence. These include reckless driving, leaving the scene of an
accident, and driving after a license revocation.
Q. How could I have received a speeding ticket when I was being careful?
A. A lack of due care is not an element of the charge of speeding. Simply because you
were not in an accident does not prove that you were driving at a reasonable speed.
Q. What are the elements of a speeding charge?
A. It depends on whether your state bases its speeding laws on “absolute/fixed maximum
limits” or “prima facie limits.” It is a violation to exceed a fixed maximum limit regardless
of the circumstances at any time. On the other hand, prima facie limits allow drivers to
justify the speed at which they were driving by considering traffic and road conditions and
visibility.
Q. Does the type of speed limit change the nature of the complaint against me?
A. Yes. The complaint and notice or summons to appear for a fixed maximum violation
will specify both your alleged speed and the maximum speed allowable within the
locality. In contrast, in prima facie jurisdictions, driving above the posted speed limit is
not the offense. The police must charge you with driving above a speed that was
34
reasonable and proper given the existing conditions. One example might be driving fifty
miles per hour in a school zone.
Speeding laws vary greatly from state to state. Therefore, it is a good idea, for legal
and safety reasons, to get into the habit of reducing your driving speed whenever you
approach a railway crossing or intersection, drive around a curve, or encounter special
hazards, such as severe weather.
Q. Are there any excuses I can offer that might prevent a police officer from writing
up a speeding ticket?
A. If you are taking a pregnant or sick person to the hospital, you might be spared a
speeding citation, and you might even get a police escort to the hospital. Sometimes a
court emergency (be sure to display the court papers to the officer), or a broken
speedometer (be prepared to give the officer a test ride) may succeed but only, of course,
if they are truthful reasons.
Q. What kind of information is included on a traffic ticket?
A. The color, model, and registration of your vehicle, and the date, time, and place of the
alleged offense is provided on the ticket. Also, the specific violation charged (if it’s a
parking meter offense, the meter number as well), the officer’s name and badge number,
the fine schedule, and a notice of your ability to have a hearing to contest the ticket will
probably be on a ticket as well. However, each jurisdiction has its own form. If the officer
includes incorrect information in writing the ticket, such mistakes may provide you with a
defense against the citation.
Q. What does “leaving the scene of an accident” mean?
A. Consult a lawyer about your state’s law. Generally, drivers of vehicles involved in an
accident in which personal injury or property damage occurs must stop and identify
themselves and their vehicles. Drivers must also notify police, and help any injured
persons. Neither the driver’s intent nor the ownership of either vehicle involved in the
collision are elements of the offense. (See the “Accidents” section immediately following
this section.)
Q. What are the defenses to such a charge?
A. It is a complete defense if no personal injury or property damage resulted from the
accident, or if you had no knowledge that an accident had occurred. On the other hand,
claiming that you left intending to drive directly to the police station to report the accident
probably would not be a good defense.
Q. What is “reckless driving”?
A. The language varies from jurisdiction to jurisdiction, but increasingly, states are
following the Uniform Vehicle Code, which defines it as “willful or wanton disregard for
the safety of persons or property.” Essentially, the prosecution must show that reckless
drivers were indifferent to the probable harmful results of their driving, and that the
reckless drivers should have realized that such driving posed a hazard.
Accidents
35
Q. According to the law, how safely must I drive?
A. You have to use reasonable care under the circumstances. Negligence the failure to
exercise such care is the most common basis for liability. However, ordinary negligence
does not mean you are guilty of reckless driving in the criminal sense. For such driving to
be unlawful, it must be willful or wanton as defined above.
Q. Do I owe a higher standard of care toward pedestrians?
A. No, the same standard applies. Motorists must exercise reasonable care under the
circumstances toward pedestrians. In practical terms, this means keeping a careful lookout
for them, and maintaining control over your vehicle to avoid injuring them. You must also
sound your horn to warn of your approach when you believe that the pedestrian is unaware
of the danger. In some states, you must stop if you see a pedestrian anywhere in a
crosswalk.
The law does not, however, expect you to anticipate a pedestrian darting out into the
roadway.
Q. Do I owe the same duty of care toward my passengers?
A. Generally, yes, although it may change based on your passengers’ relationship to you.
However, as in all accidents, you will not be liable if a passenger sustains injury through
no fault of your own.
Q. To what standard of care am I held if someone else is driving my car in which I
am a passenger?
A. The law in some states will assume you still have “control” over the vehicle. Other
states require the owner to take steps to stop the negligent driving as soon as the owner
becomes aware of it. In other words, as a car owner, you can be liable for more than
just your own negligent driving.
Q. Am I legally responsible even if I am not in the car if an accident occurs?
A. Possibly. You still might be liable for property damage, injuries, and even death if
you permit someone else to operate your defective vehicle, or if you allow an
inexperienced, habitually intoxicated, or otherwise incompetent person to drive your
car. The law refers to this conduct as “negligent entrustment.”
Q. What if my child is driving my car and an accident occurs?
A. Some jurisdictions recognize the “family purpose doctrine,” under which the “head”
of the family who maintains a car for general family use may be held liable for the
negligent driving of a family member who was authorized to use the vehicle. The
fewer than twenty states that adhere to this doctrine treat the family member as an
agent of the vehicle owner, who is presumed to be better able to satisfy property
damage and injury claims.
Q. If I am involved in an accident, must I identify myself to other involved
parties?
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A. In the past, common law did not require you to give your name before leaving an
accident scene. Modern laws that require you to identify yourself after an accident in
which someone is hurt or killed have survived court challenges. You should identify
yourself to a police officer (see below), and show your license and proof of insurance
coverage if asked. Otherwise, you do not have to, and probably should not, say
anything. Specifically, do not reveal how much insurance coverage you have, or admit
liability.
WHAT YOU SHOULD DO IF YOU HAVE AN ACCIDENT
If possible, park on the shoulder of the road and do not obstruct traffic. Use your car’s
flashers or flares to warn approaching motorists of the accident. If asked, give your
name, address, vehicle registration certificate, and proof of insurance to the other
driver. Get the same information from the other driver.
Write down the names and addresses of all passengers and possible witnesses.
Also, get the names and badge numbers of any police officers who respond to the
scene. If you have a camera handy, photograph damaged cars, skid marks, and the
accident scene. Draw a diagram of the accident and make notes about the weather,
lighting conditions, and road conditions. Most important, help any persons who are
injured.
Do not make any statements about who you believe was at fault. Also, do not
admit blame to the other parties or witnesses. As soon as possible after the accident,
notify your insurance company. If you sustained any personal injury, seek medical
attention promptly. Consult an attorney if you intend to file suit.
Q. If I collide with a parked car, am I required to do anything?
A. The law requires you to try to find the owner. Alternatively, you are permitted to
attach a written note to the parked car identifying yourself and your vehicle. You also
should notify the police.
Q. Must I tell the police if I am in an accident?
A. Alert the police immediately if someone is hurt or killed. Generally, if the accident
involves a death, personal injury, or property damage above a specific amount that
varies among states, you must notify the police and file a written accident report
immediately, or within a short time span, usually five to ten days. Often, states require
you to file the report with the bureau of motor vehicles or similar state authority. Some
states do not require you to report an accident if no one is injured or if property
damage is less than a certain dollar amount. Other jurisdictions require a report only if
no police officer responded to the accident scene.
Q. What if I do not fill out an accident report?
A. Failure to file a written report is a misdemeanor in most states. Some states may
suspend your driver’s license until you file the report. Remember, by completing an
accident report, you are verifying that the report contains a recital of all important facts
37
known to you. Providing false information in a written report is illegal, and typically is
punished by a fine.
Q. Should I contact an attorney after the accident? What should I tell the lawyer?
A. If you are filing a lawsuit against the other driver, you will hire your own lawyer. If
the other driver is suing you, your insurance company will provide a lawyer for you.
At the initial client interview, supply information about:
· your family status and employment situation;
· the accident, including witnesses’ names and addresses; and
· your injuries.
If you are filing suit, tell the lawyer about all your out-of-pocket expenses, such as
doctors’ bills, ambulance and hospital costs, automobile repairs, rental car costs, and
any lost income.
Q. What might happen if I believe the collision is at least partly my fault?
A. You may not be in the best position to determine how the accident happened.
Defective equipment in your vehicle, a malfunctioning traffic signal, or the other
driver’s intoxication are among the many possible causes of the accident. Accepting
blame and apologizing to the other driver may be used as evidence against you at trial.
Leave it to the judge or jury to decide who is at fault.
Q. If the accident is partly my fault, may I still receive payment for my injuries?
A. The answer depends on whether you live in a contributory negligence, comparative
negligence, or no-fault jurisdiction. (See the discussion of no-fault insurance in the
“Insurance” section immediately following.)
Q. What is contributory negligence?
A. Essentially, contributory negligence bars you from recovering money for your
injuries if your own negligence in any way contributed to the accident’s occurrence.
The other driver must prove that you were negligent.
Q. What is the logic behind this legal doctrine?
A. The reasons behind contributory negligence range from punishing you for your own
misconduct to discouraging you from acting negligently again. Only a few states still
accept the concept of contributory negligence, which once was widely supported.
Q. What does “comparative negligence” mean?
A. Adhered to in the vast majority of states, comparative negligence divides the
damages among the drivers involved in an accident based on their degree of fault. In
“pure” comparative negligence states, you can receive payment for your injuries
regardless of how much of the blame you carry for the accident, as long as the other
driver is at fault to some degree. In “modified” comparative fault states, you may
recover payment only if your own fault is below a certain threshold, such as 50
percent.
Q. How does comparative negligence work?
38
A. As an example, you are involved in an accident in which you were driving ten
miles above the posted speed limit on an icy road. You believe, however, that the
accident occurred because the other driver ran a red light.
In a comparative negligence state, it is up to the fact-finder, be it judge or jury,
after hearing your case, to assign the degree of fault for each of you in terms of a
percentage. Suppose the fact-finder decides that your speeding was responsible for 20
percent of your injuries, and the other driver’s going through the red light contributed
the remaining 80 percent. If the total amount of damages were $100,000, you would
only recover $80,000.
Insurance
Q. Does my bank have a say in the amount of insurance I buy?
A. Possibly. Many states allow lenders from whom you borrowed to buy a car to
protect their collateral by requiring you to purchase insurance options such as
“collision,” which pays for damage to your car regardless of fault, and
“comprehensive,” which pays for damage to your car caused by theft, fire, and
vandalism.
Q. What is a deductible?
A. A deductible is the amount of each claim that you agree to pay for by yourself. The
higher the deductible you choose, the lower your annual insurance premium, though
you need more cash on hand to pay for damages when you select a high deductible.
Typical deductibles are $50, $100, $250, and $500.
Q. May my insurance agent force me to pay my premium in a lump sum?
A. Check your particular state’s law. Some states limit the amount an agent may
demand before renewing your insurance to a certain percentage of the premium. If you
have not paid your premium payments in the recent past, however, an insurance agent
may legally ask you to pay your entire premium before renewing your policy.
Q. May my insurance agent charge me a service fee for issuing or renewing a
policy?
A. Consult your state’s law. Some states forbid agents from charging service fees for
issuing or renewing auto insurance policies, and do not require you to pay for services
that your agent performs without your consent.
Q. How are insurance rates determined?
A. A classification system based on objective criteria helps actuaries to determine the
risk of an accident and thereby set the varying rates that drivers pay. Criteria include
your age, sex, marital status, and geographic location; the age, make, and model of the
car; and the car’s primary use (cars used for recreation are statistically less likely to be
involved in an accident than a vehicle used for commuting). In some states, the
insurance rates are set by the state’s insurance commission, which regulates insurance
companies.
39
If you have been involved in a several accidents over a short period of time, you
are a high risk, so insurance companies would add a surcharge to the basic premium
you pay. On the other hand, insurance carriers might offer safety discounts if your
vehicle is equipped with automatic safety belts, anti-lock brakes, or air bags.
Insurance companies will offer other types of discounts as well, such as for senior
citizens, “good students,” if you join a car pool, or if you insure multiple vehicles with
the same carrier.
Q. My teenage son’s insurance premium is much higher than mine. Is it
unconstitutional to discriminate based on age?
A. No. Actuaries cite research that persons under age 21, especially males, have the
highest rate of car accidents. This is the justification for the disparity in rates between
adults and minors.
Q. Will my insurance premium automatically increase if I have an accident?
A. Not necessarily. If the insurance carrier has to dole out $300 to $500 or more in claims,
you are likely to see a premium increase. If you have been accident-free for the previous
three years, the surcharge, if any, might still be less than your costs to pay for the repairs
out-of-pocket. If you are on your third accident and just getting warmed up, prepare
yourself for a 20 percent to 50 percent premium hike.
Q. Do I have to buy uninsured motorist coverage?
A. It depends where you live. Some states now require drivers to purchase such coverage,
which enables you to collect from your insurer if you are injured in an accident caused by
an uninsured driver. The insurance carrier, in turn, receives subrogation rights against the
uninsured wrongdoer; that is, the carrier takes your place (and your rights) as the legal
claimant against the uninsured driver. Skyrocketing hospital costs, combined with a tight
economy that has forced people not to adequately insure their vehicles, if at all (where not
required by the state), make this coverage desirable, even if not mandated by your state.
Q. How do I collect on my uninsured motorist coverage?
A. Generally, you must prove both that the other driver was at fault and without liability
insurance to compensate you. An uninsured motorist actually may have no coverage, or
may be “uninsured” if underage, unlicensed, or otherwise ineligible for protection under
the policy covering the vehicle that caused the accident, as, for example, when the driver
at fault used the vehicle without the owner’s permission. Practically speaking, if the
insurance carrier of the driver at fault denies coverage, you are dealing with an uninsured
motorist.
Q. How much can I recover on an uninsured motorist claim?
A. Check your state’s law. Some states, for example, prohibit adding together the liability
limits for two policies to determine how much coverage is available to injured persons.
Q. How does underinsured motorist coverage work?
A. Underinsured motorist coverage, which exists in a majority of states, provides
indemnification from the injured person’s insurer in a sum equal to or greater than what
40
the injured insured person could have realized had the driver at fault carried the statutorily
prescribed liability insurance minimum. If, for example, you have underinsurance
coverage with a “trigger” provision in the amount of $100,000, and the other driver who
injured you has only $50,000 in bodily injury coverage, but you have $70,000 in damages,
once you recover from the other driver’s carrier, you can look to your own insurer, up to a
maximum $50,000, to cover the excess damages.
Q. Do underinsured motorist policies differ?
A. Yes. A minority of those states that recognize this insurance option weigh the insured
accident victim’s damages against the driver at fault’s liability coverage, compensating the
injured person only if the driver at fault’s liability coverage is less than the damages the
victim suffered or was entitled to receive. Other states examine the injured person’s
uninsured motorist coverage and the driver at fault’s liability insurance, with the insurance
carrier paying out only when the driver at fault’s liability insurance limit is less than the
victim’s underinsured motorist coverage. Most policies enable the insurer to deduct (“setoff”)
the amount the victim receives from the driver at fault from the sum it pays to the
victim carrying the underinsured motorist protection.
THE AUTO INSURANCE JUNGLE
”No-fault,” “choice,” “financial responsibility”—most drivers would rather drive crosscountry,
nonstop, in a Yugo, than attempt to decipher the mysteries of automobile
insurance. Virtually each state has its own insurance regulations, yet not every state has
mandatory insurance. A detailed analysis of the issues and options associated with
automobile insurance is beyond the scope of this chapter, but here’s a quick guide to some
of the major issues.
Q. What is no-fault insurance?
A. Under this type of insurance, which is usually compulsory, insurance carriers
compensate their own policyholders for medical and other costs associated with
automobile accidents. This type of insurance is designed to protect you, any passengers in
your car, and any pedestrian you may injure, without having to enter a court of law to
determine who is at fault for the accident. Most no-fault statutes apply only to bodily
injury claims, and do not encompass property damage claims.
Q. What are the pros and cons of no-fault?
A. The purported advantage of no-fault is that the injured party is reimbursed relatively
promptly by his or her insurance company, saving the party from a protracted court case.
On the debit side, no-fault laws restrict the injured person’s right to sue the other driver for
general damages. For example, often a dollar “threshold” in medical expenses and
damages must be satisfied before an injured party can bring suit against a negligent driver.
Some states have a so-called “verbal threshold,” which uses words not figures to
determine when a suit may be filed. A typical statute precludes an individual injured in a
car accident from initiating a tort action unless his or her injuries resulted in death,
permanent serious disfigurement, or serious impairment of a body function. Under this
41
verbal threshold, sprains, strains, and other so-called “soft tissue” injuries, which are most
common in automobile accidents, would not be compensable. Critics also lambaste nofault
for: 1) not providing an incentive to drive safely, because both the careless driver and
the innocent victim are entitled to the same compensation, and, 2) for not resulting in
reduced insurance premiums, as promised by insurance companies.
Q. What are choice statutes?
A. These laws enables drivers to choose between a no-fault policy that limits the driver’s
rights to sue the other party to an accident but allegedly carries with it a lower premium,
and a straight tort-based negligence plan, at a supposedly higher premium, that gives
drivers a broader right to sue.
Q. What are “financial responsibility” laws?
A. These laws require drivers either to have insurance or post a bond or have a sum of
money in cash. “Security-type” financial responsibility laws require, following an
accident, that each driver demonstrate an ability to pay damages that might be assessed
against the driver in subsequent litigation. Another type of financial responsibility law
involves a minimum requirement of financial responsibility covering death or injury of a
person, death or injury of more than one person, and property damage.
Q. What are “compulsory insurance” statutes?
A. These laws mandate that drivers file proof of financial responsibility as a condition of
receiving their vehicle registration. Many states require drivers to purchase certain
insurance options, such as “collision,” which pays you for damage to your car irrespective
of who was at fault, and “comprehensive,” which pays you for damage done to your car
caused by theft, fire, and vandalism.
WHERE TO GET MORE INFORMATION
The following list is a starting point for getting more details or registering various types of
complaints.
Manufacturer/Dealer/Associations
The National Automobile Dealers Association—www.nada.org—is a major trade
association of U.S. automobile dealers. It publishes a number of brochures for consumers
on topics such as automotive safety. For details, call (703) 821-7000 or 1-800-252-6232 or
write to:
National Automobile Dealers Association
8400 Westpark Drive
McLean, VA 22102
The Recreational Vehicle Industry Association—http://www.rvia.org/–is a national trade
association representing manufacturers of motor homes, travel trailers, truck campers,
multi-use vehicles, and component part suppliers. It publishes brochures offering hints for
42
buyers, tips for campers, and safety and driving tips, among other topics. For details, call
(703) 620-6003 or write to:
Recreational Vehicle Industry Association
1896 Preston White Drive
PO Box 2099
Reston, VA 20195-0999
The Automobile Importers of America represents foreign-car manufacturers in the U.s.
For details, call (703) 525-7788 or write to:
Automobile Importers of America
1725 Jefferson Davis Highway
Arlington, VA 22202
http://www.aiam.org
The Rubber Manufacturers Association–http://www.rma.org/–offers information on tires
and other rubber products. For details, call (202) 682-4800 or write to:
Rubber Manufacturers Association
1400 K Street, NW
Suite 900
Washington, DC 20005
For information and publications on using certified car technicians for repairs, contact:
National Institute for Automotive Service Excellence
13505 Dulles Technology Drive
Suite 2
Herndon, VA 22071-3421
877-ASE-TECH
website: http://www.asecert.org/
You also can call the car manufacturers’ headquarters or their regional offices directly.
Ask your local dealer for details.
Consumer Groups
The website of the Better Business Bureau—www.bbb.org—is full of good information.
Almost every state has a Better Business Bureau (BBB). Every local BBB has a hot line
for automobile-related complaints, particularly regarding warranties. The BBB arranges
arbitration hearings for participating manufacturers. Check your local telephone directory
or write to:
Council of Better Business Bureaus, Inc.
4200 Wilson Boulevard, 8th Floor
Arlington, VA 22203
43
(703) 276-0100
\
Mothers Against Drunk Driving (MADD) is the definitive source for information on
drunk driving. There are many local chapters, which can easily be located in an Internet
search or on the MADD website. Their national contact information is as follows:
MADD
P.O. Box 541688
Dallas, TX 75354-1688
800-GET-MADD
http://www.madd.org/
Ralph Nader’s consumer protection organization is the Center for Auto Safety. It provides
information on automobile defects for various models of cars and may follow-up on
consumer complaints: Write to:
Center for Auto Safety
Suite 410
2001 S Street, NW
Washington, DC 20009
http://www.autosafety.org/
The American Automobile Association (AAA) has an affiliate dedicated entirely to traffic
safety. You can reach it at:
AAA Foundation for Traffic Safety
1440 New York Ave NW
Suite 201
Washington, DC 20005
202-638-5944
http://www.aaafts.org/
A private website with extensive information about lemon laws including a state-by-state
listing can be found at http://www.autopedia.com/html/HotLinks_Lemon.html.
The Consumer Information Center has various booklets that might be of interest to you.
Call or write them at: Consumer Information Center-N, P.O. Box 100, Pueblo, Colorado
81002; telephone, (719) 948-3334 or find them on the web at http://www.pueblo.gsa.gov/.
Consumer Federation of America
1424 16th Street, NW
Suite 604
Washington, DC 20036
(202) 387-6121
http://www.consumerfed.org/
44
The National Safety Council also address auto safety issues.
National Safety Council
1121 Springlake Drive
Itasca, IL 60130
(708) 285-1121
http://www.nsc.org/
Government
The Federal Trade Commission (FTC) has many pamphlets related to automobiles. It has
regional offices, which are listed in the “Where to Get More Information” section of the
“Consumer Credit” chapter. You also can call the FTC’s Bureau of Consumer Protection at
(202) 326-2222 or write to:
Federal Trade Commission
Bureau of Consumer Protection
6th and Pennsylvania Avenue, NW
Washington, DC 20580
http://www.ftc.gov/, http://www.ftc.gov/bcp/menu-auto.htm
You may also want to look at this specialized site that deals with the Magnuson-Moss Act:
http://www.ftc.gov/bcp/conline/pubs/buspubs/warranty/undermag.htm
The National Highway Traffic Safety Administration (NHTSA) provides information on
car recalls and defect investigations. You also can report safety-related defects. The
NHTSA offers a toll-free auto safety hot line. In the D.C. area, you can call this hot line at
(202) 366-0123. In the continental U.S., call the hot line at 1-800-424-9393. Or write to:
National Highway Traffic Safety Administration
400 7th Street, SW
Washington, DC 20590
http://www.nhtsa.gov/
The State of California Department of Consumer Affairs has a helpful website for
consumers who want to understand more about vehicle leases, at
http://www.dca.ca.gov/legal/l-6.html.
The United States Consumer Product Safety Commission is a federal agency that offers
safety-related information on most, but not all, products available to the consumer market.
In Maryland, call (301) 504-0580 and ask for the “Public Affairs Department.” In the rest
of the United States, call 1-800-638-2772. Or you can write to:
U.S. Consumer Product Safety Commission
Washington, DC 20207
http://www.cpsc.gov/,
45
National Transportation Safety Board
490 L’Enfant East, SW
Washington, DC 20594
(202) 382-6600
http://www.ntsb.gov/, http://www.ntsb.gov/Surface/Highway/highway.htm
For additional assistance with automobile-related problems or questions, you also can
contact your state attorney general’s offices or your state Department of Consumer Affairs.
Some states have separate bureaus that handle only motor vehicle problems. Your state or
local Department of Motor Vehicles also may be helpful. Check your local telephone
directory.
Insurance
For information designed to help consumers understand state laws and insurance, contact:
Insurance Information Institute
110 William Street
New York, NY 10038
(212) 669-9200
http://www.iii.org/
The Insurance Information Institute not only has many useful pamphlets, and also has
state and regional counterparts.

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