Sovereign Immunity - Suing the King

There are times when a client comes to us who has been injured (or even killed) by the actions of someone who works for a city, the county, the state or even the United States.  In Ohio, many of the actions and employees of the State are protected from lawsuits (and paying damages in lawsuits) by a doctrine called "sovereign immunity" - which is an ancient legal doctrine that holds that you can't sue the King because the King is the law. In Ohio, there is a sovereign immunity statute (or series of related statutes) that provide when and how you can sue a city, the County or the State.   It's a confusing series of statutes, and the interpretation of the provisions of those statutes are a constant source of litigation and Court of Appeals' decisions.  In fact, the Ohio Supreme Court is due to issue a decision in the very near future that talks about how two provisions of those statutes work together (a fire truck struck an automobile on its way to a fire).

In short, the Ohio General Assembly has decided to make it somewhat difficult to sue the government.  The tragic aspect of some portions of these statutes is that if a police or fire vehicle runs a red light and injures or kills you or someone in your car, they have sovereign immunity in many instances - and even your own under-insured/uninsured motorist policy that you paid extra for will not cover your damages.

Despite these difficulties, we have had some successes in pursuing and resolving claims against the government.  But, for now, drive with your windows (to hear the sirens as far off as possible) - even in the winter.

Grand Jury Transcripts

Some clients ask us why we can't get a copy of the testimony of police officers and witnesses who provided testimony to the grand jury.   A grand jury is a body of citizens who serve on a rolling basis to decide if the prosecution as sufficient evidence to indict a defendant for an alleged crime.   The standard of proof for an indictment is far less than the "beyond-a-reasonable-doubt" standard necessary for a conviction at trial.   Nevertheless, the witnesses who testify at the grand jury are under oath - and thus defense lawyers would want to have the transcript of that testimony to see if that grand jury testimony is the same as the trial testimony. However, there are very limited circumstances where a defense lawyer can get the transcript of the grand jury testimony.  The defense lawyer has to show "particularized need" (whatever that means) in order to get a special order to have the prosecutor present that transcript.   As a practical matter, this almost never happens because most courts assume that the defendant can learn all he needs to know from the police reports and other evidence disclosed in the pretrial discovery process.

But we still try now and then - and have on some rare occassions gotten those transcripts in special cases.

Just FYI.

Just the small of alcohol not enough for a DUI test

A recent case issued by a Court of Appeals held that just because a police officer smells alcohol on a driver does not mean that the police officer gets to demand that the driver perform a bunch of field sobriety tests.  In short, the officer has to have more than just a smell of alcohol (e.g. weaving, slurred speech, glassy eyes, etc) to justify a request that the driver perform any sobriety tests.  In that case, even though the smell was an “extremely strong odor of alcohol” with no “rational explanation,” that fact alone was not enough to justify an officer requiring the driver to perform sobriety tests. Don't drive drunk - and if you still decided to do so, be still and shut up if you get pulled over.

The New Expungement Statute in Ohio

Ohio has just passed a law that somewhat expands the persons who may be eligible to get their criminal records expunged.   Some parts of the old law were changed and some were left the same.   These amendments can get technical, but it appears that many persons who were not eligible for an expungement of their criminal record are now eligible.  We are still reviewing the specific text of this new law, but we are already getting calls from present, former and possible new clients on whether they can now get an expungement that before was unavailable to them. Call us further if you want to discuss your individual case.

What a hospital can do the uninsured - charge much more for the same service

Some courts of appeals have recently issued written decisions that approve what you might think is very unfair - hospitals and medical providers that charge "uninsured" patients up to twice what they charge insured patients.  Most insured patients get the benefit of a "contract" between their health insurance company and the medical provider that requires the medical provider to give that patient up to a 50% reduction on the bill.   Health insurance companies get this discount from medical providers in return for the bulk of billing that gets paid by the insurance company.

If an uninsured person gets injured in a car or other accident, the medical provider can simply wait out the claim and demand full payment of the bill when the cases settles or a judgment by a court is issued.   Sometimes, somewhat tragically, the medical providers get to gobble up ALL of the settlement or judgment money BEFORE the injured party/patient gets one red cent.   In that regard, it is very important for the injured party and their lawyers to make sure that they understand the net effect of any settlement and work hard before that settlement to see if these medical providers will agree to reduce their claim (some do, some don't).

Be careful out there.

Withdrawing a plea of guilty - getting harder and harder

Our recent review of current Ohio case-law on the issue of defendants who try to withdraw their guilty pleas leads us to one inescapable conclusion:  it is getting harder and harder to get courts to grant request to back out of pleas.   It use to be that almost any defendant could somewhat easily withdraw his or her plea prior to sentencing  - and sometimes in limited circumstances after sentencing.   The criminal  rules that apply to pleas basically say just that. Nevertheless, trial courts and courts of appeals are now issuing decisions that hold that a defendant must have a very good reason for withdrawing the plea - even if that request to withdraw the plea happens before sentencing.  Court's reject the idea of a plea withdrawal if they conclude that the defendant has just had a change of heart - they want more than that.   In our opinion, the courts are misapplying the criminal rule on pleas when they do this.   But they are the courts, and we are not.

So now it becomes ever more important for a defendant to have the benefit of full knowledge of what he or she is doing when they plea.  Too many folks come to us AFTER they have plead and want us to try to get them out of it - and this is becoming harder and harder to do each day.  Make sure you know what you are doing BEFORE you plea and assume that you can't get out of it unless there are rather extraordinary circumstances.

Call us anytime at 800-529-1966 to discuss this further.

More on GPS and cell phone tracking by the police

An Ohio-based federal court of appeals has just issued a new decision on the issue of if and when the police can use a "pay-as-you-go" cell phone to track the travels of a criminal suspect.   In the case of United States v. Skinner, the Court held that a defendant that uses this type of cell phone does not have any "expectation of privacy" in the GPS data being emitted by the phone.  The Court held that the DEA did not need to obtain a search warrant to track the cell phone GPS.   This case is bound to be relied upon by the police and prosecutors in the future, and we think that the United States Supreme Court will be eventually presented with this issue.   As we have blogged about in January of this year, the United States Supreme Court has recently held that the police need a search warrant to attach a pure GPS tracking device on a car - so this pay-as-you go cell phone/GPS issue will likely be a natural extension of that emerging GPS issue. Stay tuned - and remember you can still always track your kids' cell phones and cars without a warrant.  They have no rights when it comes to their parents.  LOL.

What happens if you simply run from the cops

A recent Ohio Court of Appeals opinion, an Ohio Court held that the police are not allowed to search a person they are issuing a j-walking ticket to, and they cannot thereafter chase down and search that person when that person walks away rather than be searched.   In State v. Baber, the Court addressed a situation where a Cleveland Heights police officer saw the defendant walking down the road at 1:30am and walking in a portion of the road where is was essentially illegal.   Rather than just writing the defendant a ticket, the police officer demanded that the defendant place his hands on the police cruiser so the officer could search the defendant.   The defendant refused and walked (and then ran) away from the police officer.  The officer gave chase, and when he caught the defendant a gun was discovered on the defendant. The Court said the request to search the defendant was illegal.   Nothing in the street encounter gave the police officer "reasonable suspicion" to believe that the defendant was armed or had contraband.  The Court held that there was no "reasonable, articulable suspicion that criminal activity may be afoot."  The Court also held: "the authority to stop an individual does not necessarily equate to authority to search the individual and place him or her in the back seat of the cruiser."

These street encounters happen all of the time - especially after midnight.  There have been many court opinions issued involving street encounter circumstances like this.   These court opinions are very fact sensitive, and not all court of appeals agree with each other on just exactly how the law works here.   We find ourselves facing these issues for a number of our clients all of the time.   We expect to see more.

Stopping after an accident - what is illegal?

We often see persons who have been charged with what the legal profession calls a "hit-skip" - which means leaving the scene of an accident.   We  most often see it (1) in elderly folks who bump into someone in a parking lot or street (and mostly really don't notice) and (2) drivers who are afraid of getting charged with a DUI.   Some older ordinances and statutes seem to imply that a driver has 24 hours to report any accident.  However, that 24-hour notice provision really only applies when the driver cannot locate or immediately contact a police officer.  That language has been in the law for many years - long before the wide use of cellphones.  With the prevalence of cell phones, however, those provisions are mostly meaningless. Further,many cities are updating their municipal codes to address this old loophole. Leaving the scene of an accident - even a non-serious accident- can have severe consequences.  A person convicted of this offense gets 6 points on their driver's license and can go to jail for up to 6 months (same as a DUI), and some judges fairly speculate that the driver fled from the scene because the driver was drunk - and they will gladly put that driver in jail.  If you are not drunk or impaired, NEVER leave the scene of an accident.   If you believe you are impaired, its best you consult with a lawyer before calling the police.  Although the lawyer cannot suggest to you that you leave the scene, that lawyer can give you some good advice on how to handle yourself when the police arrive.

DUI Sobriety Checkpoints - How are they legal?

Are DUI sobriety checkpoints legal? An Ohio Court of Appeals recently addressed the legality and requirements for police to use sobriety check points.   The Court pointed out that the police (who arrested and successfully prosecuted a guy who was arrested at one of these checkpoints) were following a specific written policy that required:  proper warning signage at 750 feet, 500 feet, and 250 feet from the entrance to the checkpoint, sufficient illumination, staffing by a specific number of uniformed police officers with marked police cars, a location that was visible to persons driving up to and by, and a specific location based on data related to OVI arrest and crash locations, history and prevalence. Further, the cars were stopped based on a method pre-determined by an administrative officer.

The Court of Appeals pointed out that a number of appellate courts had already found that sobriety checkpoints that follow a similar specific written protocol (like the one set forth above) did not unreasonably intrude on privacy  - and were therefore legal.

So, the conclusion here is that if you can readily see the checkpoint from a distance (because of signage and all of the cops and cop cars) in an area known for bars and restaurants and fender-benders, the checkpoint is most likely legal for the cops to have.  We will continue to monitor this area of DUI law - especially in light of the fact that the Ohio Supreme Court has yet to rule on this issue - so stay tuned.  Store our number in your cell phone for any future emergency use: 800-529-1966.

"Reasonable suspicion" and "probable cause" - different standards

One of the areas where there seems to be ongoing confusion is on the "standard" that police officers need to have to just pull someone over for a traffic violation.  Sometimes lawyers and judges claim or think that the police need "probable cause" to pull someone over for a traffic violation.   However, this is not the law in Ohio.   Police officers only need "reasonable suspicion" to believe a traffic offense has occurred to pull someone over - and the "reasonable suspicion" standard is a lesser standard than a "probable cause" standard.  It is much easier for a prosecutor to prove that the police officer had "reasonable suspicion" to believe that a driver committed a traffic offense than it is to prove that the officer had "probable cause" to believe that a traffic offense occurred.  This issue was recently discussed in a case out of the city of Cincinnati. So drive safely everyone.

What do the police need to stop and pat you down?

What do the police need to stop and pat you down?  This question comes up quite often when the police find weapons or drugs/contraband on a person when they stop and conduct what is known as a "pat down."  Many of the folks arrested in this fashion have their lawyers file motions which are designed to have the evidence thrown out (these are called "motions to suppress").    A number of appellate cases hold that if the police can point to objective facts which lead them to have "reasonable suspicion of criminal activity," they can temporarily stop and detain and conduct a "limited" "pat-down" search of the defendant.  Other cases have held that this pat-down must be based upon a reasonable belief that the defendant is also armed (vs. just possessing drugs).    Further, some cases have held that the pat-down is restricted to looking for weapons only - and cannot be used as a pretext for a search for drugs.   A recent case out of Stark County Ohio shows how different judges on the very same appellate panel can disagree on how this pat-down law works. We often have to have a good idea of how a particular judge views pat-downs before we can suggest a legal strategy to our clients.    We base this off of years of experience in dealing with these matters.

"Proving" prior DUIs

Many times we get clients who have been arrested for an OVI/DUI and who have had prior OVI/DUI convictions.  They are concerned (as are we) because the more "priors" you have had the more "mandatory" time the trial judge must give to that offender.  For instance, a person who has had a prior in the last 6 years has to serve a minimal sentence of at least 10 days in jail (or 5 days jail plus 18 days of electronically monitored home arrest).  A person who had had a prior in the last 6 years and who had a "high" BAC (i.e. over .17)  must do 20 days in jail (or 10 days plus 36 days ).    And it gets worse for more priors - much worse.    So, a good OVI/DUI lawyer has got to examine the "priors" to see if those prior convictions can actually be used as DUI "priors."  This examination includes seeing if the client had legal counsel for those priors and when and exactly what the client plead to. Make sure that your lawyer examines the particulars of those priors BEFORE you consider entering a plea.

The police can search you if they think there is an "emergency"

The Ohio Supreme Court just issued a decision which held that a person may be stopped and quickly searched if the police believe that emergency aid is needed to protect life or prevent serious injury.     In State v. Dunn, the Court held that because the police had received a call that Mr. Dunn was driving around in a tow-truck with the thoughts of suicide, the police could stop the truck and conduct a quick search for weapons.  The Court called this "the community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement."  The Court also held that the prosecution does not have to prove that the call, in an emergency-type of situation, does  not have to be proven "reliable."  The Court then concluded that the warrantless search of that truck was constitutionally permissible, and therefore affirmed Dunn's conviction for improper handling of a firearm in a motor vehicle. Advice:  Don't tell folks that you are going to kill yourself and then drive around with a gun.   Whatever is illegal in the car is fair game for a police search.

We are on "lawyer call" 24/7 - 800-529-1966

Just a short post to let you know we will have our cell phone ears on all night for any questions or counsel about your rights and responsibilities about drinking and driving and other celebration activities. Call us at 800-529-1966.

We will be up all night.

What is a criminal "bad check?"

An Ohio Court of Appeals recently held that a client who had written a $1,000.00 bad check to their lawyer was in fact guilty of felony writing bad checks - in violation of Ohio Revised Code 2913.11(B) .   In State v. Napper, the Court held that Napper's conviction for writing bad checks was proper despite a protest by Napper that a civil collection case had been prosecuted criminally.   What the Court noted in sustaining the felony conviction was that there was proof that at the time Napper wrote the check he knew it would bounce.   Further, Napper was given a number of opportunities to make the check good and never did. Police officers in bad check cases often call the check writer and give them a clear deadline to make the check good.  So even if you bounce a check, and even if the payee of that check files a police report, most police officers will refrain from any charges as long as you make the check good ASAP.

Advice:  Of all the people you could find, don't write your lawyer a bad check.

Every person's home is their castle - and the castle must be built in a "workmanlike manner."

The Ohio Supreme Court just issued a new decision which held that despite what the home purchase/construction contract may purport to say, every person's home is their castle - and the castle must be built in a "workmanlike manner."   In Jones v. Centex Homes, Inc. the Court made the following pronouncement: "[T]he duty to construct a house in a workmanlike manner using ordinary care is the baseline standard that Ohio home buyers can expect builders to meet. The duty does not require builders to be perfect, but it does establish a standard of care below which builders may not fall without being subject to liability, even if a contract with the home buyer purports to relieve the builder of that duty. Accordingly, we conclude that a home builder’s duty to construct a house in a workmanlike manner using ordinary care is a duty imposed by law, and a home buyer’s right to enforce that duty cannot be waived."

So if you are having a  home built, pay close attention to the contract - bu also know that the contract does not relieve the home builder from their legal duty to build the home in a "workmanlike manner."

Tinted windows and the smell of pot

A Court of Appeals in Dayton, Ohio recently issued an opinion which essentially found that if you get pulled over for tinted windows (and you can get pulled over for just that), and the police officer claims to smell burnt marijuana, that officer can then conduct a "pat down" of your person for weapons and also conduct a quick search of the car compartment for drugs.  Further, if the officers finds that you have even a small amount of marijuana on your person, that officer can then search your person further for any other drugs.   In this case, that further search located some crack cocaine.   The Court of Appeals found that the pulling over of the car and the search for drugs in the car and on the defendant's person was permissible. Suggestion:   Get rid of the tinted windows.   With some police officers, you are just begging to get pulled over and searched.

Extra prison time for being in a "gang."

The Cuyahoga County Court of Appeals recently issued a decision about what is known as a "criminal gang specification" - an addition to almost any indictment which, if proven at trial, requires, pursuant to RC 2929.14(G),  a defendant to receive extra time in prison (the court has a choice of 1, 2 or 3 years - which has to be served before any other portion of the prison sentence).  The definition of a criminal gang is: "as a formal or informal group of three or more persons to which all of the following apply: (1) one of the group’s primary purposes is the commission of one or more offenses designated in the section, which includes, among others, a felony, an offense of violence, and trafficking in marijuana; (2) the group has “a common name or one or more common, identifying signs, symbols, or colors”; and (3) the persons in the group “individually or collectively engage in or have engaged in a pattern of criminal activity.” R.C. 2923.41(A)(1)-(3)."

So, if you are running with a bunch of fellas who like to commit crimes, you need to know that the mere affiliation with the gang can get you extra time in prison.    Sounds simple, but don't name your group or use symbols and colors - whatever you do.

"Marital Property" and "Separate Property" under Ohio divorce law

A recent Ohio Court of Appeals opinion discussed the definition of, and difference between, "marital property" and "separate property."    These can be important definitions when the parties have been married for a long time and have worked on or bettered property each may have owned prior to the marriage.   Generally speaking, under Ohio law, the property you bring into the marriage (called "separate property") does not become "marital property" (property owned by both the husband and the wife) just because of the marriage.   If that separate property is segregated and remains largely unchanged during the marriage, it remains separate property.   If either or both of the parties work on or assist in the increase in value of separate property during the marriage, then that "appreciation" in value (but not the pre-marital portion) is going to be considered marital property.   Separate property can also lose its status as separate property (called "transmutation")  if it is "commingled" with marital property and the commingled part cannot be "traced" back to its separate property roots. Since there is no marriage class that people go to before marriage, many of our clients are stunned to find out that a portion of, or even all of, their separate property is now, because of how that property was treated during the marriage, allegedly marital property.