Lipson O'Shea Legal Group

“Reasonable suspicion” and “probable cause” – different standards

Michael O'Shea — Mon, 16 Apr 2012 20:48:55 +0000

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.

Another DUI trial result

Michael O'Shea — Sat, 14 Apr 2012 15:15:49 +0000

One of the things that Mr. O’Shea does in his practice is his part time city prosecutor job. In that regard, Mr. O’Shea is called upon to prosecute DUIs that occur in his home city of Rocky River. A number of times each year he has to take a case to trial. In that last 3 years, he has had to try 5 DUI cases as a city prosecutor – and has been successful each time (including this past week). Each of those cases involved ONLY the presentation of testimony of officers who conducted field sobriety tests (often called “FSTs”) – with no evidence of blood alcohol presented to the jury. Each time he sees different techniques used by defense lawyers to attempt to gain a not guilty verdict. At this point he has seen just about everything. Some techniques work (to some degree) and some do not. With each trial Mr. O’Shea gains more experience in the presentation of DUI testimony and the cross-examination on that testimony. Mr. O’Shea believes that this actual trial experience (as well as the many many “hearings” he has litigated) in the DUI prosecution/defense world significantly helps his overall understanding of Ohio’s DUI law and the proper techniques in both defending (Mr. O’Shea defends DUI cases outside of the Rocky River Court) and prosecuting DUI cases.

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

Michael O'Shea — Tue, 10 Apr 2012 19:05:43 +0000

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

Michael O'Shea — Tue, 27 Mar 2012 22:01:26 +0000

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”

Michael O'Shea — Tue, 20 Mar 2012 17:23:00 +0000

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

Michael O'Shea — Sun, 18 Mar 2012 03:05:50 +0000

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. … Continue reading →

The “verbal” domestic violence case

Michael O'Shea — Fri, 16 Mar 2012 17:05:06 +0000

Many times those arrested and/or accused of domestic violence claim they are not guilty simply because they only made what they believed were veiled threats of harm. For example, the husband who says “I’m going to kill” you in a fit of rage, or the live-in girlfriend states “I will cut your throat” during an argument, can be found to have violated one subsection of the Ohio domestic violence statute (other subsections talk about actual physical injury to the victim) which states: “No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.” Sometimes, as in a recent Cuyahoga County Court of Appeals case, even text messages and standing outside of an apartment can be sufficient evidence of a domestic violence violation.

Advice: Count to 10 before saying anything out of anger to your significant other. Even if you don’t really intend on doing anything physical, the cops can still be called.

What is a criminal “bad check?”

Michael O'Shea — Thu, 15 Mar 2012 17:51:22 +0000

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.”

Michael O'Shea — Wed, 14 Mar 2012 20:27:54 +0000

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

Michael O'Shea — Mon, 12 Mar 2012 16:58:15 +0000

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.