What is a "dram shop" lawsuit, and what is involved?

In the past, we have successfully maintained suits against liquor establishments for selling/furnishing alcohol to a noticeably intoxicated person - who, after leaving the establishment (or while still on the premises), caused injury to others.  This often happens in DUI related auto accidents (sometimes it applies to bar fight cases too).   When there is insufficient auto insurance to cover the auto accident injuries (be it the insurance of the drink driver or the "under" insurance of the injured person), lawyers are required to see of the person or establishment serving the DUI driver furnished alcohol to that driver when that driver (while at the establishment) was noticeably intoxicated.   This is not an easy thing to do (although, with lots of work, we have been able to do so).  An Ohio statute covers the law in this area. A recent case out of Franklin County explains the legalities and complexities of these types of cases.  In Piras v. Screamin Willie's, 2015-Ohio-255, the Court of Appeals in Franklin County discussed how a bar/restaurant can be held liable for injuries caused by a patron who was served alcohol despite the fact that the patron was "noticeably intoxicated."    The Court held:

• “For a claim to arise under R.C. 4399.18, noticeable intoxication must be evident at the time of service….[the defendant's] obvious intoxication at the accident scene and hospital does not provide, absent additional evidence, that he was noticeably intoxicated hours earlier when he placed orders at the bar.”

We have, in the past had to hunt down cash register receipts and interview other bar/restaurant patrons to finally discover how intoxicated the defendant was while the defendant was still on the premises of the bar/restaurant.  Magnum PI results matter here.

Be careful out there.  Don't hesitate to tell the bar/restaurant manager that a patron has had too much.

DUI protections for our clients

DUI cases are complicated.  

The economic impact on a client can be huge (i.e. fines, attorney fees, loss of employment and insurance costs, etc).  Further, some clients have huge issues with their employment if they are even accused of a DUI offense.

Recently, we had to assist two clients with a number of these important legal and economic issues.  The first was a husband and father who had never been in trouble in his life.  One night, in a moment of very bad judgment, he decided to drive home from a party where he had been drinking very heavily.  On his way home, he lost control of his car, and went into a ditch. 

Before his car left the road, he hit a mailbox - which flew through the air and hit an elderly man in the leg (taking out his garbage), breaking the leg of the elderly man.  Because of how the law worked, this husband/father (and owner of a small family business which supported the family and others) was facing a minimum of one year in prison. 

However, because of some issues we were able to locate in the arrest procedure, we were able to negotiate a much lower sentence, and the client did not have to report for that sentence until after the holidays. This way, he can ready his family and his family's business for the time he will have to spend in jail. This was huge to the client and his family.

The second was a woman who is in the last months of her nursing degree.  She is currently employed as a RN-in-training (big hospital), and the OVI arrest has frightened her about her RN employment possibilities.   Due to some issues we were able to locate in connection with the arrest, she was offered a plea to a reckless operation - a huge reduction for her. 

This will look much better on her driving record - and should provide her with a significantly strong explanation to any current or prospective employer about what happened on one, out-of-the-ordinary, night.

As we stated above, it is important to look at all of the personal and economic impacts a DUI arrest has on a client.   Its not always just about the law and the police report.

Still another DUI reduction for us last week

We had another change to identify some leverage for a client last week, this time resulting in a plea bargain which permitted our client to get a reduction on his DUI charge. 

Finding the right objective basis for getting a reduction in a DUI case is getting harder these days, and we were encouraged that we were able to get it done - and that we got it done with the agreement of the prosecution.  

Given what the DUI conviction would have done to the occupation of the defendant, this one time mistake  (and we mean "one time") by the client was extremely important to him.

I am sure the client would be the first to tell anyone not to get into the same trouble he temporarily found himself in. He had really learned a valuable lesson from the whole experience.

Another DUI Reduction for Us Last Week

Last week we obtained another reduction in a DUI case - this time involving a person under the age of 21 (it gets more complicated when the defendant is under 21 years of age). 

This person is still in college, and the reduction was very important to this person who will soon have to go out and try to get employed post-graduation. 

Like many people that age, this person was on the way from a concert when pulled over by the police - who were just doing their job.  

All involved here (including the police and the prosecutors) were very professional. What a relief to this young adult and and the parents.

Happy New Year to that family and to yours.

Remember, the police will be out in full force this time of year.  Don't take any chances.

OVI Reduction Today

courtesy

We do a large amount of OVI defense work.   Sometimes you really have to dig to find the fleas on an OVI case.   Today, we found some - and were able to use that discovery to cordially negotiate a reduction for that client.  It was his first (and, for what I see, his only) OVI arrest.   He really felt terrible about the arrest, and even felt bad about asking a lawyer for help (that it was something somewhat immoral to do).   The cops who made the arrest are good guys and did what they thought was right under the circumstances.   Ohio law, however, puts many requirements on police when they conduct OVI arrests - and sometimes even the best cops make a mistake.  Even the police officers seemed OK with the reduction under the circumstances.  All shook hands when we left the courtroom. A good and professional day for all.  We can't emphasize enough how much professionalism and courtesy can go along way in many cases.

The Duty of DUI Disclousre by the Defendant

gotcha images

The Supreme Court of Ohio issued a decision today which involves, from a legal standpoint, the intersection of "public records" requests (and information obtained from those requests)  and a defendant's legal duty to reveal to the prosecution the documents and evidence a defendant will try to use at trial.    Just like a prosecutor's duty to disclose evidence the prosecution wants to use at trial, the defendant has a reciprocal duty to disclose the evidence the defendant wants to use at trial.   In this case, the lawyer for the defendant tried to use documents that were obtained through a "public records" request which the defense lawyer had used outside of the trial court discovery and subpoena power.  The Supreme Court of Ohio held that the defense lawyer had a duty to disclose the existence of these records to the prosecution if the defendant wanted to use them at trial. When it comes to criminal discovery, the proverbial barn door should always be open.  In short, no sneaky "gotcha" tactic will be permitted by the prosecution or the defense.

Blood Draws in DUI Cases

blood draw image

In many DUI cases the police have to obtain an actual needle blood draw from the accused offender  - instead of using the famous breathalyzer.   This often happens when the defendant has been injured in the accident himself or when the police have reason to believe that the defendant is high on something other than alcohol. How and when the blood is actually drawn from the defendant can have a big impact on the defense of the DUI case.   There are many protocols and procedures that the police and medical personnel must follow in order for that blood to be used as evidence.  We have had a number of these cases, and there are many issues we have had to examine in order to determine whether the police got it right.  If the blood draw is done improperly, then the results of the blood test do not get into evidence.

Call us if you have questions about this.

The weaving issue in DUI cases

car weaving

There has been a large amount of case law which discusses whether or not a police officer is legally justified in pulling over a driver who is weaving - and then discovering that the driver is under the influence or over the legal limit.   If a DUI defense lawyer can prove to the judge that the weaving was not that bad, then the whole DUI will essentially get dismissed.   Therefore,  many DUI defense lawyers will argue that the weaving was not sufficient enough to give the officer "reasonable suspicion" to believe that the driver was committing a traffic offense - specifically a "marked lanes" violation.   Many of the opinions issued by courts of appeals focus on how close to (or over) the lane line the car traveled.  If the car just weaved within its lane or just slightly touched either lane lines, many courts will conclude that this type of weaving is not enough.  In that regard, dash cam videos (if they are available) have become more and more important to analyze in order to see just how much weaving was going on. We constantly analyze court opinions to try and gauge where the courts are going on this issue.  Some courts of appeals judges (there are three for each appeal) will often disagree with each other in the actual written opinion.  That is why there are three judges instead of two - can't have a tie on these opinions.

Call us or email with any other questions.

Another DUI trial result

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.