Improper Use of Prior DUIs in Subsequent Prosecutions

The Cuyahoga County Court of Appeals has recently issued an opinion that bars the use of prior DUI and driving-under-suspension ("DUS") convictions if the purpose of the prior DUI and DUS convictions is to support a claim that the defendant was intoxicated in the current prosecution. In the case of State v. Greer, the prosecution attempted to use the fact that the defendant had been previously convicted of a number of other DUI and DUS crimes - but only did so because the prosecution had no medical evidence of the current alleged driving while intoxicated event. The Court held that where the defendant claims that he was not intoxicated at all, the State cannot use the prior DUI and DUS cases to prove that he was. Most prosecutors would have never put this one to the test. So this decision is not surprising.

What Exactly Does a "No Contest" Plea Mean?

The Ohio Supreme Court has recently made it clear that if a defendant enters a "no contest" plea in a criminal case (and is found guilty as almost all are after they enter the plea), the fact that the defendant entered that plea (and the resulting conviction) cannot be used in any subsequent civil case. No contest pleas are often entered by defendants in criminal cases rather than "guilty" pleas. These "no contest" pleas are seen by many defendants as a softer version of a guilty plea, and some courts had held that Ohio law also barred the use of a "no contest" plea in a subsequent civil action involving the defendant (for example, where the defendant is sued for the damage the defendant did in his criminal actions). In Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., the Ohio Supreme Court made it clear once and for all that "no contest" pleas cannot be used in subsequent civil cases involving the same activity by the defendant. The Court reasoned that: "“The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea. ... The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt. The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea." This decision resolved a number of conflicting decisions for the lower courts of appeals. We assume we will see much more use of the no "contest plea" in the future.

Our Recent Success with Ohio Court of Appeals in a Lead Poisoning Case

One of the areas where we regularly concentrate our practice is in the area of lead poisoning. We often have to deal with a number of ongoing defenses and appeals by landlords and their lawyers in the processing of these claims. One of Cuyahoga County's biggest landlords is the Cuyahoga Metropolitan Housing Authority ("CMHA"). CMHA is suppose to provide safe residential housing for low income persons and families. However, many children living at CMHA owned units regularly get poisoned by deteriorating lead paint - lead paint that Ohio and federal law require not be in a deteriorating state. Notwithstanding the fact that the Ohio Supreme Court has made it clear that the doctrine of "sovereign immunity" (i.e. the doctrine that says cities, counties and the State of Ohio, for the most part, cannot be sued for negligence) does not apply to injuries that occur in buildings or on grounds of governmental buildings, CMHA attempted to argue that they were immune for any lead poisoning injuries to small children. However, the Cuyahoga County Court of Appeals rejected that argument in Bozeman v. CMHA and held that CMHA does have to defend cases involving lead poisoning injuries. The case is now back at the trial court for further proceedings. Once again, stay tuned for details.

Our Recent White Collar Defense Case

We recently got done (for now) with a white collar defense case where the Federal Government alleged that a former attorney had engaged in what is called a "Ponzi Scheme." Many hours went into the review of thousands of pages of tax, bank and other financial documents which the Government claimed supported their case. Dealing with the Federal Government can be complicated - but dealing with the prosecution by the Federal Government of a lawyer is very complicated. Lot's of personality. Anyway, on the date of trial, we and the Federal Government were ready to get the trial started, but the client/lawyer got wedding day jitters and did not show for trial. The Government's agents are currently looking for our client, so his case is not yet over. Once again, stay tuned for details.

Ohio Supreme Court Declares New Workers' Compensation Statute Constitutional

In what has been an ongoing battle at the Supreme Court of Ohio for the last decade or more, the Supreme Court of Ohio has found the newest version of the "intentional tort" section of the Workers' Compensation statute to be constitutional. In Kaminski v. Metal & Wire Products Co. the Court held that the General Assembly's most recent version of a law that gives greater protection to employers is, notwithstanding the holdings of previous panels of the Supreme Court of Ohio, constitutional. In Ohio, in order for an employee to sue an employer that causes an on-the-job injury to the employee, the employee, under the new law, must prove that the employer acted “with a deliberate intent to cause injury.” If the employee cannot prove that, then, regardless of the employer's negligence or the employee's injury, the employee is regulated to whatever he/she can get paid by the Bureau of Workers' Compensation. This ruling is the latest stage of an ongoing battle between forces who want to make it harder to sue employers for serious and reckless workplace injuries and those who believe that taking away an employee's right to sue for serious and reckless workplace injuries is a violation of the Ohio Constitutional "trial by jury" clause. The ongoing debate has to do with whether allowing more protection for employers will, in essence, indirectly encourage more injuries or death. We see this as just another stage of what will most likely be an endless battle between the forces behind business interests and the forces behind worker protection. Stay tuned - and be extra careful at work.

Must a Juror Be Able to Hear to Decide

The Ohio Supreme Court has recently decided that generally jurors' senses must be unimpaired to take in the specific evidence in order to be selected for that trial. Regardless of the fact that well intentioned society rules require that we respect and work with all types of persons with physical disabilities, if a physical impairment interferes with a juror's ability to take in the specific type of evidence that is presented in a particular trial, that juror must be excluded from that trial. In the case of State v. Speer,
the Supreme Court of Ohio stated that when the specific evidence in a trial requires that a juror have the senses necessary to take in that evidence, then the trial court must exclude any juror who has a physical impairment that interferes with taking in that evidence. In Speer, the jury had to hear and interpret 911 tapes, and one juror had a hearing disability, and the Supreme Court of Ohio had to reverse the conviction of the defendant because that juror could not properly hear the tapes.

Still more on arbitration provisions

We have previously reported to you about the potential dangers of "arbitration" provisions in what can generally be referred to as "consumer contracts" (i.e. contracts that involve the consuming general public like auto repairs, home-improvement, retail purchases, health care and nursing home services). Arbitration provisions have historically been found in many "commercial" contracts where the parties are mainly sophisticated business persons. However, in recent years, many companies which provide consumer services have placed arbitration provisions in their standard contracts in order to bar a consumer's right to bring a lawsuit for a breach of the contract - and even for personal injuries incurred by the negligence of those companies. These provisions essentially take the law out of the dispute and instead replace the law with the attitudes, opinion and sometime the biases of the arbitrators. Further, arbitrators charge huge fees for their "private" services while courts and judges provide all of their services for almost no charge at all other than a nominal filing fee.

Recent efforts in Congress have been aimed at barring arbitration provisions in all consumer contracts. For instance, if the negligence of an automaker or nursing home kills someone, any provision in contacts covering that relationship which mandate arbitration only for ANY dispute (including but not limited to personal injury claims) will be illegal. In fact, there is push in Congress to pass the Arbitration Fairness Act of 2009 this year. The act would ban mandatory arbitration in all consumer and employment disputes. Stay tuned for this development, and - again- review all of the contacts that you sign to see if there are any arbitration provisions buried in the small print.

Our Victory at the Supreme Court of Ohio

Last week we received word that we were completely victorious in our currently pending appeal with the Supreme Court of Ohio. In Beckett v. Warren, the Supreme Court of Ohio agreed with our claim that a person who has been injured by a dog attack can pursue and go to trial on BOTH a statutory claim for damages and a general negligence claim. This is important for dog attack victims because it permits them to obtain punitive damages against the dog owners if the injured party can prove that the dog in question had attacked a person prior to them. The Supreme Court sanctioned a new trial for the young girl in this case who had had her scalp torn from her head by a Rottweiler who had attacked another person just a few weeks earlier. Stay tuned for details on what happens when the case is set for a new trial at the trial court. Congrats to the family of this girl who have had to suffer for years with this terrible injury.

Cell Phone Search Warrant - a Must

In what could be one of the most functionally important criminal justice decisions of the year, the Ohio Supreme Court of Ohio today issued a search and seizure opinion on how and when police departments can search for cell phone data. In State v. Smith, the Court essentially held that the police must obtain a search warrant if they want to search the contents of a cell phone they have seized from an arrested person. This is somewhat of a refinement or distinction on the "search-incident-to-arrest" concept that allows the police to search a person or that person's car (and closed containers in that car) after that person has been arrested. The Court stated that given the "unique nature" of modern cell phones, they are more akin to a laptop computer (which clear case law says requires a search warrant) than closed containers found in a car (which clear case law says does not require a search warrant). This case will not prevent police from eventually searching a cell phone if they really want to, because all they will have to do is obtain a quick search warrant (very easy to do these days) and THEN search the phone. Further, remember that police can also obtain a call history by issuing a properly prepared subpoena or search warrant to the cell phone service provider (e.g. Verizon, AT&T, Sprint). Thought: If you are going to be involved in a criminal enterprise, delete all of that incriminating data on the phone in case you are arrested.

The Interest Rate in Contracts

The Ohio Supreme Court issued another business litigation decision this past week concerning the interest rate that a company or person must pay when they fail to pay on a contractual obligation. The case of Mayer v. Medancic concentrated on whether that interest rate can be a "simple" interest rate or an interest rate that allows for the "compounding" of interest. If it is a "simple" interest rate, then all the unpaid amount generates is interest only. If it is a "compounding" interest rate, then interest runs on the original unpaid amount - plus the previously unpaid and accrued interest. For example, if the unpaid amount is $10,000.00, and the contract between the parties just states that the interest rate is 8% (i.e. it does not specify whether or not it is a simple interest rate or a compounding interest charge), then the unpaid amount generates only $800.00 in interest per year. However, if the contract in this example specifically states that the interest rate on the unpaid amount is 8% to be compounded annually, then at the end of each year, the $800.00 interest incurred is added to the $10,000.00 principal, and 8% interest thereafter is earned on a now increased principal amount of $10,800.00. Obviously, a written agreement that calls for a compounding interest rate is going to generate a much larger overall amount of interest than a written agreement that either specifically calls for a simple interest rate or is silent on the matter. Suggestion, read your contacts and loan agreements very carefully on how interest is to be charged if a party defaults - especially of the compounding language calls for the interest to be compounded quarterly or even monthly.
It must also be pointed out that the interest rate statute has a number of specific provisions on what the statutory or limited interest rate may be for any specific written agreement. The amount of interest rate to be charged under the statute can very depending on what type of written document is involved. That topic is for another post and is not specifically discussed here.

The Spousal Privilege - Revisited

The Ohio Supreme Court has issued a new opinion involving a doctrine the law calls "spousal privilege." The old doctrine basically holds that a wife cannot testify against her husband in a court of law unless the husband permits her to do so (and, further, that a husband cannot testify against his wife in a court of law unless the wife permits him to do so) - if that testimony involves "confidential communications." For example, if a husband tells his wife in confidence that he committed a crime, the prosecutor cannot compel that wife to testify against the husband at trial about that confidential conversation. In this example, it is the husband who gets to determine whether to invoke the privilege - not the wife. In this most recent opinion (State v. Perez), the Supreme Court of Ohio held that while a wife may not testify against her husband in a criminal trial, any tape recordings of those conversations may be played for the the jury at trial. The Court held that this technical bypass of the privilege was, essentially, OK with them. After all, said the Court, the wife did not testify - the prosecution just played the tapes. Suggestion, check the room for bugs when planning a crime in the presence of your wife.

Subrogation - Again

We think that "subrogation" is such an important concept in the personal injury field, that we have decided to re-publish our original post on this subject, and then give you some more information on the concept. First, our original post is reprinted below:

When a person receives medical services as a result of an accident, the medical providers and/or the medical bill payors (e.g. medical insurance companies, Medicaid, Medicare, or Worker’s Compensation) almost always have what the law calls a “subrogation” claim on any monies that the injured person may end up collecting from the negligent party. In short, if the injured party gets compensated for the injury, the subrogation concept is that they essentially must pay these entities back for the medical bills or medical bills payments made by these entities. This subrogation area of personal injury law gets more complicated each day, with state statutes and federal statutes and medical insurance contracts getting more involved. Plaintiffs (and their lawyers) must be very careful to protect the subrogation interests of these entities – or they themselves can get sued in connection with the personal injury claim. It is very important for the client and the lawyer to identify and monitor the subrogation issues in the claim so there are no surprises when or after the client finally receives compensation.

Second, some more things to think about.

Medicare laws now in effect on the issue of subrogation have gotten even more complicated. Now, if you are injured in an accident, and you are getting ready to settle that accident, you and your medical providers have to use your best guess as to what medical bills you will, in the future, incur - and do your best to put aside settlement money to cover those costs. If you don't, Medicare can essentially sue both you and your lawyer for not doing so. So, before you settle any personal injury case where some or all of your medical bills have been paid by Medicare, be very careful to stay in full dialogue with the proper officials at Medicare about what they and your (and your lawyer) can agree will be the FUTURE medical costs likely to be paid by Medicare.

Further, some private health insurance companies actually hire professional subrogation companies to monitor the subrogation issues associated with a person's injury, and these subrogation companies will track you and your lawyer down to make sure that the health insurance company gets as much of its money back as it can. Most health insurance contracts that cover the relationship between a patient and the health insurance company require the patient to fully notify and cooperate with these professional subrogation companies. Again, like Medicare, if you or your lawyer ignore these subrogation issues, the professional subrogation companies can sue you to get the money the health insurance company was contractually entitled to.

Further still, subrogation law allows public health insurance companies like Medicaid and Medicare (and even some private health insurance companies) to actually have a direct claim against a defendant for the medical bills already paid by them. So, some defendants (and their lawyers) in personal injury claims will insist that they place both the client's and the health insurance/public insurance company's name on the check when a case is settled in order to assure themselves that they can't later be sued by the public or private health insurance provider.

Complicated enough for ya? We live this these issues every day.

Damaging the Phone While Someone is Calling 911

The Ohio Supreme Court decided that if someone damages or otherwise interrupts the attempted electronic contact with the police or fire department, they can be prosecuted and convicted for "Disrupting Public Service" - which is a felony.

In State v. Robinson, 2009-Ohio-5937, the Court held that if that "conduct substantially impairs the ability of law-enforcement officers, firefighters, rescue personnel, emergency-medical-services personnel, or emergency-facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm," then the person causing the damage can be prosecuted and convicted of that statute.

This situation comes up most often when one person snatches the phone from another person trying to call 911 and damages the phone or the phone line. The defendant in that case had tried to argue that the statute can only apply when the actions of the a defendant shut down or interfere with an entire phone system - rather than just one phone.

However, the Supreme Court of Ohio rejected that argument and held that just damaging one phone is enough for a conviction.

If someone is calling the cops over what can only be a misdemeanor, the damaging of the phone to prevent or interfere with that call transforms the whole incident into a felony.

So don't smash the phone - just sit and wait for the cops or walk away.

More on Arbitration Agreements

We have previously brought you updates on the area of law involving arbitration agreements. As you may recall (or already know), contracts can contain clauses or provisions which require the parties to submit to arbitration if a dispute arises about the contact. While the debate on whether these clauses are a good idea rages on, the Ohio Supreme Court continues to issue opinions on how these arbitration provisions work. In its most recent opinion, the Court, in Mynes v. Brooks, 2009-Ohio-5946, held that if one party sues another over a contact which has an arbitration provision, and one party to that lawsuit files a motion to have the lawsuit suspended so that arbitration can resolve the dispute, either the "non-moving" party or the "moving" party has the right to appeal that decision immediately. Essentially, that means that the neither the moving party or the non-moving party has to wait until the whole lawsuit is over in order to present their issue to the court of appeals. In short, this has the net effect of potentially making the whole litigation process longer - rather than shorter as intended by the arbitration concept. Businesses and individuals have to seriously consider the practical effect of these arbitration provisions when signing a contract.

Experts, Specific Values and "Financial Misconduct" in Divorce Cases

The Cuyahoga County Court of Appeals has just recently reaffirmed that when a domestic relations court is faced with two values for a business, one provided by the husband and the other provided by the wife, the Court is permitted to exercise its "discretion" to determine which value, based upon the evidence, is proper. This discretion is a powerful right possessed by the domestic relations court, but there must be credible and objective evidence and reasoning presented to the Court in support of the value. In the case of Haynes v. Haynes, 2009 Ohio 5360, the Court also sent the case back to the domestic relations court to obtain specific values of the parties property so that the Court could mathematically divide all of the property as equally as possible. For some reason, the parties did not present (and the trial court magistrate did not require) specific values for important pieces of property that had to be divided by the court. Ohio law requires that a domestic relations court do its best to divide up all of the marital property equally - and obtaining values for all of the relevant property is absolutely necessary to obtain an equal division. The Court also held that the trial court was correct in holding that using business funds to pay for gambling debts was "financial misconduct," and that the gambling spouse could lose a portion of their half of the marital estate for such conduct. Ohio divorce law holds that if one spouse engages in "financial misconduct," the court can penalize that spouse by taking away a portion of the marital estate and giving it to the other spouse.

The Supreme Court of the United States addresses DUI tipsters

In what is rather a rare situation, the United States Supreme Court is reviewing (and eventually answering) the question of whether or not an anonymous tip of possible drunk driving to a police department is sufficient to give police officers of that department the right to pull over that driver. In the case of Virgina v. Harris, the prosecution is trying to convince the United States Supreme Court that the Supreme Court of Virginia was wrong when that Virginia Court held that an anonymous tip is not enough for a police officer to pull over the driver - and that the officer must actually see the driver driving poorly before that officer can pull over the driver. Since the case just got to the United States Supreme Court, it may indeed be sometime in the future before we get an an answer to this question. The answer to this question shall be binding on all states in the Union - including Ohio. Ohio currently allows for anonymous tips to provide enough "reasonable suspicion" for the police to pull over a driver if the tip was proven to be "reliable" and the tip has not gotten stale over time. Stay tuned . . . We will let you all know as soon as we get the ruling.

Recent Ruling on Class Actions

The Cuyahoga County Court of Appeals has recently issued a ruling on what the law calls "class actions." In a case involving a Consumer Sales Practices Act lawsuit against a car dealership (Konarzewski v. Ganely, Inc., 2009 Ohio 5827), the Court of Appeals ruled that (i) the persons to be included in the class were ascertainable and (ii) the transactions at issue were similar enough (i.e. the claims were "typical" enough and had enough "commonality") to proceed as a class action. The defendant, in a further attempt to prevent the certification of the class. claimed that the class definition was not clear enough. However, the Court also rejected that argument and stated that the definition does not have to specifically identify every member by name - it just has to be clear enough to give a court an idea of how to identify who the potential members might be once the class is certified. The Court of Appeals has now sent the case back to the trial court with instructions to certify the class and work in refining the class definition. This ruling could have large implications for businesses that rely on a large volume of small transactions. If the custom of that business is to engage in a minor manipulation of the law each time it engages in those transactions, then a class action lawsuit by just one of the affected customers could result on a huge class action lawsuit against the business.

Video of Our Oral Arguments at the Supreme Court of Ohio

In one of our earlier posts, we notified you of the fact that we had an important case pending with the Supreme Court of Ohio. That case involved a dog mauling of a young girl. When that case went to trial, the trial court made us chose between 2 types of case presentation, which we believed was against the law. The Court of Appeals agreed with us (see the Court of Appeals decision), but the insurance carrier for the dog owners wanted to have the Supreme Court of Ohio hear the case. You can hear the September 30, 2009 oral arguments Michael O'Shea made at the Supreme Court of Ohio in Case No. 2008-2106 Yoshanta Beckett et al. v. Richard Warren et al. by clicking here. Give us some comments if you want.

Leaving Home Monitoring System Can Result in an Escape Charge

The Cuyahoga County Court of Appeals has just ruled that a if person is on electronic home detention (e.g. an electric ankle bracelet that monitors the location of a defendant) while on probation, and that person defies the geographical limitations of the bracelet or snaps-off/shuts-off the bracelet, that person can be charged with a separate and subsequent escape crime - even if that person was sent to jail for a probation violation. The defendant in State v. Peters, 2009 Ohio 5836 argued that, because the trial court had already sent him to prison for violating the electronic monitoring terms (i.e. ankle bracelet) of his probation, charging him with a separate and subsequent crime for the same conduct violated the "double jeopardy" clause of the Ohio and United States Constitution. However, the Court of Appeals disagreed. The Court held that (i) charging one for conduct which also resulted in a probation violation is not a violation of double jeopardy and (ii) a trial court is without authority to dismiss an indictment prior to trial because there is no legal mechanism (as there is in a civil case) for a court to do so. Suggestion, keep the ankle bracelet on and keep watching Oprah.

Mandatory Longer Sentence for DUI Breath Test Refusal Found Consitutional

In still another ruling on the ongoing debate about DUI sentencing statutes, the Supreme Court of Ohio recently ruled that the extra 10-day sentence mandated by Ohio law on those who (i) have a prior DUI conviction and (ii) refuse the breath test on a subsequent DUI arrest and conviction is not a violation of the Fourth Amendment of the Ohio and United States Constitution. The defendant in State v. Hoover, 2009-Ohio-4993 alleged that the mandatory breath test required under Ohio DUI law violated his Constitutional right against "unreasonable searches and seizures" - a right protected by the Fourth Amendment of the Ohio and United States Constitution. However, in a narrow 4-3 decision, the Supreme Court of Ohio rejected that argument, holding that a series of decisions by the Court have already held that a defendant does not ever have a right to refuse a breath test, and, therefore, any increased in penalty for a refusal of the test cannot be unconstitutional. These prior holdings have all been based upon the idea that when a person requests and obtains an Ohio driver's license, that persons has consented to having their breath tested at any time they are arrested for a DUI. So if a person has a prior DUI conviction, and that person is subsequently arrested for another DUI and refuses a breath test, that person is facing (i) a 10-day sentence for a 2nd DUI and (ii) an ADDITIONAL 10-day sentence for refusing the test - for a total minimum sentence of 20 days. If that same person had consented to the test (and tested over the legal limit), they would only be facing a mandatory sentence of 10-days. A person with a prior DUI conviction has to really ponder whether refusing a breath test if arrested for a 2nd DUI is worth the extra penalty. Suggestion, consult with a lawyer as soon as you are confronted with this issue.