What is a "HGN" test for DUI cases?

When a police officer pulls over a person suspected of driving under the influence, that officer is permitted to request that person to submit to a number of what are called "Filed Sobriety Tests" ("FSTs"), including what is called the "Horizontal Gaze Nystagmus" test (the "HGN"). This is the test (as some of you may have seen) where the police officer instructs the suspect to follow his finger or pen - and where the officer is going to observe how the suspect's eyes follow that finger or pen. The term "nystagmus" refers to an involuntary jerking of they eyes. The officer is looking to see how the eyeballs move, and how soon and how much (if at all) those eyeballs begin to shake or jerk.

The theory behind this particular test is that the sooner any jerking begins, and the more pronounced and the longer the eye jerking continues, the more alcohol is in that person's blood - and, the more under the influence that subject is. The officer is looking for three "clues" for each eye, for a total of 6 clues for the whole test - with the generally accepted fail point being just 4 clues. If a suspect fails just the HGN test alone, the officer can place that suspect under arrest and (at the police station) request the suspect to blow into the "BAC" machine. There are other FSTs that an officer does at the scene (including a "walk and turn test and a "heel-to-toe" test), but those other tests will be discussed in future blog postings.

Many defense lawyers take the position that the HGN test is not scientifically reliable, and that a court should never allow a jury to hear about the HGN test. However, the Ohio Supreme Court has long held that a HGN test, when properly administered, is admissible at trial, and that an officer can testify about how the test is often validated by the BAC machine results. The bigger issue in a DUI case is whether the specific police officer administered the test properly - specifically according to a well know manual called the "NHTSA Manual." Most well qualified defense attorneys know what the proper procedures are, and how to properly cross examine a police officer about how a particular HGN was administered. When looking to hire a DUI defense lawyer, make sure that lawyer has sufficient experience with these types of hearings.

Do the cops need a warrant to attach a GPS device to a car?

A recent series of new technology rulings by courts in Ohio have indicated that, so far, Ohio law does not require that police departments obtain search warrants in order to place a GPS tracking device on a suspect's car. With today's technology, a small GPS device can be attached to a suspect's car, and the police can sit at a computer and simply track where that car goes (and record that tracking). Various defendants who have been arrested and prosecuted for crimes which included this type of evidence have moved the courts to suppress that GPS evidence - claiming that the police needed a search warrant before the GPS device is used. Newspapers are following this issue

Normally, police have to obtain a search warrant in order to set up video or audio surveillance of buildings and rooms used by suspects, and they also have to obtain search warrants to monitor phone calls. However, police do not have to obtain search warrants to simply follow a suspect around town - be it on foot or in a car. One Ohio appellate court to address this GPS tracking issue so far has concluded that using GPS tracking technology is more akin to following a suspect on the street rather than eavesdropping on that suspect's conversations with wiretaps or video/audio monitoring. The Court also stated that there is no real "expectation of privacy" on the outside of a car (which is where the GPS device was placed) - even in the undercarriage area of the car.

This issue will obviously have to be decided by the Ohio Supreme Court. However, the highest courts in other states have determined that a warrant is necessary to use GPS technology. Stay tuned.

Driver's License Suspensions

Part of our practice involves advising clients on the driver's license suspensions (from DUIs and other offenses) and assisting those clients on getting their driver's licenses back. In Ohio, there are approximately 40 ways to get your license suspended, including but not limited to DUIs, 12-point suspensions, failure to have or show insurance when pulled over for a traffic offense, and child support arrearages suspensions. Many suburban courts in Cuyahoga County have what are called "diversion" programs aimed at getting unlicensed persons legal again - with the idea being that Ohio wants its drivers to be legal rather than suspended. Many drivers get pulled over without actually knowing that their license has been suspended - and a police officer can pull you over just because your license plate indicates that the owner of the car has a suspended license. In many courts, driving under a suspended license ("DUS") cases are first degree misdemeanor cases which can technically get that driver up to 6 months in jail.

The Cleveland Plain Dealer is reporting that many license suspensions are issued for issues that do not even involve driving. The January 17, 2011 article says that at least 25% of license suspensions have nothing really to do with driving issues.

Make sure that there is nothing out there that could result in your license being suspended and always have your insurance card available to show a police officer if you get pulled over (best to leave it in the car or have it in your wallet).

A NEW "SALIVA" TEST AS A REPLACEMENT FOR THE DUI BAC MACHINE?

Ohio and other states may in the future use "saliva" tests as alternative test (called the the Alco-Screen 02 or the QED A150 Saliva Alcohol Test) for the classic breathalyzer machine that has been long used to test blood alcohol content. Some in the testing scientific community have concerns about the reliability of these tests (some are already being used in the employment screening/monitoring context). The officer would have to swab the saliva out of a driver's mouth, and then apply certain chemicals to see if the swab changes to a certain color.

Ohio already is engaged in some debate over the use of a newly designed breath machine (this new machine automatically does some things that the current machines do not).

Stay tuned.

Federal Jurisdiction vs. State Jurisdiction

Recent events in the media (the recent horrible gun attack on Congresswoman Giffords, a federal judge and others by Jared Loughner in Tucson, AZ) remind us in the criminal justice legal community to revisit those legal events that trigger concurrent jurisdiction of both the federal authorities and the state (or local) authorities. There are somewhat limited times when the federal authorities can get involved in violent crimes that happen in a small geographic area. Usually, the alleged crime must involve "interstate commerce," that is, the geography of the crime must extend across state lines (e.g. kidnapping across state lines, interstate organized crime, or interstate/international drug trafficking) or involve federal officials or a specifically stated type of crime (e.g. internet child pornography [violates both Fed and local law], threatening, inuring or killing a Federal public official, bank robbery, skyjacking, using U.S. Mails for any criminal purpose, and counterfeiting). Federal prosecutors can often invoke this "interstate commerce" requirement by simply proving that a defendant used the mails or national electronic means (phone or email) just once during the course of the conduct which gives rise to the crime. Sometimes conduct can be simultaneously prosecuted by both the federal authorities and state authorities - but most times the federal and state officials simply agree on who will prosecute what portion of the crime. Further, often federal and state authorities put together joint task forces to work on specific areas of criminal activity.

Recent events in Arizona will involve some delegation of who will prosecute what. Most likely the defendant will be prosecuted federally for his tragic actions against the Congresswoman, her staff and the federal judge, while the tragic actions involved against the other victims will involve state prosecution - although nothing is certain at this time. The federal authorities have already filed preliminary federal charges.

Check your homeonwers policy - some conduct may not be covered says the Ohio Supreme Court

In an opinion issued on December 30, 2010, the Ohio Supreme Court clarified an issue that involves how much "intentional" conduct a homeowner's insurance policy might cover when someone is injured by a person covered under the homeowner's policy. Typically, when a person who is covered by a homeowner's policy (e.g. the homeowner or the residents/family members of the home) accidentally injures another person, the homeowner's policy will provide coverage for the injury. However, over the years, the Ohio Supreme Court has issued opinions which held that certain conduct and harm is not covered by a homeowner's policy - specifically murder and child molestation. In the case of Allstate Ins. Co. v. Campbell, the Ohio Supreme Court also held that certain types of other conduct and harm may also be excluded from coverage - specifically if "the insured’s intentional ACT and the HARM CAUSED are intrinsically tied so that the act has necessarily resulted in the harm." This analysis is to be applied by Courts on a case-by-case basis, and the Courts must also look to the specific language of the specific policy. In this case (the facts are somewhat complicated - a juvenile prank gone very wrong) the Ohio Supreme Court found only one policy was specific enough to exclude coverage while the others were not.

Two importatn things to consider here. First, know that certain types of conduct will not get you coverage under your homeowner policy (e.g. intentional harm and most really reckless/stupid stuff), and that your personal assets may be at risk for damages that may result. Second, read your policy - some policies have much broader exclusion language that others, and expect that most insurance carriers will reword all of their exclusion language now that this decision has been issued.

New Years Eve Post

Happy New Year. Drive safely and wisely - especially over the next 48 hours. We will be open 24/7 for the next 48 hours, so call us at 800-529-1966 if you or someone you know makes a mistake or otherwise needs us. Print off the 800 phone number and keep it with you.

The number: 800-529-1966

Michael J. O'Shea, Esq.
O'Shea & Associates Co., L.P.A.
Beachcliff Market Square
19300 Detroit Road - Suite 202
Rocky River, Ohio 44116
(440) 356-2700 - office
(216) 470-8098 - cell
(440) 331-5401 - fax
michael@moshea.com
www.moshea.com

The Ohio Supreme Court Gun Rights Decision

The Ohio Supreme Court issued a somewhat controversial gun rights decision today. In the case of City of Cleveland. v. State of Ohio. the Ohio Supreme Court held that Ohio cities were barred from enforcing any city gun "ordinances" which conflicted with any "statutes" which have been passed by the State of Ohio. In this particular case, the following City of Cleveland ordinances were in alleged conflict with the guns laws passed in Columbus: Cleveland Codified Ordinance 627.08 (possession of firearms by minors), 627.09 (possessing deadly weapons on private property), 627.10 (possessing certain weapons at or about public places), 627A.02 (access to firearms, prohibiting children access to firearms), 628.03 (unlawful conduct, prohibiting possession and sale of assault weapons), and 674.05 (registration of handguns). Essentially this decision is a further pronouncement by the Ohio Supreme Court (as they have done in other cases in the last few years) that the laws passed in Columbus trump the laws passed by individual city councils. Many legal observers see this decision not so much as a victory for gun rights advocates but as a further eroding of what is commonly referred to as "home rule" - the power of individual cities to police themselves.

See the Plain Dealer article about this decision for more background.

New York Appeals Court says Golfer Had No Duty to Yell 'Fore'

The New York Law Journal is carrying a story about whether a golfer needs to yell "fore" when he/she hits a ball into an other golfer's direction. A Court of Appeals in New York says no - and that all golfer's "assume the risk" of being hit by another person's golf ball when playing. Or suggestion: always stand behind someone hitting the ball. In this case, the offending golfer was a doctor, and we all assume those folks are good at golf . . . .

Violent Crime Down 6.2% in the US - so says the FBI.

Violent Crime Down 6.2% in the US - so says the FBI. See the CNN article. Hopefully the same is true in 2011. By the way, only the Northeast part of the US showed an increase in homicides (vs. the South, the West and the Midwest). So they may not assault you - they will just kill you in the Northeast. Be careful.

Is this a new era for Big Business in the Courts?

A recent New York Times article spent some time discussing whether or not the current US Supreme Court is much more big business friendly that in decades past. Lawyers who litigate in Ohio know that the Ohio Supreme Court (all elected judges/justices) will all be Republicans come January of 2011, and that many pro-big-business-insurance-company issues will be pressed by those groups in the years to come.

In the meantime, drive, bike, fly, walk, work and play more carefully that you ever have, and choose your lawyers and doctors even more carefully.

The dangers of social networks while you are in litigation or a business deal

There have been a number of recent discussions about the "dangers" of over-participating in social networks (e.g. Facebook, Twitter, My Space) while you are a participant in a legal claim or actual litigation - or even a business deal. This is because, obviously, almost anyone can monitor your social activities to the extent that you (or even your "friends") post those activities on social media. There have been incidents in domestic relations cases (let your imagination run wild here) or personal injury claims/lawsuits (e.g. a photo of an alleged injured person jet skiing or playing football) that have revealed information that one did not want revealed. So if you are involved in a divorce case, a personal injury case, or even a business deal/lawsuit where your "social" life can be relevant, be VERY careful about what you or someone else posts about you in social media platforms. Your adversaries can get free private investigation info on your from their desktops or laptops.

So if you have some of these issues in your life, be careful of what you or your buddies post about you.

What is an "Underage Consumption" OVI Charge?

Under Ohio law, anyone under the age of 21 can (and most likely will) be charged with what is know as an "underage consumption" charge when that person also is arrested for a standard OVI charge. Under Ohio law, anyone under the age of 21 is prohibited from driving with a blood alcohol content level in excess of .02 (vs. .08 for a person over the age of 21). The underage consumption section of the DUI statute is found in subsection "(B)" of that statute, and the ticket issued by the arresting officer can read/charge on the ticket that the offender has violated both subsection "(A)" of the statute (the regular OVI violation for all persons) as well as subsection "(B)" of the statute (reserved for persons under the age of 21). There are some sentencing/penalty differences for a violation of the underage consumption section of the statute vs. the regular OVI subsection of the statute. An underage consumption conviction is a 4th degree misdemeanor (maximum jail time 30 days - maximum fine $250.00) vs. a regular OVI charge being a 1st degree misdemeanor (maximum 180 days in jail - maximum fine up to $2750 [depending on how many priors]). Further, an underage consumption conviction requires that the court wait 60 days in order to grant the defendant limited driving privileges vs. 15 days for a first time OVI defendant. Further, an underage consumption charge also carries only 4 points where a regular OVI conviction carries 6 points. An underage consumption conviction will require the young offender to complete a remedial driving course, obtain an expensive driving insurance bond and retake the driving test in order to get that offender's driver's license back from the Ohio BMV.

Almost always the prosecutor will offer a good defense lawyer a choice between the two charges.

The "Commerce Clause" and how it applies to the Federal Court rulings on the Obama healthcare law.

You may have read or heard about the recent ruling by a federal judge in Virginia who struck down a portion of what is commonly called the "ObamaCare" health reform bill. The Judge declared that the provision of the reform bill that required all Americans to have some sort of health insurance violated the "Commerce Clause" of the US Constitution. The Commerce Clause of the US Constitution gives the federal government legislative powers to regulate matters that affect interstate commerce. The Judge ruled, however, that a person who simply fails to act (i.e. refuses to buy health insurance) cannot be said to have actually engaged in commerce. This war of semantics is nothing new when it comes to constitutional challenges, and almost all legal scholars agree that the United States Supreme Court will ultimately have to decide the matter - but this may take at least a few years. In the meantime, only those citizens of Virginia who do not want to buy health insurance will be affected by this ruling. All other state challenges to the health insurance reform law have failed for the time being - including another federal ruling by another federal judge in Virgina. Stay tuned for this one - Ohio has a new Governor and Attorney General coming into office next year - both of whom are not fans of the health insurance reform law.

Texting While Driving

Check out this article about the dangers and liability of "texting while driving." While many cities in Ohio do not (yet) have an outright ban on texting-while-driving, Ohio law does have some statutes (e.g. RC 4511.202 and 4511.33) that prohibit not being in complete control of your vehicle (or weaving out of your lane) while driving. We assume more and more cities will soon adopt a municipal code ordinance that direclty deals with texting-while-driving. Stay tuned and be careful about this activity - many police officers are looking to make examples of how some of these new laws work.

What's the Difference Between "FST's" and a "BAC" test in DUI cases?

People who come and see us for DUI representation often tell us that they "refused" "THE TEST" - meaning that they refused to submit to the blood alcohol machine (aka the "BAC" machine) at the station AFTER they were arrested. However, what they almost always fail to understand (at least until we tell them) is that the BAC test is only one part of the whole testing process. Prior to their arrest, the officer almost always obtained other important evidence of their guilt - including their general observations of the defendant (including how the defendant smelled, looked and spoke) as well as what are called "Field Sobriety Tests" ("FSTs"). The FSTs must be given to the suspect (on the side of the road for the most part) in a somewhat specific fashion, and that fashion is controlled by a manual put out by the National Highway Transportation Safety Administration (the "NHTSA Manual"). These FSTs are often very helpful to police officers in establishing evidence of driving under the influence. Contrary to what some lawyers and non-lawyers might tell you, refusing to take the FSTs or the BAC may or may not be a good idea. Sometimes the refusal to take the BAC test is something a prosecutor is allowed to strongly comment upon at trial, and the refusal to take the BAC test results (in itself) in an automatic licenses suspension. Further, if you have one or more prior DUIs in the last 20 years, refusing the BAC test results in a separate charge that is more serious (from a jail standpoint) than the DUI itself. It is always a good idea to try to talk to an experienced lawyer before taking any tests in a DUI pullover - but good luck getting an experienced DUI lawyer on the phone at 3:00am. That's why we have a 24/7 DUI hot line at 800-LAW-1966.

Please drink and drive responsibly - especially this time of year.

Judges and Social Media - What are They Allowed to Do?

This week the Ohio Supreme Court issued some guidelines to Ohio judges on how judges are allowed to use social media (Facebook, Twitter, etc.) and who (and how) they are allowed to inneract with on social media. Essentially Judges are not permitted to discuss any of their cases or general legal matters on these sites - and that if they are too closed to any of their Facebook "friends" or Twitter "followers" they should step down from any case which involves them. Further, all of their communications must remain "dignified." See the Columbus Dispatch story on this event - and if you are really bored, you can read the opinion from the Ohio Supreme Court.

Eyewitness Testimony - Not Always What We Assume

The Cuyahoga Court of Appeals did something recently that Courts generally do not do - toss out eyewitness testimony as being "unreliable." Courts almost always leave it to the jury (and the jury alone) as to whether an eyewitness could have perceived the perpetrator at the scene of the crime and then later identify a perpetrator at trial. However, under Ohio law, there are some rules/guidelines that Courts must evaluate before permitting just any type of witness identification at trial (e.g. how long the witness had to view the guy, the witness's degree of attention at the scene of the crime, the witness's description of the guy to the police at the scene of the crime, and the witness's confidence on the identification). The Court must also assess how the police set up the line-up where the witness identifies the guy to make sure that the line-up process was not unduly suggestive. In State v. Farrow, the Court of Appeals upheld a trial court's exclusion of eyewitness testimony. This is very rare.

What is "Spousal Privilege," and why you need to be nice to your spouse

The Ohio Supreme Court just issued an opinion this week that addresses the implications an old but often misunderstood doctrine called the "spousal privilege." Under the codified version of this doctrine, the spouse of a criminal defendant is not competent (i.e. not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify. In the old mobster movies, the mobster would always try to marry the star witness against him so that his wife could not testify against him - but this is not how the privilge actually works in Ohio. As set forth above, a spouse is permitted to testify against the other spouse ONLY if either (i) the testifying spouse (or their child) is the victim of the crime or (ii) the spouse simply decides to testify by their own volutary decision. Stated another way, a prosecutor cannot force a spouse to testify against the other spouse unless (i) the testifying spouse or their child is the victim in the crime or (ii) the testifying spouse decides he or she just wants to. So fellas, be nice to your wives.

Still More on Arbitration Agreements

The highest court in the land, the United States Supreme Court, will soon issue an important decision about "arbitration agreements," those written contract provisions that essentially mandate that persons who are parties to a written contact waive their right to a day in court and, instead, agree to have their dispute heard through a private arbitrator (who is usually an industry insider and who makes a decision that cannot be appealed by either party - no matter how against the law that decision may be). See the article in the New York Times about this case. Stay tuned with us for any future announcements on this very important case.