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.

Last week we had some scary moments at Rocky River Court. Now we know why we have security bailiffs.

See this amazing courthouse story caught on security video. Last week we had some scary moments at Rocky River Court. Now we know why we have security bailiffs.

Study Finds No Progress in Safety at Hospitals

A recent New York Times article reports that despite awareness of preventable measures, medical mistakes at hospitals seem to keep happening. The article claims "Many of the problems were caused by the hospitals’ failure to use measures that had been proved to avert mistakes and to prevent infections from devices like urinary catheters, ventilators and lines inserted into veins and arteries." The article also states "A recent government report found similar results, saying that in October 2008, 13.5 percent of Medicare beneficiaries — 134,000 patients — experienced “adverse events” during hospital stays. The report said the extra treatment required as a result of the injuries could cost Medicare several billion dollars a year. And in 1.5 percent of the patients — 15,000 in the month studied — medical mistakes contributed to their deaths. That report, issued this month by the inspector general of the Department of Health and Human Services, was based on a sample of Medicare records from patients discharged from hospitals."

Patients have to be their own second eyes and ears, and essentially partner with their doctors, about this.

Wonders Never Cease - Science has found a new execution drug

According to the Wall Street Journal, execution scientists have now deployed a new execution drug for human inmates that was formerly used just to euthanize animals - because it essentially costs too much to get the normal (but rare) execution drug. An Oklahoma federal judge has actually approved the use of this drug on two defendants. Let's see what Ohio decides.

Lie Detector Machines

The Cuyahoga County Court of Appeals has just recently issued a decision about the use of lie detector machines (i.e. polygraphs) in criminal trials. In State v. Banner, the Court held that Ohio law only allows the use of polygraph results if (i) the defense and the prosecutor agree to the process and use at trial and (ii) the trial judge agrees that the process is reliable. Further, either party can still chose to cross-examine the polygraph expert on the test results at trial. Obviously, both the prosecutor and the defense lawyer must first agree to the porcess in order for any part of this process to begin or the results to be admitted. This almost never happens. In Banner, a police officer was permitted to testify that the defendant nervously refused to take a polygraph test once offered. The Court found that this testimony was admitted in violation of Ohio law and reversed the child rape conviction. The matter will soon be re-tried by the prosecutor.

The Written Contract Controls - No Matter What the Salesperson Promises

Warning: the Cuyahoga County Court of Appeals just held that the "Parol Evidence" rule bars introduction at trial of negotiation or salesperson statements or promises which are contradicted by written express terms of the final contact. Car dealer Tom Ganely wins one in Olah v. Ganley Chevrolet - where the Court essentially held that it did not really matter what the salesperson may have said - the written contact actually signed by the customer controls. You know the advice here: READ THE CONTACT BEFORE YOU SIGN - even when dealing with used car salesmen.

Ohio's Castle Doctrine - Is it Working?

Remember Ohio's "Castle Doctrine?" It essentially provides that one does not need to justify injuring or killing another if it is done in one's home to protect oneself. Under somewhat newly enacted Ohio Revised Code Section 2901.05(B)(1), a person is presumed to have acted in self-defense when attempting to expel or expelling another from their home who is unlawfully present. Further, under the Castle Doctrine, a person attempting to expel or expelling another is allowed to use deadly force or force great enough to cause serious bodily harm. There is also no duty to retreat inside one's home anymore. One Cuyahoga Court of Appeals opinion has addressed this doctrine and found that it did NOT apply in one case - because the victim had previous been invited to the defendant's home (and had on one occassion spent the night). One news oaganization recently addressed some of the criticisms of the new law. We will have to monitor more decisions in the future to see how this law develops.

ER Doctors May Get Immunity from Malpractice Lawsuits

Pending Law in Columbus:

The Ohio General Assembly is considering legislation that would provide "immunity" to all ER physicians and ER medical providers (e.g. nurses and physicians assistants). See
http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_595

Consumer Credit Reports and Employment

Pending Law in Columbus: The Ohio General Assembly is considering legislation that would bar employers from using consumer reports for employment purposes. See http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_586.

Stay tuned to our blog to see how this develops.

Search Warrants and Cell Phone Locations

A Federal Court has recently held that Big Brother (the Federal Government) may need to get a search warrant in order to get cell phone data which will tell the Federal Government just where a certain individual was on a certain date and time. In the case of In re the Application of the USA, Electronic Communication Service, the Third Federal Circuit Court of Appeals has ruled that Federal prosecutors may need to obtain a search warrant when they are attempting to gain cell phone location data. This is another recent Federal Court ruling in the area of criminal investigation and prosecution where Federal "privacy" Constitutional issues collide with ever emerging technology. The Court had to address and discuss how a person's physical cell phone location (which is technically digitally recorded most times a person is on the phone) is considered Constitutionally private. Even more specifically, the Court had to address how a federal statute (which the Federal prosecutor's claimed gave them the ability to get the cell phone location data without a warrant) may conflict with the Federal Constitutional right to privacy. In short summary, the Court held that if the records are deemed to be Constitutionally protected, then, regardless of the federal statute, the federal government must get a search warrant (and, accordingly, prove that there is "probable cause" to believe there was evidence of crime to be gathered). However, the Court also then held that the cell phone location data may not be protected by the Constitution in most cases, and that in order to get that data, the Federal Government will probably not have to meet the "probable cause" standard. This case will not end the debate in this area, but it does a good job at discussing issues that arise when new technology meets a very old Constitution. More cases and rulings are expected to follow, and we will try to keep you all informed.

What is a "trade secret" and how can it result in a lawsuit

Ohio has what is a called a "trade secret" statute - a statute that seeks to define and control valuable sensitive information that businesses take time to develop and protect. Contractors and employees of business that own these trade secrets can sometimes use or even steal that data (called "misappropriation") - and such misappropriation can often lead to litigation. Often trade secret litigation can involve what are called "temporary restraining orders," which are orders issued in the very beginning of a lawsuit (vs. at the end of the lawsuit) to control the activities of individuals while the lawsuit is pending. When a trade secret lawsuit is first filed, the owners of trade secrets look to have a court essentially restrain the alleged users or thieves from using that data while the lawsuit is pending. The ultimate relief sought in the lawsuit is usually damages and/or a permanent injunction forever barring the defendants from possible (or further) appropriation of the data.
However, in order for something to constitute a "trade secret," the data must actually be valuable (having what is called "ascertainable" value) and the owner of that data must take "reasonable efforts" to keep that data secret.
Business owners need to take specific steps to develop and protect their trade secrets, which includes written provisions in contracts for all of those who come into contact with the data. These contracts need to identify just what the protected information is, and those contracts should also include provisions where the persons coming into contact with the data consent to litigation restraining orders and specifically set amounts of damages for any attempts at improper use or theft of that data.

Stay in the Car Dude

The Cuyahoga Court of Appeals has recently affirmed the "obsructing of official business" conviction of a speeding motorist. In Broadview Heights v. Stovall, the Court held that a jury could convict a motorist of obstruction of official business [in Broadview Heights called "interference with an enforcing official"] for simply getting in and out of her car and screaming at police during a traffic stop. The Court made it clear that Ohio law does permit a police officer to demand that a motorist "remain in the vehicle" while the officer has the motorist stopped on the side of the road. Although it would not have been enough to convict a person of simply yelling an obscenity at a police officer for writing a ticket, this woman took it all to a whole new level. We suggest you click on the case caption to read these facts. This gal's action were so over the top, the trial judge gave her 30 days after the jury verdict - although she could have gotten 180.
Our advice, stayin the car dude.

Actus Reus vs. Mens Rea

In an August 27, 2010 decision, the Ohio Supreme Court addressed the difference and the application of two important legal terms/doctrines that apply in all criminal cases: "actus reus" and "mens rea." Whenever a defendant is prosecuted and tried for a crime, the prosecutor must prove both that the defendant engaged in statutorily prohibited conduct (Latin: "actus renus") and that the defendant had a specific metal state (Latin: "mens rea") in violating that statute. The four mental states under Ohio law are: (i) negligently, (ii) recklessly, (iii) knowingly and (iv) intentionally. [Please note that this article will not discuss the definitions of those four terms - that may be the subject of a later article]. What the Court held in its recent decision of State v. Horner was that when an indictment charges a defendant with a violation of a criminal statute, that indictment does not necessarily have to set forth the applicable mental state in the text of the indictment - the text of the indictment just has to tract the criminal statute in such a way as to put the defendant on notice of the charges against him/her. The Court also held, as an additional matter, that when s specific criminal statute does not specifically set forth the required mental state (i.e. the "mens rea"), then the default mental state (for the most part) is going to be "recklessly."
This recent decision essentially overturned a 2008 Ohio Supreme Court of Ohio decision that lead to a large amount of confusion and motion practice by defendants who claimed that their indictments were defective because the indictment did not specifically set forth the applicable mental state. What we have here, practically speaking, is a 2010 decision that overruled a 2008 decision - something that is very unusual for the Ohio Supreme Court (given the fact that essentailly the same judges that were involved in the 2008 decision were also involved with this recent decision). We guess that, to use an old phrase, the 2008 decision sounded like a good idea at the time, but that the substantial amount of motion practice by defendants arguing the technical application of the 2008 decision resulted in the Ohio Supreme Court saying, let's think about this again.

Pregnancy does not trump normal leave policy

The Ohio Supreme Court has recently ruled that a pregnant woman does not have any special exception to a company policy which holds that an employee must be employed for 6 months before they can obtain any leave from their employment. In the case of McFee v. Nursing Care Mgt. of Am., Inc., the plaintiff was employed by a nursing home company that had a policy that stated that all employees had to be on the job for at least 6 months before they were entitled to any paid leave. However, the plaintiff ended up getting pregnant before she was employed for 6 months, and when the employer would not give her pregnancy leave, she sued the employer claiming that she was being discriminated against for being a woman. The lower appellate court held that Ohio law required all employers to provide all employees with a reasonable period of time for maternity leave - and thus held that the nursing home had discriminated against the plaintiff. However, the Ohio Supreme Court held that because the employer had a gender neutral policy which required that all employees be on the job for at least 6 months before they get any leave, the fact that the employer would not give the plaintiff maternity leave did not constitute sex discrimination.

Woman (and for that matter - men) need to read their employee manual when they accept a new job.

Points and Traffic Offenses

As most folks know, traffic violation convictions get you what are called "points" under Ohio law, and these points can add up and (1) increase your insurance rates and (2) result in the suspension of your driver's license (if you get 12 points). Some driving convictions can result on more than the standard 2 points - like reckless operation (4 points), driving under a suspended license (6 points) and DUIs (6 points). Many drivers hire experienced traffic lawyers to go to court for them to see if they can negotiate a reduction from a "point" violation to a "no-point" violation. Many drivers can't suffer the consequences of getting points in light of their specific job, or because they already have too many points already and can't suffer the consequences of a license suspension - or because their insurance rates are too high already. The decision or policy involved with any plea negotiations varies from courthouse to courthouse - and getting a lawyer that knows the local custom can be important. There are now new rules concerning how a person can take care of their traffic cases without even coming back to court (see blog entry dated April 11, 2010 - "New Changes in Ohio Traffic Rules"). Make sure you or anyone you know who has to go to court over a traffic violation has a lawyer who is familiar with these new rules.