What happens if you simply run from the cops

A recent Ohio Court of Appeals opinion, an Ohio Court held that the police are not allowed to search a person they are issuing a j-walking ticket to, and they cannot thereafter chase down and search that person when that person walks away rather than be searched.   In State v. Baber, the Court addressed a situation where a Cleveland Heights police officer saw the defendant walking down the road at 1:30am and walking in a portion of the road where is was essentially illegal.   Rather than just writing the defendant a ticket, the police officer demanded that the defendant place his hands on the police cruiser so the officer could search the defendant.   The defendant refused and walked (and then ran) away from the police officer.  The officer gave chase, and when he caught the defendant a gun was discovered on the defendant. The Court said the request to search the defendant was illegal.   Nothing in the street encounter gave the police officer "reasonable suspicion" to believe that the defendant was armed or had contraband.  The Court held that there was no "reasonable, articulable suspicion that criminal activity may be afoot."  The Court also held: "the authority to stop an individual does not necessarily equate to authority to search the individual and place him or her in the back seat of the cruiser."

These street encounters happen all of the time - especially after midnight.  There have been many court opinions issued involving street encounter circumstances like this.   These court opinions are very fact sensitive, and not all court of appeals agree with each other on just exactly how the law works here.   We find ourselves facing these issues for a number of our clients all of the time.   We expect to see more.

Stopping after an accident - what is illegal?

We often see persons who have been charged with what the legal profession calls a "hit-skip" - which means leaving the scene of an accident.   We  most often see it (1) in elderly folks who bump into someone in a parking lot or street (and mostly really don't notice) and (2) drivers who are afraid of getting charged with a DUI.   Some older ordinances and statutes seem to imply that a driver has 24 hours to report any accident.  However, that 24-hour notice provision really only applies when the driver cannot locate or immediately contact a police officer.  That language has been in the law for many years - long before the wide use of cellphones.  With the prevalence of cell phones, however, those provisions are mostly meaningless. Further,many cities are updating their municipal codes to address this old loophole. Leaving the scene of an accident - even a non-serious accident- can have severe consequences.  A person convicted of this offense gets 6 points on their driver's license and can go to jail for up to 6 months (same as a DUI), and some judges fairly speculate that the driver fled from the scene because the driver was drunk - and they will gladly put that driver in jail.  If you are not drunk or impaired, NEVER leave the scene of an accident.   If you believe you are impaired, its best you consult with a lawyer before calling the police.  Although the lawyer cannot suggest to you that you leave the scene, that lawyer can give you some good advice on how to handle yourself when the police arrive.

DUI Sobriety Checkpoints - How are they legal?

Are DUI sobriety checkpoints legal? An Ohio Court of Appeals recently addressed the legality and requirements for police to use sobriety check points.   The Court pointed out that the police (who arrested and successfully prosecuted a guy who was arrested at one of these checkpoints) were following a specific written policy that required:  proper warning signage at 750 feet, 500 feet, and 250 feet from the entrance to the checkpoint, sufficient illumination, staffing by a specific number of uniformed police officers with marked police cars, a location that was visible to persons driving up to and by, and a specific location based on data related to OVI arrest and crash locations, history and prevalence. Further, the cars were stopped based on a method pre-determined by an administrative officer.

The Court of Appeals pointed out that a number of appellate courts had already found that sobriety checkpoints that follow a similar specific written protocol (like the one set forth above) did not unreasonably intrude on privacy  - and were therefore legal.

So, the conclusion here is that if you can readily see the checkpoint from a distance (because of signage and all of the cops and cop cars) in an area known for bars and restaurants and fender-benders, the checkpoint is most likely legal for the cops to have.  We will continue to monitor this area of DUI law - especially in light of the fact that the Ohio Supreme Court has yet to rule on this issue - so stay tuned.  Store our number in your cell phone for any future emergency use: 800-529-1966.

"Reasonable suspicion" and "probable cause" - different standards

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

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?

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

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"

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

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.

We will be up all night.

The "verbal" domestic violence case

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?"

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."

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

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.

Extra prison time for being in a "gang."

The Cuyahoga County Court of Appeals recently issued a decision about what is known as a "criminal gang specification" - an addition to almost any indictment which, if proven at trial, requires, pursuant to RC 2929.14(G),  a defendant to receive extra time in prison (the court has a choice of 1, 2 or 3 years - which has to be served before any other portion of the prison sentence).  The definition of a criminal gang is: "as a formal or informal group of three or more persons to which all of the following apply: (1) one of the group’s primary purposes is the commission of one or more offenses designated in the section, which includes, among others, a felony, an offense of violence, and trafficking in marijuana; (2) the group has “a common name or one or more common, identifying signs, symbols, or colors”; and (3) the persons in the group “individually or collectively engage in or have engaged in a pattern of criminal activity.” R.C. 2923.41(A)(1)-(3)."

So, if you are running with a bunch of fellas who like to commit crimes, you need to know that the mere affiliation with the gang can get you extra time in prison.    Sounds simple, but don't name your group or use symbols and colors - whatever you do.

"Marital Property" and "Separate Property" under Ohio divorce law

A recent Ohio Court of Appeals opinion discussed the definition of, and difference between, "marital property" and "separate property."    These can be important definitions when the parties have been married for a long time and have worked on or bettered property each may have owned prior to the marriage.   Generally speaking, under Ohio law, the property you bring into the marriage (called "separate property") does not become "marital property" (property owned by both the husband and the wife) just because of the marriage.   If that separate property is segregated and remains largely unchanged during the marriage, it remains separate property.   If either or both of the parties work on or assist in the increase in value of separate property during the marriage, then that "appreciation" in value (but not the pre-marital portion) is going to be considered marital property.   Separate property can also lose its status as separate property (called "transmutation")  if it is "commingled" with marital property and the commingled part cannot be "traced" back to its separate property roots. Since there is no marriage class that people go to before marriage, many of our clients are stunned to find out that a portion of, or even all of, their separate property is now, because of how that property was treated during the marriage, allegedly marital property.

Slip and Fall Personal Injury Cases

We often get calls from folks who fell while walking on someone's property - and they often assume that the property owner is liable to them for the injuries they suffered from that fall. However, when applying Ohio law to the facts of many of these cases, the property owner has no liability.   Under Ohio law, in order for a property owner to have any liability to someone who is injured on that property, the injured party must prove EITHER: (1) the owner of the property knew of the dangerous condition before the injury, and that owner failed to remedy, or improperly remedied, that dangerous condition, or (2) the property owner actually "created" the dangerous condition. Further, there is a good body of law that states that naturally accumulating ice or snow does not require the owner of the property to clear that accumulation - and if you slip and fall on that naturally accumulation snow and ice, the property owner has no liability to you. Further still, if you trip and fall on a sidewalk where the "crack" is 4 inches or less, then the property owner has no liability to you. Nevertheless, many times the property owner does, for the reasons stated above, have liability to a person injured on that property. We have successfully obtained reasonable compensation for people in those situations, so feel free to contact us to see if you have a valid claim.

And, like your mother said, watch where you are going.

The only bald-headed guy in the police line-up - that ain't fair

In a recent court of appeals case, the Court held that if you are going to conduct a police line-up, and the target defendant is bald, better make sure that you have other bald-headed guys in the line-up.  The Court stated that in order for a defendant to suppress a police line-up procedure (i.e. bar the jury from hearing that the defendant was ID'ed out of a line-up), the defendant must show the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” and that the identification itself was unreliable under the totality ofthe circumstances.  Given the fact that the witness did not pick out the defendant in the first line-up, and given the fact that the defendant was the only true bald guy in the second line-up, the Court found the whole process unduly suggestive and tainted.

If you are in a live line-up, take a look down the line to see the hairstyles of all of the other guys.

A reduction from a serious set of felonies to a $250 fine - what a day

We recently had a client who was charged with a set of serious felonies all stemming from a very bad night.   The defendant (who is not gay)  caught his girlfriend in a car with a gay woman who he believed was "hitting" on his girlfriend.  He got upset and opened the car door and tried to get the love of his life out of the car - and ended up only grabbing her purse away form her.   A fight and short car chase ensued, and our client was arrested by the Cleveland Police and charged with Felonious Assault, Kidnapping and Robbery.  Our client has a very good and long standing job, is in his 50's, and a conviction for this type of stuff would have lost him his job. Well, after some months of pretrial haggling and discussion, his serious felony charges were reduced to a misdemeanor, and he was fined $250.00 and sent home.   What a day for him.

Some days are better than others.

Spousal Support and Your Retirement Assets

In a recent case issued out the Cuyahoga County Court of Appeals, the Court discussed the differences between the retirement assets of the parties and the "income" that is generated from those retirement assets.   For example, there is a difference between a 401K account that has a $100,000.00 balance in it and the $3,000.00 per year amount that is generated from the investment income on that account.   While a Court cannot use the $100,000 as "income" for support purposes, it can use the $3,000.00. In this Court of Appeals case (which also involved other spousal support issues), the ex-husband argued, among other things, that since his retirement assets were awarded to him in his divorce years earlier, the Court could not use the "income" currently being generated from that retirement account for calculating a modification or termination of his spousal support (the ex-husband had filed a motion to modify his spousal support).   The Court held that while it cannot utilize the balance in the account as "income," it could use the monthly payments being sent to the ex-husband as "income" for spousal support purposes.

Something to remember when considering how you divide up retirement assets and setting support in a divorce decree.

Comparing Sentences Can be Very Important

The Cuyahoga County Court of Appeals has issued a recent opinion where the 50-year-plus sentence of a defendant was reversed because, as the Court held, the sentence was "disproportionate" to the sentences received by other defendants for essentially the same stuff.  This type of ruling is rare - because courts of appeal rarely reverse sentences set by trial judges.   However, in this case, the Court compared the sentence issued by the trial court to other sentences issued by other trial courts for similar crimes.   What was perhaps different here was that the defendant's lawyer was able to locate and point to other cases - and  this took time.   We did this recently for a client of ours accused of a serious crime (where the possible sentence was the main focus of the whole case), and we convinced the trial court NOT to impose a bigger sentence.  This type of analysis takes time - but can be more than worth it for the client.