When can the cops search my car?

We are constantly called upon to investigate whether or not a police officer was proper in how that officer searched a car that had been pulled over.   There are many answers to this question because there are many different factual scenarios that arise when a police officer pulls over a car.   Generally speaking, however, a police officer does not get the right to search your car simply because you have been pulled over.  In one recent case, the Court of Appeals found that once the police officer had determined that the driver had the proper registration and had no warrants, the officer could not thereafter search that driver's car.  That officer would have had to see open and obvious evidence of criminal activity after he approached the car in order to have any basis for further detention of the driver or occupants. Every case has its own set of facts - and not every trial judge and court of appeals see the constitutional issues in the exact same way.  After all, that is why we have a court of appeals.  Call us if you need any further info on these issues.  800-529-1966.

You have to have "standing" to challange an illegal search

Many clients have come to us claiming that they thought a home or car they were in might have been subject to an illegal search by the police.    On more than a few occasions we have had to tell them they cannot challenge the search because they have no "standing" - in other words, because they did not own the home (or rent the home) or they were just a passenger in a car that was not their own car.   Only the owner or true possessor of a home or car can assert that the home or car was illegally searched by the police. Police and prosecutors often argue (and often enough successfully) that the defendant cannot file or assert a motion to suppress because the defendant was not the owner/renter of the residence.  Sometimes a defendant will argue that he/she spent enough time there to claim the premises as their residence (or drive their mamas care enough to call it their own) - and these cases are decided on a case-by-case basis.

Diagnosing a "standing" issue is not always easy.   Call us if you have any questions.

 

Sovereign Immunity - Suing the King

There are times when a client comes to us who has been injured (or even killed) by the actions of someone who works for a city, the county, the state or even the United States.  In Ohio, many of the actions and employees of the State are protected from lawsuits (and paying damages in lawsuits) by a doctrine called "sovereign immunity" - which is an ancient legal doctrine that holds that you can't sue the King because the King is the law. In Ohio, there is a sovereign immunity statute (or series of related statutes) that provide when and how you can sue a city, the County or the State.   It's a confusing series of statutes, and the interpretation of the provisions of those statutes are a constant source of litigation and Court of Appeals' decisions.  In fact, the Ohio Supreme Court is due to issue a decision in the very near future that talks about how two provisions of those statutes work together (a fire truck struck an automobile on its way to a fire).

In short, the Ohio General Assembly has decided to make it somewhat difficult to sue the government.  The tragic aspect of some portions of these statutes is that if a police or fire vehicle runs a red light and injures or kills you or someone in your car, they have sovereign immunity in many instances - and even your own under-insured/uninsured motorist policy that you paid extra for will not cover your damages.

Despite these difficulties, we have had some successes in pursuing and resolving claims against the government.  But, for now, drive with your windows (to hear the sirens as far off as possible) - even in the winter.

 

Grand Jury Transcripts

Some clients ask us why we can't get a copy of the testimony of police officers and witnesses who provided testimony to the grand jury.   A grand jury is a body of citizens who serve on a rolling basis to decide if the prosecution as sufficient evidence to indict a defendant for an alleged crime.   The standard of proof for an indictment is far less than the "beyond-a-reasonable-doubt" standard necessary for a conviction at trial.   Nevertheless, the witnesses who testify at the grand jury are under oath - and thus defense lawyers would want to have the transcript of that testimony to see if that grand jury testimony is the same as the trial testimony. However, there are very limited circumstances where a defense lawyer can get the transcript of the grand jury testimony.  The defense lawyer has to show "particularized need" (whatever that means) in order to get a special order to have the prosecutor present that transcript.   As a practical matter, this almost never happens because most courts assume that the defendant can learn all he needs to know from the police reports and other evidence disclosed in the pretrial discovery process.

But we still try now and then - and have on some rare occassions gotten those transcripts in special cases.

Just FYI.

 

Just the small of alcohol not enough for a DUI test

A recent case issued by a Court of Appeals held that just because a police officer smells alcohol on a driver does not mean that the police officer gets to demand that the driver perform a bunch of field sobriety tests.  In short, the officer has to have more than just a smell of alcohol (e.g. weaving, slurred speech, glassy eyes, etc) to justify a request that the driver perform any sobriety tests.  In that case, even though the smell was an “extremely strong odor of alcohol” with no “rational explanation,” that fact alone was not enough to justify an officer requiring the driver to perform sobriety tests. Don't drive drunk - and if you still decided to do so, be still and shut up if you get pulled over.

 

Blood Draws in DUI Cases

blood draw image
blood draw image

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

Call us if you have questions about this.

The New Expungement Statute in Ohio

Ohio has just passed a law that somewhat expands the persons who may be eligible to get their criminal records expunged.   Some parts of the old law were changed and some were left the same.   These amendments can get technical, but it appears that many persons who were not eligible for an expungement of their criminal record are now eligible.  We are still reviewing the specific text of this new law, but we are already getting calls from present, former and possible new clients on whether they can now get an expungement that before was unavailable to them. Call us further if you want to discuss your individual case.

What a hospital can do the uninsured - charge much more for the same service

Some courts of appeals have recently issued written decisions that approve what you might think is very unfair - hospitals and medical providers that charge "uninsured" patients up to twice what they charge insured patients.  Most insured patients get the benefit of a "contract" between their health insurance company and the medical provider that requires the medical provider to give that patient up to a 50% reduction on the bill.   Health insurance companies get this discount from medical providers in return for the bulk of billing that gets paid by the insurance company.

If an uninsured person gets injured in a car or other accident, the medical provider can simply wait out the claim and demand full payment of the bill when the cases settles or a judgment by a court is issued.   Sometimes, somewhat tragically, the medical providers get to gobble up ALL of the settlement or judgment money BEFORE the injured party/patient gets one red cent.   In that regard, it is very important for the injured party and their lawyers to make sure that they understand the net effect of any settlement and work hard before that settlement to see if these medical providers will agree to reduce their claim (some do, some don't).

Be careful out there.

The weaving issue in DUI cases

car weaving
car weaving

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

Call us or email with any other questions.

Withdrawing a plea of guilty - getting harder and harder

Our recent review of current Ohio case-law on the issue of defendants who try to withdraw their guilty pleas leads us to one inescapable conclusion:  it is getting harder and harder to get courts to grant request to back out of pleas.   It use to be that almost any defendant could somewhat easily withdraw his or her plea prior to sentencing  - and sometimes in limited circumstances after sentencing.   The criminal  rules that apply to pleas basically say just that. Nevertheless, trial courts and courts of appeals are now issuing decisions that hold that a defendant must have a very good reason for withdrawing the plea - even if that request to withdraw the plea happens before sentencing.  Court's reject the idea of a plea withdrawal if they conclude that the defendant has just had a change of heart - they want more than that.   In our opinion, the courts are misapplying the criminal rule on pleas when they do this.   But they are the courts, and we are not.

So now it becomes ever more important for a defendant to have the benefit of full knowledge of what he or she is doing when they plea.  Too many folks come to us AFTER they have plead and want us to try to get them out of it - and this is becoming harder and harder to do each day.  Make sure you know what you are doing BEFORE you plea and assume that you can't get out of it unless there are rather extraordinary circumstances.

Call us anytime at 800-529-1966 to discuss this further.

 

More on GPS and cell phone tracking by the police

An Ohio-based federal court of appeals has just issued a new decision on the issue of if and when the police can use a "pay-as-you-go" cell phone to track the travels of a criminal suspect.   In the case of United States v. Skinner, the Court held that a defendant that uses this type of cell phone does not have any "expectation of privacy" in the GPS data being emitted by the phone.  The Court held that the DEA did not need to obtain a search warrant to track the cell phone GPS.   This case is bound to be relied upon by the police and prosecutors in the future, and we think that the United States Supreme Court will be eventually presented with this issue.   As we have blogged about in January of this year, the United States Supreme Court has recently held that the police need a search warrant to attach a pure GPS tracking device on a car - so this pay-as-you go cell phone/GPS issue will likely be a natural extension of that emerging GPS issue. Stay tuned - and remember you can still always track your kids' cell phones and cars without a warrant.  They have no rights when it comes to their parents.  LOL.

 

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.