DNA - The New Fingerprint for the Police

The Supreme Court of the United States issued an opinion today which ratifies the current police procedure of collecting DNA samples from many arrested individuals for storage in a DNA database - just like they have done for decades with fingerprints and photographs.   One of the persons arrested by the police and who had his DNA collected took his objections all the way to the Supreme Court of the United States under the claim that the collection of the DNA violated his constitutional right from unreasonable search and seizure. The United States Supreme Court, in a narrow 5-4 decision, disagreed.  They held that the collection of DNA from arrestees of "serious offenses" could be taken for the same reasons they take fingerprints and photographs.  The Court held there was no fundamental difference between the science behind fingerprints and DNA.

The past meets the future in law enforcement.

Watch those texts - they can be used against you.

A recent Ohio Court of Appeals decision held that it was permissible for the prosecution (in a murder case) to have a witness testify to "text messages" that the witness had sent and received from the defendant.   The defendant's lawyers argued that the only way a jury could get to see or hear this type of evidence is if the cell phone company had an employee "authenticate" the texts.  However, the Court ruled that the witness alone (without the phone company coming in to testify) was "sufficient" to authenticate the messages. So, what does this mean?   Be careful about what you send text message-wise.   Many phone companies save these messages for a sufficient period of time to allow the authorities or even civil litigants to get them in discovery - and the recipient can choose to save them indefinitely.  These messages can come back to haunt you.

The Duty of DUI Disclousre by the Defendant

gotcha images

The Supreme Court of Ohio issued a decision today which involves, from a legal standpoint, the intersection of "public records" requests (and information obtained from those requests)  and a defendant's legal duty to reveal to the prosecution the documents and evidence a defendant will try to use at trial.    Just like a prosecutor's duty to disclose evidence the prosecution wants to use at trial, the defendant has a reciprocal duty to disclose the evidence the defendant wants to use at trial.   In this case, the lawyer for the defendant tried to use documents that were obtained through a "public records" request which the defense lawyer had used outside of the trial court discovery and subpoena power.  The Supreme Court of Ohio held that the defense lawyer had a duty to disclose the existence of these records to the prosecution if the defendant wanted to use them at trial. When it comes to criminal discovery, the proverbial barn door should always be open.  In short, no sneaky "gotcha" tactic will be permitted by the prosecution or the defense.

Divorce: Non-Marital Property Can Change ("Transmute") into Marital Property

These days there are many marriages where each spouse came into the marriage with their own individually-owned "non-marital" property (for example, a house) - and even some property acquired during the marriage can be considered "non-marital property."   Under Ohio divorce law, this non-marital property is called "separate property."  For the most part, "separate property" is not subject to division by the divorce court - so many parties assert that an item of property is or is not separate property.  A divorce statute specifically lists what is "separate property" - and that list is generally: (1) inherited property, (2) property owned by a spouse before a marriage, (3) personal injury monies recovered by a spouse (other than for loss of earnings), and (4) a "gift" given solely to one spouse. Even if a certain piece of property was, without much dispute, "separate property" at one time, that item of property can lose its classification as "separate property" if that item of property is "transmutted" (i.e. transformed) into "marital property" because (1)  the parties "commingled" the "separate property" with "marital property" and (2) it is difficult or impossible to "trace" the separate property out of the marital property.

So, as much as marital bliss can clog the mind, parties should be careful about commingling separate property with marital property unless they specifically choose to do so - knowing the consequences.

Again: Watch those arbitration provisions in contracts!

We have come across still another decision from an Ohio court of appeals which again shows that Ohio Courts will somewhat strictly enforce arbitration clauses in contracts.  In that regard, we again (we have blogged about this a few times before) encourage all of our readers to carefully review ALL of the contracts they are signing to see if there is an arbitration provision in that contact.  Contrary to popular belief, arbitration is NOT less inexpensive than filing a lawsuit in Court (the filing fees are much higher and arbitrators get paid by the hour [judges are free]).  Further, arbitration is often "binding" in that neither party has the right to any appellate review of the decision of the arbitrator. Be careful out there . . . .

The Second Amendment

Well, just when we all thought we had it all straight with our “personal” views of the Second Amendment, along comes Newtown.  Newtown has changed many person’s specific opinions they had about guns, gun possession and gun control. Some folks have changed their minds - and some have dug in even further on their opinions.  So let’s do a VERY quick summary of the Second Amendment. The Second Amendment is just that: the second of the Bill of Rights - right after the First Amendment (which we all may know protects our right to free speech, freedom of religion, freedom of the press and the freedom of assembly and freedom to protest).   The Founding Fathers thought this gun issue was so important that they placed it before the Fourth Amendment (illegal search and seizure) and the Fifth Amendment (the right to remain silent, to grand jury protection, double jeopardy and due process).   So what does is say?  Its one sentence text states:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Many of the legal and philosophical issues associated with the Second Amendment involve the first part of that sentence: “A well regulated militia being necessary to the security of a free state..”   Did the Founding Fathers mean that the right to bear arms was only related to the necessity of having a militia, or was that right independent of whether we have a militia or whether we are members of a militia (that is, did the right belong to all “individuals” regardless of membership or existence of a militia). The United States Supreme Court has only recently held that the right to bear arms is an “individualized” right - which generally means that you don’t have to be part of an army or militia in order to have a Constitutional right to possess and use a gun.  It should be noted that Ohio also has a Second Amendment - but does not have any “well regulated militia” language in the first part of the sentence.  So the “well regulated militia” argument has very different ramifications in Ohio. The very Supreme Court opinion that recognized that the Second Amendment creates an “individualized” right also made it very clear that, while the Government cannot outright ban gun possession and use, the Government may "regulate" gun possession and use.  So now the big argument is just how much “regulation” the Government can engage in.   Can the Government require all gun sales to require a background check (even private sales between individuals outside of a gun show or gun store)?   Can the Government limit the capacity of ammunition clips?   Can the Government limit the type of guns (example: “assault weapons”)?

As the new flurry of federal legislation is proposed in Congress, we will see if Congress can actually pass such legislation, and, if such legislation is passed, whether the federal courts will uphold such legislation. We will continue to monitor the development of these Second Amendment issues as this new possible legislation pushes itself through the halls of Congress.  Stay tuned.

What is "imputed" income in a divorce case?

roll of money

We have had some recent litigation in a divorce case where we had to ask the divorce judge to "impute" income to the other spouse.  This spouse refused to seek a job even though she was clearly able to do so.  We found it ironic that the lawyers for this woman hired their own expert who ended up agreeing with our expert as to the employability of the woman - as well as the income she could make. Often divorce courts have to "impute" income to those spouses who are either deliberately  "unemployed" or "unemployed."  Often in divorce cases, one spouse refuses to make any income  - or deliberately compromises his or her potential income  - in an effort to prevent the other spouse from sharing in that income.   This comes up very often in disputes involving child support  (the support to be paid for the benefit of the children) and spousal support (the support to be paid to the spouse).  Sometimes this is easy to prove - for instance when a spouse just up and quits his or her job.  Sometimes it is  not - for instance when a spouse is self employed and is able to hide the income or the income producing capabilities.   But it never ceases to come into play in the cases we see.

Let us know if we can help you here.

Which personal injury attorney should I hire?

question marks

The vast majority of qualified personal injury lawyers do not advertise on TV.  There are, however, a very small by noticeable group of lawyers that spend a huge amount of money advertising on TV and radio and on the pages and backs of the Yellow Pages.  There is nothing illegal or unethical (according to the rules that govern lawyers) about this type of marketing.  Nothing.  However, most lawyers in the personal injury business have decided to let their experience and reputation do the talking for them.  And many lawyers these days have opted to promote their practices through web sites and social media - which is far less costly (and arguably more dignified)  than TV, radio and the Yellow Pages.  Regardless of how you hear about a lawyer you may hire, here are the questions that we believe that you absolutely need to ask: 1.  Is the lawyer you are first talking to the same lawyer that will stay with your case till the end - including trying the case if the parties cannot settle?   Many of the faces you see on TV and in phone book ads are not the lawyers who will actually handle your case or try your case - and you should know that up front.   So ask this very important question at the very beginning of your search.  The lawyer you meet with should be the lawyer who handles all lawyer aspects of your case.

2.  Has the lawyer you are talking to actually tried a personal injury case in the last 24 months?   If the answer to this is no, then you need to ask why - and then ask specifically what type of cases this lawyer has actually tried  - and when this lawyer tried them.  Trying cases is like anything else - your skills stay tuned if you keep in the game.

3.   Has your lawyer presented cases in front of all or most of the judges in the courthouse?  Most active and experienced lawyers appear on a regular basis in front of almost all of the judges of the local courthouses.   Each judge has his or her own particular way of doing things,  and the experienced lawyers often know these particularities well.

4.   What specific experience does the lawyer have in dealing with "subrogation" issues?   "Subrogation" issues involve legal and enforceable claims that medical providers and medical insurance companies have to any of the settlement or verdict monies that an injured person receives from the tortfeasor.  This has become an extremely complicated area of personal injury law - and the rules seem to change almost monthly.  In that regard, make sure that your personal injury law firm has experience on these issues and is staying on top of the emerging law on these issues.   Subrogation issues have serious bottom line effects on the net proceeds an injured party can obtain for the injury.

So when you talk to a lawyer you are considering hiring for your personal injury claim, ask these very important questions.

Auto Insurance in Ohio - What should I have?

insurance contract

We just processed a new case where (again) we and the client learned that the insurance available (both the tortfeasor's and the client's) to compensate our client was awfully low - leaving the client very frustrated and depressed.  This has led us to once again put together a post about the basics of automobile insurance.   Here are what we consider to be the basics: First, get the right amount of coverage.   Regardless of your income or assets, having automobile insurance coverage limits LESS than $200,000 is just plain crazy.   With the ever rising costs of medical bills (both ER bills and post-accident treatment bills),  coverage in Ohio of only $12,500 (the minimum required under Ohio law for now) might just barely cover the ER bills - leaving nothing for your pain and suffering or any further medical treatment.  The writer of this blog is the married father of 4 kids - and he has $500,000 - with a million dollar "umbrella policy on top of that (umbrella policies are something we can explain in another post).  In 2013, Ohio will raise the minimum amount of coverage that all drivers must have to $25,000 (per person) and $50,000 (per accident).   However, this is still not enough.   You might be surprised to know that increasing your insurance coverage does not mean that your premium will go up dramatically.  From what we hear, MOST of your premium covers the first $25,000 of coverage, and increases in coverage does not raise the premium proportionally.  You can also consider raising your deductible in order to get a reduction of your premium.  Most insurance brokers rarely tell you this for obvious reasons.

Second, make sure you have what is called "uninsured" and "underinsured" coverage that is at least $200,000 as well.   You would be surprised how many drivers still drive without good coverage - or without any insurance at all.    "Uninsured" insurance covers you when the tortfeasor has NO insurance.   "Underinsurance" takes over when the insurance of the tortfeasor is so low that you need your own insurance to make up the difference.

Look at your coverage now and talk to your insurance broker.  Call us if you have any other questions.  800-529-1966

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

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

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.