Many assume that a person must be driving a moving vehicle in order to be arrested. However, there are cases where a person is charged with a DUI even when the arresting officer did not witness the person driving.
Read MoreFestivities downtown and beyond are sure to bring good cheer to all, but be aware of reckless drivers and take care to avoid any drunk driving situations.
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In the past, we have successfully maintained suits against liquor establishments for selling/furnishing alcohol to a noticeably intoxicated person - who, after leaving the establishment (or while still on the premises), caused injury to others. This often happens in DUI related auto accidents (sometimes it applies to bar fight cases too). When there is insufficient auto insurance to cover the auto accident injuries (be it the insurance of the drink driver or the "under" insurance of the injured person), lawyers are required to see of the person or establishment serving the DUI driver furnished alcohol to that driver when that driver (while at the establishment) was noticeably intoxicated. This is not an easy thing to do (although, with lots of work, we have been able to do so). An Ohio statute covers the law in this area. A recent case out of Franklin County explains the legalities and complexities of these types of cases. In Piras v. Screamin Willie's, 2015-Ohio-255, the Court of Appeals in Franklin County discussed how a bar/restaurant can be held liable for injuries caused by a patron who was served alcohol despite the fact that the patron was "noticeably intoxicated." The Court held:
We have, in the past had to hunt down cash register receipts and interview other bar/restaurant patrons to finally discover how intoxicated the defendant was while the defendant was still on the premises of the bar/restaurant. Magnum PI results matter here.
Be careful out there. Don't hesitate to tell the bar/restaurant manager that a patron has had too much.
The economic impact on a client can be huge (i.e. fines, attorney fees, loss of employment and insurance costs, etc). Further, some clients have huge issues with their employment if they are even accused of a DUI offense.
Recently, we had to assist two clients with a number of these important legal and economic issues. The first was a husband and father who had never been in trouble in his life. One night, in a moment of very bad judgment, he decided to drive home from a party where he had been drinking very heavily. On his way home, he lost control of his car, and went into a ditch.
Before his car left the road, he hit a mailbox - which flew through the air and hit an elderly man in the leg (taking out his garbage), breaking the leg of the elderly man. Because of how the law worked, this husband/father (and owner of a small family business which supported the family and others) was facing a minimum of one year in prison.
However, because of some issues we were able to locate in the arrest procedure, we were able to negotiate a much lower sentence, and the client did not have to report for that sentence until after the holidays. This way, he can ready his family and his family's business for the time he will have to spend in jail. This was huge to the client and his family.
The second was a woman who is in the last months of her nursing degree. She is currently employed as a RN-in-training (big hospital), and the OVI arrest has frightened her about her RN employment possibilities. Due to some issues we were able to locate in connection with the arrest, she was offered a plea to a reckless operation - a huge reduction for her.
This will look much better on her driving record - and should provide her with a significantly strong explanation to any current or prospective employer about what happened on one, out-of-the-ordinary, night.
As we stated above, it is important to look at all of the personal and economic impacts a DUI arrest has on a client. Its not always just about the law and the police report.
A police officer stuck and killed the husband and father of a local family while the father was pushing a stalled car off the highway.
We proved to the trial court (through approximately 7 depositions of police officers and others - and the use of 3 experts) that the police officer was very untruthful about his explanation of the accident.
The city and the officer had claimed immunity (governmental entities get this sometimes for auto accidents with police cars) - but that would only apply if the police officer's version of what happened was in fact true.
This particular case took 4 years from start to finish, two trial court judges and one trip up and back from the Court of Appeals (where we won as well). It was a great feeling to tell the widow of the resolution. These are the days that make you glad to be a lawyer.
Today we received word that an appeal we were doing for one of our criminal clients was successful (the client fell way behind on his child support and was charged with criminal non-support).
The Court of Appeals for Cuyahoga County reversed a trial court and ordered the case remanded back to the trial court for further proceedings.
Once the case is back at the trial court, we hope that things will continue to go well for our client. Stay tuned.
In some cases, one of the parents is either unemployed or has a job where they are really making much less money than there experience or skills would otherwise dictate (otherwise referred to as "under-employment").
In these situations, the court can take evidence as to whether that parent is "voluntarily" unemployed or under-employed. The Court can hear evidence about that parent's past employment, why that past employment was terminated (or modified as to salary or wages), and can also have "vocational" experts testify as to the real employment possibilities of that parent.
Every so often one party in a support proceeding will actually quit their current job or deliberately pursue a lower paying opportunity - just so they can argue a lower ability to pay support. However, with the right evidence, this tactic can be rebutted.
Most divorce and juvenile courts are very experienced with this issue, so a party to one of these support actions should be aware that unemployment and under-employment tactics are sometimes very easy to spot.
Its an little known secret to non-lawyers that there is a serious underemployment/unemployment problem for lawyers who recently got out of law school. As many as 40% of lawyers graduating from law school have no official jobs. So what do they do? The get a business card and a cell phone and operate a solo practice out of their home (or their parents' home). They go to one or two seminars on DUI defense, family law or personal injury, and pay to get a web site up and running, and then claim they are seasoned litigation lawyers. And they are all over. Too many clients come to us AFTER they have hired these young and inexperienced lawyers. Its often way too late for us to do anything at that point.
It is very important for any client to ask serious questions about the lawyer they are hiring for their specific courtroom experience. How many jury trials have they tried? How many motions have they litigated? Do they have their own law office (instead of renting space from another law firm or group of lawyers)? Do they have malpractice insurance?
Ask these questions. Your case depends on it.
We discovered a recent case that discusses the doctrine of "mitigation of damages." That doctrine essentially holds that if one is damaged in an accident or transaction, that person has at least some obligation to try and limit the amount of damages that person incurs. For instance, if a tenant moves out of a building in violation of a lease agreement, the landlord has a good faith obligation to try release the building to try an minimize the loss.
In this recent case, the Court made it clear that while an injured/non-breaching party has an obligation to use "reasonable" efforts to mitigate damages, that party does not have to use "extraordinary" efforts to do so. The Court also held that it is the breaching party that has the "burden" of proving that the injured party did not mitigate its damages.
Something to think about when things go wrong.
Unlike computing child support, which involves using specific income guidelines, computing "spousal support" is often much more complicated. Ohio does not use spousal support guidelines. Instead, Ohio has a spousal support statute which lays out 14 specific factors that a divorce court must consider when awarding the monthly amount and duration of spousal support. These factors include:
Don't you just love that 14th factor. If you think that all of the other 13 factors, along with the 14th, allow a divorce judge to come up with any reasonable or objectively based number, you're right. You can present the same facts to 10 different divorce judges and get 10 different awards of spousal support. Some judges are alleged to be "income equalizers" in that they will combine the net available income (i.e. after payment of monthly debt obligations) of both spouses, and then just divide by 2, and then just order one spouse to pay the monthly difference to the other spouse. When it comes to the duration of spousal support, some judges have a general rule that takes the duration of the marriage, and then divides that duration by a number (for instance 3 of 4) - resulting in the duration of the spousal support obligation. If the marriage is long enough, a judge may order a monthly amount of spousal support, and then "reserve jurisdiction" in the divorce decree to modify that amount later when the financial circumstances of the parties change.
Have a headache yet? Try doing this for a living. Call us with any other questions. 440-356-2700. We have previous blogs on spousal support, like this one.
We just processed another 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 $300,000 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 $25,000 (the new 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 raised 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 very 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 $300,000 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. Don't end up like the poor client of ours that we had to help this past week.
Finding the right objective basis for getting a reduction in a DUI case is getting harder these days, and we were encouraged that we were able to get it done - and that we got it done with the agreement of the prosecution.
Given what the DUI conviction would have done to the occupation of the defendant, this one time mistake (and we mean "one time") by the client was extremely important to him.
I am sure the client would be the first to tell anyone not to get into the same trouble he temporarily found himself in. He had really learned a valuable lesson from the whole experience.
There has been a small emerging series of articles written in legal journals about a trend by many lawyers, especially smaller boutique specialized law firms, to seek a billing arrangement where the lawyer bills for the "value" of the service rather than simply the "hours" put into the matter. In some scenarios, this type of billing practice works very well, and in some it does not.
For instance, for years we, like many lawyers, have done all of our criminal justice work on what is really a flat fee basis. This is because it is so much easier to estimate the time and complexity in a criminal matter than in other areas of the law.
However, in other areas where we practice, it is far more difficult to estimate how long something will take and how complicated it may become. In our family law area of practice, we have had many instances where what should be a simple end-of-marriage representation has turned into an essential black hole of time because one of the parties (or even one of the other lawyers) is extremely difficult to work with (we can tell you some pretty ugly stories).
Anyway, we have found in our small business litigation practice that we often convert our hourly billing practices into a value-based bill - because sometimes the time we put into the matter to get a great result ends up being small - and because sometimes the time we put into the matter without getting the result the client desired compelled us to drastically reduce the amount due under the hourly arrangement.
Suffice to say, we endure to have consistent and timely discussions with our clients in all litigation matters so that neither the client nor our small firm get to that awkward moment where the bill (and the complexity of the matter) has gotten out of control. Our policy in this area is to keep a constant line of communication going with the client and to keep the client constantly informed of the status, complexity and time consumption of their matter. We can't see doing it any other way.
It us to be relatively easy for a criminal defendant to try and withdraw his or her plea prior to a sentencing (a sentencing date usually takes place about 3-4 weeks after a plea is made). The rule that controls how it is done indicates that prior to sentencing such motions should probably be granted (Ohio law from the Supreme Court of Ohio says that pre-sentencing motions to withdraw a plea “should be freely and liberally granted”). However, more and more trial courts (and appellate courts) are, in our opinion, finding more and more reasons to deny these plea withdrawal motions - even if they are filed before sentencing. For example, a Court in Canton, Ohio (Stark County) just did this on a case involving a weapons charge. Our advice: Assume that you are locked into your plea at the time you plea - and that a trial court will be easily able to prevent you from withdrawing that plea even prior to your sentencing.
Get a second opinion if you can before you plea.
More and more courthouses in our area of Ohio are creating or refining what are generally called "diversion programs." These programs (which can go by many names and use a number of different letters) are mainly designed for people who generally have no criminal record ("first offenders") and who have committed a type of offense that is eligible for diversion (some specific offenses are not eligible for diversion).
A diversion program generally requires that the offender plead guilty to the charge (for the time being) and complete a probation-like program with such things as restitution, drug testing and community service. After successful completion of the diversion program, the case is dismissed - and some diversion programs actually include a free "expungement" element to them as well. Sort of like a mulligan in golf.
We have obtained diversion for many of our clients.
This person is still in college, and the reduction was very important to this person who will soon have to go out and try to get employed post-graduation.
Like many people that age, this person was on the way from a concert when pulled over by the police - who were just doing their job.
All involved here (including the police and the prosecutors) were very professional. What a relief to this young adult and and the parents.
Happy New Year to that family and to yours.
Remember, the police will be out in full force this time of year. Don't take any chances.
Our firm recently won a big appeal at the Cuyahoga County Court of Appeals. We had attempted to secure vital information under the Ohio Public Records Act concerning the work being done (or not done) by the Cuyahoga County Board of Health in the area of lead poisoning prevention. The Board of Health had refused to release ANY records concerning their duties - claiming that they were protected by Ohio law from disclosing their work. The Court of Appeals disagreed - and stated, in part: "In this case, the BOH is currently operating a lead hazard control and health homes program under a $3.4 million federal grant and 'endeavors to pursue elimination of lead hazards each year.' Affidavit of BOH Commissioner Terry Allan, ¶ 16. Release of the requested information could likewise help to hold the BOH accountable for its duty and promise to reduce lead-related hazards in Ohio’s largest county and reveal its successes or failures in doing so, also without requiring the release of prohibited information."
In short, the opinion stated that we (the persons requesting the records) serve a vital public purpose by holding public entities "accountable" for the public duties imposed upon them. Hopefully, we will get the records soon and we (and you) will know what they have been doing with the public money designed for lead poisoning prevention.
Stay tuned.
A court of appeals recently dealt with an issue that lawyers in litigation have to struggle with from time to time: "spoliation of evidence." Spoliation of evidence is where one side of a litigation dispute destroys or alters evidence that the other side needs for its case.
As a matter of fact, in addition to the severe sanctions a trial court will likely impose on a party for such conduct, the act of spoliation of evidence all by itself gives rise to a specific separate cause of action against a party who does it - including a party who was not initially involved with the case.
Stated another way, if a defendant is being sued (or about to be sued), and (for whatever reason) a third party alters or destroys evidence that could be used in that lawsuit, that third party can be independently sued by either the plaintiff or the defendant for that conduct. Most of the times however, the party who is altering or destroying the evidence is already a party to the lawsuit and is just doing this type of conduct to cover its proverbial tracks. We have been involved with litigation where spoliation of evidence has reared its ugly head on the other side of the table. Very very nasty consequences.
This week we were able to secure what Ohio law calls a "Civil Protection Order" ("CPO") for a client of ours. Our client (and his family) were being stalked and harassed by a woman with a long history of mental health issues. The order is good for 5 years.
These types of orders are great for folks like our clients who have suffered from the emotional and psychological effects of stalkers and harassers such as the woman here. This "CPO" order will allow the police to immediately arrest the woman if she comes within 1000 feet of the family or, as she was doing to harass, she files any more false police reports about the family. Violating a CPO (like violating a criminal "Temporary Protection Order") is a crime - which can get a person jailed for up to 6 months.
Hopefully this will be enough to keep this mentally unstable woman at bay.
We do a large amount of OVI defense work. Sometimes you really have to dig to find the fleas on an OVI case. Today, we found some - and were able to use that discovery to cordially negotiate a reduction for that client. It was his first (and, for what I see, his only) OVI arrest. He really felt terrible about the arrest, and even felt bad about asking a lawyer for help (that it was something somewhat immoral to do). The cops who made the arrest are good guys and did what they thought was right under the circumstances. Ohio law, however, puts many requirements on police when they conduct OVI arrests - and sometimes even the best cops make a mistake. Even the police officers seemed OK with the reduction under the circumstances. All shook hands when we left the courtroom. A good and professional day for all. We can't emphasize enough how much professionalism and courtesy can go along way in many cases.
Lipson O'Shea Legal Group • Hoyt Block Building - Suite 110 • 700 W St. Clair Avenue • Cleveland, OH 44113
DUI and DWI Defense • Domestic Relations/Divorce and Family Law • Lead Paint Poisoning
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