Ohio Supreme Court Declares Repeat OVI Offender Specifications Constitutional
In 2016, the Ohio Supreme Court found the repeat OVI offender specifications constitutional. The accused challenged the Ohio DUI sentencing laws as unconstitutional because they violated equal protection of the law. The Ohio Supreme Court did not agree with that argument.
Apple and the FBI have gotten a lot of attention lately on the government’s power to search cell phones. Apple refused to unlock its phones and FBI figured out how to do it by themselves. Long before this battle ensued, the Ohio Supreme Court issued the following decision: Ohio cell phone search requires search warrant.
In 2016, the Ohio Supreme Court issued a ruling that declared that the police cannot search legally parked cars without a warrant. The arrest of an occupant of the vehicle does not, by itself, give the police authority to search legally parked vehicles.
In 2016, the Ohio Supreme Court ruled that a punitive damages award against dead person allowed
. The deceased person’s estate can be held responsible for punitive damages if a trial court awards such damages against the decedent, cutting into the share of the estate the heirs can receive.
On February 10, 2016, the Ohio Supreme Court issued a decision on DUI blood testing requirements. In this latest case
, the Ohio Supreme Court had to decide if the police substantially complied with the Department of Health regulations. The substantial compliance standard was created by the Ohio Supreme Court years ago. Some argue that the substantial compliance standard provides rational flexibility while others argue that it allows court to ignore serious forensic errors by the police.
When one is sentenced on both a felony and a misdemeanor, the Ohio Supreme Court has determined misdemeanor concurrent sentences mandatory with felony sentences. In a decision entered recently this year
, this Ohio Supreme Court resolved conflicting opinions among the lower courts on this issue. Consecutive sentences are served one right after the other, with no double credit for any of the time served. Two six month sentences would add up to a year if they ran consecutive to one another. Concurrent sentences are served at the same time. Two six month sentences would add up to only six months if they ran concurrent to one another.
Filler weight is included in drug cases. Believe it or not, it is illegal to possess and sell fake drugs in Ohio. Fake drugs are officially referred to as counterfeit controlled substances. While a controlled substance is usually part of a class of illegal or strictly regulated substances, a counterfeit controlled substance is a non-controlled substances that a reasonable person would believe to be a controlled substance because of its similarity in shape, size, color, markings, labeling, packaging, distribution, or price.
Should filler weight be included in Ohio drug cases? Many drug offenses are based on the weight of the controlled substance found in the suspect’s possession. However, the tests performed by the Bureau of Criminal Investigation (BCI) do not test for the purity of the substance. When cocaine is cut with sugar or some other filler material, should the level of offense be based on the actual weight of the cocaine or the total weight of the cocaine and filler? Most appellate districts in Ohio have ruled that the total weight of the controlled substance and filler can be used.
Ohio’s sudden emergency defense to personal injury claims should be considered when pursuing and filing a personal injury case. You can certainly bet that the insurance company and their lawyers will be considering and raising this defense if they believe it can defeat a personal injury claim. A good personal injury lawyer always anticipates the defenses in building a case for the client.
What is the sudden emergency doctrine? The sudden emergency defense consists of:
- The person was confronted by a sudden or unexpected emergency;
- The claimed emergency was not the result of any fault of the person or any circumstance under the person’s control; and
- The person exercised such care as a reasonably cautious person would exercise under the same or similar circumstances.
People accused of crimes often ask: “can the police use my statement against me?” In order for a statement to be used against someone in court, the statement must be voluntary and may also need Miranda warnings prior to the statement being given. A truly voluntary statement is important and valuable, because a confession given under torture or abusive conditions may simply be someone telling their tormentor what he or she wants to hear in order to make the torture stop.
The Fifth Amendment to the United States Constitution gives people the right to remain silent and to be free from being forced to incriminate himself or herself. These rights in the 5th
Amendment also mandate that any statements must be voluntary. The Ohio Supreme Court
cited the following factors in determining whether a statement is voluntary include: totality of the circumstances, age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.
The Ohio Supreme Court, in State v. Dunn
, ruled that the police can make a warrantless stop to give emergency aid. In this case, the officer received a radio dispatch that there was a suicidal male driving a tow truck who was planning to kill himself. Although the officer did not observe any traffic violations, the vehicle stop was upheld by the Ohio Supreme Court. The Ohio Supreme Court said that the stop was justified under a community caretaking or emergency aid exception to the Fourth Amendment’s restrictions for warrantless searches and seizures. Because police have a duty “to provide emergency services to those who are in danger of physical harm” such stops will often be held to be valid. This exception eliminates the need to show a reasonable basis to rely on the accuracy of a tip
, as that standard only applies to investigating suspected criminal activity.
There is no time limit on charging crimes when one flees to avoid prosecution. In State v. Bess
, the Ohio Supreme Court ruled that Ohio law tolls or stops the running of the statutes of limitations when the offender purposefully avoids prosecution. This applies to crimes that had not yet been charged or even discovered, as long as the offender purposefully avoids prosecution. In this case, Bess learned in 1989 that he was being investigated for raping a young girl. He fled to Georgia and assumed a false identity in order to avoid prosecution. He was indicted later that same year. He remained in Georgia until he was arrested in 2007 and returned to Ohio. During trial preparation, the prosecutor interviewed the girl’s brother and learned for the first time that he too was raped by Bess. A second indictment charged Bess with that rape. Bess was convicted. While there was no question that the State of Ohio could try Bess for rape of the girl, the real question was whether he could be charged and convicted of a crime eighteen years after he purposefully fled to avoid prosecution. The Ohio Supreme Court said that he could be charged and convicted in this manner because he purposefully fled the jurisdiction to avoid prosecution.
How are medical bills in personal injury cases used for reimbursement purposes? Medical bills usually have two rates: (1) the full uninsured rate; and (2) the adjusted rate, or the amount of the bill after the bill is adjusted to the rate according to the agreement between the medical provider and the insurance company. Some like to refer to this second amount as the amount of the bill after the medical provider writes off some of the bill. Which figure does the jury get to hear at trial? The Ohio Supreme Court ruled on this issue in 2006, in Robinson v. Bates
. In their decision, the Ohio Supreme Court said that both the amount billed and the amount accepted as full payment could be admitted into evidence. Any difference between the original medical bill and the amount accepted is not a benefit. Because a medical bill is good evidence of the reasonable value of charges for medical services, either version of the bills can be used to demonstrate that value.
The Ohio Supreme Court has ruled that automatic lifetime registration for juvenile sex offenders is unconstitutional. In their decision
, the Ohio Supreme Court ruled that automatically imposing a lifetime registration requirement for a juvenile sex offender amounts to cruel and unusual punishment and violates the juvenile’s right to due process of law. In 2006, Congress passed the Adam Walsh Act, also known as the Sex Offender Registration and Notification Act (SORN). In 2008, Ohio became the first state to adopt a law that followed SORN. When the Ohio Supreme Court reviewed this law in its 2012 decision, it noted that most of the states refused to pass similar laws, opposing the lifetime sex offender registration and notification requirements for juveniles. This national consensus of rejecting automatic lifetime registration requirements for juveniles was the first of two factors the Court used to strike down this portion of the law. The second step was to look at the court’s own independent judgment on whether this punishment violates the Constitution. In doing so, the Court determined that: (1) the lifetime registration requirement was much more likely to hinder than to help juveniles obtain stable employment and reintegrate into their communities after their release from custody; (2) was contrary to past decisions that held that juveniles should be treated as less morally capable than adults; and (3) was contrary to the juvenile justice system’s primary purpose of rehabilitation rather than punishment. This analysis led the court to conclude that the severity of lifetime registration and notification and lack of adequate justification renders it cruel and unusual under the eighth amendment to the United States Constitution. The law
also denied due process because it is automatic and does not allow the court to consider the child’s background or how publication of the offense might affect rehabilitation.
In many personal injury cases, there is no question as to whether someone is liable for injuries caused in an accident. When someone hits someone from behind or veers into oncoming traffic and hits another car head-on, we can all agree that these individuals will usually be liable for any resulting injuries.
In slip and fall personal injury cases, liability for the injury is not always so clear. The owner of the premises must be negligent in maintaining the premises. This means there is some defect in the premises. The defect could be a hole in the ground, a slippery surface, or unstable steps. However, negligence alone will not win the case. If the defect was open and obvious, the injured person cannot recover for his or her injury. In some cases, this makes perfect sense. If the owner spots a hole and immediately puts posts and yellow warning tape around the hole, the owner has rendered the defect open and obvious. In many circumstances, the owner would not be liable if someone were to fall into the hole. Because people should be able to see the hole, they should be able to avoid it. What if the owner did this in an unlit portion of a parking lot? If the injured person could not reasonably see the warning, then the defect would no longer be open and obvious.
The 2005 Ohio Tort Reform Law
requires Ohio courts hearing personal injury lawsuits to grant requests for bifurcation of trials when both compensatory and punitive damages are sought. In other words, two trials may be required in some personal injury cases. The constitutionality of the tort reform law was challenged in a case called Havel v. Villa St. Joseph
. Ordinarily, the Ohio Supreme Court gets to make the rules and judges get to decide whether to bifurcate a trial
. The Ohio Tort Reform Law was basically the legislature telling the judicial branch how to run their courtrooms during personal injury trials. The Ohio Supreme Court ruled that the bifurcation requirement created the right to demand a bifurcation. The Ohio Supreme Court noted that the General Assembly intended to reform punitive damages law in Ohio in order to restore balance, fairness, and predictability to the civil justice system. The law was designed to prevent juries from considering evidence of misconduct in determining liability and compensatory damages.
What is mediation? Mediation is a process in which two or more parties negotiate a voluntary agreement with the help of a mediator. The mediator facilitates communication between the parties. Statements made during mediation are protected under Ohio’s Uniform Mediation Act
(UMA) as set forth in Ohio Revised Code 2710.01
(R.C. 2710.01-2710.10). This privilege gives one the ability to stop other people from revealing what was said at a mediation. Does this mean everything said in a mediation is protected by privilege? No. The following topics are not protected by privilege under the UMA: discussions disclosing abuse or neglect of children and abuse or neglect of the elderly; plans to commit crimes; threats of violence; whether a mediation occurred; and signed settlement agreements. Mediators are neutral third parties who assist the parties with issue identification and problem solving. The mediator will usually meet with each side separately, but some mediation sessions are held with all the parties present face-to-face. Mediation is a useful tool used in several areas of the law, including civil cases, child custody cases, divorces, foreclosures, and abuse, neglect and dependency cases. If the parties do not reach an agreement, the mediator may schedule a follow-up session or may report to the court that an agreement was not reached.
What is prosecutorial misconduct? Improper remarks during trial, failure to disclose exculpatory evidence and knowing use of perjured testimony are just a few examples. Sometimes, a prosecutor’s misconduct amounts to grounds for reversible error under Ohio Revised Code 2945.79 (R.C. 2945.79
What comments can give rise to prosecutorial misconduct? The following examples are remarks that can deprive the defendant of a fair trial:
- Adversely commenting on a defendant’s failure to testify at trial.
- Use of a defendant’s silence before or after arrest as substantive evidence of guilt.
- Unfair or derogatory personal references to defense counsel during trial.