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Archive for the ‘Uncategorized’ Category

Jun
14
Two Bites at the Apple

A recent Ohio case demonstrates to what length some jurisdictions will go in their attempt to prosecute violators of Ohio’s OVI laws. In the case, State v. Willig, 2010 Ohio 2560, the state attempted to retry a Defendant on a case dismissed by the Franklin County Municipal Court by indicting the Defendant on more serious felony charges arising out of the same events giving rise to the lower court case.

The facts are as follows: In July of 2008, the defendant was involved in an accident wherein he was driving a truck that struck and injured a pedestrian. The Defendant was subsequently charged with four misdemeanor charges, OVI, driving with a prohibited level of drugs in the system (“Per Se”), Failure to Control and Reckless Driving.

The Defendant filed a motion to suppress based upon the fact that the officers failed to have probable cause to arrest. The Defendant also filed a motion to dismiss under Ohio’s speedy trial statute. The court dismisses the pre se violation due to the state’s failure to bring the Defendant to trial within the statutory period. The state then asked the court to dismiss the remaining charges.

Some months later the state indicted the Defendant on the charges of vehicular assault and driving under the influence. The Defendant filed a motion to dismiss the indictment, asserting the violation of his statutory speedy trial rights in the second case required the indictment be dismissed pursuant to R.C. 2945.73(D). According to defendant, the municipal court’s decision dismissing the per se violation barred prosecuting defendant for any offenses arising out of the events of the automobile accident.

The common pleas court granted the Defendant’s motion as to the OVI charges and denied the motion relating to the vehicular assault charge. The state appealed. The state asserted in its appeal that because the municipal court dismissed the per se case at the state’s request, and not because of a statutory speedy trial violation, those charges were not “discharged.” Relying on State v. Flowers, 2d Dist. No. 22751, 2009 Ohio 1945, the state contended R.C. 2945.73(D) required discharge from all criminal liability in order to bar further criminal proceedings based on the same conduct. The court was not persuaded by saying, “Nowhere does Flowers define “discharge” in R.C. 2945.73(D) to mean discharge from all criminal liability rather than discharge of any single pending charge based on the same conduct.”

Defendant, on the other hand, focused on the meaning of “based on the same conduct” in R.C. 2945.73(D). Because the municipal court “discharged” the per se violation against defendant for a violation of R.C. 2945.71, Defendant asserts R.C. 2945.73(D) bars prosecuting Defendant based on the events and circumstances of the automobile accident, regardless of the state’s voluntary dismissal of the charges in the per se case.

In its opinion, the court said, “Defendant correctly contends that since the charges in the second case and in the subsequent felony indictment arose from the same automobile accident, the interpretation and meaning of “based on the same conduct” in R.C. 2945.73(D) determines whether, or to what extent, the state is able to pursue any future charges against defendant premised on the … automobile accident.”

The court added, “ In State v. Smith (June 22, 1978), 10th Dist. No. 77AP-960, 1978 Ohio App. LEXIS 10715 this court explained “[t]he word ‘conduct’ as used in R.C. 2945.73(D) is broader than merely that relating to the essential elements of the charge involved and includes the surrounding circumstances and evidence which would naturally be introduced in support of the charge… The [common pleas] court properly interpreted the phrase “based on the same conduct” from R.C. 2945.73(D) to refer to the conduct underlying the charged offenses rather than the specific elements of the offenses…Because the parties do not dispute defendant was involved in only one automobile accident …, the common pleas court properly concluded on the facts present here that all of the charges stem from the same conduct, a conclusion that caused it correctly to invoke the R.C. 2945.73(D) bar to further prosecution for offenses based on the same conduct.”

What can be drawn from this case? When a court reviews a decision based upon R.C. 2945.73(D), “based upon the same conduct” means the totality of the events giving rise to the action NOT the elements of the crime itself.

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Feb
10
The Intoxilyzer 8000 – Your Tax Dollars at Work
In December, 2008, the State of Ohio used a federal grant of $7 million for the purchase of 710 portable breath test (PBT) machines in spite of warnings that the machines were unreliable and subject to legal challenge.
The machines have proven to be vulnerable to errors based on environmental factors including heat and cold, as well as variable such as the length of time a suspect blows into the device.
Undaunted, The Ohio Department of Health began distributing the machines to rural counties hoping to avoid legal challenges by having the machines used in areas of Ohio having less than 3% of the state’s population.
Lawyers in several other states have gotten thousands of convictions thrown out because the manufacturer of the machine, CMI, Inc. of Kentucky refuses to turn over details of the machine’s operations.
But in Ohio, it appears the device will need to be challenged on other grounds due to the fact that a 1984 ruling by the Ohio Supreme Court barred defendants from attacking the reliability of breath tests once they’ve been certified by The Ohio Department of Health. On the other hand, no device may be used in Ohio unless it appears on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices. PBT’s are generally not on the list.
Meanwhile the state continues to put more instruments in the field – slowly. Just 17 out the of 714 original purchased have been used.
Stay tuned!
To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com

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Sep
26
Can an Insurance Company Deny Coverage if Alcohol is a Contributing Factor in an Accident?
Readers of this blog know of the very serious consequences of an OVI/DUI conviction. Direct consequences include jail, fines, suspensions, loss of commercial driving privileges, confiscation of the automobile. Indirect consequences include employment issues, insurance premium increases or loss of insurance, and professional ethics issues.
A recent federal court case points to another consequence – denial of insurance coverage. The case, Shelby County Health Care Corp. v. Majestic Star Casino, LLC Group Health Benefit Plan, 2009 FED App. 0339P (6th Cir.) involved a claim by an insured for medical coverage under his policy of insurance. The insured was involved in a traffic accident. At the time the insured was driving without a license and, at the time of their investigation, the officers checked a box on the citation indicating that alcohol consumption might be a contributing factor to the accident. The insured eventually pled no contest to the failure to have a valid drivers license but was never charged with a DUI.
As with most medical insurance policies, the following covenant was contained in the policy:
“This Plan does not cover and no benefits shall be paid for any loss caused by, incurred for or resulting from . . . . [c]harges for or in connection with an injury or illness arising out of the participation in, or in consequence of having participated in, a riot, insurrection or civil disturbance or being engaged in an illegal occupation or the commission or attempted commission of an illegal or criminal act.”
The company denied coverage claiming the insured’s failure to have a driver’s license and his possible OVI were illegal acts and therefore, were not covered. Since the term “illegal act” was not defined in the policy, the court, in a very narrow interpretation, said the “ the Plan’s illegal-act provision did not exclude coverage for [the insured’s] injuries because driving without a license and driving without insurance did not “cause” [the insured’s] accident and resulting injuries. Apparently, the court determined that 1) the contributing factor causing the accident had to be an illegal act, AND 2) it had to be a contributing factor to the incident that gave rise to the claim. Therefore, the court ordered the claim paid.
It is important to note that the court said since the insured was never charged with DUI it was not required to base its opinion on an act for which the insured was never charged. But, what would the court’s decision have been had the insured been convicted of DUI? Does DUI amount to a “criminal or illegal act?” If convicted, it could certainly be argued it was a contributing factor to the accident.
So, what do we conclude from this case? With a little tweaking, an insurance company could write an exclusionary clause that could easily exclude coverage for an accident where DUI is a contributing factor. Or, using the reciprocal argument that can be made in the Shelby case, the insurance company could argue that DUI is an illegal act AND it contributed to the incident that gave rise to the claim, and, therefore, the claim should be denied.
To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com

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Sep
7
The Admissibility of Non-Scientific Field Sobriety Tests
Anyone reading this blog is acquainted with the three scientifically accepted field sobriety tests by NHSTA – Horizontal Gaze Nystagmus, walk and turn and one legged stand tests. As previously discussed, Ohio Revised Code O.R.C. 4511.19(D)(4)(b) requires officers to substantially comply with the standards required of NHTSA (or other recognized protocol) before they can be used a basis for arresting a person for OVI.
But, assuming these standards are not used and the court suppresses the results of these tests can the officers observations be used in the prosecution for OVI. Based upon Ohio jurisprudence, the answer is yes.
A recent Eighth Appellate District case demonstrates this issue. In the case, Village of Brooklyn, Heights v. Yee, 2009 Ohio 4552, the driver was stopped after the officer observed her cross the center line three times. After the stop, the officer conducted three tests – the finger to nose test, the alphabet test, and the finger count test. The driver refused to submit to a walk and turn test or a one legged stand test claiming she was injured in a motorcycle test. Based upon the officer’s observations, Yee was arrested and charged with operating a vehicle under the influence.
In a pre-trial motion, the Yee argued that Ohio only recognizes three standardized field sobriety tests, namely: the Horizontal Gaze Nystagmus Test (HGN), the One-Leg Stand, and the Walk and Turn. Thus, the tests administered by the officer were inadmissible. (It is important to note that the opinion is not clear whether the defendant was asking to suppress the results only or the observations of the officer. But, we can only assume the defendant was seeking to suppress the results AND the officer’s observations)
Nonetheless, the court held that an officer’s observations regarding a defendant’s performance on nonscientific field sobriety tests is admissible as lay evidence of intoxication. The court quoted State v. Schmitt, 101 Ohio St.3d 79, 2004 Ohio 37, 801 N.E.2d 446 in stating, “[t]he manner in which a defendant performs these tests may easily reveal to the average lay person whether the individual is intoxicated…[w]e see no reason to treat an officer’s testimony regarding the defendant’s performance on a nonscientific field sobriety test any differently from his testimony addressing other indicia of intoxication, such as slurred speech, bloodshot eyes, and odor of alcohol.”
Therefore, while the court fails to make clear whether the results were admissible, it is obvious an officer can testify as to his observations. Of course, a well trained attorney fully versed on NHTSA standards and the reasoning behind NHTSA’s rejection of the FST’s as used by the officer in the Yee case will properly cross-examine the officer regarding these disparities.
To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com

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Aug
31
OVI and Its Ramifications on Employment
Many of my clients argue the necessity of legal representation during DUI/OVI prosecution. Other than the obvious penalties, they argue there is little, if any, issues regarding their everyday lives. This may not be true. A prime example of how a DUI conviction can have far reaching affects was just driven home by a recent Ohio Supreme Court case.
In the case of In Re: Corrigan, the Supreme Court struck down a young man’s attempt to take the Ohio Bar Examination and thus, practice law. In that case, the bar applicant (Corrigan) was interviewed by a local bar association as required by the Rules of Admission to the Ohio Bar. During the interview it was revealed that the Corrigan had been arrested previously for DUI and attempts at rehabilitation were met with indifference and failure by the applicant. It is important to note that the DUI conviction arose from an accident that caused serious physical injuries to others, but that aspect of the conviction was not seriously addressed by the court as much as the applicant’s continued failure to address his alcoholism.
As a result, the court sustained the committee’s recommendation that the applicants request to sit for the bar exam be denied but was permitted to apply for a future bar exam but only after he “…first submit[s] to the board a psychiatric evaluation from a psychiatrist or psychologist approved by the board and licensed in the state of Ohio, as well as an assessment from an alcohol counselor certified in the state of Ohio, and demonstrate by clear and convincing evidence that he possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.”
While this might be an extreme example, it does demonstrate the ramifications of a DUI conviction. Many professions requiring licensing will review a person’s application and background to determine if they are of “good moral character,” and deny their application if the committee finds issue with the applicant’s fitness.
The state has even passed laws restricting employment to those convicted of DUI (see my blog regarding Commercial Driver’s Licenses – May 29, 2009).
Therefore, the need for proper representation is paramount when facing a DUI charge. You need the advice of a professional who can advise you of your legal rights as well as the long-term ramifications to you professionally.
To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com

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