Sunday, August 19, 2012

Where did we go?

We moved our entire blog directly over to our web site at www.lipsonoshea.www. Please vist us there for all of our past and present blogs about important legal matters.

Sunday, March 20, 2011

What's an ALS Appeal in a DUI Case?

When a driver is pulled over for a traffic offense, and when that driver is also subsequently arrested for a DUI offense, the officer will most often take that person to a police station to do what is called "blow" into the blood alcohol content ("BAC") machine. If that arrested person tests over the legal limit (.08 BAC for a person over the age of 21 and .04 for a person under the age of 21), or if that person refuses to take the test, then that person's driver's license will be suspended pursuant to what is called an "Administrative License Suspension" (an "ALS"). Although the police officer does all of the work, this ASL suspension is technically issued by the Ohio Bureau of Motor Vehicles (the "BMV") based upon the actions and investigation of the arresting officer. The ALS goes into effect the very moment that the arrested person tests over the legal limit or refuses the test.

If the arrested person wants to challenge the ALS, he or she can file what is called an "ALS Appeal." This ALS Appeal is filed and litigated in the very court that is presiding over the DUI charge. Most Courts give the ALS Appeal its own separate case number, and assign all of the proceedings associated with the ALS Appeal on the same dates that are set with the DUI charge. The hearing must be scheduled within 5 days, although as a practical matter the hearing is usually set more than 15 days after the filing of the appeal. The local prosecutor assigned to the DUI charge is assigned to represent the BMV on the ALS Appeal.

In the ALS Appeal hearing, the prosecutor will have to prove the following things to the satisfaction of the judge: (1) whether the arrest was made with probable cause, (2) whether the BAC test was properly requested, (3) whether the defendant was made aware of consequences of refusal or failure, and (4) whether the defendant refused or tested over the limit. As a practical matter, most times the prosecutor will be able to prove these things - but sometimes, with an experienced DUI defense lawyer, they will have some difficulty. If there is some difficulty, the prosecutor and the defense lawyer will often attempt to work out a deal on the ALS issue or a plea on the case as a whole. It should be noted that even if a skilled defense lawyer succeeds in getting the ALS terminated, the trial court presiding over the DUI case can "replace" the ALS with a regular DUI pretrial suspension.

The ALS Appeal is similar to another DUI pretrial proceeding called a "Motion to Suppress." The two motions and the proceedings sometimes address a number or the same issues. However, the motion to suppress covers many more issues than an ALS Appeal, and if the Court grants any portions of a motion to suppress, much, if not almost all, of the prosecutor's DUI case is thrown out before trial. Upcoming articles will discuss the issues and proceedings associated with a motion to suppress.

Thursday, March 17, 2011

The Crazy Funeral Protestor Case

Last week, the United States Supreme Court issued a difficult decision involving what can be the painful scope of the First Amendment. In Snyder v. Phelps, the Court held that scathing and hurtful comments made by a weird religious church at the funerals of military personnel killed in action are nevertheless protected by the First Amendment right to free speech. The Westboro Baptist Church membership would travel to the funerals of dead soldiers and hold signs and make comments that the soldiers had died as punishment for homosexuality in the US (statements like "pray for more dead soldiers" and "God hates fags"). This so hurt and angered the father of one dead soldier that he (the father) file a lawsuit and succeeded in obtaining a multi-million dollar verdict against the members of the church. However, once the case reached the Supreme Court of the United States, the Court (in an 8 to 1 decision) reversed the verdict - holding that, regardless of how hurtful and inflammatory the church members' speech was, it was still protected by the First Amendment. The Court concluded that the hateful speech, speech specifically designed to inflame, is still entitled to First Amendment protection.

This decision will surely be the foundation for more free speech decisions to come down the road in the future. Most legal commentors agree that if the speech in this case passes the First Amended test, then much emotionally draining speech will as well. Stay tuned. Given this decision, this is not the last time this issue will come up in the media.

US Supreme Court Case on DNA Tests

There has been a recent number of stories in the written press and TV media about convicted prisoners who are seeking to use modern DNA technology to see if that DNA technology can produce evidence that will get them a new trial. The science and technology behind DNA evidence is really less than a decade old, and many convicts (who claim that they did not have access to the technology at the time of their prosecution) assert claims that they are actually innocent and that DNA evidence will prove that innocence.

Recently, the United States Supreme Court has entered the fray with the decision of Skinner v. Switzer. In short, this decision basically holds that convicts can file "civil rights" lawsuits to force the authorities to give them access to DNA technology. Prosecutors had argued that once a defendant had exhausted all of that defendant's appeals in the state court system, then they should not be able (sometimes years later) to file a "federal" civil lawsuit to seek evidence that they should have sought out and used in the original "state" criminal trial process. The Supreme Court rejected the prosecution argument, but made it clear that just because the convict files that lawsuit does not mean that he will win that lawsuit. The convict will still have to prove that his civil rights were violated (this is a complicate process in the federal court system). Nevertheless, we expect that a new increased number of civil rights lawsuits will be filed by long-incarcerated convicts to seek DNA relief.

Friday, March 11, 2011

Two Types of Claims or Lawsuits When Someone is Killed by an Accident

When someone is killed in an accident (due to someone else's mistake or intention), the estate of the deceased person has two types of lawsuits or claims that the estate can maintain. One is called a "wrongful death" lawsuit, and the other is called a "survivorship" lawsuit.

The "wrongful death" lawsuit involves a claim by the estate of the deceased person for all of the damages that the death has caused to a specific list of persons: (i) the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and (ii) for the exclusive benefit of the other next of kin of the decedent. The lawsuit or claim will be pursued to find out what those damages are. After the lawsuit is settled to tried to a verdict in one court, the probate court (another court that controls how the money of the estate is divided up) must determine how those proceeds are divided up with each heir.

The "survivorship" lawsuit concentrates primarily on the pain and suffering experienced by the deceased person from the point of the accident to the point of the injured person's actual last breath. Sometimes this period lasts a few seconds (like an automobile accident where the deceased person dies almost right away), and sometimes it can last for months (like when that same accident leaves a person in the hospital for months only to have that person eventually pass away). This period of time (i.e. the period of time where the person has temporarily "survived") comprises and often determines the value of the claim. All of the monetary compensation from this claim goes exclusively to the deceased person's estate - and will be divided up according to the will or the probate laws (if there is no will). The general theory is that the longer the person survived or suffered after the accident, the more the damages the estate is entitled to.

Most times, the deceased person's family pursues both a wrongful death and a survivorship in the same claim or lawsuit. Although they will be pursued or tried together, they require somewhat different proof and the two claims will technically have separate values.

We hope that no one reading this ever has to be personally involved in one of these claims.

Saturday, March 5, 2011

Become a Fan of our Facebook Law Page

Through March 17, if you “Like” the Lipson O'Shea Facebook fan page, receive a 20% off normal rates, good through 2011.

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Saturday, February 19, 2011

Ohio's Two Types of Damages - Economic and Non-Economic

Under current Ohio law, there are two types of damages that an injured person may recover for their personal injury: one is called "economic" damages and the other is called "non-economic damages."

Each has its own specific statutory definition, but in general "economic damages" are the bills the injured person has had to pay or be liable for as a result of the injury. For instance, in an auto accident, they include the medical bills and the repairs to the injured person's car. Further, if that person lost work as a result of the accident, then the specific amount of lost wages is also considered a type of "economic damages." Obviously, determining the exact amount of "economic damages" is (or should be if all of the parties are operating in good faith) relatively easy - a simple exercise in math.

"Non-economic" damages are often referred to as "pain and suffering" damages, but are more specifically defined to include:
pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.

As you can probably guesss (or as some of you have actually experienced), determining the proper or reasonable amount of "non-economic" damages can be far more complicated than determining the proper or reasonable amount of "economic damages." In fact, most personal injury claims or trial disputes revolve around the proper measure of "non-economic damages." Each person's valuation of "pain and suffering" or "loss of companionship" can be quite different from another's. Suffice to say, if the pain is your own, you see its true value - while the pain you hear about for another is something that must be explained to you in such a way that you can truly appreciate what that other person is going through.

Stay tuned for more posts on how damages in Ohio are calculated - and how Ohio law actually places limits (or, as they are often called, "caps") on specifc types of damages.