Thursday, May 28, 2009

New Jersey Appeals Court Ruling on DUI Case Where Defendant Asleep at the Wheel

Reprint from the New Jersey Law Journal (7/28/2009)
Being drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can't carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.
Though unpublished, the ruling is notable for its departure from the New Jersey courts' usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.
In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.

O'Shea & Associates Note:
Ohio may have addressed this problem when it enacted a law called "physical control." Under that newer statute (RC 4511.194), a person may be convicted for being under the influence in a non-moving/parked car. The penalties for a violation of this statute are somewhat less that for a violation of the normal DUI statutes (RC 4511.19/4511.191). Many experienced DUI lawyers try to get a prosecutor to offer a DUI defendant the opportunity to plea to a "physical control" violation. Looks like New Jersey may have to play catch-up to Ohio on this issue.

Wednesday, May 27, 2009

President Obama Nominates New Supreme Court Justice

President Obama just nominated a new candidate for the United States Supreme Court. This nominee will replace the outgoing/retiring Justice Souter. If confirmed by Congress, United States Federal Court of Appeals Judge Sonia Sotomayor would be the third female justice and the first Hispanic justice in the history of the United States Supreme Court. After graduating summa cum laude from Princeton, she went to Yale Law School. Judge Sotomayor, a former prosecutor who also practiced law for a New York firm, has served for more than a decade on the Court of Appeals for the Second Circuit, based in New York City. Bill Clinton nominated Sotomayor for the U.S. Court of Appeals for the Second Circuit in 1997. George H. W. Bush nominated Sotomayor as a federal judge in 1991 -- a position that made Sotomayor the youngest judge in the Southern District of New York and the first Hispanic federal judge in the state.

United States Supreme Court Ruling on Police Interviews of Defendants in Absence of a Lawyer

The United States Supreme Court issued an important and law-changing decision this week on the issue of whether police may interview a defendant in the absence of his lawyer. In the case of Montejo v. Louisiana (see, the United States Supreme Court held that police may in fact interview a defendant even if the defendant has a known lawyer if the defendant voluntarily chooses to speak with the police. This watershed decision overruled a 35-year-old decision from the United States Supreme Court which barred the practice. How this decision is applied or used by various police and prosecutorial authorities remains to be seen. If we have a situation involving an unsophisticated defendant (i.e. a defendant that is unaware of his or her right to remain silent in the absence of their lawyer), the potential for abuse may be huge. We'll just have to wait and see.

Tuesday, May 26, 2009

Our collection litigation success.

We just obtained a collection litigation success for one of our wholesale food product clients. We had obtained what might have been initially perceived as an uncollectable judgment. However, with some persistence, we were able to track down the judgment debtor and discovered that the judgment debtor had started a new business. We used a legal technique that permitted us to seize that business until our entire judgment was paid in full. We were happy to mail our client their check this past week.

Monday, May 18, 2009

We are going to argue a "dog attack" case at the Supreme Court of Ohio.

We are going to argue a case later this fall in the Supreme Court of Ohio. The Supreme Court of Ohio will hear arguments about a case involving a dog mauling of a young child in Akron, Ohio. The trial court issued a ruling that forbid us from presenting the jury with evidence that the same dog had attacked another person about one month earlier. We won the issue at the Court of Appeals. See However, the lawyers for the attacking dog have convinced the Supreme Court of Ohio to decide whether the Court of Appeals got it right. Stay tuned for details.

Supreme Court of Ohio to Rule on Drugs-Into-Jail Case.

The Supreme Court of Ohio will hear arguments on Tuesday, May 19, 2009 on a drug conviction case that came out of Cuyahoga County. The defendant in that case was convicted for having marijuana in his pants cuff when he was conveyed into the County Jail on a drug arrest. The defendant was convicted at trial, but the Cuyahoga Court of Appeals reversed the conviction on the basis that the defendant was not in control of his person after he was arrested by the police. See State v. Cargile:

The Ohio Supreme Court has taken up the issue at the request of the prosecution. We will try to update you all when we find out the results of the decision by the Supreme Court of Ohio.

Sunday, May 17, 2009

Business Litigation Update: Avoid oral agreements on big transactions.

The Ohio Supreme Court held recently that if an agreement between two parties is technically covered by what is know as the “Statute of Frauds” (i.e. a statute that lists certain types of agreements that must be in writing to be enforced in court), then even good faith part performance of an oral version of that agreement cannot be advanced as an excuse for not having the agreement in writing in the first place. See It use to be that some lower appellate courts in Ohio had held that a party could argue that the Statute of Frauds could be ignored if either party to an oral agreement had partly performed obligations under the oral agreement or relied on the existence of the agreement to their detriment. No longer. This decision has far reaching implications in certain industries and areas of trade where many complicated and/or financially large transactions happen on sometimes a daily basis. Business contracts covered by the Ohio Statute of Frauds include agreements involving real estate (including leases), agreements that cannot by their operation be performed in less than a year, and agreements to take over the debt of another person (this is not the complete list). Thought: Consult your local transactional lawyer long before you invest time and money on a deal that may be covered by the State of Frauds. Make sure the agreement for that deal is covered by a written contract.

Our verdict in a workplace assault case.

We just obtained a not-guilty verdict for a physician-client of ours. The physician had emigrated from Albania (where he had been a practicing physician) and was working at a local hospital as a medical technician while trying to get licensed in Ohio, get his U.S. citizenship and to save enough to move his wife to the United States. One particular nurse at the hospital consistently made crude and ethnic insensitive comments to the client, and when the client eventually verbally exploded at the nurse in the break room, the nurse and her close friend claimed that the client slapped her 3 times in the face. A fair and necessary background check of the nurse’s employment history revealed that she was less than a credible witness (and employee) . In applying the proper definition of reasonable doubt, the jury rendered a not-guilty verdict. If the client had been found guilty, he would have been almost immediately deported, and he would have lost out on a life-long dream to have his family start a life with him here. He was rather emotional at the verdict.

Criminal Justice Update: Hearsay evidence in child sex abuse cases.

The Ohio Supreme Court handed down a decision which held that someone other than a child-victim may testify about the statements that the child made concerning an alleged molestation of the child. See The Court held that if the child-victim was not able to testify at trial for some reason, the “hearsay” statements of the child-victim can be admitted by having another person tell the jury what the child-victim had said on an earlier occasion. In this unique case, the child-victim died in a fire prior to the trial, and the defense had argued that the statements made by the child to others were “hearsay” and could not be admitted at trial. Thought: Some prosecutors may try to stretch this ruling to permit hearsay statements to be admitted at trail when they (the prosecution) deem the child to be “unavailable” even though the child is alive and healthy.

Criminal Justice Update: Computer hard drives

The Ohio Supreme Court handed down a decision that is a true reflection of the modern digital age. In cases where a defendant’s hard drive has been seized and examined by the police/prosecutorial authorities, the defense lawyer may not independently examine that hard drive (with a defense expert) unless the defense lawyer makes a minimal showing that the written results of the hard drive examination are somehow “false, incomplete, adulterated or spoliated.” See: Thought: In this new digital age, computer forensic experts are rapidly becoming one of the most important expert witnesses. Make sure you hire the right one.

Cuyahoga County Court of Appeals ruling on disability pension benefits.

The Cuyahoga County Court of Appeals has recently ruled that disability pension benefits are not “marital property” (which would make them subject to division between the spouses in a divorce) unless they are taken by the retiring spouse instead of that spouse continuing to work or taking his or her regular pension. See: If the retiring spouse has any of his or her normal pension benefits reduced because of taking disability pension benefits, then a corresponding amount of the disability pension benefits become martial property. Thought: A spouse who is going through a divorce who has the ability to receive both a regular pension and a disability pension must engage in some sophisticated math and planning before making an election to receive either or both a regular pension or a disability pension.

New Ohio Supreme Court ruling on spousal support (aka “alimony”).

The Supreme Court of Ohio has recently ruled that parties (husband and wife) to a divorce decree cannot modify the spousal support (i.e. alimony) provisions of the divorce decree unless the party seeking the modification can prove that there is a “substantial” (vs. minor) change in the financial circumstances of the parties - and that the change must be a change that was not contemplated by the parties at the time the divorce decree was issued. See . Thought: The Court was sending a clear message that it wants the parties (and their lawyers) to thoroughly think through their spousal support issues at the time of the divorce, and not come knocking if there has been a post-decree minor change in their lives. So break out those crystal balls if you have them.

Recent personal injury law update: Nursing home agreements and arbitration requirements

Recently the Ohio Supreme Court has ruled that persons who sign admission agreements when they enter nursing homes can be bound by written “arbitration” clauses that require arbitration of any issues related to their residency - including issues related to negligent or intentional injury to the resident. See:
These arbitration provisions almost always require that injured residents waive their right to judge/jury trial and submit to a potentially more expensive and industry-biased arbitrators. Any person who is being admitted to a nursing home or any person who has a friend or family member being admitted needs to be aware of the potentially very serious impact of these arbitration provisions. Thought: Shop your nursing homes on this and other issues.