New Changes in Ohio Traffic Rules

Effective January 1, 2010, Ohio has modified some of the rules that effect how traffic citations and traffic court cases can or must proceed. Michael O'Shea is a part-time City Prosecutor for the City of Rocky River, and he recently gave a summary presentation of these amendments to the rules to all of his fellow city prosecutors from other cities in Cuyahoga County.

First, the Ohio Uniform Traffic Ticket (the ticket form used by police to write all tickets- even DUI tickets) has been modified to include a place for an officer to write down prior DUI offenses (if it applies), and the ticket no longer will include all portions of the social security number of the defendant (in order to preserve identity information for each defendant).

Second, now a defendant can post bond when a ticket is written, and instead of coming back to court, that bond, with the permission of the defendant, can be applied to pay all fines and costs in the absence of the defendant. In this way, an out of state defendant does not have to travel back to the Ohio court from where the ticket issues. Some parts of the amended rules even allow a defendant to plea, as it is called "in abstentia," even when it comes to DUI offenses - as long as the judge and the prosecutor agree. You may begin to see some police forces and traffic courts require all out-of-the-area traffic defendants to post larger bonds - even for minor traffic offenses.

Third, courts are now permitted to arraign and take pleas from traffic defendants by giving a general speech In writing or otherwise) to the entire group of defendants in the courtroom - rather than having to essentially give the same speech to each defendant individually. This will allow large number traffic arraignments and pleas to move along much more quickly.

These amendments are designed to address some of the problems that have slowed down the traffic courts for years.

Improper Use of Prior DUIs in Subsequent Prosecutions

The Cuyahoga County Court of Appeals has recently issued an opinion that bars the use of prior DUI and driving-under-suspension ("DUS") convictions if the purpose of the prior DUI and DUS convictions is to support a claim that the defendant was intoxicated in the current prosecution. In the case of State v. Greer, the prosecution attempted to use the fact that the defendant had been previously convicted of a number of other DUI and DUS crimes - but only did so because the prosecution had no medical evidence of the current alleged driving while intoxicated event. The Court held that where the defendant claims that he was not intoxicated at all, the State cannot use the prior DUI and DUS cases to prove that he was. Most prosecutors would have never put this one to the test. So this decision is not surprising.

What Exactly Does a "No Contest" Plea Mean?

The Ohio Supreme Court has recently made it clear that if a defendant enters a "no contest" plea in a criminal case (and is found guilty as almost all are after they enter the plea), the fact that the defendant entered that plea (and the resulting conviction) cannot be used in any subsequent civil case. No contest pleas are often entered by defendants in criminal cases rather than "guilty" pleas. These "no contest" pleas are seen by many defendants as a softer version of a guilty plea, and some courts had held that Ohio law also barred the use of a "no contest" plea in a subsequent civil action involving the defendant (for example, where the defendant is sued for the damage the defendant did in his criminal actions). In Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., the Ohio Supreme Court made it clear once and for all that "no contest" pleas cannot be used in subsequent civil cases involving the same activity by the defendant. The Court reasoned that: "“The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea. ... The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt. The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea." This decision resolved a number of conflicting decisions for the lower courts of appeals. We assume we will see much more use of the no "contest plea" in the future.

Our Recent Success with Ohio Court of Appeals in a Lead Poisoning Case

One of the areas where we regularly concentrate our practice is in the area of lead poisoning. We often have to deal with a number of ongoing defenses and appeals by landlords and their lawyers in the processing of these claims. One of Cuyahoga County's biggest landlords is the Cuyahoga Metropolitan Housing Authority ("CMHA"). CMHA is suppose to provide safe residential housing for low income persons and families. However, many children living at CMHA owned units regularly get poisoned by deteriorating lead paint - lead paint that Ohio and federal law require not be in a deteriorating state. Notwithstanding the fact that the Ohio Supreme Court has made it clear that the doctrine of "sovereign immunity" (i.e. the doctrine that says cities, counties and the State of Ohio, for the most part, cannot be sued for negligence) does not apply to injuries that occur in buildings or on grounds of governmental buildings, CMHA attempted to argue that they were immune for any lead poisoning injuries to small children. However, the Cuyahoga County Court of Appeals rejected that argument in Bozeman v. CMHA and held that CMHA does have to defend cases involving lead poisoning injuries. The case is now back at the trial court for further proceedings. Once again, stay tuned for details.

Our Recent White Collar Defense Case

We recently got done (for now) with a white collar defense case where the Federal Government alleged that a former attorney had engaged in what is called a "Ponzi Scheme." Many hours went into the review of thousands of pages of tax, bank and other financial documents which the Government claimed supported their case. Dealing with the Federal Government can be complicated - but dealing with the prosecution by the Federal Government of a lawyer is very complicated. Lot's of personality. Anyway, on the date of trial, we and the Federal Government were ready to get the trial started, but the client/lawyer got wedding day jitters and did not show for trial. The Government's agents are currently looking for our client, so his case is not yet over. Once again, stay tuned for details.

Ohio Supreme Court Declares New Workers' Compensation Statute Constitutional

In what has been an ongoing battle at the Supreme Court of Ohio for the last decade or more, the Supreme Court of Ohio has found the newest version of the "intentional tort" section of the Workers' Compensation statute to be constitutional. In Kaminski v. Metal & Wire Products Co. the Court held that the General Assembly's most recent version of a law that gives greater protection to employers is, notwithstanding the holdings of previous panels of the Supreme Court of Ohio, constitutional. In Ohio, in order for an employee to sue an employer that causes an on-the-job injury to the employee, the employee, under the new law, must prove that the employer acted “with a deliberate intent to cause injury.” If the employee cannot prove that, then, regardless of the employer's negligence or the employee's injury, the employee is regulated to whatever he/she can get paid by the Bureau of Workers' Compensation. This ruling is the latest stage of an ongoing battle between forces who want to make it harder to sue employers for serious and reckless workplace injuries and those who believe that taking away an employee's right to sue for serious and reckless workplace injuries is a violation of the Ohio Constitutional "trial by jury" clause. The ongoing debate has to do with whether allowing more protection for employers will, in essence, indirectly encourage more injuries or death. We see this as just another stage of what will most likely be an endless battle between the forces behind business interests and the forces behind worker protection. Stay tuned - and be extra careful at work.

Must a Juror Be Able to Hear to Decide

The Ohio Supreme Court has recently decided that generally jurors' senses must be unimpaired to take in the specific evidence in order to be selected for that trial. Regardless of the fact that well intentioned society rules require that we respect and work with all types of persons with physical disabilities, if a physical impairment interferes with a juror's ability to take in the specific type of evidence that is presented in a particular trial, that juror must be excluded from that trial. In the case of State v. Speer,
the Supreme Court of Ohio stated that when the specific evidence in a trial requires that a juror have the senses necessary to take in that evidence, then the trial court must exclude any juror who has a physical impairment that interferes with taking in that evidence. In Speer, the jury had to hear and interpret 911 tapes, and one juror had a hearing disability, and the Supreme Court of Ohio had to reverse the conviction of the defendant because that juror could not properly hear the tapes.