Wednesday, June 23, 2010

Points and Traffic Offenses

As most folks know, traffic violation convictions get you what are called "points" under Ohio law, and these points can add up and (1) increase your insurance rates and (2) result in the suspension of your driver's license (if you get 12 points). Some driving convictions can result on more than the standard 2 points - like reckless operation (4 points), driving under a suspended license (6 points) and DUIs (6 points). Many drivers hire experienced traffic lawyers to go to court for them to see if they can negotiate a reduction from a "point" violation to a "no-point" violation. Many drivers can't suffer the consequences of getting points in light of their specific job, or because they already have too many points already and can't suffer the consequences of a license suspension - or because their insurance rates are too high already. The decision or policy involved with any plea negotiations varies from courthouse to courthouse - and getting a lawyer that knows the local custom can be important. There are now new rules concerning how a person can take care of their traffic cases without even coming back to court (see blog entry dated April 11, 2010 - "New Changes in Ohio Traffic Rules"). Make sure you or anyone you know who has to go to court over a traffic violation has a lawyer who is familiar with these new rules.

Hearsay Statements of Child Victims

In a case that will impact a large number of child molestation cases, the Supreme Court of Ohio placed a limit on the type of "hearsay" statements of children that a prosecutor may present at child molestation trial. "Hearsay" is when person A comes to court and testifies about what person B said on a previous occassion. Most hearsay statements are prohibited from being admitted at trial - but some very specific types are. In State v. Arnold, the Ohio Supreme Court stated that only some of the hearsay statements of child victims come in at trial - those that a child states to a medical professional for medical purposes. Child victims are often interviewed by medical professionals in the context of a police investigation in order to assess their injuries. These are the type of hearsay statements that a prosecutor may use at trial - an essentially no others. This ruling will require police and prosecutors to be much more careful about who asks questions and what topics those persons cover during interviews of child victims. Regardless of what non-legal types may presume, these are always awful cases to investigate and defend - and this ruling makes the rules about how these uncomfortable cases are presented at trial.

Monday, June 21, 2010

Texting at Work is No Longer Always Private

In one of the more closely watched U.S. Supreme Court cases involving emerging technology in some time, the U.S. Supreme Court issued a decision involving what is easily becoming one of the most often used methods of communication: text messaging. In City of Ontario v. Quon, the Court held that text messages sent on a text device issued and paid for by a governmental employer (in this case, the City of Ontario, California), are not nessarily private and can be possibly read by the employer. Although this is the first case where the Court actually dealt with what is now this common form of communication, the decision was very fact specific (the U.S. Supreme Court is often very careful to select cases where the particular facts will result in a very narrow ruling - as they did here). The Court based its decision on an analysis of the Fourth Amendment, and whether the search of the text messages was "reasonable" - using many of the same factors it uses in determining whether other searches violate the Constitution: was the search legitimate, was the search reasonable and limited in scope. In this case, the City handed out personal messaging devices to its workers, called a meeting to put limits on their use, and told the workers that their e-messages are going to be monitored - so the Court felt that under these circumstances there was no violation of the Fourth Amendment. The Court was hesitant to issue a broader technology-based opinion given, in their opinion, how quickly and often technology changes. The Court stated:

"Rapid changes inthe dynamics of communication and information transmission areevident not just in the technology itself but in what society accepts asproper behavior. At present, it is uncertain how workplace norms,and the law’s treatment of them, will evolve."

As a pratical matter, we are not sure how this opinion specifically applies to (1) the private workplace and (2) governmental workplaces were "big brother" overly monitors everything - and we think that the Court wanted it that way. Nevertheless, any employer, both private and governmental, should have clearly defined "reasonable" text and email policies in place in order to prevent any employee from claiming that their rights have been violated, and all employees should either have their own communications device or assume that what they put on their employer's device can and will be read by the employer.

Sunday, June 13, 2010

The Big Police Speeding Case

Last week, the news and printed media reported extensively about the Ohio Supreme Court's holding that police officers can pull someone over (and prosecutors can convict if necessary) by using, essentially, their visual estimate of speed. In Barberton v. Jenny, the Ohio Supreme Court said it was constitutionally permissible to have an officer with the proper amount of training and certification to competently testify about a driver's rate of speed - without the necessity of a radar or laser gun or without the use of a technique called "pacing" (where the officer follows a driver for a certain distance "pacing" his or her speed) or airplane spotting. The Court said there was no constitutional prohibition on this visual estimate as long as the officer had the necessary training and certification. The Supreme Court of Ohio overruled the position held by the Cuyahoga County Court of Appeals, and has issued a decision that is not setting very well with the general public. As a practical matter, most police departments will not use this method of speed detection. The writer of this blog has yet to speak to a single police officer who says they intend on trying this new method out. Ohio stock in laser and radar equipment may take a dive if this method becomes popular.

Barry Bonds and Lab Results

In a recent case out of the federal Ninth District Court of Appeals, a federal appeals court held that the federal government is not permitted to merely submit blood and urine lab reports and present hearsay testimony of a lab employee - instead of presenting the actual person (Bond's trainer Greg Anderson) to whom Bonds gave his blood and urine samples. Given the fact that Mr. Sanderson invoked his Fifth Amendment right to not testify (he may have imlicated himself in a crime too), the Government was faced with having to have just the lab employee testify and have the lab results introduced as a sort of replacement for the testimony of Sanderson. However, the Court in United States v. Bonds stated that this was hearsay, and the Government could not use this method instead of the testimony of Mr. Sanderson. It is now assumed that the Government will have a much more difficult time in their ongoing prosecution of Mr. Bonds. We'll have to see what happens next.

Sex Abuse and Repressed Memories

The Ohio Supreme Court recently made still another pronoucement that Ohio Courts will not invade the intent of the Ohio General Assembly when it passess legislation. The Ohio Supreme Court has made it clear in a number of its decisions in the last 5 years that it will strictly enforce statutes enacted by the Ohio Generally Asembly - and refuse to apply any interpretation not specfically set forth in those statutes - what some folks call "activists judges." Effective Aug. 3, 2006, the General Assembly enacted R.C. 2305.111(C), which created a 12-year statute of limitation for persons who had been molested while they were under the age of 18. Essentially, once a person reached the age of 18, they had to remember any repressed memories of being molested, and then sue the legally liable person(s), before they reached the age of 30 (i.e. 18 years plus the 12 years). In Pratte v. Stewart, the Ohio Supreme Court made it clear that even a person who legitimately had repressed memories beyond their 30th birthday could not sue their attacker because that person had not rembered and sued before their 30th birthday. The Court said that since the new statute did not provide for any exceptions, they would not create one. Although this case invovled the statute of limintations on child molestation cases, it appears for the time being that the Ohio Supreme Court has taken a very strict "separation-of-powers" position - saying that if the Ohio General Assembly has not enacted a specific law, then that law essentially does not exist. This judicial philosphy is something we will be monitorings in the future.