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.

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.

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.

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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.

More on Federal Criminal Jurisdiction and the "Interstate Commerce" Clause

On January 9, 2010, we discussed what is necessary for the federal government to prosecute crimes - specifically that the crime have an effect on “interstate commerce.” This interstate commence requirement is in play in the Federal District Court here in Cleveland, Ohio - in a deadly arson case where 9 people died in a house fire. It is unusual for federal prosecutors to prosecute arson cases - even ones that involve an arson where people have died. Nevertheless, the Federal Government is currently prosecuting (and is in trial against) a man who, they allege, intentionally set a fire that killed nine people. If they are successful in convincing a jury that he intentionally set the fire, they will seek (in a separate phase of the proceedings) the death penalty.

However, just proving that the defendant intentionally set the fire will not be enough for a conviction. The Government will also have to prove that the crime affected "interstate commence." So, how does a fire in a building in Cleveland, Ohio affect interstate commence? The building was located in Cleveland. The defendant lived in Cleveland, and all of the people who died lived in Cleveland. No one crossed state lines, and the things that were used to start the fire were all obtained in the Cleveland area. Nevertheless, this "interstate commerce" issue has already been decided by the United States Supreme Court - where they held that a fire in a 2-unit apartment building affected interstate commence because "the rental of real estate is unquestionably" an activity affecting interstate commerce. The fact that the residence in question was “rented” was enough to trigger the application of the "interstate commence" clause of the US Constitution. So, it may not be too difficult for the Government to prove that a rental house where 9 people were residing or staying has an affect on interstate commence.

Depending on the circumstances, the federal courts are often willing to expand the coverage of the "interstate commence" clause. In the next couple of years, there will be a number of big fights in the federal courts over what does or does not affect "interstate commerce" - including whether or not parts or all of the so-called ObamaCare health law is constitutionally related (enough) to "interstate commence." Stay tuned.

What is a "HGN" test for DUI cases?

When a police officer pulls over a person suspected of driving under the influence, that officer is permitted to request that person to submit to a number of what are called "Filed Sobriety Tests" ("FSTs"), including what is called the "Horizontal Gaze Nystagmus" test (the "HGN"). This is the test (as some of you may have seen) where the police officer instructs the suspect to follow his finger or pen - and where the officer is going to observe how the suspect's eyes follow that finger or pen. The term "nystagmus" refers to an involuntary jerking of they eyes. The officer is looking to see how the eyeballs move, and how soon and how much (if at all) those eyeballs begin to shake or jerk.

The theory behind this particular test is that the sooner any jerking begins, and the more pronounced and the longer the eye jerking continues, the more alcohol is in that person's blood - and, the more under the influence that subject is. The officer is looking for three "clues" for each eye, for a total of 6 clues for the whole test - with the generally accepted fail point being just 4 clues. If a suspect fails just the HGN test alone, the officer can place that suspect under arrest and (at the police station) request the suspect to blow into the "BAC" machine. There are other FSTs that an officer does at the scene (including a "walk and turn test and a "heel-to-toe" test), but those other tests will be discussed in future blog postings.

Many defense lawyers take the position that the HGN test is not scientifically reliable, and that a court should never allow a jury to hear about the HGN test. However, the Ohio Supreme Court has long held that a HGN test, when properly administered, is admissible at trial, and that an officer can testify about how the test is often validated by the BAC machine results. The bigger issue in a DUI case is whether the specific police officer administered the test properly - specifically according to a well know manual called the "NHTSA Manual." Most well qualified defense attorneys know what the proper procedures are, and how to properly cross examine a police officer about how a particular HGN was administered. When looking to hire a DUI defense lawyer, make sure that lawyer has sufficient experience with these types of hearings.

Do the cops need a warrant to attach a GPS device to a car?

A recent series of new technology rulings by courts in Ohio have indicated that, so far, Ohio law does not require that police departments obtain search warrants in order to place a GPS tracking device on a suspect's car. With today's technology, a small GPS device can be attached to a suspect's car, and the police can sit at a computer and simply track where that car goes (and record that tracking). Various defendants who have been arrested and prosecuted for crimes which included this type of evidence have moved the courts to suppress that GPS evidence - claiming that the police needed a search warrant before the GPS device is used. Newspapers are following this issue

Normally, police have to obtain a search warrant in order to set up video or audio surveillance of buildings and rooms used by suspects, and they also have to obtain search warrants to monitor phone calls. However, police do not have to obtain search warrants to simply follow a suspect around town - be it on foot or in a car. One Ohio appellate court to address this GPS tracking issue so far has concluded that using GPS tracking technology is more akin to following a suspect on the street rather than eavesdropping on that suspect's conversations with wiretaps or video/audio monitoring. The Court also stated that there is no real "expectation of privacy" on the outside of a car (which is where the GPS device was placed) - even in the undercarriage area of the car.

This issue will obviously have to be decided by the Ohio Supreme Court. However, the highest courts in other states have determined that a warrant is necessary to use GPS technology. Stay tuned.

Driver's License Suspensions

Part of our practice involves advising clients on the driver's license suspensions (from DUIs and other offenses) and assisting those clients on getting their driver's licenses back. In Ohio, there are approximately 40 ways to get your license suspended, including but not limited to DUIs, 12-point suspensions, failure to have or show insurance when pulled over for a traffic offense, and child support arrearages suspensions. Many suburban courts in Cuyahoga County have what are called "diversion" programs aimed at getting unlicensed persons legal again - with the idea being that Ohio wants its drivers to be legal rather than suspended. Many drivers get pulled over without actually knowing that their license has been suspended - and a police officer can pull you over just because your license plate indicates that the owner of the car has a suspended license. In many courts, driving under a suspended license ("DUS") cases are first degree misdemeanor cases which can technically get that driver up to 6 months in jail.

The Cleveland Plain Dealer is reporting that many license suspensions are issued for issues that do not even involve driving. The January 17, 2011 article says that at least 25% of license suspensions have nothing really to do with driving issues.

Make sure that there is nothing out there that could result in your license being suspended and always have your insurance card available to show a police officer if you get pulled over (best to leave it in the car or have it in your wallet).

A NEW "SALIVA" TEST AS A REPLACEMENT FOR THE DUI BAC MACHINE?

Ohio and other states may in the future use "saliva" tests as alternative test (called the the Alco-Screen 02 or the QED A150 Saliva Alcohol Test) for the classic breathalyzer machine that has been long used to test blood alcohol content. Some in the testing scientific community have concerns about the reliability of these tests (some are already being used in the employment screening/monitoring context). The officer would have to swab the saliva out of a driver's mouth, and then apply certain chemicals to see if the swab changes to a certain color.

Ohio already is engaged in some debate over the use of a newly designed breath machine (this new machine automatically does some things that the current machines do not).

Stay tuned.

Federal Jurisdiction vs. State Jurisdiction

Recent events in the media (the recent horrible gun attack on Congresswoman Giffords, a federal judge and others by Jared Loughner in Tucson, AZ) remind us in the criminal justice legal community to revisit those legal events that trigger concurrent jurisdiction of both the federal authorities and the state (or local) authorities. There are somewhat limited times when the federal authorities can get involved in violent crimes that happen in a small geographic area. Usually, the alleged crime must involve "interstate commerce," that is, the geography of the crime must extend across state lines (e.g. kidnapping across state lines, interstate organized crime, or interstate/international drug trafficking) or involve federal officials or a specifically stated type of crime (e.g. internet child pornography [violates both Fed and local law], threatening, inuring or killing a Federal public official, bank robbery, skyjacking, using U.S. Mails for any criminal purpose, and counterfeiting). Federal prosecutors can often invoke this "interstate commerce" requirement by simply proving that a defendant used the mails or national electronic means (phone or email) just once during the course of the conduct which gives rise to the crime. Sometimes conduct can be simultaneously prosecuted by both the federal authorities and state authorities - but most times the federal and state officials simply agree on who will prosecute what portion of the crime. Further, often federal and state authorities put together joint task forces to work on specific areas of criminal activity.

Recent events in Arizona will involve some delegation of who will prosecute what. Most likely the defendant will be prosecuted federally for his tragic actions against the Congresswoman, her staff and the federal judge, while the tragic actions involved against the other victims will involve state prosecution - although nothing is certain at this time. The federal authorities have already filed preliminary federal charges.

Check your homeonwers policy - some conduct may not be covered says the Ohio Supreme Court

In an opinion issued on December 30, 2010, the Ohio Supreme Court clarified an issue that involves how much "intentional" conduct a homeowner's insurance policy might cover when someone is injured by a person covered under the homeowner's policy. Typically, when a person who is covered by a homeowner's policy (e.g. the homeowner or the residents/family members of the home) accidentally injures another person, the homeowner's policy will provide coverage for the injury. However, over the years, the Ohio Supreme Court has issued opinions which held that certain conduct and harm is not covered by a homeowner's policy - specifically murder and child molestation. In the case of Allstate Ins. Co. v. Campbell, the Ohio Supreme Court also held that certain types of other conduct and harm may also be excluded from coverage - specifically if "the insured’s intentional ACT and the HARM CAUSED are intrinsically tied so that the act has necessarily resulted in the harm." This analysis is to be applied by Courts on a case-by-case basis, and the Courts must also look to the specific language of the specific policy. In this case (the facts are somewhat complicated - a juvenile prank gone very wrong) the Ohio Supreme Court found only one policy was specific enough to exclude coverage while the others were not.

Two importatn things to consider here. First, know that certain types of conduct will not get you coverage under your homeowner policy (e.g. intentional harm and most really reckless/stupid stuff), and that your personal assets may be at risk for damages that may result. Second, read your policy - some policies have much broader exclusion language that others, and expect that most insurance carriers will reword all of their exclusion language now that this decision has been issued.