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.
Saturday, February 19, 2011
Sunday, February 13, 2011
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.
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.
Wednesday, February 2, 2011
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.
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.
Sunday, January 23, 2011
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.
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.
Monday, January 17, 2011
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).
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).
Thursday, January 13, 2011
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.
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.
Sunday, January 9, 2011
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.
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.
Subscribe to:
Posts (Atom)
