Usually when you hear reports about judges and OVIs it is in the context of an unusual sentence or sentencing in a particularly egregious OVI. This week was anything but normal when the media covered judges and OVIs.
On Thursday - Valentines Day - in Fairfield County Municipal Court a Franklin County Domestic Relations judge was set for arraignment in her OVI arrest. It is a case I previously commented on because of the media coverage and nuances of OVIs and in particular the administration of Standardized Field Sobriety Tests to a person with an obvious head injury. I speculated and her attorney later confirmed that the judge did suffer from a concussion prior to her arrest. But this case had some other additional factors - a warrant for a blood test and a reported struggle with the judge to obtain the blood at the hospital, despite the issuance of the warrant.
The judge appeared with her attorney and of course the media was in court. But instead of entering a not guilty plea she entered a guilty plea to the OVI (the State dismissed the other charges include the obstruction of official business charge it had just filed as a result of the reported issues obtaining blood at the hospital). She received the minimum sentence required by law, was put on probation and granted driving privileges. The full video of her plea hearing is here: https://www.facebook.com/WSYXABC6/videos/775484582809567/.
But what about the concussion? Just because she entered a plea does not mean she did not suffer a concussion prior to the arrest. So why plea if she had a concussion? My best guess is that when the blood test results come back they would indicate an alcohol level above the prohibited concentration. I do not have any specific particularized knowledge of the case but based on what is publicly available I would likely made the same recommendation to a client in similar position - especially if I think the blood test results might indicate a "high test" or a concentration at least double the legal limit. In the end, she was convicted of OVI, was punished by the court similar to other first offense OVI offenders but she has the additional burden of the publicity because of her position.
But that was not the only judge in the Ohio news this week with OVI problems.
Shortly before the judge appeared in court, the news broke a story about a Portage County Common Pleas judge that had been arrested for OVI. Of course there was video. And the video is not good for the judge! Check it out four yourself: https://fox8.com/2019/02/13/video-northeast-ohio-judge-accused-of-drinking-and-driving/.
The Portage County judge refused Standardized Field Sobriety Tests and a breath test. Unlike the Franklin County judge she was not subjected to a blood draw authorized by warrant. But just like the Franklin County judge, she went into court at her arraignment and entered a plea of guilty.
Two important items these cases teach us and that we should remember: (1) judges are human too; and (2) everyone is better than their worst mistake.
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The Nicodemus Law Office, LPA
Phone: 740-422-9280
Website: www.nicodemuslaw.com
Facebook: https://www.facebook.com/NicodemusLaw/
Twitter: https://twitter.com/Nicodemus_Law
Saturday, February 16, 2019
Wednesday, February 6, 2019
Media Coverage of OVI Impairs Impartiality
There
has been a lot of reporting recently about a specific OVI in Fairfield
County involving a Franklin County Domestic Relations judge where the
news media is developing a narrative that she was highly intoxicated.
But the case also highlights the nuances of OVI cases in that at this
time we simply do not know whether or not she was impaired.
What about the police report and especially the video that shows her unable to keep her balance? Those are just a few of the nuances. Quick disclaimer - I am not the Brad representing the judge and I have no particularized knowledge of this case other than the media reporting and if I were the one representing her I would not be commenting, except to highlight how the media’s selected video segments, reports, and how their reporting is creating a condition in which it may be hard to seat a fair and impartial jury. Here’s what we know:
Confusion, disorientation, poor balance, and vomiting are symptoms of a concussion. She had a visible head injury and medics were called. She reportedly refused medical attention but she still should have been evaluated because those with head injuries (remember, they are confused) do not always appreciate their condition.
And the odor of alcohol? There was reportedly vomit on the floor of the car which, any person with a child knows, vomit often has a distinct odor of acid mixed with the last substances consumed. And if the stomach contained alcohol it was not yet digested and therefore not yet metabolized into the blood causing potential impairment but would give an odor of alcohol.
The video shows her losing her balance during the standardized field sobriety tests but other factors can cause a loss of balance - such as a concussion. The questioning leading up to the administration of standardized field sobriety tests are supposed to account for some of these other factors. One of the first questions that is supposed to be asked is “do you have a head injury” and if the answer is yes, standardized field sobriety tests should not be performed because a head injury can effect the subjects ability to perform the tests. And in this case there was a visible head injury that the officer was concerned enough about to summons medics to the scene.
Many questions remain about the blood draw and warrant. In my experience, unless there is an accident, a warrant is not usually sought when someone refuses to provide a breath, urine, or blood sample. Was a warrant sought because she is a judge and thus she was treated differently than others stopped for suspected OVI? What actually occurred during the blood draw? Was the blood draw obtained pursuant to the prescribed requirements?
These are just a few of the issues with this case and a few of the questions that remain and those with all the facts will have many more issues and questions. At the end of the case the blood test may be valid and it may indicate a prohibited level of alcohol in the blood but as of today, as of right now, there is no absolutely reliable evidence indicating impairment. The judge deserves the presumption of innocence - as everyone charged with a crime does - and the continued media attention showing only segments of potential evidence and provided without context or explanation of the nuances of OVI cases erodes that presumption.
What about the police report and especially the video that shows her unable to keep her balance? Those are just a few of the nuances. Quick disclaimer - I am not the Brad representing the judge and I have no particularized knowledge of this case other than the media reporting and if I were the one representing her I would not be commenting, except to highlight how the media’s selected video segments, reports, and how their reporting is creating a condition in which it may be hard to seat a fair and impartial jury. Here’s what we know:
- Her vehicle was reported by others and then observed weaving, hitting brakes, and generally driving erratically;
- The officer notes an odor of alcohol;
- There is a visible head injury;
- She cannot identify where she was coming from and seems to be disoriented as to where she is at;
- There is vomit on her clothes and the floor of the vehicle;
- When attempting standardized field sobriety tests she loses her balance and officers have to catcher her to keep her from falling;
- A warrant was obtained for a blood draw and it has been reported she needed to be restrained to obtain the blood sample;
Confusion, disorientation, poor balance, and vomiting are symptoms of a concussion. She had a visible head injury and medics were called. She reportedly refused medical attention but she still should have been evaluated because those with head injuries (remember, they are confused) do not always appreciate their condition.
And the odor of alcohol? There was reportedly vomit on the floor of the car which, any person with a child knows, vomit often has a distinct odor of acid mixed with the last substances consumed. And if the stomach contained alcohol it was not yet digested and therefore not yet metabolized into the blood causing potential impairment but would give an odor of alcohol.
The video shows her losing her balance during the standardized field sobriety tests but other factors can cause a loss of balance - such as a concussion. The questioning leading up to the administration of standardized field sobriety tests are supposed to account for some of these other factors. One of the first questions that is supposed to be asked is “do you have a head injury” and if the answer is yes, standardized field sobriety tests should not be performed because a head injury can effect the subjects ability to perform the tests. And in this case there was a visible head injury that the officer was concerned enough about to summons medics to the scene.
Many questions remain about the blood draw and warrant. In my experience, unless there is an accident, a warrant is not usually sought when someone refuses to provide a breath, urine, or blood sample. Was a warrant sought because she is a judge and thus she was treated differently than others stopped for suspected OVI? What actually occurred during the blood draw? Was the blood draw obtained pursuant to the prescribed requirements?
These are just a few of the issues with this case and a few of the questions that remain and those with all the facts will have many more issues and questions. At the end of the case the blood test may be valid and it may indicate a prohibited level of alcohol in the blood but as of today, as of right now, there is no absolutely reliable evidence indicating impairment. The judge deserves the presumption of innocence - as everyone charged with a crime does - and the continued media attention showing only segments of potential evidence and provided without context or explanation of the nuances of OVI cases erodes that presumption.
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The Nicodemus Law Office, LPA
Phone: 740-422-9280
Website: www.nicodemuslaw.com
Facebook: https://www.facebook.com/NicodemusLaw/
Twitter: https://twitter.com/Nicodemus_Law
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