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
Friday, January 25, 2019
Snow Emergency Follow-up
If I didn’t know better I would think the Dispatch was following me! Here’s the story about snow emergencies (and arrests) that posted January 24, 2019 - 3 days after I posted about snow emergencies. https://www.dispatch.com/news/20190124/who-sets-those-leves-for-snow-emergencies-and-does-anyone-ever-get-arrested
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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
Sunday, January 20, 2019
You Can Be Arrested For Driving During a Level 3 Snow Emergency
The past two weekends have brought us plenty of snow and plenty of snow emergencies with some counties reaching Level 3. And every time the media starts reporting snow emergencies they dutifully recap the various levels and, when discussing Level 3 Snow Emergencies, always inform us that it is illegal to be on the roads during a Level 3 and drivers could be arrested. But is it true - could you really be arrested for driving home from work during a Level 3 snow emergency? Yes, you could.
Ohio Revised Code 311.07 and 311.08 give the county sheriff broad powers and duties, including the authority to declare a snow emergency and temporarily close roads. Ohio Attorney General Opinion 86-023 confirmed this authority for county and township roads. The question was later posed to the Attorney General whether the authority to close roads extended to state and municipal roads. Ohio Attorney General Opinion 97-015 concluded the authority to temporarily close roads extends to all roads within the county. Relying on Opinion 86-023, it was noted that "the sheriff is the chief law enforcement officer in the county, with jurisdiction coextensive with the county, including all municipalities and townships" and that "there is no reasonable basis for distinguishing between the different types of roads and streets that are located within the county." Plainly stated - the sheriff can close the roads in the county to preserve the peace and safety.
So, if you are driving during a Level 3 Snow Emergency - the roads are closed - what can you be charged with and will you be arrested? Most likely you will charged with "Misconduct at an Emergency" in violation of Ohio Revised Code 2917.13 (or a similar local ordinance). Revised Code 2917.13(A)(3) prohibits a person from knowing failing to obey a lawful order of a law enforcement officer at an emergency. "Misconduct at an Emergency" is a M4, which carries a potential maximum of 30 days in jail, unless the misconduct "creates a risk of physical harm to persons or property" and then a violation is a M1 with a potential maximum of 180 days in jail. With the potential of jail upon conviction, it is an arrestable offense.
In practice, officers have discretion and usually understand snow emergencies sometimes occur quickly, people are delayed in getting home, or may be deemed "essential" employees required to work even during emergencies. If you're driving during a Level 3 Snow Emergency and you're stopped by an officer, politely let him/her know why you are out driving. If you are running for a pizza or beer, you will likely get a ticket (or maybe arrested - but likely just a ticket to appear in court later) but if you have a good reason, you may get a warning.
No matter your reason for driving during a Level 3 Snow Emergency, if you are cited (or arrested) for "Misconduct at an Emergency" or any other charges for being on the roads, you need to protect your rights and consult counsel. Politely take your ticket, get home as quickly and safely as possible, and give us a call.
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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
Ohio Revised Code 311.07 and 311.08 give the county sheriff broad powers and duties, including the authority to declare a snow emergency and temporarily close roads. Ohio Attorney General Opinion 86-023 confirmed this authority for county and township roads. The question was later posed to the Attorney General whether the authority to close roads extended to state and municipal roads. Ohio Attorney General Opinion 97-015 concluded the authority to temporarily close roads extends to all roads within the county. Relying on Opinion 86-023, it was noted that "the sheriff is the chief law enforcement officer in the county, with jurisdiction coextensive with the county, including all municipalities and townships" and that "there is no reasonable basis for distinguishing between the different types of roads and streets that are located within the county." Plainly stated - the sheriff can close the roads in the county to preserve the peace and safety.
So, if you are driving during a Level 3 Snow Emergency - the roads are closed - what can you be charged with and will you be arrested? Most likely you will charged with "Misconduct at an Emergency" in violation of Ohio Revised Code 2917.13 (or a similar local ordinance). Revised Code 2917.13(A)(3) prohibits a person from knowing failing to obey a lawful order of a law enforcement officer at an emergency. "Misconduct at an Emergency" is a M4, which carries a potential maximum of 30 days in jail, unless the misconduct "creates a risk of physical harm to persons or property" and then a violation is a M1 with a potential maximum of 180 days in jail. With the potential of jail upon conviction, it is an arrestable offense.
In practice, officers have discretion and usually understand snow emergencies sometimes occur quickly, people are delayed in getting home, or may be deemed "essential" employees required to work even during emergencies. If you're driving during a Level 3 Snow Emergency and you're stopped by an officer, politely let him/her know why you are out driving. If you are running for a pizza or beer, you will likely get a ticket (or maybe arrested - but likely just a ticket to appear in court later) but if you have a good reason, you may get a warning.
No matter your reason for driving during a Level 3 Snow Emergency, if you are cited (or arrested) for "Misconduct at an Emergency" or any other charges for being on the roads, you need to protect your rights and consult counsel. Politely take your ticket, get home as quickly and safely as possible, and give us a call.
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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
Monday, January 7, 2019
Another Motion to Dismiss for Delayed Prosecution
Nine months ago I posted about a client charged with escape in 2005 but not brought before the court and indicated on the charge until 2017. During those intervening years my client was incarcerated. That case was dismissed and you can read about it here.
In late 2018 I started representing a client charged with assault in 2014. A review of the court docket makes it appears as if my client simply absconded from the court. But nothing could be further from the truth.
On the date of the alleged assault, my client was not arrested. Law enforcement responded to an incident after the incident allegedly occurred. Officers took statements from the alleged victim and my client. My client was not arrested at that time.
Several days later the State filed an assault complaint against my client. The State attempted to serve a summons via mail to my client's last know address but service failed. My client did not appear for his arraignment and the court issued a warrant for his arrest. It wasn't until over four years later he was arrested on the warrant.
So what's the issue? On the same day the State filed the assault complaint, my client was incarcerated in another county. He was subsequently sentenced to two years incarceration. My client was in the State's custody for two years while they supposedly had an active warrant for his arrest and no one ever served it on him. To make matters worse - for the State - he was released from prison after serving his two years while there was an active warrant for his arrest on the assault charge without anyone notifying him of the pending case. The State absolutely failed to notify my client of the pending charges.
I recently filed a Motion to Dismiss the case against my client based upon the State's delay in prosecuting the case. I fully expect at the hearing on the motion the case will be dismissed as the State, no matter how hard it may try, can justify delaying execution of a warrant and prosecution of this matter when my client was in the State's custody for two years and then released him from prison with an active warrant.
I have yet to receive a date for the hearing - assuming the State even wants to proceed with one and doesn't just dismiss the case (as they should). I will update this post once a hearing is held and decision by the court has been issued.
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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
In late 2018 I started representing a client charged with assault in 2014. A review of the court docket makes it appears as if my client simply absconded from the court. But nothing could be further from the truth.
On the date of the alleged assault, my client was not arrested. Law enforcement responded to an incident after the incident allegedly occurred. Officers took statements from the alleged victim and my client. My client was not arrested at that time.
Several days later the State filed an assault complaint against my client. The State attempted to serve a summons via mail to my client's last know address but service failed. My client did not appear for his arraignment and the court issued a warrant for his arrest. It wasn't until over four years later he was arrested on the warrant.
So what's the issue? On the same day the State filed the assault complaint, my client was incarcerated in another county. He was subsequently sentenced to two years incarceration. My client was in the State's custody for two years while they supposedly had an active warrant for his arrest and no one ever served it on him. To make matters worse - for the State - he was released from prison after serving his two years while there was an active warrant for his arrest on the assault charge without anyone notifying him of the pending case. The State absolutely failed to notify my client of the pending charges.
I recently filed a Motion to Dismiss the case against my client based upon the State's delay in prosecuting the case. I fully expect at the hearing on the motion the case will be dismissed as the State, no matter how hard it may try, can justify delaying execution of a warrant and prosecution of this matter when my client was in the State's custody for two years and then released him from prison with an active warrant.
I have yet to receive a date for the hearing - assuming the State even wants to proceed with one and doesn't just dismiss the case (as they should). I will update this post once a hearing is held and decision by the court has been issued.
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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, January 5, 2019
Misdemeanor or Felony - What's the difference?
What's the difference between a misdemeanor crime and felony crime? Depending on who you ask it could be the seriousness of the crime, what court can hear the case, or the potential penalties. I always use the potential penalties (and court jurisdiction) explanation - if incarcerated as part of the sentence upon conviction, a person can only serve local jail time for misdemeanors but incarceration for a felony is served in prison. Only the common pleas court can hear felony cases.
The potential maximum penalties for misdemeanors and felonies are:
Some crimes, such as OVI, rape, and murder, have specified penalties outside the chart above. Other factors may also enhance the maximum penalties such as the use of a firearm, the age of the victim, or if the person is a repeat offender.
All criminal charges should be taken seriously. Even a minor misdemeanor can have an effect on your life. If you have been charged with a crime, or are a suspect in a criminal investigation, you should consult with an attorney.
The Nicodemus Law Office, LPA, regularly represents persons charged with all degrees of offenses, from minor misdemeanors to felonies. Call 740-422-9280 or complete this CONTACT FORM to schedule a consultation and protect your rights.
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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
The potential maximum penalties for misdemeanors and felonies are:
| Degree of Offense | Maximum Fine | Maximum Incarceration |
| Minor Misdemeanor (MM) | $150 | None |
| Fourth Degree Misdemeanor (M4) | $250 | 30 days - local jail |
| Third Degree Misdemeanor (M3) | $500 | 60 days - local jail |
| Second Degree Misdemeanor (M2) | $750 | 90 days - local jail |
| First Degree Misdemeanor (M1) | $1,000 | 180 days - local jail |
| Fifth Degree Felony (F5) | $2,500 | 12 months - prison |
| Fourth Degree Felony (F4) | $5,000 | 18 months - prison |
| Third Degree Felony (F3) | $10,000 | 3 or 5 years - prison |
| Second Degree Felony (F2) | $15,000 | 8 years - prison |
| First Degree Felony (F1) | $20,000 | 11 years - prison |
Some crimes, such as OVI, rape, and murder, have specified penalties outside the chart above. Other factors may also enhance the maximum penalties such as the use of a firearm, the age of the victim, or if the person is a repeat offender.
All criminal charges should be taken seriously. Even a minor misdemeanor can have an effect on your life. If you have been charged with a crime, or are a suspect in a criminal investigation, you should consult with an attorney.
The Nicodemus Law Office, LPA, regularly represents persons charged with all degrees of offenses, from minor misdemeanors to felonies. Call 740-422-9280 or complete this CONTACT FORM to schedule a consultation and protect your rights.
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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
Monday, December 31, 2018
2018 Year In Review
2018 was a good year - starting with a jury trial not guilty in January and ending with a not guilty in a vehicular manslaughter jury trial in December. But not all successes end in jury trial and are often resolved through motions and oral arguments. Such was the case for a client charged with F2 aggravated trafficking (mandatory prison time) that was dismissed. There are simply too many successful resolutions for client matters this year to detail them all but here are some statistics for the year:
Thank you to all the clients that trusted the Nicodemus Law Office with your legal matters in 2018. I look forward to continuing to provide legal representation to the residents of Fairfield County in 2019.
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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
- Opened in 2018: 93 criminal matters, 122 total;
- Closed in 2018: 96 criminal matters, 113 total;
- 57 matters both opened and closed in 2018;
- 45 criminal matters remain pending; and
- New Clients in 2018: 70.
Thank you to all the clients that trusted the Nicodemus Law Office with your legal matters in 2018. I look forward to continuing to provide legal representation to the residents of Fairfield County in 2019.
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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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