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
Showing posts with label Criminal Procedure. Show all posts
Showing posts with label Criminal Procedure. Show all posts
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
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
Wednesday, April 4, 2018
Criminal Pre-Trial Delay Leads to Dismissal
Ohio law is favorable to the State when it comes to Statute of Limitations, tolling of time, and pre-trial delay. The burden, even though technically shifted to the State in Motion to Dismiss for Pre-Trial delay, is often still on the defendant. A recent case of mine addressed the issue of pre-trial delay and highlights why everyone deserves a high-quality defense and why justice demands it.
In June 2017 my client was charged with F5 Escape, i.e., alleging he was arrested for a misdemeanor crime and escaped from police custody after his arrest. At arraignment and subsequent bond hearing (which was denied) I raised the issue of pre-trial delay which violated my client's rights guaranteed under the Sixth Amendment. I subsequently filed a Motion to Dismiss and had the matter set for a hearing. Prior to the hearing - and I must give credit to the prosecutor for reviewing the case and determining they could not justify the delay - the case was dismissed. So what happened that someone arrested for an alleged crime and then allegedly escaped custody would then have the case dismissed? It all started over 11 years ago.
In December 2005 my client was allegedly arrested for a misdemeanor for which he could have been jailed upon conviction for up to 6 months. Once arrested and in police custody, he allegedly escaped the police cruiser and was not able to be re-apprehended by the police. In January 2006 a complaint for escape was filed and a warrant for his arrest was issued. That warrant was not executed until late May 2017 and was indicted for escape in June 2017.
In the intervening 11 years, my client was arrested, indicted, and convicted on numerous other charges in numerous counties throughout the state. In all, he was convicted in at least two other counties of numerous felonies for which he served the better part of five years in prison. After his release from prison - while the escape warrant was still active - he was indicted on new state felony and federal firearms offenses which he was convicted of and served another five years in federal prison. After his release from federal custody - again while the escape warrant was active - he was again arrested, jailed, and released, on new charges, in the same county that had the active escape warrant. It wasn't until he was arrested for a failure to appear warrant on pending charges that he was finally served the 2006 warrant for escape.
So what's the problem - there was an active warrant for escape and now he was going to be accountable for the allegations against him. Luckily for all of us we have rights guaranteed by the United States Constitution and Ohio Constitution. Eleven years, with all the intervening arrests and imprisonments when the State could have easily brought the defendant before the court to answer for his crimes, was simply too long and prejudicial against the defendant's rights.
Eleven years of delay undoubtedly prejudiced – i.e, impaired the ability of the defendant to adequately to prepare his case and skewed the fairness of the entire system – leaving the only question for the court to determine if the delay was justifiable. Barker v. Wingo, 407 U.S. 514, 532 (1972). Generally, there are two scenarios that result in an unjustifiable delay as a matter of law – where the state acts intentionally to disadvantage the defendant and where the state ceases an investigation and later resumes its case based upon the same information. State v. Luck, 15 Ohio St.3d 150 (1984).
In this case, the Court did not need to make a determination regarding the eleven year delay. After laying out the evidence I intended to introduce at a hearing on this matter to the prosecutor, and he evaluated it, it was determined that the State could not sufficiently prove justification for delaying prosecution for 11 years. Subsequently, the indictment against my client was dismissed and he was released from custody.
Without investigating my client’s past, his prior convictions, developing a timeline of all the occasions the State could have brought him before the court for his alleged crimes but did not and, reviewing dozens of similar cases, my client may still be in jail with an escape charge.
All persons accused of crimes deserve this same level of representation. If you or someone you know has been charged with a crime, call the Nicodemus Law Office at 740-422-9280 or complete the contact form to schedule your consultation and protect your rights.
In June 2017 my client was charged with F5 Escape, i.e., alleging he was arrested for a misdemeanor crime and escaped from police custody after his arrest. At arraignment and subsequent bond hearing (which was denied) I raised the issue of pre-trial delay which violated my client's rights guaranteed under the Sixth Amendment. I subsequently filed a Motion to Dismiss and had the matter set for a hearing. Prior to the hearing - and I must give credit to the prosecutor for reviewing the case and determining they could not justify the delay - the case was dismissed. So what happened that someone arrested for an alleged crime and then allegedly escaped custody would then have the case dismissed? It all started over 11 years ago.
In December 2005 my client was allegedly arrested for a misdemeanor for which he could have been jailed upon conviction for up to 6 months. Once arrested and in police custody, he allegedly escaped the police cruiser and was not able to be re-apprehended by the police. In January 2006 a complaint for escape was filed and a warrant for his arrest was issued. That warrant was not executed until late May 2017 and was indicted for escape in June 2017.
In the intervening 11 years, my client was arrested, indicted, and convicted on numerous other charges in numerous counties throughout the state. In all, he was convicted in at least two other counties of numerous felonies for which he served the better part of five years in prison. After his release from prison - while the escape warrant was still active - he was indicted on new state felony and federal firearms offenses which he was convicted of and served another five years in federal prison. After his release from federal custody - again while the escape warrant was active - he was again arrested, jailed, and released, on new charges, in the same county that had the active escape warrant. It wasn't until he was arrested for a failure to appear warrant on pending charges that he was finally served the 2006 warrant for escape.
So what's the problem - there was an active warrant for escape and now he was going to be accountable for the allegations against him. Luckily for all of us we have rights guaranteed by the United States Constitution and Ohio Constitution. Eleven years, with all the intervening arrests and imprisonments when the State could have easily brought the defendant before the court to answer for his crimes, was simply too long and prejudicial against the defendant's rights.
Eleven years of delay undoubtedly prejudiced – i.e, impaired the ability of the defendant to adequately to prepare his case and skewed the fairness of the entire system – leaving the only question for the court to determine if the delay was justifiable. Barker v. Wingo, 407 U.S. 514, 532 (1972). Generally, there are two scenarios that result in an unjustifiable delay as a matter of law – where the state acts intentionally to disadvantage the defendant and where the state ceases an investigation and later resumes its case based upon the same information. State v. Luck, 15 Ohio St.3d 150 (1984).
In this case, the Court did not need to make a determination regarding the eleven year delay. After laying out the evidence I intended to introduce at a hearing on this matter to the prosecutor, and he evaluated it, it was determined that the State could not sufficiently prove justification for delaying prosecution for 11 years. Subsequently, the indictment against my client was dismissed and he was released from custody.
Without investigating my client’s past, his prior convictions, developing a timeline of all the occasions the State could have brought him before the court for his alleged crimes but did not and, reviewing dozens of similar cases, my client may still be in jail with an escape charge.
All persons accused of crimes deserve this same level of representation. If you or someone you know has been charged with a crime, call the Nicodemus Law Office at 740-422-9280 or complete the contact form to schedule your consultation and protect your rights.
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