New Breath Test Machine Makes Stunning Debut

The Intoxilyzer 8000 made its in-the-field debut in Ohio on Saturday night, but the breath-alcohol tester didn't send a bunch of drunken drivers to jail.
The instrument gave a positive reading on only one person at a drunken-driving checkpoint in Clermont County, according to the state Department of Public Safety, which bought the controversial devices.
Another person tested positive at a state patrol post, officials said.
The state bought 700 of the devices this year from a Kentucky-based company that has been in court in other states over its refusal to turn over the machines' source code.
Although DUI defense lawyers have predicted similar battles in Ohio, the debut was low-key.
Four people were arrested at the Clermont County checkpoint, including two who refused to take the test. According to the Department of Public Safety, of the two who consented to the test, one was tested in the field and had a blood-alcohol reading of 0.212 percent, above the 0.08 percent level at which a driver is considered to be drunk in Ohio.
-- James Nash jnash@dispatch.com

Open Discovery Is Coming!

THE COLUMBUS DISPATCH
Police summaries and witness statements that make up the crux of most criminal trials will flow more freely to the defense table if a tentative agreement by attorneys is approved by the Ohio Supreme Court.The changes to what is known as Rule 16 would allow defense attorneys the right to inspect the documents before a trial. In exchange,prosecutors would have access to most defense-witness statements andexpert reports. A draft of an agreement between the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorneys Association will be presented to a Supreme Court rules committee, which could recommend changes. The quid pro quo exchange of information in Ohio courtrooms has become more commonplace but is not universal, according to representatives for both associations. Franklin County Prosecutor Ron O'Brien said his office routinely shares investigative files with the defense. Prosecutors in Dayton and Cleveland also favor a more "open discovery period," O'Brien said. To ensure the same access across the state, "there was a common concern that the rule should be updated," he said. Under the current system, prosecutors control access to the most sensitive reports and witness statements and are not required to hand them over to the defense until a witness testifies. That can leave gaping holes in defense strategy and result in long pauses in trials while the reports are reviewed. Ian Friedman, president of the defense lawyers group, issued a joint statement with prosecutors on Friday saying the new discovery rule would provide the tools necessary for "a full and fair adjudication of thefacts (and) protects the integrity of the justice system, protects the rights of the defendants and protects the well-being of witnesses, victims and society at large." Rule 16 was adopted in 1973. The debate that resulted in the proposed changes began two years ago." It's remarkable that both groups are standing together and requesting a change in the criminal-justice system," Friedman said. John Murphy, executive director of the prosecutors association, said prosecutors would retain the right to withhold some information about victims or witnesses "if it might endanger their life." As usual, a judge would mediate any dispute between the parties over an interpretation of the rule on a case-by-case basis, Murphy said. Neither side released a draft of the agreement, pending Supreme Court approval.

Watch Out for Debt Settlors

With the change of bankruptcy laws in 2005 came the increase in growth of debt consolidation or debt settlement firms. Their use has also grown with the recent recession. Consumers must be very careful, because many of these firms are of no help in getting you out of debt. Some make the situation worse. Still others take the money and run. The Federal Trade Commission has a very informative website dedicated to what you need to know: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre38.shtm
http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre26.shtm

I have seen it happen all too often, that a client or potential client has had multiple thousands of dollars go to a "debt consolidation," only to find out that the bills have gone unpaid, lawsuits are filed, wages garnished, credit destroyed. http://www.nytimes.com/2009/04/20/business/20settle.html?_r=1&hp

Sometimes debt settlement can work, but you must work with a reputable firm. Call me for legal advice before you jump.

Prosecutorial Misconduct....Again

While I would like to change the subject, this gnaws at me. Another instance of serious wrongdoing by a federal prosecutor. This time, a federal judge sanctioned the US government over $600,000 for secretly taping a defense attorney. Just as in the Ted Stevens case, the government lawyers failed to hand over exculpatory evidence to defense lawyers.

My favorite part of the story was "Alicia Valle, a spokeswoman for the U.S. Attorney's Office, says mistakes were unintentionally made in the case..." Unintentionally?! I call BULLSH*T! When you secretly tape the other lawyer and withhold evidence that could help prove the defendant is not guilty, that is the definition of an intentional act!

Here's a link to the American Bar Association story:

http://www.abajournal.com/news/fedl_judge_sanctions_us_600k_for_secretly_taping_defense_lawyer/

And another link about the widespread nature of the problem:

http://www.politico.com/news/stories/0409/21038.html

"Win at all cost" costs us all.

Sen. Stevens Update-Criminal Investigation Into Prosecutors' Misconduct

The plot thickened. The judge who threw out the case against Sen. Ted Stevens took the rare step of asking that the prosecutors be criminally investigated. In reviewing the botched case, most alarming was the prosecutors’ repeated failure to disclose information that might have helped the defense, despite the sanctity in which we lawyers are taught to hold those obligations. Unbelievable, but consistent with a "win at all cost" approach.

http://www.nytimes.com/2009/04/08/us/politics/08stevens.html

Newark Ohio Man Charged with OVI While on Motorized Barstool

Last month, a Newark man was charged with OVI while riding on a motorized barstool. Initial reports indicated that he admitted to consuming 15 beers. He has since claimed that he drank after the crash, which is a common defense in single vehicle crash cases.

In Ohio, you can be charged with OVI while operating a car, or almost anything else. The charge is NOT driving under the influence, but rather Operating a Vehicle Impaired. For example, a motorized barstool, a bicycyle, a scooter, or even (theoretically) a skateboard could be the vehicle.

DON'T BE STUPID ENOUGH TO RIDE A MOTORIZED BARSTOOL WHILE DRUNK. If you do something similar, however, call me at 330-832-0404.

http://www.newarkadvocate.com/article/20090331/NEWS01/903310309

Prosecutorial Misconduct Leads to Dismissal of Charges Against Senator Stevens

Republican Senator Ted Stevens of Alaska was convicted last year of basically lying on an election form about improper gifts he received. Today, US Attorney General Eric Holder announced that the charges against Stevens would be dismissed and no new trial sought. A law abiding citizen's first reaction might be outrage that the crooked politician got off.

Now I certainly feel no sympathy for a corrupt politician who would take illegal gifts or contributions and then lie about it. But our righteous anger should be directed at the overzealous prosecutor who put making a name for himself over the cause of justice. The prosecutors at the heart of the scandal failed to turn over documents to the defense attorneys and redacted exculpatory information from witness statements. In other words, they only gave Stevens' attorneys what they decided to give them, and blacked-out entire parts of statements that could have shown Stevens was not guilty. The prosecutors were even found in contempt by the trial judge for their antics.

Ted Stevens wasn't the only victim of the abusive prosecutor--our system of justice suffered. When prosecutors put conviction score-keeping ahead of the truth, we get this kind of result.

http://www.npr.org/templates/story/story.php?storyId=100692719
http://www.npr.org/templates/story/story.php?storyId=102589818

Yamaha Recalls Rhino ATV's - stop riding until repaired!

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Yamaha Motor Corp. U.S.A., of Cypress, Calif., is announcing a free repair program to address safety issues with all Rhino 450, 660, and 700 model off-highway recreational vehicles. Yamaha has also agreed to voluntarily suspend sale of these models immediately until repaired. Consumers should immediately stop using these popular recreational vehicles until the repair is installed by a dealer.
CPSC staff has investigated more than 50 incidents involving 46 driver and passenger deaths in these two Rhino models. More than two-thirds of the cases involved rollovers and many involved unbelted occupants. Of the rollover-related deaths and hundreds of reported injuries, some of which were serious, many appear to involve turns at relatively low speeds and on level terrain.

http://www.cpsc.gov/cpscpub/prerel/prhtml09/09172.html

Recent Changes in Child Support/Medical Insurance Coverage - Part 2

The other change to the medical insurance obligation of parents who are party to a child support order involves the provision of private insurance. Before July of last year, if insurance was available to either parent through his or her employer, that parent was required to cover the child, regardless of cost.

Now, reasonable cost means the annual cost of the health insurance to a parent does not exceed five percent of the annual gross income of the parent. In applying the five percent to the cost, the cost is the difference between self-only and family coverage.

So, if a parent is offered health insurance through work at an unreasonable cost, that parent is NOT required to cover the child, but would instead be required to pay cash medical support to the government. (See part 1).

Recent Changes in Child Support/Medical Insurance Coverage - Part 1

Last summer, "cash medical support" came into being. What is cash medical support? First, it only applies in cases where someone is ordered to pay child support. Basically, when neither parent has private health insurance available, and the child is on the state medical card, the child support obligor (the person ordered to pay child support) must pay cash medical support.

Cash medical support is a way for the government to recover some of the money it pays out to cover otherwise uninsured kids. It is somewhat confusing to be paying child support to the custodial parent and cash medical support to the state, but that is just what happens.

When the obligor's income is less than 150% the federal poverty level for an individual (e.g., $15,600 in 2008), the cash medical support obligation will be $0.00.

Hundreds of PA Youths Get Expungements After Being Sentenced by Corrupt Judges

Hundreds of youths sentenced to private detention centers were granted a clean slate Thursday, set free with clean records. They had been sent there by two corrupt Pennsylvania judges who had received millions of dollars in illegal kickbacks from those same private prisons. The judges each got 87 months in federal prison. How could we have allowed this happen? Never forget that any juvenile accused of criminal wrongdoing has constitutional rights to a fair trial before an impartial tribunal.

http://www.nytimes.com/2009/03/27/us/27judges.html?_r=1&ref=us

A follow up story:
http://www.nytimes.com/2009/03/28/us/28judges.html?_r=1&hp

The odds of dying from...

The odds of dying from...

The table linked here
http://www.nsc.org/research/odds.aspx
was prepared in response to frequent inquiries asking questions such as, "What are the odds of being killed by lightning?" or "What are the chances of dying in a plane crash?"
The odds given are statistical averages over the whole U.S. population and do not necessarily reflect the chances of death for a particular person from a particular external cause. Any individual’s odds of dying from various external causes are affected by the activities in which they participate, where they live and drive, what kind of work they do, and other factors.

Source: National Safety Council estimates based on data from National Center for Health Statistics and U.S. Census Bureau.

Putative Father Registry ASAP or else!

If you are a man who has sex with an unmarried woman and you do not register with the State of Ohio as a "putative father" within 30 days of birth, the child can be adopted out and you have absolutely no right to contest the adoption!!! Lesson: if you have sex outside of a marriage relationship, you better know this law backwards and forwards if you plan to have any rights to your child. My apologies for quoting such long, boring language from the statute, but it matters.
Editorial comments in bold.

So here is the law:

“Putative father” means a man, including one under age eighteen, who may be a child’s father and to whom all of the following apply:
(1) He is not married to the child’s mother at the time of the child’s conception or birth;
(2) He has not adopted the child;
(3) He has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship with the child by a court proceeding or an administrative agency proceeding;
(4) He has not acknowledged paternity of the child.

3107.061 Putative father on notice that consent unnecessary.
A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent.
That means you have no say...ouch.

3107.062 Putative father registry.
The department of job and family services shall establish a putative father registry. To register, a putative father must complete a registration form prescribed under section 3107.065 of the Revised Code and submit it to the department. The registration form shall include the putative father’s name; the address or telephone number at which he wishes to receive notice of a petition to adopt the minor he claims as his child; and the name of the mother of the minor.
A putative father may register before or not later than thirty days after the birth of the child. No fee shall be charged for registration.
On receipt of a completed registration form, the department shall indicate on the form the date of receipt and file it in the putative father registry. The department shall maintain registration forms in a manner that enables it to access a registration form using either the name of the putative father or of the mother.
Most putative fathers aren't exactly on top of such mundane administrative tasks.
3107.065 Rules governing registry - promoting awareness.
Not later than ninety days after the effective date of this section, the director of job and family services shall do both of the following:
(A) Adopt rules in accordance with Chapter 119. of the Revised Code governing the putative father registry.
(B) Establish a campaign to promote awareness of the putative father registry. The campaign shall include informational materials about the registry.
Were you aware of the registry before reading this?

3107.07 Consent unnecessary.
Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.
(B) The putative father of a minor if either of the following applies:
(1) The putative father fails to register as the minor’s putative father with the putative father registry established under section 3107.062 of the Revised Code not later than thirty days after the minor’s birth;
(2) The court finds, after proper service of notice and hearing, that any of the following are the case:
(a) The putative father is not the father of the minor;
(b) The putative father has willfully abandoned or failed to care for and support the minor;
(c) The putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor’s placement in the home of the petitioner, whichever occurs first.
If you don't register, you are SOL, pal.

http://codes.ohio.gov/orc

Estimate your BAC with the Drink Wheel

Estimate your BAC with the drink wheel, courtesy of Intoximeters Corporation:
http://www.intox.com/wheel/drinkwheel.asp
Disclaimer
The results that are generated are from the “Drink Wheel” are rough estimates of an average healthy person's BAC assuming typical beverage sizes, recipes and alcohol content. The BAC estimates generated by the “Drink Wheel” should not be used to infer anyone's fitness to work, drive or perform any other task or duty.
A person's actual BAC is dependent on many factors. This site includes a more detailed discussion of the Pharmacology and disposition of alcohol in humans.

Keep More Property in Your Ohio Chapter 7

Thanks to the Ohio General Assembly, the exemption laws for Ohio got more generous to bankruptcy filers in September of '08. A partial list of assets that are exempt, meaning the bankruptcy trustee cannot take them from you (as and individual) is:
Homestead -- $20,200
Motor Vehicle -- $3,225
Cash -- $400
Household goods, furnishings, apparel, appliances, books, animals, crops, musical instruments, firearms and hunting and fishing equipment (each individual item cannot exceed $525) total aggregate value --$10,775
Jewelry --$1,350
Tools of trade or business -- $2,025
Wildcard (anything you choose) -- $1,075
Other assets are exempt, but this gives you an idea. If you can imagine, this list is much more generous than the previous version of the law. For example, under the prior law only $1,000 of motor vehicle was exempt, and we all know how much car one grand will buy.

Ohio Breath Testing Lags Behind Scientific Community

Why care about alcohol breath testing standards? Annually, about 900 persons are charged with OVI in Massillon Municipal Court alone. Most defendants have breath alcohol testing used against them as the state’s sole evidence of impairment.

On February 18, 2008, the National Safety Council (NSC) established "Acceptable Practices for Evidential Breath Alcohol Testing". The NSC is a non-profit, charitable public service organization dedicated to educating and influencing people to prevent accidental injuries and deaths.

NSC recommends (GREAT ADVICE BY THE WAY): “If you are drinking, do not drive. If you plan to drink, designate a non-drinking driver. Support the strengthening and vigorous enforcement of impaired-driving laws. These laws save lives. Young drivers are at particular risk to be involved in alcohol-related crashes. If there is a young driver in your family, strictly enforce a zero tolerance policy with alcohol.”

Ohio fails to meet national NSC standards on many levels; two most critical are:

1) Dual breath alcohol testing. Ohio law only requires one test for use in court. NSC recommends: “breath alcohol measurements should be conducted on at least duplicate independently exhaled end-expiratory breath samples.” Aren’t we always taught to measure twice and cut once? The same applies here—to ensure that the results agree.

2) Concurrent instrument checking. Ohio law only requires an instrument check once every seven days. NSC recommends: “at least one control analysis should be performed as a part of each subject test sequence as an assessment of within-run accuracy and/or verification of calibration.” Didn’t we learn in high school science that every experiment needs a control? The same applies here—to ensure that the machine is functioning properly at the time of the breath test, not within a week before or after.

So how reliable are breath alcohol test results in Ohio? Scientifically, the results are not reliable. Shouldn’t our legal system keep up with science?

College Students Better Avoid Reefer Madness

Thanks to our US legislators, young people who are going to college should not put themselves in a position of being convicted of even minor misdemeanor drug charges, or they will lose eligibility for federal student loans and other aid. Under federal law, a student who has been convicted of any offense under any federal or state law involving the possession or sale of a controlled substance is not eligible to receive any grant, loan, or work assistance beginning on the date of conviction. 20 U.S.C. § 1091(r)(1).

The period of ineligibility lasts one year for a first possession offense, two years for a second offense and permanently for a third conviction. In the case of a conviction for sales of a controlled substance, a first conviction results in a two years of ineligibility with a second conviction leading to a permanent ban.

So young people, don't do illegal stuff...if you get caught, CALL ME.

Bill Collectors Chasing the Dead

A new trend is developing. Bill collectors are making more concerted efforts to collect debts from relatives of the deceased. Legally speaking, a person's estate is liable for his or her debts, so long as the creditor files a claim within the required time. If no probate estate exists, meaning the deceased had no assets at the time of death, their is nothing from which to collect.

Alot of bill collectors have ignored this basic fact and taken to pursuing the deceased person's spouse or children. The bill collectors take advantage of the family members' ignorance of the law and basic decency. Most people want to pay their bills and feel a moral obligation to pay their spouse's or parent's bills. The #&*@% collectors just fail to mention the law which says that the family is under absolutely NO OBLIGATION to pay the debt.

So beware the newest collection trap. A recent NY Times article on the subject is attached. http://www.nytimes.com/2009/03/04/business/04dead.html?_r=1&em