Don't worry, you can trust me. I'm not like the others.

Banned In China

Thursday, September 3, 2009


I've had a couple of good weeks at work. I've won two DUI (we all know what they are officially called in Ohio, but we'll use the more widely recognized term cause I'm lazy). You have to understand that in Ohio at least although there is a lot of blather about the need to prove people are guilty rather than the defense prove they are innocent, it normally works the other way.

Both of my clients were women, both did not give drug/alcohol tests and were accused of refusal (refusal will result in the loss of your license for a year, it is administrative, not judicial so it is automatic with some little judicial review).

So the first one was pulled over because her license was suspended and the trooper was just bored and running plates at random. It was her second DUI in two years. The trooper, several times in his report indicated that he smelled alcohol on her breath, but he insisted on trying to give her a urine test rather than a breathalyzer. He testified that he did that because he discovered some pot in the car, although he said that he didn't smell any pot in the car or on the defendant.

You need to understand that in Ohio the arresting officer can choose to use any means of getting a drug/alcohol test and can insist on administering as many different kinds of tests as he wants. This guy held her for two hours and insisted on giving her (or rather trying to) give her urine tests only (there was a female officer there to administer the test). The defendant insisted that she was too embarrassed to do it in front of another person. So no test and therefore an automatic license suspension.

Or not. It turned out that the trooper forgot to mark the proper box on the ticket and her license was not suspended. She came across as believable.

I choose to try it to the judge because I felt that a jury would have held the dope against her and if we had lost the trial on that point then she "would have been charged for the use of the court room" as we say and as I've experienced. Also, since she was guilty of the possession and of the driving without the license she would have had to pay the cost of the jury even if we won the DUI aspect of the case. So anyway the judge believed her, that she couldn't go and we won.

The other was a little more interesting, not so much in the facts (maybe) as to how they played out. This lady knocked down a neighbor's mail box and pulled into her drive way. The neighbor came running down and demanded to know why she didn't stop. She told him that she was coming back. At the same time the wife of the guy called the sheriff. The sheriff called the highway patrol. About two hours later the HP came to her house. She got mad and told them that she wasn't going to take any damn test. She admitted to drinking after the incident, but denied drinking before. We had a neighbor as a witness and her mother as a witness.

The court just couldn't find that there was enough evidence to find that she had been drinking before the accident. The interesting thing about the case is that we had a motion to suppress or actually a hearing on what we all thought was the administrative license suspension, which once again turned out not to have happened. Neither attorney nor the magistrate new that before the end of the hearing.

Now what makes this interesting is the different levels for burden of proof, the burden of going forward, and who must prove their facts at the different trials and hearings in any case. In a hearing other than a trial the prosecution has a much easier time of it (in theory) than it does at the final trial on the merits.

After the testimony at the hearing, it was clear to me that the prosecution had met it's burden and I'd lost. However, because the burdens are harder on the prosecution, it looked to me that I stood a very good chance of winning at the trial.

The attorneys and the magistrate talked about it after the hearing. The magistrate said: "I suppose I will have to listen to this all again?" I vouched safe, "Yeah, except my cross of the trooper will be even longer, and I'll have the defendant's husband if he doesn't die before then. So, it will probably last another half hour to hour."

A couple of days later the decision came down and the magistrate found that the prosecution hadn't proved that there was probable cause and therefore, dismissed the whole case before the final hearing. I am sure that is just so the magistrate didn't have to hear the whole thing again.

I'll take them any way I can get them.

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