May 11, 2007 -- Columbus Dispatch Interview of Attorney Brad Koffel regarding new "forced blood" DUI legislation.

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DUI Ignition Interlock Devices Will Result in Jailing Innocent Motorists

 

COLUMBUS—May 2, 2007

A draft bill that would require alcohol Ignition Interlock devices is getting quite a bit of publicity as a sound idea.  However, Columbus DUI lawyer Brad Koffel, has successfully challenged the accuracy and reliability of these devices in Columbus courts.  According to Koffel, “these small machines are not specific for alcohol, are too sensitive to outside temperature changes, are not compatible with new electronics in newer car models, are easily tricked, provide more false positives than true positive results, and that is before you get around to the lack of training for the folks who are installing them for the courts.”  

In 2005, Koffel was hired by a local businessman who was ordered to install one in his new Land Rover after a DU conviction. Over the next 10 months, Koffel’s client dutifully blew into the machine before each attempt to start his SUV.  Eventually, the company that installed the device sent a letter to Judge stating that Koffel’s client “failed” two times suggesting that he drank alcohol before driving.  The man vehemently denied ever drinking alcohol and driving.  He was facing nearly 6 months in jail for violating his probation. 

Koffel investigated on behalf of his client.  What Koffel discovered resulted in the Judge ordering the immediate removal of the ignition interlock device from the vehicle.  The Judge also questioned the science and legitimacy of these devices.  

 Specifically, Koffel reported to the Court that his client’s printouts showed 35 “failures” not two as suggested by the company.  Also, the president of the company admitted that many foods other than alcohol cause false positives.  Koffel presented evidence to the prosecutor’s office of a “failure” on a day and time when the client was actually at Koffel’s office. 

Koffel says, “We are learning that clients are simply leaving their vehicles on with the doors locked instead of turning off the vehicle and running the risk that it will take 15 – 90 minutes for the interlock to permit them to start the vehicle again.  I had one client recently tell me that his interlock device was so unreliable that he leaves his car running while he is at work!”

It is urged by Koffel and many other lawyers with knowledge of these devices that the legislature fully investigate the claims made by the manufacturer’s before innocent people are wrongly jailed on probation violations. 

         

FAMILIES, ACTIVISTS CELEBRATE LOWER DUI LIMIT

 
Wednesday, July 2, 2003
 
By Jon Craig
THE COLUMBUS DISPATCH
NEWS 04C
 
Two mothers, a sister and a wife -- all of whom lost loved ones to impaired drivers -- came together yesterday to praise a new state law lowering the blood-alcohol limit to 0.08 percent.
 
"Hopefully you'll never get a call like I did on Christmas Eve of 2001,'' said Darcee Claxon of South Webster in Scioto County. Claxon cried while describing her younger brother, Cody Michael Hammersley, "who forever will be 17'' and dreamed of playing college baseball and getting married.
 
Hammersley was fatally injured 500 feet from his home in Coshocton when his car was broadsided. The other driver, also 17, registered 0.082 on the Breathalyzer but was not charged with driving under the influence under the old limit. Still, he served 18 months in jail and in a rehabilitation center on another charge.
 
Until yesterday, the blood-alcohol threshold was 0.10 percent. The new limit means a 170-pound man drinking four to five beers an hour -- or a 137-pound woman drinking three beers an hour -- is too drunk to legally drive.
 
Meanwhile, Columbus attorney Bradley P. Koffel questioned the effective date that people can be charged under the lower limit. Koffel said his reading of House Bill 87 makes the new threshold effective in six months on Jan. 1, 2004.
 
"As a defense lawyer, if we have any clients charged with DUI for testing between 0.08 and 0.099, we will be requesting dismissal of that charge,'' he said. "Even if they're right, there is still going to be a lot of litigation and discussion in the courts.''
 
Speaking at a press conference at a Dublin hotel, Claxon implored teen-agers to take keys away from friends who insist on drinking and driving. She said her brother lost a two-week battle in the hospital before being declared brain-dead.
 
"I watched my brother's heart beat for a last time. Those images still haunt me today. I cannot explain the immense pain. Cody was a fighter (but) he doesn't have a voice anymore -- he was robbed of that -- to let people know drunk driving is not an accident.
 
"We pay daily, and we will pay for the rest of our lives,'' Claxon said. "I believe (0.08) will save the lives of other people.''
 
Others attending the press conference lost loved ones to drivers legally drunk under the old law.
 
Louanne Jones of Bexley lost her 19-year-old son, Brett Alan Sutton, in 1995 to a five-time offender now serving a 10-year prison sentence related to her son's death. "Slowly but surely we're changing the attitudes,'' she said.
 
Donna Maines' 18-year-old daughter, Jennifer, was killed on Thanksgiving 1996. The Newark mother's pain is compounded by the fact that the drunken driver was arrested -- again -- and imprisoned seven weeks ago.
 
And Sherrie Kass-Roth of Gahanna lost her 45-year-old husband, David, in a 1995 crash with a drunken driver that also severely injured their daughter, Bethanie.
 
It is estimated that about one-fifth of all alcohol-related crashes occur with drivers who test between 0.08 percent and 0.10 percent.
 
Sen. Jay Hottinger, a Newark Republican who sponsored the legislation, estimated the lower limit will save 30 lives the first year. The change also is expected to save at least $30 million annually in federal transportation funds as Ohio became the 42nd state to toughen its standard. The federal government threatened to cut off road-construction dollars starting in October for states that do not comply.
 
Hottinger was joined at the news conference by Maj. James H. Walker of the State Highway Patrol and Sgt. Brian Webster of the Newark Police Department.
 
"It's long overdue,'' Webster said. "Quite frankly, I would like to see it lowered even more.''
 
Using yellow crime-scene tape, officials from Mothers Against Drunk Driving of Ohio cordoned off 379 empty seats representing people killed in alcohol-related crashes last year in Ohio. More than 11,400 were injured.
 
"What a very sobering view that is,'' Hottinger said.
 

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LIMIT OF 0.08 IS AN ENFORCEMENT DILEMMA

 
Sunday, March 23, 2003
EDITORIAL & COMMENT 04B
 
The House-passed Ohio transportation budget bill lowers Ohio's legal blood-alcohol content level for drunken driving from 0.10 percent to 0.08 percent. A 2000 federal law requires states to adopt the 0.08 percent blood-alcohol level or lose millions of dollars in highway construction projects. Ohio becomes the 36th state to lower the level.
 
This change in the legal limit has some serious hidden issues nobody is mentioning. The 0.08 percent legal limit, however well-intentioned, is forcing law enforcement to guess whether or not a driver is at 0.08 percent because the physical signs of impairment at that level are either not present or extremely difficult to detect.
 
The sponsors of the 0.08-percent standard claim that it will save more lives on Ohio's roadways. It may, but so would banning cellphone conversations in vehicles, eating in vehicles and driving while too tired.
 
The problems with the 0.08-percent standard are threefold. First, from a toxicology perspective, drivers at that level generally will not exhibit any signs of erratic driving or illegal activity that must be seen before police can pull them over. Second, lowering the limit to 0.08 percent makes people criminally inebriated despite the fact that they will probably look fine, sound fine, walk fine and stand just fine. How will police find probable cause to arrest these folks?
 
Finally, our General Assembly just gave defense attorneys another reason to tell clients not to take the breath test. Without the breath test, there is no 0.08-percent charge. Without the 0.08-percent charge, the state will have to prove the person was noticeably impaired. That's going to be a tall order to fill if the person was arrested on suspicion of being 0.08 percent.
 
We may have a spike in drunken-driving arrests in the near future. But the public should be prepared for a corresponding spike in dismissed or reduced charges for lack of admissible, reliable evidence if suspected 0.08-percent drivers refuse to take the breath test.
 
BRADLEY P. KOFFEL, attorney
Upper Arlington
 

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FOR IMMEDIATE RELEASE:  COLUMBUS DUI LAWYER COMMENTS ON CHANGE TO OHIO DUI LAW

 
COLUMBUS-March 12, 2003-The newly passed Ohio transportation budget bill lowers Ohio's legal blood alcohol content level from 0.10 to 0.08. A 2000 federal law required states to adopt the 0.08 blood alcohol level or lose millions of dollars in highway constructions projects. Ohio becomes the 36th state to lower the level.
 
According to Brad Koffel, a Columbus-based DUI lawyer, this change in the legal limit has some serious hidden issues nobody is mentioning. "The .08 legal limit, however well-intentioned, is forcing law enforcement to guess whether or not a driver is at .08 because the physical signs of impairment at that level or either not present or extremely difficult to detect."
 
The sponsors of .08 claim that it will save more lives on Ohio's roadways. The problems, according to Koffel, are three-fold:
 
"First, from a toxicology perspective, .08 drivers are generally not going to exhibit any signs of erratic driving or illegal activity that must be seen before police can pull them over. Second, lowering the limit to .08 makes one 'criminally inebriated' despite the fact they will probably look fine, sound fine, walk fine, and stand just fine-how are police going to have probable cause to arrest these folks who don't have noticeable signs of impairment? The answer is they are going to arrest people who have been drinking and not take any chances."
 
"Finally", according to Koffel, "our General Assembly just gave defense attorneys another reason to tell clients not to take the breath test. Without the breath test, there is no .08 charge. Without the .08 charge, the state will have to prove the person was "noticeably impaired". That's going to be a tall order to fill if the person was arrested on suspicion of being .08."
 
In these times of state budget cuts, Ohio cannot afford to lose the highway funding from the federal government.
 
Brad Koffel limits his practice to DUI and alcohol/drug offenses throughout Ohio. Recognized by Best Lawyers in America, Mr. Koffel has been recognized by his peers as one of the outstanding DUI attorneys in the country. He is trained in the theory and operation of Ohio's main breath test machine (BAC Data Master), certified in Standardized Field Sobriety Testing from the National Highway Traffic Safety Administration, and is a frequent author and lecturer around Ohio on DUI. He was chairman of the Ohio Association of Criminal Defense Lawyers annual DUI defense seminars from 1999-2002.
 
FOR FURTHER INFORMATION CONTACT: Mr. Koffel is available for further comment and interview and can be reached at his office (614-481-7215 ).
 

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August 17, 2000
 
Press Release for Immediate Release
Attorney Bradley P. Koffel
614-481-4480
 
Drunken Driving Cases take a Hit by Ohio Supreme Court
 The Ohio Supreme Court just handed down a significant victory for motorists suspected of DUI by recognizing the fact that roadside field sobriety tests are inherently difficult and must be administered exactly the way officers were trained to administer them. The Supreme Court in a 4-3 decision ruled that if a police officer does not instruct, demonstrate, administer, and evaluate these tests in compliance with their training, the tests cannot be used against the motorist in court.
 
This is perhaps the most significant victory for motorists suspected of DUI to come out of the Ohio Supreme Court in the past decade. The immediate impact will be a challenge to all current and future DUI cases. Our law firm has found that the majority of arresting officers in DUI cases do not instruct, demonstrate, administer, and evaluate these tests in compliance with their training. Attorney Brad Koffel limits his professional practice to DUI cases in Ohio and is certified by the federal government in the adminstration of field sobriety tests. There is absolutely no doubt that judges will be forced to exclude this crucial evidence in many, many DUI cases. Prosecutors rely on field sobriety testing as evidence that a motorist is impaired and without this evidence, proving their cases will be next to impossible.
 
For more information, please contact attorney Brad Koffel at 614-481-4480. Additional information may be found at www.buckeyedui.com.
 

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October 1, 1999
 
Koffel & Jump, Attorneys at Law
 
Sweeping DUI legislation is routing its way through the General Assembly. Every practitioner should be aware of pending legislation as it relates to this offense-as Drunk Driving (DUI, OMVI, OUI) is the #1 non-petty offense committed in the United States. DUI can no longer be thought of as simply a traffic offense.
 
Will this be the Law in 2000?

Motorists who REFUSE a requested blood, breath, or urine test will LOSE their constitutionally protected right of the Presumption of Innocence.
 
A 1st OFFENDER who tests over .170% will have a MANDATORY 3 day jail sentence PLUS a mandatory 3 day alcohol education program.
 
The VEHICLE of a 3rd OFFENDER will be FORFEITED to the State, EVEN IF somebody else owns the vehicle.
 
Ohio's LEGAL LIMIT could be LOWERED to .08%.

All of these bills are pending in the General Assembly right now. The most likely scenario is that the .170% bill will pass before any others. In my opinion, it is unlikely that the .08% will pass any time soon.
 

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ATTORNEY: TESTS, NOT LIMIT, REAL DRUNKEN-DRIVING ISSUE

 
Tuesday, March 10, 1998
NEWS 03C
 
By By Tim Doulin
Dispatch Staff Reporter
 
The reliability of blood-alcohol tests is a bigger issue than if Congress passes a federal mandate requiring states to adopt a 0.08 blood-alcohol limit to define drunken driving, some local lawyers say.
 
Attorney Brad Koffel said he believes the standardized field sobriety tests used by law enforcement officers would have to be revamped if the blood-alcohol limit were lowered. The tests are an investigative tool officers use to determine whether a motorist will test over the current legal limit.
 
''There are actual percentages attributed to each of the field sobriety tests as to the odds a person will test over 0.10,'' Koffel said. ''The problem with lowering the standard to 0.08 is the main investigative tool is not designed to test for the very subtle impairment, if any, at that level. It is a 0.10 tool.''
 
Lowering the limit will issue a ''marching order to patrol officers to basically arrest people who have an odor of alcohol on their breath,'' Koffel said.
 
The State Highway Patrol says that the standardized sobriety tests would not have to be changed.
 
''Your outward signs of impairment are not indicative of your motor skills,'' Born said. ''And those tests are to test your motor skills to see if you can do two or three things at once.''
 
''It is still the same old story, until you can take shots at the machine, it doesn't really matter what they say the test is,'' lawyer Sam Shamansky said. ''You're guilty before you ever get in the courtroom. So I don't see lowering the level as having a major impact, defensewise.''
 
Shamansky and his law partner, William Meeks, filed a lawsuit in U.S. District Court last year on behalf of a North Side man challenging the method used in Ohio to administer breath tests to suspected drunken drivers. That case is pending.
 
The blood-alcohol limit is 0.10 in Ohio and many other states. The federal government proposes lowering that limit and would penalize states that don't by taking away a portion of their federal highway construction money.
 
Defendants and their attorneys are prohibited from challenging the scientific accuracy of a breath test if the machine is working properly. Shamansky and other local lawyers say the test results are suspect and that those accused of drunken driving should be allowed to present defense experts to challenge the machine's reliability.
 
''You can do it in a drug case, a murder case, a counterfeiting case. The anthrax possession case where they have relied on scientific evidence to establish that it wasn't in fact the virus but the antidote,'' Shamansky said. ''Without the ability to challenge the scientific basis, you never know if it is correct or not.''
 
Those who support a lower blood-alcohol limit, including Mothers Against Drunk Driving, say it would save 500 to 600 lives a year, nationwide. In Ohio, from 1983 to 1996, 195 of 6,392 drinking drivers at fault in fatal crashes had a blood-alcohol level between 0.08 and 0.10, the State Highway Patrol said.
 
Although some attorneys and court officials believe lowering the limit would cause a sharp increase in the number of drunken-driving cases in the courts, the patrol and others believe there will be little effect.
 
The patrol believes the lower blood-alcohol limit will serve as a deterrent.
 
''Other states that have a 0.08 limit who we have talked to indicate the DUI arrests don't go up or they don't go up significantly, and in some cases they have dropped,'' Lt. John Born said.
 
The patrol credits the state's tougher penalties for the steady decrease in the patrol's drunken driving arrests. The patrol arrested about 23,000 statewide last year for driving under the influence of alcohol, down from 27,570 in 1994.
 
In Franklin County Municipal Court, there were 5,264 OMVI cases in 1997, up from 5,153 the prior year.
 
Judge Charles A. Schneider, the court's administrative judge, also doesn't believe lowering the level would have a huge impact in the number of cases. He said the court doesn't see many cases with a test result under 0.10.
 
''You might say that's because people who test below 0.10 aren't charged with anything, but that is not the case,'' Schneider said. ''A person is not asked to take the test until they are already under arrest for OMVI.''
 
Law enforcement officers generally file the OMVI charge based on a driving violation, outward signs of intoxication - such as slurred speech and bloodshot eyes - and failure to pass standardized field sobriety tests. Those who then take a breath test and are over 0.10 are charged with a second OMVI.
 
However, those convicted of OMVI are sentenced only on one charge.
 

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BEFORE YOU THROW THAT PARTY: Think About the Potential Liability

--Brad Koffel, Esq. 
The Memorial Day holiday kicks off the summer party season. Suburban backyards will be clouded with a barbecue grill haze; pools will be crowded with splashing kids and grownups. And, more often than not, coolers will be filled with icy cans and bottles of adult beverages.
 
Can the party host dive into the fun without considering potential hazards, risks, and liabilities? The prudent answer is an unequivocal "no".
 
No Liability Under Prior Law
 
Ohio has long followed the rule of the majority of jurisdictions, holding that it was not a tort to either sell or give intoxicating liquor to ordinary able-bodied persons. This rule was based upon the premise that it was the consumption rather than the sale or distribution of liquor that caused intoxication. In this view, the mere providing of alcoholic beverages was a remote cause at best.
 
But that rule has not been absolute. The enactment of the Dram Shop Act provided injured persons an opportunity to recover from a liquor permit holder that had sold alcohol to an intoxicated tortfeasor in violation of an order of the department of liquor control. Another statute provides for liability when a permit holder knowingly sells liquor to a noticeably intoxicated person, and that person proximately causes injury or death to another.
 
The law distinguished between the liability of a permit holder and a social host in serving intoxicating beverages. In Settlemyer v. Wilmington Veterans Post No. 49, American Legion, Inc. the Ohio Supreme Court explained why social hosts are not held to the same level of care as permit holders for serving intoxicating beverages:

the commercial proprietor has a proprietary interest and profit motive, and should be expected to exercise greater supervision than in the (non-commercial) social setting. Moreover, a person in the business of selling and serving alcohol is usually better organized to control patrons, and has the financial wherewithal to do so. It also is reasonable to conclude that by virtue of its experience, the commercial proprietor is more familiar with its customers and their habits and capacities.

An Exception-Liability for Sale to Minors
 
In 1988, the Ohio Supreme Court carved out an exception to non-liability for social hosts in Mitseff v. Wheeler. The court determined that social hosts may be held civilly liable for damages to third persons injured as a result of the actions of an intoxicated minor. In Mitseff, Douglas Wheeler furnished beer to seventeen-year-old Jennifer Johnson. Johnson left Wheeler's residence and went to a bar where she drank more alcohol. Later, Johnson was involved in an automobile accident that took the life of Kathryn Mitseff.
 
The pertinent issue was whether Wheeler could be held civilly liable for furnishing intoxicating beverages to a minor during the course of the evening. The court found that "[t]he statute created a duty that appellee, because of Johnson's age, refrain from furnishing Johnson with alcohol." The court focused on the fact that Wheeler had provided alcohol to someone who was not an adult guest, an act that was prohibited by the statute.
 
The law continues to change. A social host can now be held liable for injuries to a third person caused by the negligence of a minor to whom the social host furnished alcohol. R.C. 4301.69 creates a duty for social hosts to refrain from furnishing alcohol to a person under the legal drinking age. Violation of that duty is negligence per se. It is also a criminal offense, punishable by a fine of $500-1000, and a six month jail term.
 
Last year, the Ohio Supreme Court refined the standard in this area in Lesnau v. Andate Enterprises, Inc. Lesnau involved the sale of liquor to a minor by a liquor permit holder. The minor represented that he was 21 at the time of the sale, but produced no identification. The minor was later involved in a motor vehicle accident, which killed another person.
 
The trial court dismissed the wrongful death action that followed, finding that there could be no liability in the absence of an allegation that the permit holder had actual knowledge that the purchaser was a minor. The appellate court affirmed, but the Supreme Court reversed.
 
The Court affirmed the general proposition that there can be no liability without actual knowledge by the permit holder. But in the Court's view, cases involving minors are different, and the actual knowledge standard is inapplicable. Instead, the Court applied a "know or have reason to know" standard.
 
Expanded Liability in the Future?
 
Lesnau may well be the beginning of an expansion of liability for those who supply alcohol, in either the commercial or social context. Recent years have witnessed a growing legislative and judicial awareness of the dangers of alcohol abuse, particularly on the public highways. Lawmakers see that more than 15,000 died in alcohol-related traffic crashes in the year 2000 -- an average of one every 36 minutes. Each year, more than one million others are injured.
 
The General Assembly responded by amending Ohio's impaired driving statutes no fewer than four times since 1990, seeking to streamline prosecution and toughen penalties. We can anticipate further changes, given a national movement toward criminalizing driving with a blood alcohol content of no more than .08.
 
Courts are likewise acutely aware of these alarming statistics and cannot be immune to what they represent. While the courts will probably continue to distinguish commercial vendors from social hosts, the historic immunity from liability may disintegrate, particularly in cases involving minors.
 
Minimizing the Risks
 
What can hosts do to protect their guests-and themselves? Prudence is all-important. The Mothers Against Drunk Driving website contains sound recommendations for party givers. Among them:

• Never serve alcohol to someone under the legal drinking age, and never ask children to serve alcohol at parties. When in doubt, check identification. Remember that this can be a criminal violation. And if civil liability results, your own insurance company will probably argue that they have no duty to provide coverage for liability arising from criminal acts.
• Don't let guests mix their own drinks. Choosing a reliable "bartender" will help you keep track of the size and number of drinks that guests consume.
• Never force a drink on a guest!!!
• Close the bar well before the party ends. Consider serving a dessert treat with coffee-but remember, only time sobers someone who has been drinking.
• If some of your guests have had too much to drink, drive them home, arrange for a ride with another guest who is sober, call a taxi, or invite them to stay over.

 

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Selected as one of the Best Lawyers in America (2001-2002). A singular honor bestowed upon 1% of the attorneys in the United States as selected by other attorneys every other year.
 

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For Immediate Release-Columbus, OH
January 15, 2001
 
Best Lawyers in America ® just announced that Columbus attorney Bradley P. Koffel has been selected by other attorneys as one of the best attorneys in the United States in the field of Criminal Defense for 2001-2002.
 
Published biennially since 1983, The Best Lawyers in America is widely regarded as the preeminent referral guide to the legal profession in the United States. The Best Lawyers lists, representing 27 specialties in all 50 states and Washington, DC, are compiled through an exhaustive peer-review survey in which thousands of the top lawyers in the U.S. confidentially evaluate their professional peers. The current, 9th edition of Best Lawyers (2001-2002), is based on more than 350,000 detailed evaluations of lawyers by other lawyers.
 
This unique referral guide is subscribed to by more than 4,000 of the leading law firms in the U.S. and abroad, and by more than 1,000 of the world's largest corporations. For almost twenty years, they have used Best Lawyers to locate counsel in unfamiliar jurisdictions for major legal matters.
 
Because lawyers are not required or allowed to pay a fee to be listed, Best Lawyers has gained the respect of the legal profession, the media, and clients as the most reliable, unbiased source of legal referrals anywhere. It has received from presidents of the American Bar Association, been frequently featured in the U.S. media and excerpted in more than 50 major metropolitan newspapers and magazines.
 
The New York Times claims, "Who are the best litigators in Illinois? Or the best bankruptcy specialists in Utah? Two Harvard Law School graduates... have found out, and have compiled their findings in a book titled -- no beating around the bush here -- "The Best Lawyers in America."
 
Koffel, 33, is one of the youngest attorneys listed in Best Lawyers. His law firm, Koffel & Jump, located in Upper Arlington, Ohio, has quickly been recognized as a leader in DUI and Criminal Defense law in Ohio. Koffel cites the success of his firm to hiring very talented attorneys and staff while providing upscale professional assistance to his clients.
 

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BREATH TEST RESULTS BAD, JUDGE SAYS
 
DRUNKEN DRIVING CASE TO GO ON WITHOUT FINDINGS
 
Friday, July 12, 1996
NEWS LOCAL & NATIONAL 01B
 
By By Randall Edwards
Dispatch Staff Reporter
 
A blood-alcohol breath test can't be used as evidence in a drunken driving case in Franklin County because the Ohio Department of Health used sloppy science to analyze a solution used to calibrate breath-testing machines, a judge ruled yesterday.
 
The ruling, by Franklin County Municipal Court Judge Anne Taylor, said it was ''an abuse of discretion'' for the health department to approve a batch of the alcohol and water solution in 1993. Calibration is achieved by running the solution through the breath-testing machines regularly to make sure the machines accurately record the amount of alcohol in a motorist's breath.
 
''Judges and lawyers all over the state have been holding up cases waiting to see what Judge Taylor was going to do,'' said defense lawyer Bradley Koffel. ''This decision is going to be faxed around the state, and it is going to open a lot of eyes.''
 
Taylor made the ruling in a case involving Vincent Workman Jr., a former Ohio State University football player who was charged with drunken driving in May 1995.
 
The decision could influence hundreds of other cases throughout the state, said Christopher Cicero, a defense attorney who represents Workman.
 
''I think what we've done is show that there was a lack of trustworthiness in the way these solutions were certified,'' Cicero said.
 
State law requires that the health department analyze samples of each new batch of the calibration solution before certifying to police departments that the solution has the proper mixture of water and alcohol.
 
In this case, the health department's lab ''did not have any written protocol, had conflicting standards and a lack of rigorous scientific review,'' Taylor wrote in her 19-page decision.
 
The fight over the health department's testing procedures already has led to the resignation of the lab's director, Leonard Porter, and a short-lived ban on breath testing throughout the state. Porter resigned after writing a memo in January in which he said 19 batches of solution might be at a different mixture than certified.
 
Porter approved this 1993 batch of solution after it was tested twice - a first test was rejected because of sloppy technical work, Taylor said.
 
But when the validity of the test was questioned, it took two scientists from outside the department of health five different tries to validate the solution, and that was done only after excluding much of the health department's raw data, Taylor said.
 
The results of the two scientists, who were appointed by Health Director Peter Somani to review the testing procedures after Porter's resignation, were ''sanitized'' before they were presented to the public, Taylor wrote.
 
Lawyers for the health department had not reviewed the decision late yesterday and could not comment, said department spokesman Randy Hertzer.
 
Assistant Columbus City Attorney Rob Levering, who is prosecuting the case, said he has not decided whether the city will appeal. Regardless of that decision, the city will continue to prosecute Workman, who now plays for the Indianapolis Colts. Workman's trial is scheduled for August.
 
Levering said he was disappointed by Taylor's decision, and he defended the health department.
 
''We believe that everything they did was done in a scientifically approved manner,'' he said. Even if the health department's testing was not valid, he said, independent tests by a private lab and the State Highway Patrol showed that the solution was good.
 
Levering said he is glad Taylor rejected two other claims by the defense: that the certificate of approval was invalid because it was not signed personally by Somani and that the whole process is invalid because the health department did not specify expiration dates.
 
The law allows Somani to delegate his authority, she said, and the director has the right to determine policy on expiration dates.
 
If Taylor had ruled differently, it could have raised questions about 18 other batches of solution, and challenged the evidence in thousands of cases.
 
There probably are not many pending cases in which this 1993 batch was used to calibrate, Levering said.
 
Other defense attorneys disagreed with Levering's assessment, saying similar flaws probably can be found in the other 18 batches.
 
At least five judges have ruled on similar motions - three who suppressed the test and two who upheld it - but Taylor is the first in Franklin County. She also is the first to thoroughly review health department procedures and the raw data used to certify the solutions.
 

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Driver in fatal crash to support victim's daughter
Man's best friend killed in March crash
 
LEBANON | A recent Ohio State University graduate headed to jail for killing his best friend in an alcohol-related car crash has promised to financially support the man's 9-year-old daughter, including paying for her college education.
 
Warren County Common Pleas Judge James Flannery on Friday sentenced John C. Allen, 23, of Gahanna to six months in jail, suspended his driver's license for five years and ordered him to pay $12,000 in expenses for the funeral of his best friend, Christopher S. Matthew, 27, of Clearcreek Twp. Allen had pleaded guilty to aggravated vehicular homicide.
 
Defense Attorney Bradley P. Koffel called the sentence "remarkable and extremely fair" in light of the seriousness of the charges. "All across Ohio and the United States sentences for this type of tragedy usually involve a substantial prison sentence. I believe the Judge had tremendous courage to see that my client had taken full responsibility for his poor judgment and that prison would not have solved anything."
 
Allen, a computer specialist with Huntington Banks in Columbus, will be allowed to work while serving the jail term in Franklin County.
 
"I'm embarrassed and ashamed of myself for causing the death of my best friend," Allen said in court after turning toward Matthew's family and friends.
 
"I'm the reason a little girl will never again have a daddy to tuck her in at night," said Allen, who has signed a contract to support Matthew's daughter until she turns 18, as well as pay her college expenses.
 
On March 22, Matthew died after Allen's new Subaru, northbound about 5 a.m. on Ohio 48 at more than 90 mph, failed to negotiate a sharp curve and struck a stop sign and two concrete walls in front of a cemetery, according to reports. Allen told state troopers that he and Matthew had been partying in the Oregon District in Dayton and at friends' homes.
 
Matthew, an engineer with Lockheed Martin in Fairborn, was pronounced dead at the scene.
 
On Friday, neither of his parents, who traveled from Illinois for the hearing, urged the judge to send Allen to prison.
 
Phyllis Matthew urged Flannery to order long-term alcohol treatment for Allen to prevent him from driving drunk again.
 
Stephen Matthew called for greater education and public awareness of the devastation caused by drunken drivers, while headlines focus on smaller numbers of soldiers dying in Iraq.
 
Afterward, Allen's priest and mother begged Flannery not to send him to prison, so he can continue to provide for his daughter, as well as Matthew's. Allen also hopes to prevent OSU freshmen from drinking and driving by sharing with them how he killed his best friend and devastated his and others' lives.
 
"Just like Chris, anything he made his mind up to do, he accomplished," Allen's mother, Sandy, said.
 

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DRUGGED DRIVING HARD TO PROVE
Police, prosecutors say gathering evidence is first problem in such cases
 
Thursday, December 26, 2002
NEWS 01C
 
By Dean Narciso
THE COLUMBUS DISPATCH
 
The wild ride took the 20-year-old halfway around the Outerbelt as she weaved through rush-hour traffic, speeding up and slowing to a crawl.
 
When police finally caught up to the car last month and pulled over the driver near I-670 on the North Side, they found her nude. She refused to put on clothes found in her rental car.
 
Her actions were "spacey,'' said Sgt. Larry Ferguson of the Columbus Division of Police.
 
Comments the woman made indicated that she had been using illegal drugs, said a Mifflin Township paramedic, who declined to be named or provide details.
 
On the way to Grant Medical Center, the woman was given Narcan, a drug that helps stabilize possible overdose victims. The woman was treated and released.
 
Police have said that charges against the woman could have included disobeying an officer, failure to control a vehicle or driving under the influence of drugs.
 
But she has not been charged.
 
Neither blood nor urine samples were requested by police, said Columbus Police Lt. Jeffrey Blackwell, who is familiar with the case.
 
A close relative said the woman told her family that she had a bad reaction to cold medication.
 
The case underscores the problem of "drugged'' drivers and the difficulty in prosecuting them.
 
Inside a zero-degree vault at the State Highway Patrol's crime lab off Alum Creek Drive, two years' worth of blood and urine samples are stored -- more than 5,000 vials -- that were taken from motorists involved in traffic stops or crashes.
 
"Almost 60 percent of the urine cases were testing positive for marijuana,'' said Paul Boggs, crime-lab director.
 
Though law-enforcement agencies across the nation have cracked down on drunken drivers, building a case against a drugged driver is much more daunting.
 
The challenge begins on the street and in the hospitals.
 
"Most doctors or nurses will not draw blood samples for us,'' one veteran Columbus police sergeant, who asked that his name not be used, said recently.
 
"We get very little cooperation.''
 
But Mark Hopkins, spokesman for Grant Medical Center and Riverside Methodist Hospital, said it's up to police to ask.
 
Doctors, he said, are required by law to draw any human fluid samples that are requested by law-enforcement authorities, and routinely comply.
 
National drug experts say police have little incentive to request samples because of the difficulty they encounter in securing convictions.
 
"If the police officer knows that the prosecutors aren't going to take on cases because it's difficult to get a conviction, then they're not going to look for drugs on the front lines. It's kind of a negative spiral,'' said J. Michael Walsh, head of the Walsh Group, a research firm based in Maryland that last month launched a nationwide campaign for tougher laws against those who drive while high.
 
Walsh found that, during a 12-month period last year, about 9 million Americans had driven within two hours of using marijuana or cocaine.
 
Walsh's results noted that most driving-under-the-influence laws, including Ohio's, require prosecutors to prove that an illegal drug caused the impaired driving -- "a difficult task for a scientist and even more difficult for a prosecutor.''
 
Eight states now have "per-se'' statutes that land a driver in jail for the "mere presence'' of prohibited drugs in the bloodstream.
 
Blackwell questions why Columbus officers didn't request blood tests for the woman in the Nov. 21 Outerbelt case.
 
"I think it's real valid that we explore all options when you have a potentially impaired driver,'' he said.
 
Making that evidence stick is the challenge.
 
"Putting a number on how much of a controlled substance in your system makes you a danger . . . is a difficult and possibly unobtainable measure,'' said Lt. Gary Lewis, spokesman for the State Highway Patrol.
 
His agency filed charges on Dec. 13 against a man accused of hitting one of its own.
 
Trooper Leonard Gray was seriously injured when he was hit by a car on Dec. 11 in Hocking County. The patrol charged Ronald Hamrick with driving under the influence of drugs.
 
"The difficulty is usually in being able to quantify the drugs like the alcohol,'' said Columbus City Prosecutor Steve McIntosh.
 
In Ohio, a motorist is considered to be driving drunk with a 0.10 percent blood-alcohol content or 0.13 percent urine-alcohol content.
 
"Anytime we get a case where it's drugs only . . . it's a matter of what will our expert be able to testify, to be able to relate the amount of drugs in the system to impairment,'' McIntosh said. "Anytime you have to bring the expert in, it's another hurdle.''
 
McIntosh said the per-se laws in states such as Indiana and Minnesota would streamline an inefficient system.
 
But lawyer Brad Koffel, whose firm Koffel and Jump of Columbus handles about 500 to 600 DUI cases statewide a year, thinks otherwise.
 
He said that having more drugged-driving charges would slow an already overloaded court docket.
 
"It would just be a nightmare. There are a tremendous amount of evidentiary hurdles just to get the (bodily-fluid) samples admitted into court.
 
"And the field tools that the police officers would need are ludicrous. They're taking pupil size, blood pressure, respiratory rates. I think it unrealistically asks police officers to become scientists, triage nurses, almost doctors.''
 
Todd Barstow, president of the Central Ohio Criminal Defense Lawyers Association, agreed.
 
"Any police officer with a high-school education can operate a breath machine,'' Barstow said. "But thank God we don't have state troopers armed with needles to suck blood from people being stopped on the roadside.''
 
Koffel also is concerned that innocent people could be falsely accused under such laws.
 
He recalled a client who was stopped by police in Chillicothe two years ago for driving erratically and colliding with a truck.
 
The driver agreed to a urine test, and marijuana was detected. Indeed, the man had smoked marijuana -- but nearly a month before the crash.
 
The man, a diabetic, was acquitted when it was shown that a missed insulin shot that morning had caused him to crash.
 
James Ferguson, chief toxicologist for the Franklin County coroner's office since 1977, knows better than most about how challenging such cases are.
 
He gets about 100 requests a year from lawyers to be an expert witness in cases involving clients driving while under the influence of drugs.
 
Ferguson is able to screen for more than 500 drugs at his King Avenue laboratory. But he limits DUI tests "to drugs posing the greatest risk of crashes.'' Eighty-five percent of those involve cocaine or marijuana, he said.
 
Educating the public to the dangers of drugs and driving is a main focus of the nation's drug czar, John Walters, who estimates that 10 percent to 20 percent of motorists involved in crashes are under the influence of illegal drugs.
 
Locally, at least among experts, the issue is a growing concern.
 
"There's an awful lot of drugged drivers out there,'' Ferguson said. "I know firsthand that driving drugged is a serious problem. But I also know that finding solutions for it is a major problem.''
 
dnarciso@dispatch.com  

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Tort Reform hosts trial lawyers versus insurance companies; Democrats versus Republicans; and, even the Ohio Supreme Court versus the General Assembly. Hundreds of thousands of dollars are spent on judicial campaigns, house seats, and even congressional races in an effort to protect the rights of consumers and a corresponding effort to limit liability of goods and service providers. The currency of politics permeates all aspects of civil tort law.
 
However, not even Tort Reform can compare to the awkward, unabated sprint of legislative amendments to DUI in the 1990's. Since 1993, no other area of law has lay helpless on the stainless steel surgical table of the Ohio General Assembly like DUI. There are no PAC's with coffers at the ready to protect the rights of motorists accused of DUI. For a legislator to utter words affording statutory protection or recognition of constitutional rights to the accused drunken driver is akin to political hara-kiri. The penalties keep getting ratcheted higher and stiffer. In other words, the Ohio General Assembly has hung, drawn, and quartered the DUI statutes and administrative regulations to a point of confusion that the Federal Sentencing Guidelines read like a Harry Potter book.
 
If the General Assembly is the 8 cylinder engine of statutory change, then our 12 Appellate Districts and Ohio Supreme Court are the providers of the silky smooth motor oil that keep it free of 4th, 5th, 6th, and 14th Amendment breakdowns. One need look no further than on the spot license suspensions, pre-trial seizures of vehicles, expanded "look back" periods, the birth of "Felony DUI", prior convictions admissible against a felony defendant at trial, the creation of a "Super Per Se" offense, constitutional traffic stops based upon "anonymous tips", and the continued inability to challenge the general reliability of chemical tests of the accused are all gifts bestowed upon the DUI practitioner by the legislature and courts just in the last 7 years.
 
The authors of Ohio Driving Under the Influence Law, The Honorable Mark Painter (Hamilton County Court of Appeals) and James Looker (prominent DUI/Criminal Defense attorney in Cincinnati), wrote the first edition while the DUI laws were just small snowballs on a hillside gently rolling and getting a little bigger with each revolution. Now, Judge Painter and Jim Looker are attempting to catch their breath while looking back at the legislative and appellate court avalanche of the past several years. Their work is no small feat. Their product is an excellent quick reference guide to the many issues facing the DUI practitioner, prosecutor and trial judge.
 
Due to a debilitating stroke in September 1999, Jim Looker has been unable to practice law. Presumably, Judge Painter authored this edition as evidenced by his Preface and Acknowledgments. This edition provides a review of case law developments as well as all of the legislative changes through June 30, 2000.
 
I have used "Ohio Driving Under the Influence Law" in my practice regularly since 1993 and the framework has remained primarily the same. There are 22 chapters ranging from the basics (elements of the offense) to the more complex issues (Ohio Department of Health Testing Regulations). Selected provisions of the Ohio Revised Code, Ohio Administrative Code, and Traffic Rules that come into play in DUI cases find their way into the back of the book. Perhaps the book's best point can also be viewed as its biggest drawback: the treatise provides an excellent synopsis of current DUI case law and statutes without providing any noticeable bias to the prosecution or defense. It is truly a recantation of holdings and black letter law. Therein lies my chief complaint. As a DUI defense attorney, I would like to see the book expanded to include more pre-trial suppression strategy, evidentiary issues and litigation points, forensic aspects of chemical testing, information concerning breath testing machines, and more attention to issues in other states that may have cross-over applicability to Ohio DUI law. This information could certainly aid the reader in understanding and appreciating defense theories and scientific evidence.
 
Unfortunately, my biggest criticism of the book is lost on the obvious fact that West Publishing commissioned the authors to present the status of the law in Ohio, not to write, "Defending the Drinking Driver in Ohio". I do note that the authors insert "Critiques" and "Recommended Practice" pointers throughout the book. For example, the authors refer to the 1994 Ohio Supreme Court decision in State v. Gill (defining "operation") as "judicial legislating by the Court on the issue of operation". In fact, the authors inject their own collective opinion as to the issue of operation and feel that the Ohio Supreme Court has failed to put the motoring public on notice as to when one is "operating a vehicle" and when one is not. The authors boldly state, "If the concept of 'operation' has eluded precise determination by lawyers and trial and appellate courts in this state, how can the general public be expected to understand exactly what constitutes 'operation'"?
 
Additionally, form suppression motions intended for the defense attorney are included at the end of Chapter 11. This suggests that the book can evolve some more and explain some of the issues I mention above while preserving its objectivity and careful balance.
 
If the book is intended to be a reference treatise, the format can be difficult to use to locate an issue. A perfect example would be the need to look up the admissibility of a breath test. The reader must weave through Chapter 9 "Testing Regulations, as well as certain parts in Chapter 13 "Documentary Evidence", Chapter 15 "Motion to Dismiss and Motion in Limine", meanwhile needing to look at Chapter 3 "Charging the Offense" and Chapter 1 "Elements of the Offense". Each of these chapters have some salient issues relevant to the admissibility of a breath test. Consolidation of this issue would greatly enhance the utility of the book.
 
Also, the authors spend a considerable amount of time explaining the case history of certain issues before finally stating the current status of the issue. Often the reader gets caught up in the holding of a particular line of cases that seems to support his/her argument only to find out that the Ohio Supreme Court ultimately overruled that line of cases.
 
The best part of the book is the unmistakable fact that the authors have completely summarized some of the most confusing legislative changes and case law developments in the last decade. You can look up a code section or case in the Appendix to see each and every page in the book addressing it. The reader can freely cite to specific cases that address very, very fine issues such as whether or not crossing the lane marking one time is sufficient to justify a traffic stop. The authors have combed a plethora of key unreported decisions that would otherwise go unnoticed by the practitioner. Even a smattering of interesting municipal court decisions can be found referenced in this book!
 
The practitioner will find this book extremely useful in court and preparing for a DUI case. Ultimately, you will find yourself staring at an issue that seems so rare and case-specific that your stomach churns at the prospect of having to research it either on-line or CD-ROM. In all likelihood, you will find this issue somewhere in this book with case cites to boot. I have personally reached for this book in the middle of a hearing and trial only to have it give me exactly what I need in less than 5 minutes.
 
Perhaps the best review I can give this book is to share a frequent experience I have in my practice. Many times a disagreement over an issue will arise with a prosecutor. I can produce "Ohio Driving Under the Influence Law" to solve the disagreement as it is widely accepted as final authority-even to many trial judges. If you are involved with or anticipate being involved in a DUI case, you need this book!
 

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A Key Employee Under Arrest-Now What do you Do? 
A VERY COMMON (QUIET) EMPLOYMENT PROBLEM
 
You just started a long-overdue meeting with one of your business partners and your reception intercoms you. One of your company vans was just involved in a two-car accident on I-70 near Brice Road. You learn that one of your employees was driving it after stopping at a local a bar. Unfortunately, he didn't stop after striking the other vehicle, but drove away. Now, 30 minutes later, he's caught, arrested, and charged with a laundry list of criminal offenses: DUI, hit-skip, driving under suspension, failure to control. Your employee is on his way to the Franklin County Jail. Your company van, tools and equipment within the van are impounded at the Columbus Police impound lot. Now what?
 
Thoughts race through your mind-is anyone hurt or worse? We paid the premium renewal for the automobile insurance, didn't we? How do we get the van and equipment back? Are we supposed to help get Bob out of jail or is his family? Who do I call first-our insurance agent? Corporate counsel? The Police? Do I know any business owner-friend who has been through this before? What do we do?
 
Unbelievable as it may seem, this scenario is not too uncommon. Every week a central Ohio business owner or one of its top executives must face the inevitable-one of its employees spent the weekend in jail. It's Monday morning, the employee has taken the day off, asked to take Friday off for court, and winds up being very unproductive while the criminal case lingers in one of the busiest courts in Ohio-either the Franklin County Municipal Court or the Franklin County Court of Common Pleas. How long does the case last? Try 3 - 6 months depending upon the nature of the charges.
 
What about the company vehicle that is now impounded? Most local judges will permit the company vehicle to be returned to the company on the following conditions: proof of corporate ownership and current auto insurance must be shown, payment of tow and impound fees; and, an understanding that the employee is not permitted to operate it if he or she triggered a license suspension as a result of their arrest.
 
STATISTICALLY SPEAKING, PLAN ON FACING THIS ONE DAY
 
If you think your company, no matter how small, will never have to deal with an employee running afoul of the law, then you might want to read on. One out of 3 employees reports known illegal drug activity in the workplace. Of equal concern is that nearly 15% of ALL employees report heavy drinking during personal time. Of course, alcohol and drug use spills over to the workplace-fatigue, tardiness, absenteeism, accidents, injuries, and lack of productivity. This use and abuse will eventually result in an arrest.
 
GET A REFERRAL TO A CRIMINAL DEFENSE ATTORNEY
 
Now, as a business executive dealing with the arrest of an employee, what do you do? Our firm sees these cases daily and we advise business owners and employers in these scenarios frequently.
 
First, call your corporate counsel or a friend who is an attorney and get a referral for a good criminal defense attorney. If the employee is in jail, the defense attorney can assess what measures need to be taken to get a bond on the employee to get him or her released from jail.
 
Once the employee is released, he or she is going to probably be requesting some time off from work-to meet the defense attorney, to talk to family, to go to court-all within the first 2 weeks! It is suggested that you permit the employee to attend to these immediate needs without prying too much into the allegations. Once your employee has had a chance to consult with counsel, he or she will be much better equipped to tell you what happened and what they will need from you (i.e. time off to go to court).
 
CONSULT WITH CORPORATE COUNSEL
 
Depending upon the nature of the allegations, you should consult your corporate counsel to discuss foreseeable consequences of the employee's alleged criminal conduct. If the employee committed the crime while in the scope and course of employment, you will want to notify your corporate attorney of this fact. This is equally true if the incident occurred "after-hours" but the employee was leaving a company function.
 
SPEAK TO THE EMPLOYEE
 
I have found that many times an employee will not tell a manager or boss of an arrest unless they have to. If you hear rumors around the office and the employee is under your direction, ask the employee to meet you and discuss the veracity of the rumors. Be very careful not to be judgmental, critical, or threatening. Do not make any promises, either. Just be a listener. Then consult with corporate counsel to determine the best route to take internally. Should the employee be disciplined while the case is pending? Does the employee have rights under an employment agreement, state or federal law? As an employer, completely understand the implications of the Americans with Disabilities Act ("ADA") as it relates to alcohol, substances, and treatment.
 
SPEAK TO THE CRIMINAL DEFENSE ATTORNEY
 
I highly recommend that you speak directly with your employee's defense attorney to try and get a forecast of how the case may proceed. Of course, the defense attorney will not provide any information to you without the client's express consent. Ask your employee if is acceptable to him or her to arrange a conference call between you, the client, and the attorney. Ask the tough questions that need answers. When will the employee be able to drive for the company again? Can the company be charged criminally for the actions of its employee? What is the likelihood of jail? How many more days off for court will the client need?
 
ADDRESS IT BEFORE IT BECOMES A LEGAL PROBLEM
 
If you have not faced this employee - arrest scenario yet, you should understand the myriad of issues that spring up without warning. Warning signs of high-risk substance use are as follows: marijuana users may have bloodshot or glassy eyes and a persistent cough. Cocaine users display increased energy and enthusiasm early in their drug involvement. Later they may be subject to extreme mood swings and can become paranoid or delusional. Alcohol abusers find it hard to conceal morning-after hangovers. Their productivity declines, and they may show signs of physical deterioration.
 
Practically speaking, you won't have much time to "get up to speed" on these issues in light of the fact arrests are sudden, unplanned, and create a tremendous sense of urgency.
 
Bradley P. Koffel
Koffel & Jump
2130 Arlington Avenue
Upper Arlington, OH 43221
Phone: 614-481-4480
FAX: 614-487-2314
E-mail: bpk@kjlaws.com
 
Brad Koffel is a partner in the law firm Koffel & Jump. He concentrates his practice in the areas of Criminal Defense and DUI Defense. He is recognized by Best Lawyers in America Consumer Guide (2001-2002), for Criminal / DUI Defense. He is the DUI Defense state seminar chairman for the Ohio Association of Criminal Defense Lawyers.
 
Koffel & Jump consists of 6 attorneys comprising two practice groups: Criminal / DUI Defense and Consumer Bankruptcy. The Firm handles hundreds of criminal / DUI cases in Central Ohio and nearly 1,500 consumer bankruptcy cases annually.
 
The mission of Koffel & Jump is provide a premium level of personal representation to individuals in Ohio who are experiencing the stress of a recent arrest or are in need of federal bankruptcy protection.
 

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THE WAR AGAINST DUI IS IN ITS 18TH YEAR
 
The Ohio General Assembly continues its assault on DUI creating even more confusing legislation and harsher penalties based upon suspect scientific evidence. Effective May 17, 2000, a mandatory jail sentence will be imposed for any DUI offenders who register a BAC over .170% by breath and blood and .238% by urine. In essence, there are now several BAC limits: "Regular DUI": .100% for breath and blood and .140% for urine; and the "Super DUI" .170% for breath and blood, and .238% for urine.
 
For historical purposes, it all started on March 16, 1983, the day S.B. 432 became law. DUI was no longer just another traffic offense. There were three significant changes: testing over the legal limit became a separate offense; license suspensions were "on-the-spot"; and, enhanced penalties for multiple offenders were triggered. Simultaneously, on the national level, federal grants were buried in highway legislation, task forces were created to curb drunk driving, and through the noble efforts of MADD, public awareness was aroused.
 
By the end of the 1980's, empirical data suggested that the new laws were not curbing drunk driving. The answer was even tougher legislation. On July 25, 1990, juvenile motorists and commercial truck drivers received lower legal limits. DUI penalties became stiffer once again.
 
Only three years passed before more change was needed. Adopting the tactics of the federal government on its war against drugs, Ohio passed legislation in 1993 authorizing pre-trial seizure of vehicles and license plates as well as forfeiture of vehicles in the most serious DUI cases.
 
Three years later, in 1996, Ohio joined several other states in elevating a 4th offense DUI to the felony level (currently 4th conviction within the last 6 years). The 1996 legislation expanded the "look back" period from 5 years to 6 years thereby widening the net for "repeat offenders". "Out-of-state" DUI convictions and juvenile adjudications were specifically included and counted as "prior convictions" if they occurred within with six years of the instant offense.
 
The fifth major enhancement in 18 years became effective on May 17, 2000. The worst drunk driver can now be sentenced to 5 years in prison as a 3rd degree felony. Perhaps the most important piece of information all attorneys should be aware is the fact that a 1st offender can now face a mandatory jail sentence. A new legal limit ("Super Drunk") is among us: 170% measured by breath or blood or .238% measured by urine.
 
As the following chart illustrates, having a concentration of alcohol in excess of the new legal limit will trigger a mandatory jail term based upon the defendant's prior DUI conviction record.
 
1st Offense DUI Mandatory 6 days in Jail:
(3 days can be served at an Alcohol Program, but the other 3 must be incarceration)
 
2nd Offense DUI Mandatory 20 days in Jail
 
3rd Offense DUI Mandatory 60 days in Jail
 
4th Offense DUI Mandatory 120 days in Jail
 
The above references a 6 year look back period (i.e. a 1st offense DUI within the past 6 years calculated date of conviction to date of offense).
 
Gone are the days of pleading to the DUI on a 1st offense and receiving the 3 day program if the defendant tested over .170%. It is incumbent upon every attorney who may handle a DUI to be acutely aware of the dramatic sentencing change in Ohio's DUI law. Also, every attorney who needs to refer a client, friend, or family member needs to at least be aware of this mandatory jail element of sentencing when referring the individual.
 
STRATEGIES TO AVOID THE MANDATORY JAIL TERM:

1. Offer to plead to the "Impaired" Section of the applicable DUI code (i.e. O.R.C. 4511.19(A)(1) for a dismissal of the charge triggering the mandatory jail.
2. Suggest that the prosecutor amend the code section to another DUI code section not triggering the mandatory jail.
3. For a reluctant prosecutor, see if the judge will only sentence your client on the "Impaired" section if your client must plead to both the "Impaired" and the "Super Per Se" section. For example, Ohio law only permits a DUI defendant to be sentenced on one of the DUI subsections. If the prosecutor is unwilling to dismiss the "Super Per Se" and you must plead to both subsections, see if the judge will sentence on the "Impaired" leaving the "Super Per Se" as an Allied Offense.
4. Was the defendant charged under the correct DUI subsection? The new R.C. sections are R.C. 4511.19(A)(5), (6), and (7) (blood, breath, and urine respectively).
5. Enter a "Not Guilty" and challenge the admissibility of the blood, breath, or urine test by filing and succeeding on applicable Motions to Suppress.

Also, on June 8, 2000, a 3rd offense DUI conviction (within the previous 6 years) will result in a mandatory forfeiture of the vehicle the defendant was driving. This does include vehicles driven by the defendant owned by another person! The old law only required a 180-day immobilization of the vehicle. Now that vehicle is to be forfeited to the State. However, this new law has many constitutional problems that may prevent the forfeiture (i.e. Proper Notice to the Owner, A Timely and Meaningful Hearing, possible defenses for Innocent Owners)
 
There are numerous constitutional problems with Ohio's current statutory framework for DUI. For example, despite known problems with the general reliability of breath test machines, Ohio trial attorneys cannot introduce evidence of these problems to a jury due to the Ohio Supreme Court decision of State v. Vega. (1984), 12 Ohio St. 3d 185. Now that 1st offenders are facing mandatory jail terms based upon the single reading of an imperfect machine, this 16 year old Ohio Supreme Court case smacks of due process problems. Just as alarming is the fact that a vehicle will be forfeited to the State on a 3rd offense DUI conviction within 6 years even if the vehicle belongs to someone other than the defendant and the owner had no knowledge of the defendant's driving record.
 
How far will Ohio go in criminalizing DUI in order to be effective? Each new piece of legislation is tougher than its predecessor yet have we produced the societal dividends sought after 18 years ago? As the DUI net continues to get larger and larger, the safeguards for insuring fairness in the courts shrink. As trial attorneys we are charged with the responsibility of protecting the rights of individuals against unfettered growth of legislation. We cannot deny the need for deterrence and punishment, however, it should not come at the expense of fairness and due process. The erosion of constitutional protections has picked up speed just in the past 10 years. We can be stopped by a police officer based upon an uncorroborated anonymous tip (Maumee vs Weisner (1999), 87 Ohio St. 3d 295); we can be detained at police checkpoints for no reason (Michigan v. Sitz (1990), 496 U.S. 444); an officer can stop us merely for choosing to turn and not go through the checkpoint (Coffman v. State, 759 S.W.2d 573 (Ark. App. 1988)); Snyder v. State, 538 N.E.2d 961 (Ind. App. 1989)); State v. Hester, 584 A.2d 256 (N.J. Super. 1990)) ; we can be stopped for "weaving within our lane" even if we never even cross the lane markers, (State v. Farley (Feb. 11, 1994), Lake App. No. 93-L-078, unreported); we don't have the right to call an attorney to discuss whether or not to take a breath test despite being under arrest and advised of our right to an attorney (Fairborn v. Mattachione (1996), 72 Ohio St.3d 345); we can be convicted of DUI if we decided to pull into a parking lot and "sleep it off even with the keys in our pocket (State v. Reynolds (May 26, 1994), Delaware App. No. 93CAC11040, unreported); police officers don't have to follow their training manual when instructing a motorist to do field sobriety tests, however, the motorist will be arrested if he/she does not perform the test in accordance with the training manual (State v.Homan (May 14, 1999), Erie App. No. E-97-100, pending before the Ohio Supreme Court)
 
Where are we headed? It is a very easy thing to devise good laws; the difficulty is making them effective, fair and constitutional.
 
Brad Koffel concentrates his practice primarily in the area of DUI Defense in Central Ohio. For more information regarding Ohio DUI issues, you may visit his website at www.buckeyedui.com or e-mail him at bpk@kjlaws.com. Please contact him regarding any problems you or your clients may be having with the application of this new law and procedures. He may be reached at 614-481-4480
 

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FRANKLIN COUNTY TRIAL LAWYERS ASSOCIATION
Ohio's Leader of the Local Trial Bars
 
QUARTERLY COMMENT
Vol. 12, No. 3 Summer 2000 
UNITED WE STAND by Jeff Boyd, President
 
We trial lawyers proudly see ourselves as gunslingers and cowgirls; Custer out there at the Last Stand, fighting off Big Insurance and Big Government. But I wonder whether the time has come for us to embrace some new role models. Don't you ever wonder if our opponents smile a little as they see us coming up against them, one or two at a time, walking into the kind of ambushes they can buy with their billions of dollars?
 
Face it - the other side has more money than Midas and more resources than all of us put together. Lately they seem to be using all that money and power not just to oppose us, but also to grind us into dust. Which brings me to my point: no matter how dedicated and skilled and caring and right we are, we can't beat them if we stand alone.
 
We need to start acting like we are on the same team. We need to share information. We need to talk to each other about what the other side is doing, and what we are doing to the other side. We need to share: what kind of offers we are getting for what kinds of cases; which adjusters are good to hit up for a few more dollars and which aren't; and what trial tactics work.
 
And let's not forget that we can't succeed in our profession without success in our businesses, either. Why is there so little exchange about what works and what doesn't for our practices as businesses: where to get a good deal on office space; the going rate for law clerks; or what bank will talk to solo practitioners?
 
WE are NOT each other's competition. The OTHER SIDE is our competition. And lately, they have been winning. They know that to divide is to conquer.
 
I am grateful to everyone who has worked to make this new e-mail format for our Quarterly Comment newsletter possible. We will USE IT to get you timely information! The FCTLA has a WEB SITE, with a member BULLETIN BOARD, at www.fctla.org. USE IT! We have a LISTSERVE, so that you can send questions and comments to our (e-mail equipped) members with a touch of the "send" button, at fctla@craiggroup.com. USE IT!
 
Communication has never been easier or faster. There is no excuse to founder when so many helping hands are a phone call or an e-mail message away. The FCTLA exists to make connections among our members. USE IT!
 
A SEAT ON THE BENCH
By Jami Oliver, Esq.
 
With the November election just around the corner, our electorate will not only be selecting a President of the United States, but Important judicial seats are also up for grabs. Judges affect our lives and the lives of our clients every day of our practice. So, it is important for you and your clients to know who is on the ballot and their prior experience. The following is a summary of the backgrounds of those candidates seeking judicial positions in contested races in Franklin County this fall.
 
Common Pleas Court:
 
Jennifer Brunner. Jennifer Brunner is running as a candidate for Judge James O'Grady's spot on the Franklin County Common Pleas bench. Brunner has been in the private practice of law for 13 of her 17 years. She has extensive litigation experience in the common pleas courts and courts of appeals throughout Ohio. Brunner's private practice has consisted largely of administrative appeals and election law. Thus, her court experience is largely a product of her administrative and government appeals practice, with 16 reported cases in Ohio and 10 unreported cases. Brunner is a graduate of Miami University and the Capital University Law School.
 
Brunner's opponent is Judge John Bender. Judge Bender was appointed to the Franklin County Common Pleas court bench in April of 2000. Prior to that, he served 12 years as a municipal court judge in Bucyrus. Throughout his career, Judge Bender has presided over 400 jury trials and 1,000 bench trials. Judge Bender spent 19 years in the courtroom, partly in the military where he was the chief prosecutor in Germany and was certified as a military judge. He spent several years in private practice handling both domestic relations cases and various civil litigation cases. Judge Bender has spent 20 years on the editorial board of the Ohio Jury Instruction Committee and serves as an instructor for the Ohio Judicial College.
 
Domestic Relations (1):
Harland Hale is a candidate for a seat on the Domestic Relations bench In Franklin County. Hale is a graduate of Otterbein College and Toledo Law School. He served as Chief of the Child Support Enforcement Section of the prosecutor's office in the 1980s and tried 30 to 40 domestic trials during that period. The following 13 years of Hale's career has been in the civil division of the Franklin County Prosecutor's Office. He has tried over 200 cases, representing the Sheriff's office and other county officials, including 30 to 40 civil rights cases, over 100 eminent domain cases, numerous business disputes, and 20 to 30 felony cases.
 
Hale's opponent, Carol Squire, has devoted about 75% of her practice as a sole practitioner to matters involving delinquency, abuse, neglect and dependency of juveniles. She has some experience with the domestic relations side of the practice, particularly custody-only and dissolutions, although her primary area of focus has been on juvenile matters. She spent a year and a half working for the Ohio Crime Victim Section of the Attorney General's office where she presented issues to the Supreme Court on behalf of the Attorney General.
 
Domestic Relations (2):
 
Judge James Mason is also a candidate for the Franklin County Domestic Relations Court. The highlights of his background are that he practiced law for over 23 years, has been an adjunct professor of law at Capital University Law School and Graduate Center, a state representative for the 25th Ohio House District, and a member of the Ohio Child Support Guidelines Advisory Commission, the Advisory Council for the Center for the Prevention of Family and Community Violence and the Ohio Supreme Court Domestic Relations Violence Task Force. Judge Mason served as a Judge on the 10th District Court of Appeals before his appointment to the domestic relations bench in January of 1999. Though he has only been on the bench 19 months, he was recently rated by a Columbus Monthly poll of attorneys as the highest-ranking judge on the domestic relations bench.
 
Judge Mason's opponent, Blythe Bethel, first worked as a trial associate for Schwartz, Kelm, Warren & Ramirez in 1983. In 1989 she become of-counsel in the trial department of Schottenstein, Zox & Dunn. It was in 1994 that Bethel dedicated her practice almost exclusively to family and juvenile court matters. Since then, she has been involved in over 140 cases filed in the Franklin County Domestic Relations Court.
 
THE WAR AGAINST "DUI" IS IN ITS 18TH YEAR
By Brad Koffel, Esq.
 
The Ohio General Assembly continues its assault on DUI creating even more confusing legislation and harsher penalties based upon suspect scientific evidence. Effective May 17, 2000, a mandatory jail sentence will be imposed for any DUI offenders who register a BAC over .170% by breath and blood and .238% by urine. In essence, there are now several BAC limits: "Regular DUI": .100% for breath and blood and .140% for urine; and the "Super DUI" .170% for breath and blood, and .238% for urine.
 
For historical purposes, it all started on March 16, 1983, the day S.B. 432 became law. DUI was no longer just another traffic offense. There were three significant changes: testing over the legal limit became a separate offense; license suspensions were "on-the-spot"; and, enhanced penalties for multiple offenders were triggered. Simultaneously, on the national level, federal grants were buried in highway legislation, task forces were created to curb drunk driving, and through the noble efforts of MADD, public awareness was aroused. By the end of the 1980's, empirical data suggested that the new laws were not curbing drunk driving. The answer was even tougher legislation. On July 25, 1990, juvenile motorists and commercial truck drivers received lower legal limits. DUI penalties became stiffer once again. Only three years passed before more change was needed. Adopting the tactics of the federal government on its war against drugs, Ohio passed legislation in 1993 authorizing pre-trial seizure of vehicles and license plates as well as forfeiture of vehicles in the most serious DUI cases. Three years later, in 1996, Ohio joined several other states in elevating a 4th offense DUI to the felony level (currently 4th conviction within the last 6 years). The 1996 legislation expanded the "look back" period from 5 years to 6 years thereby widening the net for "repeat offenders". "Out-of-state" DUI convictions and juvenile adjudications were specifically included and counted as "prior convictions" if they occurred within with six years of the instant offense. The fifth major enhancement in 18 years became effective on May 17, 2000. The worst drunk driver can now be sentenced to 5 years in prison as a 3rd degree felony. Perhaps the most important piece of information all attorneys should be aware is the fact that a 1st offender can now face a mandatory jail sentence. A new legal limit ("Super Drunk") is among us: 170% measured by breath or blood or .238% measured by urine. As the following chart illustrates, having a concentration of alcohol in excess of the new legal limit will trigger a mandatory jail term based upon the defendant's prior DUI conviction record. 1st Offense DUI Mandatory 6 days in Jail: (3 days can be served at an Alcohol Program, but the other 3 must be incarceration) 2nd Offense DUI Mandatory 20 days in Jail 3rd Offense DUI Mandatory 60 days in Jail 4th Offense DUI Mandatory 120 days in Jail
 
The above references a 6-year look back period (i.e. a 1st offense DUI within the past 6 years calculated date of conviction to date of offense). Gone are the days of pleading to the DUI on a 1st offense and receiving the 3 day program if the defendant tested over .170%. It is incumbent upon every attorney who may handle a DUI to be acutely aware of the dramatic sentencing change in Ohio's DUI law. Also, every attorney who needs to refer a client, friend, or family member needs to at least be aware of this mandatory jail element of sentencing when referring the individual.
 
STRATEGIES TO AVOID THE MANDATORY JAIL TERM: Offer to plead to the "Impaired" Section of the applicable DUI code (i.e. O.R.C. 4511.19(A)(1) for a dismissal of the charge triggering the mandatory jail. Suggest that the prosecutor amend the code section to another DUI code section not triggering the mandatory jail. For a reluctant prosecutor, see if the judge will only sentence your client on the "Impaired" section if your client must plead to both the "Impaired" and the "Super Per Se" section. For example, Ohio law only permits a DUI defendant to be sentenced on one of the DUI subsections. If the prosecutor is unwilling to dismiss the "Super Per Se" and you must plead to both subsections, see if the judge will sentence on the "Impaired" leaving the "Super Per Se" as an Allied Offense. Was the defendant charged under the correct DUI subsection? The new Revised Code sections are R.C. 4511.19(A)(5), (6), and (7) (blood, breath, and urine respectively). Enter a "Not Guilty" and challenge the admissibility of the blood, breath, or urine test by filing and succeeding on applicable Motions to Suppress. Also, on June 8, 2000, a 3rd offense DUI conviction (within the previous 6 years) will result in a mandatory forfeiture of the vehicle the defendant was driving. This does include vehicles driven by the defendant owned by another person! The old law only required a 180-day immobilization of the vehicle. Now that vehicle is to be forfeited to the State. However, this new law has many constitutional problems that may prevent the forfeiture (i.e. Proper Notice to the Owner, A Timely and Meaningful Hearing, possible defenses for Innocent Owners) There are numerous constitutional problems with Ohio's current statutory framework for DUI. For example, despite known problems with the general reliability of breath test machines, Ohio trial attorneys cannot introduce evidence of these problems to a jury due to the Ohio Supreme Court decision of State v. Vega. (1984), 12 Ohio St. 3d 185. Now that 1st offenders are facing mandatory jail terms based upon the single reading of an imperfect machine, this 16-year-old Ohio Supreme Court case smacks of due process problems. Just as alarming is the fact that a vehicle will be forfeited to the State on a 3rd offense DUI conviction within 6 years even if the vehicle belongs to someone other than the defendant and the owner had no knowledge of the defendant's driving record.
 
How far will Ohio go in criminalizing DUI in order to be effective? Each new piece of legislation is tougher than its predecessor yet have we produced the societal dividends sought after 18 years ago? As the DUI net continues to get larger and larger, the safeguards for insuring fairness in the courts shrink. As trial attorneys we are charged with the responsibility of protecting the rights of individuals against unfettered growth of legislation. We cannot deny the need for deterrence and punishment; however, it should not come at the expense of fairness and due process.
 
The erosion of constitutional protections has picked up speed just in the past 10 years. We can be stopped by a police officer based upon an uncorroborated anonymous tip (Maumee v. Weisner (1999), 87 Ohio St. 3d 295); we can be detained at police checkpoints for no reason (Michigan v. Sitz (1990), 496 U.S. 444); an officer can stop us merely for choosing to turn and not go through the checkpoint (Coffman v. State, 759 S.W.2d 573 (Ark. App. 1988)); Snyder v. State, 538 N.E.2d 961 (Ind. App. 1989)); State v. Hester, 584 A.2d 256 (N.J. Super. 1990)); we can be stopped for "weaving within our lane" even if we never even cross the lane markers, (State v. Farley (Feb. 11, 1994), Lake App. No. 93-L-078, unreported); we don't have the right to call an attorney to discuss whether or not to take a breath test despite being under arrest and advised of our right to an attorney (Fairborn v. Mattachione (1996), 72 Ohio St.3d 345); we can be convicted of DUI if we decided to pull into a parking lot and "sleep it off even with the keys in our pocket (State v. Reynolds (May 26, 1994), Delaware App. No. 93CAC11040, unreported); police officers don't have to follow their training manual when instructing a motorist to do field sobriety tests, however, the motorist will be arrested if he/she does not perform the test in accordance with the training manual (State v.Homan (May 14, 1999), Erie App. No. E-97-100, pending before the Ohio Supreme Court) Where are we headed? It is a very easy thing to devise good laws; the difficulty is making them effective, fair and constitutional.
 
THE ETHICS OF MANN - OPINION AND ANALYSIS
By William C. Mann, Esq.
 
On June 1, 2000 The Supreme Court of Ohio's Board of Commissioners on Grievances and Discipline issued two non-binding advisory opinions of interest to trial lawyers.
 
The first, Opinion 2000-2, deals with one of the problems created by liability insurance carrier's insistence that the defense lawyers submit their legal bills to outside, or third party auditing companies. These companies claim to review the bills to determine if the work done and the amounts charged by defense counsel are appropriate.
 
Opinion 2000-2 states that a defense attorney, hired by a liability insurance company, must have her client's (that is, the defendant's) informed consent before submitting her detailed legal bills to an outside auditing company. That is because the submission of such information breaches the attorney-client privilege.
 
Such a breach may well constitute a wavier of that privilege. Therefore, plaintiffs' counsel may want to learn whether defense counsel has submitted her bills to an outside auditing agency. If she has, it may constitute a wavier of the attorney-client privilege, thereby enabling plaintiff's counsel to obtain and review defense counsel's file, or at least those parts generated by billable hours.
 
Before you become too excited about the prospect of pouring over defense counsel's file, remember the golden rule of litigation: he who has the gold usually makes the rules. The insurance industry has enormous wealth and therefore tremendous political influence. The industry can intimidate a good many judges faster than you can say, "Campaign contribution". So don't expect every member of the judiciary to implement the legal philosophy articulated by Opinion 2000-2. Still, in the right case ***.
 
The Board's second recent pronouncement, of interest to trial lawyers, is Opinion 2000-3. It states that it is unethical for an insurance defense attorney to abide by an insurance company's guidelines in the representation of an insured (the lawyer's client) when the guidelines directly interfere with the lawyer's independent professional judgment on behalf of her client. If other words, it is unethical for an insurance defense lawyer to allow an insurance carrier to instruct her to take action, or to avoid taking action, when she does not believe that the carrier's instructions are in her client's best interests. The lawyer, not the insurance company, must direct the conduct of the litigation.
 
As we all know, some insurance companies simply instruct defense counsel to denounce the plaintiff, and deny and delay his highly legitimate claim. According to the Board, these stonewalling tactics are now unethical unless, in the lawyer's independent professional judgment, they are in her client's best interests.
 
Whenever a plaintiff's lawyer has a reasonable, good faith belief that defense counsel has surrendered control of the defense to the insurance carrier, he may want to write to defense counsel and politely remind her of her ethical obligations. In egregious cases, plaintiff's counsel may need to report the defense lawyer to the disciplinary authorities. See Disciplinary Rule 1-103, which says that a lawyer possessing unprivileged knowledge of unethical conduct shall report it to Disciplinary Counsel, or to a Certified Grievance Committee.
 
Always exercise good judgment and common sense before accusing another lawyer of unethical conduct. The insurance industry spends considerable time mindlessly denouncing its opposition. It would be unseemly for trial lawyers to do likewise. But in appropriate cases, the trial lawyer has an obligation to take action.
 
Jump Starting Voir Dire
By Timothy J. Boone, Esq.
 
The Question: I have trouble getting the jury to talk to me. So, how do I get the jury to open up, particularly during the initial stages of the voir dire process?
 
Well, first of all, I would not recommend you start off with any of following:
 
"Lady's and gentleman. 'Voir Dire' is a French phrase meaning 'to speak the truth'."
 
That really warms the hearts of the prospective jurors, since you have now suggested that each of them is about to lie to you if you had not told them this archaic definition.
 
"I am going to ask you some personal questions. Please don't be offended by these questions, because they are simply intended to elicit information about your competency to serve as a juror on this case."
 
Now this is always a crowd pleaser! I remember once asking a blind date a personal question in the first ten minutes and almost got my head knocked off. So how defensive do you think total strangers on the jury will be? Their "guard" just went way up.
 
"The process of voir dire is to flush out the prejudices you may hold regarding either my client or her case."
 
Now that one is no help either. Of course, that's what you are trying to do, but you can't tell them that. No one thinks they have any prejudices or biases. So telling them they are biased will cause you to learn nothing, or less.
 
"By the time we end this case I will be asking you to award my client $250,000. If the proof supports that amount, do you believe you can make such an award to fairly compensate my client?"
 
This one has all kinds of problems, including the fact you didn't call your client by name. However, if this kind of statement is made too early in voir dire, before the jury has any understanding of the facts supporting liability or damages, they will reject the amount, and assume that you are just one of those money grubbing attorneys they have read about in the newspapers.
 
Years ago lawyers in small communities knew the cultural base and biases of their jurors without asking too many questions. Today, particularly in this urban society, that is not possible. Therefore, the ideal voir dire becomes a looking glass into a juror's value system. Once you acquire that insight you can then de-select the least favorable jurors. So let's see how we might accomplish this goal of detecting the "real juror".
 
The Answer:
 
You know when I grew up in the agrarian west central part of Ohio, I thought only cows got "hoof 'n mouth" disease. Based upon my observations, trial lawyers must hang around cattle too much, because frequently they acquire "foot-in-mouth" disease right in front of the jury before the case begins. The symptoms of this trial lawyer disease are easy to recognize - the attorney is talking too much and the jury is listening. Instead, voir dire should be a time to get the jury to sit back, relax, let their guard down a little and talk to you. Until they relax somewhat, you will never get them to start communicating what they really think and believe about your case. Thus, voir dire ought to be a time for the jury to talk to you, not vice versa.
 
To accomplish the goal of open, sincere and frank communication you first have to put your questions in some context. Either draft a short paragraph describing the case and ask the trial judge to read it to the jury before questioning begins, or be prepared to make the statement yourself, by saying, "Before we begin, let me tell you a little about this case." The jury needs to know why you are asking your questions. So, give them some background information. Also, give the opposing counsel a copy and ask for any editorial comments in advance.
 
This statement should be factually neutral. You don't want the judge to think you are arguing your case in voir dire and you don't need the opposing counsel to object that early in the proceeding. Give the jury the essence of the case without embellishments or fanfare. The prospective jurors need to know what happened, when and where, and the results of those events. Leave the argumentative words for later in the case.
 
Secondly, stay at least ten feet from the front edge of the jury box during voir dire. People who are strangers get very anxious if you encroach upon their "personal space" [approximately three to five feet in a social setting] before they get to know you. So stay back! You can test this at the next party or gathering you go to by walking up to a stranger to engage in conversation and see how close you can get before she/he backs up. [Caution: Please test this on someone who has not been drinking alcohol, since his or her depth perception will otherwise already be impaired.] Since a courtroom is a far cry from a social gathering, you need to be further back.
 
Thirdly, get out from behind the podium. How can you ask a juror to open up to you and expose her or his inner most feelings, when you stand there protected from insult and injury by a two hundred pound five-foot tall wooden monolith. You must be willing to show your vulnerability to receiving their answers and in order to ask them what they are thinking and why they feel that way.
 
Lastly think of yourself in voir dire as the "warm up act" for the main event. Why do new comedians go on stage first before the star? Answer - so that the star does not have to spend half the act getting to the point where the audience begins to respond to him. I have the following suggestion to "warm up" the jury to the tough questions that will follow later in voir dire.
 
I suggest that you can gain useful information about each member of the jury and get him or her to relax and start talking with you if you ask:
 
"How many of you would rather be somewhere else other than serving on jury duty or being in court today?"
[Note: I even raise my own hand in answer to this question, as I do anytime during voir dire when my own answer personally qualifies.]
 
At first the jurors will not know whether you really want them to answer. So quickly be the first volunteer and say, "Well, I know that if I weren't here, I'd rather be __________." It is particularly important to pick something personal to fill in the blank, e.g., "I'd be at the park playing with my grand children." or "I'd be at my favorite spot fly fishing." or "I would rather be riding a horse, because the outside of a horse is good for the inside of a person."By volunteering your own answer, you not only show you really did want a response, but you also set an example of the kind of answers you expect from them. Please do not tell them you would be back in the office preparing for the next case. That will not encourage the kind of responses you want from the jurors. Let them know through your answer, that you "have a life" outside law, and are proud of it, i.e., you are just like them.
 
A jury trial is serious business and each prospective juror comes to these duties with this perspective in mind. Also, the formal solemn atmosphere of a courtroom does not lend well to easy flow of communications. Though you need to keep the tone of seriousness, you also need to break down some of the inhibitions and barriers to personal communications this creates.
 
After volunteering your own answer, now you can ask individual jurors what they would rather be doing. Encourage them to be totally candid. Let them know that it is all right to share "this little secret" with all of us - "We promise not to tell anyone." The effect is that the question is not so personal that the jurors will be offended, and yet you will likely learn what is the most important thing in their life and something about their value system. Some will say they would be working. Don't scoff at that, but do respond by saying, "That's great, but if you weren't working, what would you rather be doing?"
 
I have found that by following this process, I engage in early conversation with each juror, learn valuable insights into their personality, and learn their names quickly for later use. Everyone likes being called by their name, and this helps reinforce their names in my mind because I'm talking with them.
 
Of course, do not just go from juror to juror asking this same question. Instead, depending upon the answer, use it as a follow up to a real issue you want to raise in voir dire. Even go back to the jury as a whole to ask one of your primary questions to the group, before asking the next juror what "they would rather be doing."
 
Try this approach in your next jury trial and see if you don't build rapport faster and learn more useful information. The jury will thank you for not "hitting them over the head" with big issues so quickly, and yet you will not waste this valuable opportunity by doing all the talking. I know as a plaintiff's lawyer, which requires you to go first, you're nervous too - but stop talking, start listening and ask them about what they believe and think.
 
NEW COMMON PLEAS COURT FILING FEES AND PROCEDURES
 
All civil trial lawyers will soon find out that effective August 1, 2000, the filing fees for civil cases in the Franklin County Court of Common Pleas have changed dramatically. By way of example, filing a new tort action will now cost $225.00. To review in detail the new fee schedule, copy the following site to your browser:
 
http://www.franklincountyclerk.com/9b_NewFees.html
 
There is also a new "Civil Case Information" form that the clerk is encouraging us to use. You can find and download that form at:
 
http://www.franklincountyclerk.com/pdf/Civil/Civil%20Case.pdf
 
New Format and Delivery of FCTLA's Quarterly Comment
 
As you can see there is an entirely new format to our Quarterly Comment. As a step into the new millennium, to take advantage of the computer revolution and to save money on printing and postage, our quarterly newsletter will now primarily be delivered via e-mail, instead of "snail mail" [as Judge Bessey kindly refers to the postal service]. Those of you who do not have an e-mail address can still receive a printed copy. However, we strongly encourage you to pass along your new e-mail address as soon as you acquire it. If you have not yet provided your e-mail address to FCTLA, please do so TODAY! Just send your address to tking@craiggroup.com and our executive director will add you to our list.
 
As we develop this project during this year, we would appreciate any comments or suggestions that you may have. So feel free to send your thoughts to Timothy J. Boone, Editor at: cowboy@lawyer4u.com. We may not be able to accommodate all your thoughts, but we will certainly give due consideration to every one of them.
 
The Honorable Timothy Black, Candidate for the Ohio Supreme Court, to Speak at FCTLA's September Meeting
 
As we all know, the November Ohio Supreme Court judicial races are hotly contested. One of the candidates, The Honorable Timothy Black of the Hamilton County Municipal Court, will be the guest speaker at the FCTLA's dinner meeting on Tuesday, September 19, 2000 at 5:00 p.m. at the Columbus Athletic Club.
 
The Ohio Democratic Party, OATL, and numerous other organizations have endorsed Judge Black. Members, and their quests, are encouraged to attend the dinner meeting and gain first hand insight into one of the candidates.
 
Judge Black received his A.B. from Harvard University in 1975 and his law degree from Chase College of Law in 1983. Prior to serving his community on the bench, he was a trial lawyer for 10 years with a prestigious Cincinnati law firm.
 
Recognized as a leader throughout the state on preventing family violence, he founded the Domestic Violence Coordinating Council that is dedicated to reducing domestic violence in Ohio. He has also served as vice president of Pro-Kids (an organization that represents abused and neglected children in the court system) and president of Invest in Neighborhoods (an organization of city neighborhood councils). He is also a member of many other civic and professional organizations.
 
Don't miss this opportunity to hear and ask questions of a person who has the opportunity to guide and impact Supreme Court judicial decisions for the next six years. Call 228-1017 to make your reservation.
 
FCTLA Committee Reports
 
Negligence Law Committee Report
By Glen R. Pritchard, Chair
 
Questions still linger about set-off in underinsured motorist claims. Consider the automobile crash in which Berry was killed. The tortfeasor had $50,000 in auto liability coverage. From that amount, Berry's seven surviving family members each received approximately $3200 after payment of funeral expenses and attorney fees. Berry was covered under his parent's auto policy that has UDM limits of $25,000 per accident. Is there any underinsured motorist coverage?
 
Probably all insurance carriers would have you believe that no coverage exists because the tortfeasor's liability limits exceeds the $25,000 UDM limits. Not so holds the Second District Court of Appeals in Berry v. Przyborowski (Nov. 19, 1999), Miami App. No. 99-CA-21, unreported. "R.C. 3937.18 does not preclude recovery merely because the insured's limits are identical to the tortfeasor's limits when, due to multiple claimants, the insured is unable to recover the tortfeasor's limits." The Court concluded that UDM coverage should be reduced by the amount received by all "insureds" under the policy, but not by the amount received by next-of-kin who were not "insureds".
 
The Twelfth District Court of Appeals reached exactly the opposite result in Littrell v. Wigglesworth (March 13, 2000), Butler App. Nos. CA99-05-092, CA99-08-141, unreported. The Littrell court held that no underinsured motorist coverage exists when the tortfeasor's policy limit equals or exceeds the UDM policy regardless of how many claimants must compete for the liability proceeds.
 
An answer to these confounding set-off questions may be on the horizon. On August 2, 2000, the Ohio Supreme Court accepted jurisdiction to hear Wigglesworth on a conflict with Berry. The Court also accepted Stickney v. State Farm (Oct. 19, 1998), Richland App. No. 98 CA 7, unreported, and Karr v. Borchardt (Dec. 24, 1998), Seneca App. No. 13-98-36, unreported. Briefing and argument of Stickney and Karr are stayed pending a decision in Wigglesworth.
 
Please visit the new website of the
Franklin County Trial Lawyers
www.fctla.org
It has links to other useful websites and the current calendar of events for 2000-2001.
Your suggestions to make it more useful are welcome. Please send an e-mail to us at
tking@craiggroup.com
We look forward to hearing from you and seeing you at the dinner meetings and the "members only" seminars. If you want to e-mail a question or raise an issue to the entire list of members of FCTLA then send the e-mail to: fctla@craiggroup.com
 

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HOT ECONOMY COOLS OFF - PART 2 OF 2
Bankruptcies on the rise and likely to continue
 
Sunday, February 4, 2001
NEWS 01A
 
By By Paul Souhrada
Dispatch Business Reporter
 
The first cracks in the seemingly unsinkable U.S. economy appeared months before the recent reports of layoffs and financial difficulties at LTV Steel, DaimlerChrysler, Navistar and other corporate giants.
 
Bankruptcy lawyers say they watched the fissures form -- and they see them growing only larger.
 
"There's been a huge increase in filings in the last three months," said Victoria Powers, an attorney with Schottenstein, Zox & Dunn in Columbus. "Most bankruptcy lawyers I know are expecting to have a relatively big year."
 
Figures from the U.S. Bankruptcy Court in Columbus -- which handles cases for 30 counties in central and southeastern Ohio -- show a slight uptick in the number of bankruptcy filings: 11,965 last year vs. 11,910 in 1999.
 
In recent years, Columbus lawyer Mark Jump has noticed a new kind of debtor.
 
His typical case, he said, now involves a couple in their early 30s -- "both working, kids, a couple of cars, and they're in over their head in credit-card debt."
 
"They have income -- just too much debt," said Jump of Koffel & Jump, which expects to handle as many as 1,000 Chapter 13 cases this year.
 
Initially, he said, the couple might feel flush with their good-paying jobs and the rising value of their stock portfolio and are handling their finances. Then one of them loses a job or the family is hit with a big medical bill, and they miss a couple of mortgage payments.
 
Suddenly, he said, they're facing foreclosure.
 
"A lot of middle America has no savings," he said. "So anything goes wrong . . . things get out of whack pretty quick."
 
Nationally, bankruptcies had been on the decline at least through Sept. 30 (the latest month for which figures are available), but the American Bankruptcy Institute expects that to change.
 
"I think we can safely predict at least a 10 percent rise in filings during 2001," said Samuel Gerdano, the group's executive director. "Most bankruptcy law firms are expecting an increase in business filings and are adding lawyers and other staff in anticipation."
 
The bulk of the Columbus court's cases continue to involve Chapter 7 protection -- which allows an individual or business to wipe out debts entirely after most assets are sold to pay back as much as possible. The 8,874 filings last year, though, represented a decrease from 1999.
 
Chapter 13 cases, which require individuals to pay back creditors based on a court-approved plan, grew to 3,058 last year, continuing a steady climb that began in the mid-1990s.
 
Prodded by the banking and credit-card industries, lawmakers have been trying to make it tougher for people to seek bankruptcy protection, particularly Chapter 7 filings. Some of the changes would force more people into Chapter 13 and require them to repay more to creditors.
 
Congress passed a bankruptcy-reform law last year, but President Clinton vetoed it. Supporters of the changes reintroduced the legislation Wednesday and, with President Bush now in the White House, seem confident of its passage.
 
Central Ohio has been somewhat insulated from the increase in business bankruptcies, said Powers, who works mostly with businesses that have sought Chapter 11 protection.
 
"It tends to go by industry," she explained, noting that the steel industry is the latest to experience trouble, with the furniture industry suffering the most.
 
Powers handled the White's Fine Furniture bankruptcy last year, when the Columbus-based retailer closed after 55 years in business. West Carrollton-based Roberds also went out of business last year, closing 15 furniture and appliance stores.
 
The rising number of Chapter 13 cases, she says, can be attributed in part to the past decade of economic growth.
 
"These (cases) might otherwise be Chapter 7's," she said. "People have a better chance of repaying their debts in good economic times."
 
A person seeking to file for bankruptcy can choose the type of protection, but a judge has the power to force a filer into Chapter 13 instead of Chapter 7.
 
Jump and some other bankruptcy lawyers say credit-card companies should share the blame for the growing problem.
 
"I think it's mutual irresponsibility," Jump said. "It's irresponsible lending and irresponsible borrowing. The two don't go together too well."
 
A.C. Strip, a partner in Strip, Fargo, Hoppers & Leithart in Columbus, thinks the credit companies deserve more of the blame.
 
"The No. 1 problem is the profusion of credit cards and the ease by which people get them," he said.
 
He cited one client, an elderly women living on a $900-a-month Social Security check, who racked up $25,000 on eight or nine credit cards. While Strip was writing the companies that his client would not be making any more payments, she received another solicitation in the mail for a pre-approved card with a $10,000 limit -- from an existing creditor.
 
"She can't pay the bills she's got, and they're offering her more credit," an incredulous Strip said.
 
Jeff Quayle, senior vice president and general counsel at the Ohio Bankers Association, counters: "Seems like the marketing department needs to talk to the collections department better."
 
Quayle said he couldn't comment on the actions of individual members of his trade group, but he said most agree that some changes are needed in federal bankruptcy laws.
 
Encouraging more people to pay at least part of their debt is a good start, he said.
 
Blaming credit-card companies for bankruptcies, Quayle said, is like blaming automakers for drunken drivers.
 
"Credit is a tool, and it needs to be used responsibly."
psouhrad@dispatch.com
 

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LAB CHIEF RESIGNS AFTER BREATH TESTS VALIDATED
 
Saturday, February 24, 1996
NEWS LOCAL & NATIONAL 01A
 
By By James Bradshaw
Dispatch Statehouse Reporter
 
The State Highway Patrol's breath tests for drunken driving are back, and the laboratory director who brought their validity into question is gone.
 
Leonard J. Porter, chief of biochemistry and toxicology for the Ohio Department of Health, submitted his resignation yesterday, effective at the end of the day.
 
''His stated reason is that he's retiring,'' department spokesman Randy Hertzer said. ''He's been with the department 28 years.''
 
Columbus defense attorney Brad Koffel, however, said Porter's departure raises more questions.
 
''I don't see how that resolves anything,'' he said.
 
Porter's original memo shows problems in the process, Koffel said. He said he will continue challenging the tests and the department's procedures for determining their reliability.
 
Porter resigned within hours of an announcement by Health Director Peter Somani that the accuracy of solutions used to test the breath machines was confirmed in independent tests by chief toxicologists for Franklin and Cuyahoga counties.
 
A Jan. 29 memo from Porter to prosecutors and law enforcement agencies prompted the patrol and several police agencies on Feb. 8 to suspend the use of breath tests. The department subsequently characterized the memo as ''confusing.''
 
The patrol reinstituted the tests yesterday with Somani's assurance that prepackaged solutions of alcohol and water provide accurate calibration of the machines.
 
Somani's announcement said Porter's ''unauthorized memo . . . miscommunicated procedures for approving and using calibration solutions.''
 
Hertzer said a hearing was held Tuesday to notify Porter that disciplinary action was being considered. Porter did not return a call for comment yesterday.
 
The calibrating solutions are prepared to produce readings on the machines of about 0.10 percent - the concentration of alcohol in the bloodstream that constitutes drunkenness under Ohio law.
 
Somani said reviews by Dr. James Ferguson of the Franklin County Coroner's Office and Dr. Craig Sutheimer of the Cuyahoga County Coroner's Office determined that all 19 batches of the solutions used in Ohio the past three years were properly approved.
 
Sgt. John Born, spokesman for the patrol, said the breath machines allow troopers to complete investigations sooner and issue on-the-spot license suspensions for those who fail or refuse tests.
 
While breath tests were suspended, the patrol determined blood-alcohol levels through urine or blood tests, which require about a week to process. Breath test results are immediate.
 
''We're able to basically complete our case investigation that night,'' Born said.
 
He said the patrol arrested 25,108 drivers last year on charges of drunken driving; 7,388 cases are pending.
 
''A number of those cases obviously could have been affected if they had not gone back and checked that the solutions were properly certified,'' he said.
 
Rob Levering, first assistant city prosecutor for Columbus, said Somani's announcement restores faith in the test results.
 
''It looks like the Department of Health was doing everything right all along,'' he said.
 

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LARGE CASH VERDICTS HELP RIGHT WRONGS
 
Saturday, October 8, 1994
EDITORIAL & COMMENT 07A
Memo: Letters to the Editor Columbus Dispatch
 
I respond to Dana C. McCue's recent letter to the editor, which was headlined, ''Juries can be swayed by an emotional appeal.'' By the contents of the letter, it is safe to assume that McCue at least attended law school. It is unfortunate one as presumably educated as McCue has fallen prey to the insurance industry's billion-dollar propaganda machine and assumes that juries of our peers unconsciously dole out multimillion-dollar verdicts.
 
Obviously McCue either has forgotten or never learned that the right to trial by jury is one of the single-most important rights existing in the Free World. Large verdicts are not the result of an impassioned jury. They are the result of significant wrongs that have befallen innocent people. Period.
 
McCue's statement, ''Even this professor must be shocked by the jury verdicts announced in our courtrooms,'' exemplifies McCue's unfortunate lack of knowledge about jury-trial procedure. Perhaps the jury was ''shocked'' by the 3-year-old girl who is now a spasti