Lawyer Gal's Blog

A Young Lawyer's Perspective

Can you get a DUI for sleeping in your vehicle?

In criminal law, I’ve noticed a lot of misconceptions from the general public.  I sincerely hope that these articles help to debunk some of those legal myths.  Here are a few that come to the top of my head, which I will discuss in more details down the road:

1. murders and rapists get out in a few years.  WRONG!  Rape and murder are severe felonies that carry a mandatory prison sentence.  Judges must follow the statute and sentence the offenders accordingly.

2.  the victim always remembers the defendant’s face. WRONG!  Eye witness identification is highly faulty and is the basis of many wrongful convictions.

3.  people convicted of possessing child porn are pedophiles.  WRONG!  Possession does not mean creation of the material. Many possessors have never had any illicit contact with kids.

4. defense attorneys are money hungry, scum of the earth.  LOL maybe!  No, really – you will think differently when you need one.

But the subject of this article is one myth that I’ve heard on countless occasions.  So let me answer it for you – I think it is very practical and helpful to know.

In criminal law, each crime has “elements” that must be satisfied.  Every element must be satisfied.  Therefore, if one element is lacking, then the prosecution cannot prove the case.  Simple as that!  A DUI, actually called an OVI in Ohio, requires the following if it involves alcohol:

1. operation;

2.  .08% alcohol in system as determined by blood, urine or breath.

Pretty simple, really.  Operation is one element that can be attacked by defense attorneys and produce fruitful results.  A couple of years ago when I first started working for a defense attorney, I spent an entire day reading case law on what exactly constitutes “operation.”  The issues was: can you operate a vehicle that is malfunctioning? As you can imagine, there aren’t many cases where a drunk dude tries to start a vehicle without an engine.  [That would be a pretty fun argument though! ]  Most cases involve a drunk person who was driving, and then his car broke down.  Those cases are pretty rare…but a state can win on a theory that operation doesn’t have to be present ambulation, especially if there is evidence that the person had driven.

Police officers and prosecutors had a lot of trouble “diagnosing” the cases where a drunk motorist was found asleep at the wheel, often with the heat or AC running.  The General Assembly passed a gap-filling law called “Physical Control.”  Basically, this requires

1. driver is in front seat, with control of keys.

2. .08+

Ok, so now that I’ve given some background on DUI elements, lets apply them to different scenarios.

1.  A drunk dude is found sleeping in his running car on the side of a highway.  Chances are, he’ll be hit with a DUI because there is good evidence he drove there.

2.  A drunk guy is found at a bar parking lot with his car running.  The state might charge a DUI, but I seriously doubt it would win at trial, especially not in Cuyahoga County.  The 8th Appellate District is very strict: unless there is evidence of movement, then it is physical control, not DUI.

3. A drunk dude is found passed out in the front seat of his car at a bar parking lot, keys in his hand.  Under a strict statutory interpretation, he could be charged with physical control – all that is required is control of keys.

4. Id on the facts, but this time, keys are back seat, driver in front.  Although he might be charged with physical control, his car will be impounded and he’ll have to hire an attorney, I highly doubt any court would take such a broad interpretation of “control” to include this fact pattern.

5.  Drunk dude is in back seat, car is off.  Keys are nearby.  No physical control, because he isn’t in front seat.  Again, I’m not completely confident that cops would know the subtle nuances of the law, so I would advise people who sleep in their backseat to print off a copy of ORC 4511.94 and keep it in the glove box.  Even though there is no way you’d get convicted of a physical control violation, it would still be a pain to have your car impounded.

6. This one is a toughy: person has vehicle on in bar lot, no evidence of moving, and is sleeping in back seat.  I think he could be charged with physical control, because there is evidence that he was in the front seat at one point, even leaning in.

So, in summary: sleeping it off is GOOD.  You won’t break the law if you are in the back or passenger seat and your vehicle is off.

Also in summary: sleeping it off is GOOD so long as you don’t hurl all over your car.  

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May 13, 2010 Posted by | Uncategorized | Leave a comment

A joint, a Jeep, and a guileless General Assembly

I’ve briefly skimmed lawyer’s blogs.  Note that I have never actually read a lawyer’s blog.  And I am not the type of person that under books on facebook says “I don’t read.”  Indeed, reading can be a highly pleasurable endeavor.  But I have yet to reach the pedantic snobbery that seems so synonymous with blogs penned by people with advanced degrees.  After all, anyone that openly admits to using Wiki to understand many an esoteric legal term or someone that eschews a commercial Bar prep course [hey, i saved $3 grand!] can’t possibly have any academic prowess, right?

Whether I graduated from Akron or Case, first or last, on law review or not, has no bearing on one simple tenet that seems to so frequently elude legal professionals:  people don’t care about statutes, cases or legislative material.  People want to know in a straight forward way how this minutia translates into their lives.  Just like when a client comes in facing criminal charges: they are scared, anxious and self-consumed.  They want to know how you will solve the problem, in simple terms, often repeated multiple times.  It is my theory that a blog should follow this model, lest it become just another “lawyer” blog.

Returning from that little foray, which actually has some bearing on the subject for today.  I am going to define the 3 terms:

-a joint is a rolled marijuana cigarette [lol not sure if this is known by all, but i assume it is]

-a jeep is a vehicle, often used by people who smoke joints

-the General Assembly is Ohio’s legislative body

-guileless= naive, artless

Ok, so how do these terms connect?  In a logical way, they absolutely don’t.  A joint has nothing to do with a Jeep; a Jeep should mean nothing to the General Assembly; and the majority of General Assembly members believe marijuana should be medicinally legal [but just lack the wherewithal to pass legislation].  Yet in its amazing mental acuity, the GA decided that it should somehow create a link to joints and jeeps [or any vehicle for that matter] through Automatic License Suspensions [herein referred to as ALS]. So, since I mentioned my adherence to straight-forward translations of legal minutia into effects on everyday life, here is an example:

A couple of young guys and gals are passing a joint in the woods at a local park. They had walked to the park.  A cop cruising around looking for this very behavior smells smoke [yes, cops will say in court that they recognize the smell of weed from “their professional training.” ehem. ya. ] The cop cites the youngins for marijuana possession.  This is a minor misdemeanor…no big deal, right?

Wrong, because when these folks go to court, the judge is going to hit them with an ALS for a minimum of 6 months.  Plus the court fine [which is usually $250].  Plus the $40 reinstatement fee.  Plus the cost of petitioning the court for driving privileges [either pay an attorney for a motion in some courts, or $15 at Stow].

It is absurd that the General Assembly gets involved with two completely unconnected things.

May 12, 2010 Posted by | Uncategorized | Leave a comment

Why are some crimes prosecuted federally while others are at the state level?

I was always baffled by this question, even in law school and while working with a big time criminal defense lawyer.  One thing I did know:  if a person gets prosecuted by the federal government, then he or she is caught on a small watercraft on Lake Erie when a storm suddenly hits.  [Lake Erie is quite shallow, and churns up dangerously, with rip-tides and all].  I’m not sure if the severity of a federal indictment comes from the prestige of the court, the lifetime appointment of judges, or the sentencing guidelines.  A federal courthouse, in my opinion, should be visited by every citizen – not only is the building incredibly aesthetically pleasing, but it has a certain grandeur about it that truly cannot be described.

When I attended a seminar on the federal courts [a lawyer has to do various additional tasks to practice in front of each federal court], an assistant U.S attorney from the Northern District of Ohio spoke.  He said the first reason, obviously, that some crimes are prosecuted by the federal government is because they are contrary to federal law.  The federal government enforces myriad laws, especially ones relating to mail fraud, firearms, taxes and drugs that cross interstate lines. Rarely, however, does a crime fall exclusively within federal jurisdiction [say, mail fraud or filing false federal income tax].  More often than not, a crime is both a violation of federal and state law.

For example:  a company targeted poor people, often the elderly and Amish, into becoming members of a discount club for $2000.  In exchange for the fee, members were promised access to manufacturers directly.  The middleman would supposedly be bypassed.  As you can imagine, none of the “contacts” to the manufacturers actually existed.  Members saved no money, yet could never obtain a refund.  After countless complaints to the Better Business Bureau, the matter was brought to the attention of the FBI [they investigate crime generally], who started investigating the company.  The OIG [Office of Inspector General] became involved too. The OIG investigates crimes related to mail.  Anyway, the salesmen were indicted by the federal government for mail fraud – because they sent false information to consumers that induced them to act.

The fact is, however, that the crime could easily have been prosecuted in state court on a pure fraud theory. After all, the scam took place in Ohio; the consumers were Ohioians.  Yet, the defendants were charged federally.  Much of this stems from the extreme nature of the crime and that it caused a lot of financial hardship.  Additionally, the investigation was complex and more suited to the federal government.  Typically, a federal investigation starts on the desk of a federal agent.  He or she must establish certain criteria before the case is brought to an assistant US attorney, who then looks at the facts, the law, resources, the nature of the offense and his professional experience in deciding whether the case should go ahead.  So, in sum,  most cases depend on: federal law [and if the case has facts that can support a federal charge, even tenuously], who investigates it [was it local police, or did the feds get involved?], and factors analyzed by the US Attorneys Office.

Like I mentioned earlier, the federal government doesn’t mess around when it opts to proceed with charges. Some of the very brightest and most talented people work in the US Attorney’s Office.  FBI agents and other agents with investigatory duties are highly trained and screened.  [Most state detectives have 600 hours in the police academy.]  Federal judges possess c.v’s that young lawyers could only dream of.  Federal courts have the very best technology.  Federal dockets carry far fewer cases than state courts; thus, each case is closely followed.  Federal sentencing guidelines have a presumption of incarceration.

Finally, Double Jeopardy is NOT violated when a defendant is prosecuted in federal court and state court.  For example: a defendant commits an armed robbery involving interstate commerce.  (The federal government can legislate under the Dormant Commerce Clause for crimes that are at first blush within the states’ powers if the activity affects interstate commerce. Well, just about every robbery of a business involves interstate commerce [goods travel across state lines.])  The defendant is convicted and sentenced per the Sentencing Guidelines.  After his sentence is served, he is transported to state custody to face state armed robbery charges.  This is perfectly constitutional.

I hope you are a little less-confused than I was when I first became involved in criminal defense.

Sarah

May 11, 2010 Posted by | Uncategorized | Leave a comment

A primer on underage drinking

There is a pervasive normative argument that drinking underage should be legal.  While this debate is venerable, it should not shade the fact that underage drinking is illegal.  And is it a misdemeanor 1, which is on par with a DUI and domestic violence.  It will cost well over $500, plus attorney fees.  With this in mind, here is some background.

-If a cop goes up to a person he suspects of underage drinking and asks the suspect for identification, the suspect has every right to decline.  Why? Simple due process principle: you don’t have to self-incriminate.  When age is an element of an offense, you don’t have to disclose it.

-The cop will likely argue that he’s gonna hit you with failure to disclose. Yes, failure to disclose if suspected of a crime is a crime itself in Ohio per R.C 2921.29(a) IF in a public place.  [So a cop comes to a house party – definitely no way he can ask for ID]. But even if an underager is in public, the statute has an exception for age as an element:

“It is not a violation of this section to refuse to answer a question that would reveal a person’s age or date of birth if age is an element of the crime that the person is suspected of committing.”

Note, though, that the exception would still require you to give your name.  Giving a false name is very bad – will get hit with another charge.

-Let’s say a person is on probation or is in a diversion program for a previous underage drinking.  And lets say that he or she has pictures on facebook holding a beer…yep, you can be hit with a probation violation. Happens all the time.

-This one is fundamental to all offenses, not just underage drinking:  if a cop asks you how much you’ve drank, and you are underage, don’t incriminate yourself.  The state has to prove you committed the offense – don’t prove it for them by talking.  Shut up, shut up, shut up!

-Lastly, a cop might tell you that you are obstructing official business or something along those lines.  I swear, this is taught as a catch all in the police academy.  But caselaw clearly states that obstructing business requires an affirmative act.  You can’t obstruct business if you do nothing [i.e, not furnishing your identification].

I hope you found this primer to be informative.  Btw, this is not to be misconstrued as the creation of atty-client relationship.  I’m just pointing out general law.

Sarah

May 9, 2010 Posted by | Uncategorized | Leave a comment

The toothless crossing guard lady at Eastwoods: why i got into law

Anyone that was a swimmer for Hudson Explorers knows about Toothless Crossing Guard Lady.  Hudson swimmers, you see, trained not at the high school, but at Eastwoods Elementary School.  Everyday after school, we’d zoom over.  We disobeyed every conceivable traffic law in our rush to not only get to the best snacks awaiting us in the pool lobby, but also to arrive before Toothless Crossing Guard Lady [herein referred to as Toothless] appeared.  You see, Eastwoods has some rule that no vehicles besides buses can enter the parking lot from 3-3:15.  If a swimmer arrived at 3:01, Toothless threw her rather rotund body in the line of your car, waiving her meager Stop sign as if it meant anything to teenagers.

Many a brave soul tried to pass her…with various techniques, including hit the gas, distraction, and pleading.  None worked…and the poor swimmer would be forced to drive 2 miles out of their way to reach the school and the butterfly set awaiting them for tardiness.  Although I was a fairly adept butterflier, there came a point where I decided to attempt a new technique…the non-turn signal one.  I drove along, never giving eye contact to her, then suddenly did a hard right into the lot.  She never saw it coming.  And then, my comrades in arms followed suit, zooming by her as she was distracted by me.  All control was lost for her on that day – which was, for Toothless, going to eat away at her soul. Otherwise, she would not have taken my license plate number [had she been sane].

That evening, when the Hudson Police officer arrived at my home, my mother was quite shocked that he asked for me.  I came out to the deck and was swiftly confronted by hostility.  He rattled off a statute, 6 month in jail warning, and hefty fines.  Looking back, I realize that he was full of threats but nothing more.  At the time, all I knew was…well, I knew nothing if not how to thwart authority.  You see, I was decidedly pro-anarchy when it came to adult figureheads.  I had the amazing ability to pretend I was doing as told..but in reality, I rarely did.

Anyway, I suppose the officer was not prepared for my counter-diatribe in which I informed him that he was on private property, that I was innocent until proven guilty, and besides, where was he when I allegedly committed the aforementioned offense? [My poor mom was horrified by my defiance.]  Nonetheless, he recognized a kernel of truth when he saw it.  The fact was, he had nothing to go on legally.  And his threats fell on deaf ears.

The moment he left, I felt triumph.  I stood up to authority – albeit obnoxiously.  I realized that if I knew more about the law, I could confront cops on a weekly, if not daily, basis. [And yes, my mom is still frequently horrified by my “disrespect” for law enforcement.]

Now, I look back on Toothless not as a completely insane, paranoid fanatic, but as the impetus that allowed me to enter a really neat profession.  For that, Toothless, I thank you.

May 9, 2010 Posted by | Uncategorized | Leave a comment

Welcome to my blog!

Hello!  My name is Sarah Hulburt, and I am an attorney licensed in Ohio and the District Court for the Northern District of Ohio.  Criminal law is my primary focus and passion, but I also assist clients with Chapter 7 Bankruptcy and family law matters.  My goal with this blog is to inform people about valuable rights that the government frequently erodes; to create an open forum for discussion; and to allow viewers to see an attorney in a more personal light [we *can* be fun!]

I encourage people to comment, add interesting links [including completely irrelevant but awesome youtube videos] and to interact with me!

Below, you will notice a depiction of Lady Justice.  She is pretty darn amazing…she looks like she could do some serious damage if anyone crossed her [especially with that sword!]  But my favorite part is her blindfold.  It appears as if she is Xena warrior princess that could kick butt even without use of one of the 5 senses.  Yet it also symbolizes a fundamental tenet that criminal defense attorneys hold dear: justice is blind to race, creed, gender and socioeconomic status.

Indeed, many people doubt that justice is blind.  But I myself  see Lady Justice as an iconoclast debunking popular rhetoric;  attacking settled beliefs; and adorning the halls of judicial institutions.  And I hope in my career, I can stay true to her image.  Throughout my blog, I hope this belief will weave itself.

“Justice is the crowning glory of the virtues.” Cicero, famous Roman lawyer and statesman.

Sarah

May 6, 2010 Posted by | Uncategorized | Leave a comment

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May 4, 2010 Posted by | Uncategorized | 1 Comment