New Ohio Expungement Bill Creates Opportunities.

S.B 337 was effective September 28, 2012 and expanded the definition of which offenders are eligible for expungement in Ohio.  When preparing for a recent presentation, a variety of complications in the bill became apparent. And, some of these complications may create some additional (possibly unanticipated) opportunities for some clients.

The provision that define whom is an eligible offender for purposes of expungement was revised as follows:

(A) "First Eligible offender" means anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction[.]"

This language in the two misdemeanor conviction exception "if the convictions are not of the same offense" is really rather inartful.  "Of the same offense" is candidly not a term of criminal law art.  The very next sentence uses the better language: "two or more convictions result from or are connected with the same act[.]"  "Course of criminal conduct" is used throughout criminal law, e.g. in the venue provisions in R.C. 2901.12, the auto theft provisions in R.C. 4549.31 and even in the aggravated murder specifications in R.C. 2929.04.  It would have been easy enough for the legislature to use this language, instead of the reference to "of the same offense." 

Because it did not use this artful language, there is certainly a colorable argument that expungment is available for defendants whom have had multiple misdemeanor convictions so long as they are for "the same offense," e.g. multiple convictions for theft even if committed at different times - say years apart and with different victims.  This is all the more colorable an argument considering that the case law is clear that the expungment statute must be liberally construed and the relief must be liberally granted.   State v. Hilbert (2001), 145 Ohio App.3d 824, 828.

Remember too that the R.C. 2953.31(A) also provides that when two or more convictions result from the same act or occur at the same time, they shall constitute one offense.  Hence, it easy to imagine a situation where a person with a great number of convictions may still nonetheless be eligible. Look also to see if any of the prior convictions may have been unclassified misdemeanors and amount to minor misdemeanors as defined in R.C. 2901.02(G).  Such minor misdemeanors are not counted as convictions per the express language of R.C. 2953.31.

Interestingly too, with this expansion of eligibility, the O.V.I. complication created in State v.Sandlin, may be removed.  1999-Ohio-147.  In Sandlin, the defendant was convicted of aggravated vehicular assault and an underlying DUI.  He later applied to seal his aggravated vehicular assault charge.  Although they were both out of the same offense, the Ohio Supreme Court concluded that the because the expungement statute expressly provides that there is no expungement for a DUI offense, Sandlin could never be a first offender.  Now that the statute allows persons with a variety of convictions to be eligible offenders, the reasoning of the Court in Sandlin should fail.

There are all sorts of other openings in the new law which might create opportunities for your client.  If you have a unique fact pattern come across your desk, give R.C. 2953.31 a quick read and see what arguments might reveal themselves.

GPS Surveillance Violated Fourth Amendment.

In what some might say was an unexpected decision, the United States Supreme Court held last week that a GPS device attached to a vehicle and used to monitor the vehicle’s movements violated the Fourth Amendments prohibition of unreasonable searches.  Many were expecting that the conservative majority would come down on the other side of the issue.  The opinion does have two alarming hints that should be watched closely. 

First, Justice Alito’s concurrence did introduce the novel thought that “whether a search has occurred depends on the nature of the crime being investigated.”  U.S. v. Jones, 565 U.S. _____ (2012).  Alito’s concurrence also over-emphasized the thought that the Fourth Amendment only protects against meaningful interference with possessory interests.”  Id. at concurrence p. 2. He reasoned that the installation of the GPS device was so small that no violation had occurred.  Fortunately, the majority did not adopt this reasoning although three other justices did.

Second, the Court would not entertain the government’s alternative argument that even if a search did occur, it was reasonable within the meaning of the Fourth Amendment.  The Court refused to consider the argument as it was not raised in the lower courts – but the Court did not outright reject the proposition.

In Jones, the FBI used a variety of surveillance techniques while investigating alleged drug trafficking.  In addition to visual surveillance, hidden cameras, pen register, and wiretaps, the Federal District Court authorized the installation within 10 days of a GPS tracking device on the suspect’s jeep.  On the 11^th day, the device was installed.  It recorded and transmitted data for the next 28 days.

The fact that the warrant was issued was ignored for purposes of the opinion as the government stipulate that the officers did not comply with the terms of the warrant.  Hence the issue before the Court was whether the warrantless use of the GPS device violated the Fourth Amendment.  In a sense though, the opinion is not all that powerful as the trial court had authorized the warrant.  Had the officers complied with the terms of the warrant, there would have been no meaningful Fourth Amendment challenge.

That said, the Court began its opinion with the presumption that the Fourth Amendment analysis is inherently tied to common law trespass.  The presumption should not be ignored by criminal defense practitioners whom should understand that this foundation was expanded in Katz v. United States wherein the United States Supreme Court emphasized that the Fourth Amendment is designed to protect persons, not places.  From there, the analysis was redefined to protect a person’s “reasonable expectation of privacy.”  Hence, be warned that the return to reemphasize the common law trespass, could create slippery slope to deteriorate the Amendment’s protections – the opinion does reference that the reasonable expectation of privacy analysis added to, not substituted for the trespass premise.

The United States Supreme Court then reasoned that the Fourth Amendment  was meant to address government trespass on particular areas.  The Amendment itself uses the word “effect.”  Ultimately, the jeep was just such an “effect” meant to be protected by the Fourth Amendment.  The installation without a warrant violated the Amendment.  That said, Juxtaposing the various concurring opinions and the different understanding of the Fourth Amendment protections should create discomfort.

Court Says: Intoxilyzer 8000 Vulnerable.

If you haven’t heard, the Ohio Department of Health approved the Intoxilyzer 8000 and the state of Ohio then purchased 700 of the instruments.  Now it seems maybe the state should have waited for an analysis as was done by the Athens County Municipal Court in State v. Gerome, Trial Court Case Number 11TRC01909.  Therein the trial court heard arguments in four consolidated OVI cases which involved the use of the new – some say untested – Intoxilyzer 8000.  

After an extensive evidentiary hearing including multiple expert witnesses for both the prosecution and the state, the court concluded that “The Intoxilyzer 8000 has vulnerabilities.  With specific fact situations, defense expert testimony is admissible to explain such relevant vulnerability.”  This is significant as the trial court had to have a meaningful understanding of the Ohio Supreme Court’s decision in State v. Vega; and thereafter demonstrate the very real distinction.  In Vega, the Ohio Supreme Court held, in general terms, that a defendant cannot challenge the general principles that underlie breath testing instruments.  This created a very real problem for those charged with a DUI/OVI offense in Ohio in that Ohio also had per se DUI/OVI violations which makes a high testing reading alone a criminal violation.  

With the introduction of the Intoxilyzer 8000, the real problem with Vega was immediately apparent.  The prosecution would rely on the Vega opinion to argue that the defense was not permitted to challenge the new instrument.  The Athens County Trial Judge thought different and allowed the pre-trial evidentiary hearing on the machine.

Thankfully he did.  After a full evidentiary hearing with experts witnesses for both the prosecution and the defense, the trial court specifically found that “[d]efendant has presented evidence of several vulnerabilities [of the Intoxilyzer 800] and the Court understands and accepts two and possibly three as material to admissibility and to guilt.”   In short, the Court found:

1.       That the machine remained vulnerable to radio frequency interference which is a danger even more prevalent now than it was when the breath technology came into common use.

2.       That the machine allows the operator to manipulate the breath sample which is a danger in that “the longer you blow, the higher your score.”  The court cited an example that “on average, a shorter duration sample could show a 0.68 and a longer duration sample could show a 0.85 with the same alcohol content.”

3.       The machine has a reduced capacity to detect a sample that includes moisture.  This is critical in that the theory with the technology is that it tests “deep lung air rather than air from the mouth or other moist tissues that would include liquid ethanol at a higher concentration than breath.”

The trial court’s decision is just that, namely a trial court decision in one municipal court in the entire state of Ohio.   But the court’s analysis was remarkable, especially as it was based on an evidentiary hearing which included highly regarded expert witnesses on both sides of the matter.  It’s value as persuasive authority cannot be ignored.

Mootness Kills Camreta.

You’ll remember my prior blog post about the decision of the Federal Ninth Circuit Court of Appeals in Camreta v. Greene.  You’ll also remember my comment that “should the Court reach a decision on the merits, the opinion could be far reaching.”  Well, the Court didn’t and the opinion isn’t.  Ultimately, on May 26, 2011, the United States Supreme Court issued it’s opinion finding that there was no longer a case in controversy in the matter.  The lower court was reversed.

The opinion is significant on this point.  The case is interesting in that the appellant-Oregon Department of Human Services case worker prevailed at the trial court and court of appeals on the issue of qualified immunity.  So, despite the ruling that the Department had unlawfully seized the child absent a warrant, the qualified immunity ruling made the social worker the prevailing party.  In such instances, the prevailing party must demonstrate a “personal stake” in the suit to allow it to continue.  Both parties must maintain an ongoing interest in the dispute both at the trial and throughout the appeal.  

As happenstance would have it, in this case, the “child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue.”  563 U.S. ____(2011)  This is significant to the opinion’s value as a precedent elsewhere.  The Court ultimately reasoned that “[w[hen a civil suit becomes moot pending appeal, we have the authority to ‘direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances. *** Our ‘established’ (though not exceptionless) practice in this situation is to vacate the judgment below.”   That is just what occurred here; the United States Supreme Court reversed the finding by the Federal Ninth Circuit Court of Appeals that found the Fourth Amendment violation because the child had grown and moved away.

That said, the reasoning and briefing in the Fourth Amendment analysis aspect of the case remains compelling.  There is much to be argued that social workers should not be permitted to interview children without either a warrant or the consent of the parent.  This is especially so with children as children demand particularly sophisticated methods of interview so as to protect the evidence from unfair – and at times unlawful – coercion or leading. 

I'll Never Forget That Face - In Ohio.

Modern science instructs that memory is not the concrete vault that an average person would believe, but instead, it is a fluid process that is easily manipulated.  The works of Dr. Elizabeth Loftus and her studies in repressed memory and implanting false memories are so very instructional on the issue.  Unfortunately, mistaken eyewitness identification is a leading cause of wrongful convictions. The Innocence Project reports that “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.”  http://www.innocenceproject.org/fix/Eyewitness-Identification.php  Even the National Institute for Justice of the U.S. Justice Department has recognized the need for eyewitness identification reform. http://www.nij.gov/nij/topics/law-enforcement/investigations/eyewitness-identification/welcome.htm

In large part because of the work of the University of Cincinnati College of Law, the Ohio General Assembly enacted S.B. 77 which became effective on July 6, 2010.  Now found in R.C. 2933.81 to .831, Ohio mandates specific procedures for recording interrogations, and conducting photo arrays and lineups.  The statutes require that photo lineups be conducted by a “blind administrator.”  The administrator will read a set of instructions and distribute certain folders to the witness.  Five of the folders will contain photographs of non-suspects, one of the suspect, and four blank photographs.  All of the photographs are placed in folders and numbered specifically according to R.C. 2933.83(A)(6)(c) and (d).  R.C. 2933.83(A)(6)(i) specifically instructs that the officer “shall not say anything to the eyewitness or give any oral or nonverbal cues.”

Unfortunately, the statute does not go far enough for protecting the trial from evidence gathered not in compliance with the statute.  Instead of mandating that such evidence be excluded, R.C. 2933.83(C) goes only so far as to instruct that the evidence of a failure to comply with the statute is admissible at trial.  One would think, that if the danger of wrongful convictions from mis-identification is important enough to legislate specific protections, the danger of mis-identification should also require exclusion from evidence of any identification that does not comply with the statute’s mandates.

That said, the statutes do also serve to emphasize to everyone involved in such identifications of the inherent unreliability of eyewitness identification.  This includes defense counsel who must take extra effort to ensure such identifications are reliable.