Recent Blog Posts

Lower Standard for Drunk Driving? This Firm Says "Yes"

The Koffel Law Firm — Mon, 20 May 2013 23:08:00 GMT

You may have heard of the recent recommendations from the National Transportation Safety Board (NTSB) to lower the standard for drunk driving. Among other suggestions, the NTSB believes that a person should be declared legally intoxicated at .05 percent BAC, a decrease from the current .08 percent BAC. Opinions vary, but The Koffel Law Firm supports this move.

"I do believe lowering the limit to 0.05% will go much further in reducing DUI fatalities and injuries than any law change to date," stated Brad Koffel. "The public would be shocked to learn just how much our clients drank prior to getting charged with a DUI to hit the current level."

According to the NTSB, there are approximately 10,000 deaths per year due to drunk/impaired driving. This is just one among many statistics the organization uses to substantiate its recent recommendations. To understand this proposed change to DUI law better, it is important to understand the history of our national BAC limit.

In 2000, a federal law was passed to implement a nationwide .08 percent BAC. As an incentive to comply, each state would continue to receive federal highway money. The government would withhold these funds from states that did not comply. There can be little doubt that this new law significantly reduced the amount of annual of drunk driving collisions. In 1982, there were approximately 21,000 drunk driving accident deaths per year, while the most current statistics place this number at 10,000.

It may be easy to praise this .08 percent BAC limit when considering the fact that drunk driving deaths have more than been cut in half over the past 30 years; we must also consider that there are still 10,000 lives being lost because of drunk driving every year. The NTSB believes that reducing the BAC can save lives. The recent recommendations are part of the organization's "Reaching Zero" campaign to completely eliminate drunk driving in the United States.

It is shocking to consider how many drinks a person can have while still being able to drive legally. According to current BAC calculators, a 180-pound man can drink four alcoholic beverages each 60-90 minutes and may still be under the legal intoxication limit. Lowering the BAC limits would allow that same 180-pound man to drink only two or three alcoholic beverages before being considered legally intoxicated. It is also important to note that alcohol affects each individual differently. Factors such as height, weight and gender all play a role in determining how many drinks a person can have and still be legally sober enough to drive.

Even DUI defense law firms are split on this issue. Some advocate that the permitted BAC is not the issue by pointing out that most drunk driving fatalities are caused by higher-intoxication drivers, not those with a BAC near .08 percent. As a DUI defense law firm, The Koffel Law Firm has an intimate knowledge of this issue. While the majority of DUI accident deaths result from drivers well over the .08 percent limit, this should not be a reason to avoid lowering the BAC to .05 percent.

States should be taking steps to get extremely intoxicated drivers off of the road, but it should also be noted that even one or two drinks can significantly alter a person's cognizance. More and more studies are revealing that .05 percent BAC is the limit at which the risk of crash significantly spikes. Many countries have already implemented a .05 percent BAC. It is The Koffel Law Firm's belief that the United States should join them.

Prosecutor Misconduct

The Koffel Law Firm — Sat, 18 May 2013 17:10:00 GMT

In this case, the trial court's judgment was both partially affirmed and partially reversed. The defendant was originally indicted for one burglary count and two counts of theft, a second degree felony, a fourth degree felony and a fifth degree felony, respectively. The items allegedly stolen were valued at over $2,000. An officer confirmed that the fingerprints collected at the scene of the crime matched the defendant's fingerprints. The trial court denied the defendant's motion for mistrial and motion for acquittal.

The defendant appealed on six assignments of trial court errors: 1) Prosecutor engaged in misconduct by arguing the defendant was required to update his notice of alibi, 2) Trial court failed to hold an evidentiary hearing, 3) Trial court failed to give requested jury instruction and failed to grant motion for mistrial, 4) Trial court failed to give jury instruction regarding inferences, 5) Trial court denied motion for mistrial and failed to disclose several potential witnesses, and 6) Cumulative trial court errors deprived defendant-appellant of a fair trial. In convictions of, inter alia, burglary, prosecutor's comment regarding the date the notice of alibi was filed did not prejudicially affect defendant's substantial rights in the context of the entire trial and in light of the instruction given by the trial court.

To read this case in its entirety, view State v. Norman 2013.

Miranda Search Warrant, Motion to Suppress Granted

The Koffel Law Firm — Fri, 17 May 2013 16:55:00 GMT

In 2010, a Cleveland Police Narcotics Detective received information that the defendant was receiving large amounts of narcotics in the Cleveland area from the Mexican Mafia. The detective's source also said the narcotics were coming from Columbus and arriving at a Cleveland pizza shop. The defendant was the operator of that pizza shop. The detective posed as a buyer and met with the defendant to purchase a kilogram of cocaine. They also discussed future drug transactions during the sting operation.

Members of the Cuyahoga County Sheriff's Department, Cleveland Police Narcotics Unit and the Medina County Drug Task Force were waiting outside the defendant's residence with a search warrant on July 16, 2010. They searched the property and found that the defendant had thrown the drugs elsewhere but police did recover a scale, guns and ammunition from the residence. The defendant was charged with trafficking and other major drug offenses. In drug offense prosecution where police were in the process of executing a search warrant of defendant's premises, it was error to deny motion to suppress statement after Miranda warning since detention and arrest were far from property to be searched.

To read this case in its entirety, view State v. Cruz 2013.

Domestic Violence Case: Failure to Advise of Sanction

The Koffel Law Firm — Thu, 16 May 2013 16:35:00 GMT

A man pled guilty to one count of domestic violence. Since he had a prior domestic violence conviction involving a family member, he was convicted of a fourth degree felony. The defendant stated his desire to withdraw his guilty plea prior to sentencing but after he had learned that he would face a prison term as part of his sentencing. The trial court denied his motion to withdraw his plea and he was subsequently sentenced to 12 months' imprisonment plus court fees. In the defendant's appeal, there are three assignments of error to the trial court: 1) The man should have been allowed to withdraw his plea, 2) The man was not made fully aware of his constitutional rights before he made his plea, and 3) The defendant did not receive effective counsel. In domestic violence conviction following plea, trial court erred in not informing defendant that he could be required to perform community service if he failed to pay his court costs, and that possible sentence is removed, former R.C. 2947.23(A)(1)(a).

To read this case in its entirety, view State v. Haney 2013.

Having Weapons While Under Disability: Conviction Not in Error

The Koffel Law Firm — Wed, 15 May 2013 16:30:00 GMT

According to § 2923.13 of the Ohio Revised Code, certain people are not knowingly allowed to acquire, have, carry or use any firearm. Violating this section is a third degree felony. The defendant-appellant in this case argued that this is unconstitutional by violating a citizen's fundamental right to bear arms. But, since these issues were not brought up in trial court, they cannot be brought up in the appeal. The defendant-appellant also contends that this particular statute is vague which therefore violates his due process rights. This issue also was not raised in trial court, but this argument does not require burden shifting so the appeals court was able to consider it. Lastly, the defendant-appellant claimed that the trial court misspoke when stating the law when explaining it to the jury, which led to an unfair trial. In this case, the conviction of having a weapon while under disability, R.C. 2923.13(A)(4), was not error where the statute is not void for vagueness since R.C. 3719.011 defines drug dependent person in an intelligible manner that a person of ordinary intelligence can understand.

To read this case in its entirety, view State v. Alexander 2013.

Imposition of Consecutive Sentences

The Koffel Law Firm — Tue, 14 May 2013 16:08:00 GMT

Following a jury trial, a man was convicted on one count of abduction, one count of aggravated assault and one misdemeanor assault count after two particular altercations with his girlfriend. The man appealed his conviction and sentencing on the basis of five errors on behalf of the trial court: 1) The court abused its discretion in issuing consecutive sentences without making the required findings (§ 2929.14 Ohio Revised Codes), 2) The abduction conviction did not result from a fair trial because the weight of the evidence was not sufficient, 3) Defendant-Appellant's right to a fair trial was violated, 4) Defendant-Appellant was denied a fair trial due to an ineffective trial counsel, and 5) Sentencing is double jeopardy which is prohibited by law, since aggravated assault and assault are the same offense and should not warrant multiple sentences. In this case, imposition of consecutive sentences for abduction and aggravated assault convictions was error where trial court failed to make required findings, R.C. 2929.14 (C)(4), and offenses were allied; notice of appeal divested trial court of jurisdiction to issue nunc pro tunc entry to correct sentencing errors.

To read this case in its entirety, view State v. Johnson 2013.

ILC Denial by Trial Court Not Appealable

The Koffel Law Firm — Mon, 13 May 2013 17:39:00 GMT

A woman was convicted of a first degree misdemeanor for violating a protection order after she pled "no contest." She then appealed her conviction and subsequent sentence stating that the trial court erred in denying her motion for intervention per § 2951.041 of the Ohio Revised Codes. A motion for intervention in lieu of conviction is granted when someone is charged with a crime and the court believes that drugs or alcohol contributed to the offense OR a mental illness or intellectual disability contributed to the criminal act. The state concluded that the trial court's denial of the defendant's motion without a hearing did not affect her rights and therefore was not subject to appeal. The state affirmed the trial court's original decision and the defendant was convicted of violating § 2919.27 of the Ohio Revised Codes (Violation of a Protection Order).

To learn more, view State v. Stanton 2013.

Supreme Court of Ohio Ruling on Protection Orders

The Koffel Law Firm — Tue, 07 May 2013 16:06:00 GMT

On April 30, 2013, the Ohio Supreme Court ruled that in order to convict a person of a protection order violation, the state has to provide evidence that the order was properly served. This majority decision was a reversal of a ruling made by the Tenth District Court of Appeals. The original case involved a woman who filed a Stalking or Sexually Oriented Offense Protection Order (SSOOPO) against a man who was stalking her.

The two were not in a relationship and the man did not have a key to her home, but the woman felt threatened enough to obtain a protection order. The terms of the order banned the man from coming within 500 feet of the woman. The protective order was issued "ex parte" which means that the Franklin County Court of Common Pleas did not have to give the man advanced notice before issuing the protection order.

The woman obtained a copy of the order on April 12th which is the same day the county clerk of courts required a copy be served to the man. Approximately four days later, the woman showed the man a copy of the order and explained what it meant, but at that time the man still had not been served the order. The next day, the man broke into the woman's basement and attempted to choke her.

911 was called and police arrived at the scene to arrest the man. He was then charged with aggravated burglary, violating a protection order, domestic violence and resisting arrest. It was the violation of protection order conviction that the man appealed on the grounds that the state was not able to show it served the order before the altercation occurred.

According to Justice Kennedy of the Supreme Court of Ohio,

"Because evidence of compliance with the delivery requirement of R.C. 2903.214(F)(1) before the alleged offense is essential to establishing a violation of R.C. 2919.27(A)(2), we hold that the evidence was insufficient to sustain Smith's conviction pursuant to R.C. 2919.27(A)(2). We make this determination mindful of the importance of protection orders. A violation of a properly issued SSOOPO must not be countenanced. However, we cannot ignore the defendant's right to have the SSOOPO served in conformity with the law. R.C. 2903.214(F)(1) requires service upon a respondent. Without proof that service was achieved, a conviction for violating R.C. 2919.27(A)(2) cannot stand."

Some justices maintained that proof of service of delivery should not be necessary for a conviction, but the majority ruled that, in order to substantiate a protection order violation conviction, proof of service is necessary.

Error in Sex Offender Classification

The Koffel Law Firm — Fri, 03 May 2013 18:35:00 GMT

A man appealed a court decision that would classify him as a Tier I sex offender. The defendant-appellant in this case pled guilty to unlawful sexual conduct with a minor, which is a first degree misdemeanor (§ 2907.04 Ohio). He admitted to knowingly engaging in sexual conduct with a 15-year-old girl. While he admitted to the misdemeanor, he appealed his Tier I sex offender classification on the basis of two errors: 1) Trial court violated due process rights in requiring this type of registration. By law, a trial court must prove that the sexual conduct was forced, but no such evidence was presented in this case, and 2) Trial court violated Sixth Amendment rights to jury trial on the issue of consensual v. non-consensual sex with a minor. In this conviction following plea to unlawful sexual conduct with a minor, R.C. 2907.04, trial court erred in classifying defendant as a sex offender where it did not determine if the victim consented to the conduct.

View State v. Clair, 2013 to learn more.

Grand Theft Sentencing

The Koffel Law Firm — Thu, 02 May 2013 18:20:00 GMT

A man was indicted for grand theft according to § 2913.02(A)(1) and/or (A)(3) of the Ohio Codes. This is a fourth degree felony offense. The man was also charged with another fourth degree felony, telecommunications fraud. He pled guilty to both, but the trial court combined both counts together and sentenced the defendant to 18 months in prison as well as a post-release control term for two years. In part, the court based this sentencing decision on the defendant's conduct that, according to deputies, was problematic. According to reports, the defendant was causing problems while he was being held at the jail. The defendant-appellant appealed his grand theft conviction based on two errors: 1) Trial court's sentencing was contrary to law, and 2) Trial court abused its discretion in imposing this sentence. In this case, the grand theft sentence was within statutory range, and court considered purposes and principles of sentencing as well as the factors of seriousness and recidivism, R.C. 2929.11 and 2929.12.

View State v. Davis, 2013 to learn more.

Man Appeals Domestic Violence and Abduction Conviction

The Koffel Law Firm — Wed, 01 May 2013 18:10:00 GMT

A jury trial found a man guilty of third degree felony domestic violence and abduction. The case states that a concerned neighbor called police after witnessing the defendant beating a woman and hearing her yelling to stop touching her. When police arrived, the woman alleged that she had been held in the apartment and that the man had struck her several times in the head and face. The man was then arrested and indicted on domestic violence and abduction charges. The defendant-appellant denied these allegations, and claimed that he did not cause the victim's injuries. The jury was unanimous, and found him guilty. His domestic violence charge was also elevated because of prior domestic violence offenses. The defendant-appellant appealed his conviction on the basis of five errors:

1) Trial court erred in permitting the state to submit evidence of a third domestic violence conviction when only two priors were required, 2) Trial court erred in allowing the state to submit an unsigned entry as evidence of prior conviction, 3) Trial court erred by refusing to allow evidence of valid judgment entry, 4) Trial court erred in allowing state to rehabilitate the state's witness's credibility, and 5) Trial court erred in allowing the state to cross examine the defendant outside of the scope of admissibility. In this domestic violence conviction, error in admitting judgment entry of past conviction that did not contain judge's signature was harmless where defendant admitted conviction during direct examination, R.C. 2945.75(B)(1) and Crim.R. 32(C).

View State v. Russell, 2013 to learn more.

Sex Offense Conviction Not Supported by Sufficient Evidence

The Koffel Law Firm — Tue, 30 Apr 2013 17:30:00 GMT

A man was convicted for two counts of "Illegal Use of a Minor in Nudity-Oriented Material or Performance." This is a violation of § 2907.323 of the Ohio Codes. The man chose to appeal his conviction, stating that the trial court erred when it overruled his motion to suppress evidence. This evidence came from the hard drive of his laptop computer which the defendant-appellant contended was obtained during a search without his knowing and voluntary consent. The defendant-appellant made four other contentions: 1) Trial court erred in overruling his motion for judgment of acquittal, 2) Insufficient evidence that the images found on his hard drive were of real, underage children, 3) The trial court crossed the line by being impartial while questioning the State's witness, and 4) That the indictment was defective. In this sex offense prosecution, conviction of illegal use of a minor in nudity-oriented material, R.C. 2907.323(A)(3), was not supported by sufficient evidence where photograph of minor in bathroom did not meet the statutory criteria.

View State v. Videen, 2013to learn more.

Silk Road: Then and Now

Richard Mahan, Criminal Investigator, The Koffel Law Firm — Mon, 29 Apr 2013 17:25:00 GMT

During the Chinese Han Dynasty (206 BC-220 AD) trade routes, connecting Asia to Africa and Europe, were developed over land and sea.

The purpose of these routes was to connect the three continents, through trade, and allow the peoples of the time to revel in new found spices, food, and garments. The rise of silk trading led to the naming of these routes as The Silk Road.

Today, the term Silk Road holds a different meaning, though trade is still incorporated.

Today's Silk Road is a web-based buying and selling depot for those searching for illicit drugs or other black market contraband.

Silk Road, according to its mantra and one of our clients, will allow buying and selling of anything that does not directly hurt another human being. For example, you would not be able to purchase people, hit men, or weapons through this site, but almost anything else is free game. One could, however, purchase marijuana, prescription pills, heroin, and grow operation materials, just to name a few items for sale.

Today's Silk Road is run by a person known as "The Dread Pirate Roberts." For those of you familiar with The Princess Bride, you will also remember "The Dread Pirate Roberts" was not one specific person, the title being handed down from one pirate to another. It is uncertain if this is the case for this website, but it would not be outside the realm of possibility.

Some of you would ask, "If this website is known, why is it not being shut down?" That is a very good question and we hope this lends some help in understanding why this site exists and could exist for possibly many more years.

In order to access Silk Road, one must first download Firefox to their computer. Firefox is a web browser, such as Internet Explorer (IE). While Silk Road will operate on IE, it operates best on Firefox.

Once Firefox is downloaded, one would search for and download TOR, an encryption program first developed by the US Navy as a means to securely send and receive classified information or maneuver orders. This piece of encryption software is so advanced, it is rumored it would take the world's fastest computers decades to decipher the code and allow a hacker access to the information.

Once TOR is downloaded, one would need to search for the hyperlink to Silk Road. For purposes of not adding to an already existing problem, that hyperlink will not be shared in this blog.

Silk Road is like an onion. While there are many layers of encryption attached through TOR, users can add as many new layers of encryption they like. Each new layer of encryption, in order to hack the site, would need to be deciphered. Each user holds their own encryption key and some of these keys can be 20 or more pages in length, if printed out.

Users are able to, though TOR, disguise their IP address and "bounce" messages around the world in seconds.

Buyers and sellers, on Silk Road, utilize a currency called Bit Coins. Bit Coins are currently a valid form of currency, being used to purchase many items, though the use is primarily in Asia and Europe, at the moment. An example of the exchange rate, as of April 2013, is $300 USD = 65 Bit coins. Bit Coins are traded daily and values rise and fall, much like stocks. Interestingly, there can only be so many Bit Coins in rotation, so the value is expected to remain high.

Buyers, when first starting out, are best served by making small purchases, here and there. It is understood law enforcement is trying to tap into this market, so a new buyer, spending $1,000 USD will attract too much attention and the seller will back out. Buyers will receive higher ratings, over many buys, and the higher the buyer rating, the better the chance of securing larger and larger orders. Sellers, on Silk Road, reserve the right not to sell to those they do not trust.

When a transaction is being made, payment is held in an escrow type of account and will release to seller when the buyer acknowledges receipt. Shipment is made to whatever addresses the buyer supplies and most sellers will use Priority Mail as it is flat rate and no need to go to a post office counter.

By all rights, this form of trading relies on the users. If problems arise, moderators are available to help settle disputes and each person using the site is bound by an unwritten honor code to resolve all issues through the site. Whatever the moderator decides, Silk Road users will adhere to. It is unclear who the moderators are, site managers or other users, but in any case, the site runs smoothly and with few problems.

Shutting down Silk Road is up to law enforcement. Based upon the clouds of secrecy, encryption, and a close knit community, Silk Road has the potential of lasting as long as "The Dread Pirate Roberts" exists or the next pirate is crowned and law enforcement may never reach their goal. As defense attorneys working with individuals addicted to drugs, we will work with law enforcement as much as possible in order to help stop this free trade of drugs.

U.S. Supreme Court Rules on Warrantless Blood Draws

Will Nesbitt — Mon, 22 Apr 2013 18:36:00 GMT

The Highest Court in the Country ruled on Wednesday that law enforcement officers must obtain a search warrant before conducting a nonconsensual blood test in most DUI cases. In Missouri v. McNeely, Tyler McNeely was pulled over for suspicion of DUI. When Mr. McNeely told the officer he would refuse a breath test the officer took him to the nearest hospital and ordered the staff to take a blood sample.

Missouri v. McNeely clarifies what a 1966 U.S. Supreme Court attempted to say in Schmerber v. California. The question presented in McNeely was whether the natural metabolization of alcohol in the blood stream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.

The Court ruled that trial courts must look at the issue case by case and consider the totality of the circumstances. Justice Sotomayor wrote, "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so."

OVI Judgment Reversed

The Koffel Law Firm — Fri, 19 Apr 2013 17:58:00 GMT

Attorney Brad Koffel of The Koffel Law Firm was proud to handle a case for a man who was sentenced to consecutive prison terms after a DUI accident. We appealed the trial court's judgment on the basis of error in sentencing. Our client's case began back on July 27, 2011 when he was indicted on four counts of aggravated vehicular assault and two counts of OVI. He had been involved in a drunk driving accident six months prior. Our client pled guilty to one count of aggravated vehicular assault, one count of vehicular assault and one count of OVI. In other terms, he was pleading guilty to a third degree felony, a fourth degree felony and a first degree misdemeanor.

The trial court accepted this plea and proceeded to sentencing. Here is where the problem begins. The trial court merged our client's OVI offense with the aggravated vehicular assault offense thereby imposing two consecutive sentences, one for four years and the next for 18 months. On behalf of our client, we appealed that the trial court was incorrect in its sentencing. They sentenced the defendant-appellant to consecutive prison terms without making the necessary findings to do so. Those necessary findings are required by § 2929.14C(4) of the codes. In addition to this, we also appealed on the grounds that the trial court did not give adequate support for the consecutive sentences.

In the end, the imposition of consecutive sentences for aggravated vehicular assault and vehicular assault was error where the trial court failed to make the findings required by R.C. 2929.14(C)(4). The man's family hired Attorney Brad Koffel to handle his appeal. He had already served a year of his prison sentence. The Koffel Law Firm is ecstatic to handle these types of cases and secure justice for clients and their families.