People ask us all the time whether they should talk to the cops.  Think you can talk yourself out of a ticket, ovi, or a domestic violence? This is an interesting 4 part video of a law professor’s lecture.  He is pretty entertaining and the information can be useful to many. The second video deals with trying to talk yourself out of a ticket, ovi, dui, as well as hitting on many interrogation tricks that police use to solicit incriminating information.

I have noticed several users searching for a felony and misdemeanor maximum penalty chart.  I have responded by posting the easy to read chart below ….. <drumroll>

MISDEMEANORS

Morrison & Nicholson receives several calls each month from folks that had to quit work at some point due to their disability, however, they are now able to work as they did before and they want to know whether they are entitled benefits for the time they were disabled even though they have not yet applied for benefits.  The answer we give them is as most answers law related, maybe.

First, you must have been disabled as defined by the Social Security Administration, that is, you must not be able to do any kind of substantial gainful activity for a continuous period of at least one year, or have an impairment that may result in death.  If you were disabled for at least 1 year and then returned to work, the period that you were disabled is referred to as the “closed period” of disability.  Although, you can file and receive benefits for the closed period of disability the application is only retroactive for a period of 1 year from the application submission date.  For example, if you were disabled on March 2, 2007, returned to work in August 2008 and filed for benefits in March 2009, then you would only recieve benefits from the month that you were disabled from March 2008 – March 2009.

It happens all the time. A client will walk into my office to discuss a criminal matter and even before I can start the preliminary questioning about the situation, the client exasperatedly proclaims, “the police did not read me my rights.” Usually, the client believes that this is a case-winning fact and one that I ought to care much about. However, the truth of the matter is that the police do not have to read the widely-known “Miranda rights” to each and every person they arrest. And even if they do violate the person’s 5th Amendment rights, this may not have any impact on the ultimate outcome of the case.  

The reason is that under current constitutional law, the police only have to read the Miranda rights when they are conducting “custodial interrogation” of the suspect. That is, if the police do not attempt to question the person about a crime, they do not have to advise the person that they have the right to remain silent, to an attorney, and so on. Simply asking an arrestee his name and where he lives would not qualify as “interrogation.” The police must be attempting to elicit inculpatory information from the suspect about a possible crime in order for it to be said the suspect was “interrogated”.

In short, it is only when two distinct criteria are met that the Miranda requirement is triggered: (1) the suspect must be in “custody” (a very fact specific inquiry) and the (2) the police must attempt to question the suspect about a crime they are investigating. If neither of these are satisfied, there is no Miranda violation. For instance, if an arrestee volunteers statements to the police, sometimes done as a last ditch effort to avoid arrest, the police and prosecutor are completely free to use those statements at a later trial, even when the defendant is never Mirandized. Because the police did not interrogate the suspect, but merely listened to what the suspect had to say on his own, one of the two necessary criteria discussed above are absent. Lesson to take from this: it is almost always true that talking to the police is a bad idea.

Furthermore, it is not that uncommon for the police to feel that they have no need to immediately question the suspect due to the fact he or she believes they have all the evidence they need in order to sustain an arrest (and ultimately, a conviction). Perhaps the officer witnessed the crime first-hand, or there are numerous witnesses at the scene who immediately point the finger at the arrestee. In either case, the officer may have no need to question the defendant and, therefore, no need to read the Miranda warnings at all. The bottom line is that not every person arrested has a constitutional right to have the Miranda warnings read to them, but rather only when they are subjected to custodial interrogation.

But this is not the end of the story. Let’s assume that the police in fact engaged in custodial interrogation and failed to properly Mirandize the suspect. This constitutional violation may not have any practical impact on the resolution of the defendant’s case. The remedy available for such a violation is not that the case is dismissed (as many people incorrectly believe), but rather that the statements obtained as a result of the violation will be excluded from trial. If the state has ample other evidence to sustain a conviction, the exclusion of these inculpatory statements will not make much of a dent in the overall strength of the state’s case. The state may not care that these statements are inadmissible given all of the other evidence it can still put before a jury. And this can obviously impact plea bargaining leverage as well. Now, of course, if the state’s case is weak and the statements are really needed in order for it to carry its burden at trial, then the police misconduct ends up being a huge chip that the defense can use during plea negotiations. And in rare cases, if the state’s case is so weak that without the use of the defendant’s statements it can not make out a prima facie case, the case may be dismissed upon motion.

So the next time you here someone complain that they were not “read their rights,” do not get the impression that they are out of the woods.

What is the Listing of Impairments and is it used to establish disability?

The Listing of Impairments, also known as  “The Listings, is set out in Social Security regulations. The listings are in two parts. Part A of the Listing of Impairments contains medical criteria that apply to the evaluation of impairments in adults age 18 and over.  Part B of the Listing of Impairments contains additional medical criteria that apply only to the evaluation of impairments of persons under age 18. The listings are examples of common impairments for each of the major body systems that Social Security considers severe enough to keep an average adult from doing any gainful activity.  See appendix 1 of subpart P of part 404 of Social Security’s regulations for the Listing of Impairments.

The listed impairments are of such a level of severity that Social Security considers a person whose impairment(s) meets or equals the Listing of Impairments to be unable to do any gainful activity, that is, the impairment(s) is expected to result in death, or to last for a specific duration, or the evidence must show that the listed impairment has lasted or is expected to last for at least 12 months in a row.

Many medical conditions are included in the Social Security Disability List of Impairments (including multiple sclerosis, rheumatoid arthritis, lupus, etc). However, keep in mind that you can still qualify for SSD / SSI benefits even if your illness is not listed on the Listing of Impairments.

The Courts of Ohio have jurisdiction to terminate the marriage of any Ohio resident that has lived in the state for at least six months.  This is the case even if the marriage took place in another state.   The termination can be by way of Divorce, Dissolution or annulment (in rare circumstances).  Often, couples that have separated and are living apart want to terminate the marriage and have already come to an agreement on all relevant issues (property division, child custody, spousal support, etc).  In other words, the parties agree to go their separate ways and really do not want (or have anything) to fight over.

Frequently, when the parties agree on all material issues, the best mechanism for terminating the marriage is a dissolution.  When parties petition the Court for a dissolution, they submit a separation agreement to the Court along with the petition.  Both parties later appear in court for a brief hearing where they affirm their desire to dissolve the marriage and to declare their agreement on all material issues, as is evidence by the signed separation agreement.  This seems easy enough, right?  Well, maybe not.

A dissolution will not work when one of the parties to the marriage is unable to appear in Court here in Ohio.   At the heart of the dissolution is the idea of agreement by the parties, and if one of the parties does not appear in court to formally declare their agreement, the Court cannot terminate the marriage. In this scenario, the parties should look into an “uncontested divorce.”

Generally speaking, an uncontested divorce is where one party files a complaint for divorce and the other spouse fails to file any responsive pleading or otherwise appear and defend the action.  The Court can terminate the marriage by simply having the plaintiff-spouse testify (along with one other witness to corroborate the testimony) and the defendant-spouse need not appear at all.  Although this seems rather intuitive, the real benefit of an uncontested divorce is that the parties can still enter into a separation agreement, just as in a dissolution, and submit it to the court for incorporation into the final divorce decree.

So, whenever two spouses reside far apart, they should consider an uncontested divorce action to save the absent spouse travel expenses.  But, remember that this will only work when both spouses are in agreement on the division of property, child custody, spousal support, etc.

Brought to you by the Ohio law offices of Morrison & Nicholson.  Call today for a free consultation (937) 432 – 9775.