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Case Update

The vacay in 'Nix worked out just fine, but touch-down at Cleveland Hopkins Airport always brings to mind Jim Bouton's observation in Ball Four that if you're going to be in an airplane crash in Cleveland, better that it be an inbound flight.  And there was the post-return drama of explaining to my new OVI client that it probably wasn't a good idea to ask the nice police officer to hold his beer while he took the heel-to-toe test.

But I'm tanned, rested, and ready to get back to digging through the plethora of cases that have come down in my absence.  Actually, not much going on at the upper echelons of the judiciary.  The DC Gang handed down Wyeth v. Levine, affirming a $6.8 million award over Wyeth's contention that its compliance with FDA label regulations should have immunized them from a failure-to-warn claim.  And the major case from Columbus was State v. Smith, actually a reconsideration of a case from last year, in which the court reaffirms its earlier holding that a defendant charged with robbery can be convicted of the lesser-included offense of felony theft, even though the indictment doesn't specify an amount.

The highlights from the courts of appeals...

Criminal.  Rare reversal of denial of expungement, 9th District says that trial court didn't conduct fair hearing on application... 2nd District holds that since Foster invalidated RC 2929.41(A), courts are free to impose misdemeanor sentences consecutive to felony sentences... Where defendant seeks to withdraw guilty plea after sentence pronounced but before it's journalized, motion should still be treated as if made post-sentence, rules 5th District... Wrong zip code doesn't invalidate search warrant where address and description of building are correct, 1st District holds... Robbery and receiving stolen property not allied offenses, says 2nd District... 8th District rules defendant's waiver of counsel invalid, judge didn't adequately inform defendant of charges and possible penalties, defenses, and failed to warn of perils of self-representation...

Civil.  12th District reverses grant of summary judgment against plaintiffs thrown from hayride when wagon went out of control, says primary assumption of risk only applies to those risks inherent in the activity... 5th District holds that while sovereign immunity statute doesn't apply to sex discrimination suit, plaintiff still can't recover punitive damages against municipality... 8th District continues its holding that trial court can't require paying spouse to obtain life insurance to secure spousal support payments, since under statute spousal support terminates on death of either party... 9th District reverses child support order based on imputed income, where trial court failed to make explicit finding that father was voluntarily unemployed or underemployed...

What were they drinking?  In State v. Swartz, the police officer stopped the defendant for making a left turn without signaling.  When he approached the car, he noticed that the driver's eyes were glassy and bloodshot, and smelled alcohol on his breath.  The trial court granted the motion to suppress, holding that the totality of circumstances didn't give rise to a reasonable suspicion that the defendant had been drinking.  The 2nd District affirms.

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