The big news as SCOTUS opened its term last week is not what the Court did, but what it didn't do. Faced with seven, count 'em, seven petitions for certiorari from circuit court decisions striking down state bans on gay marriage, the Court denied them all. There were four dissenters from last year's decision in Windsor v. US, which declared unconstitutional the Federal Defense of Marriage Act, and it only takes the votes of four justices to grant cert, so someone read the writing on the wall. The upshot is that by the end of the year, two-thirds of the people in this country will live in states which recognize same-sex marriage.
One of the most eagerly anticipated events in recent memory is undoubtedly my post on the oral argument in Heien v. North Carolina, which raised the issue of whether a mistake of law by a police officer renders a search invalid, and which I promised you last week. I actually wrote it, but then screwed up on the posting. Once I get the hang of this blogging thing, that won't happen anymore. I hope. Speaking of which, I'll have a post on the seminar on blogging that I did for the OACDL last week. That'll be on Thursday.
Down in Columbus, the Supreme Court handed down its decision in Cincinnati v. Ilg. As I explained in my post about the oral argument, the case concerned the Intoxilyzer 8000, which was approved by the Director of the State Health Department as a breath test for DUI offenders. The DUI bar - and yes, there's a bit of irony in that term - has attacked the 8000 as being unreliable, but ran up against the Supreme Court's 1984 decision in State v. Vega, which held that defendants can't attack the general reliability of a testing device that's approved by the Director. Bad law, and Ilg doesn't change it: the defense focused its fire on the reliability of the machine used for that particular test. And although defense attorneys may have lost most of the battles, they won the war: the machine's been so plagued by problems that it's no longer being manufactured, and only five of them are still in use in Ohio.
In the courts of appeals...
The excesses of forfeiture law are on full display In State v. Hackler, where the defendant complains that the trial court shouldn't have ordered his vehicle forfeited, because forfeiture was excessive. Too bad, says the 5th District, noting that "the defendant bears the burden to request a hearing and to prove by a preponderance of the evidence the forfeiture is excessive." Hackler also claims that his attorney provided ineffective assistance because he didn't request a hearing. Too bad, says the 5th; since forfeiture is a civil remedy, there's no right to effective assistance of counsel there.
Allando Grose fares no better in the 5th. A panel had earlier reversed Grose's sentence, finding that the trial court should have held a hearing to determine whether the offenses were allied. The trial court found that there was a separate animus, but decided to run the sentences concurrently instead of consecutively. No can do, says the panel in State v. Grose: the remand is limited to determining whether the offenses should be merged.
The defendant complains that the judge imposed a maximum sentence upon him for a theft offense to punish him for going to trial, and in State v. Turner, mirabile dictu, the 9th District agrees. The judge had told Turner that "if you were to plead guilty and accept responsibility" he would probably get community control sanctions, but "when someone refuses to accept responsibility and if the jury convicts them, I take that into account." Everybody knows a judge takes a defendant's "acceptance of responsibility" into account - and should. The moral of this story is not to talk about that until sentencing.
In State v. Brunty, the defendant is ordered to submit to a blood test after a fatal automobile accident. He refuses, but the blood is drawn at the hospital anyway, and the judge suppresses it because of the lack of consent. The State relies upon the implied consent statute, which says that someone driving on the highways consents to have his blood tested, and the 11th District finds this means that "the police may, in these circumstances, use whatever reasonable means are necessary to obtain a sample," but nonetheless affirms because the statute conditions the blood test upon probable cause to believe that the driver was under the influence of drugs or alcohol, and in Brunty's case there wasn't.
This might be one to keep an eye on. Last year, in Missouri v. McNeely (discussed here), SCOTUS held that a warrantless blood draw was an unreasonable search unless the police could show exigent circumstances. I wrote a couple of posts on how McNeely may invalidate the forced testing component of Ohio's implied consent law (here and here). Brunty never mentions McNeely.
Is requiring a defendant to attend Alcoholics Anonymous meetings as a condition of community control a violation of his First Amendment right to freedom of religion? Courts have come down on both sides of that issue, but the 6th District rejects the claim in State v. Miller. The main problem was that the defendant never raised the issue until he admitted to his parole officer that he'd forged six month's worth of sheets showing his attendance.
Sometimes, a cigar is just a cigar. The Lexis summary from the 1st District's decision in State v. Stone:
When in each robbery, defendant, while wearing a hood, walked up to a store employee, displayed a gun, and demanded money from the cash register, and in four of the robberies, asked the employee for a certain brand of cigar, the offenses were "of the same or similar character," and joinder was proper.