Lawyer talk with Troy, my law clerk upstairs

>> Steve Palmer: Alrighty. Lawyer Talk. They do not teach you that in Law School or they don't teach you that in Law School series here with troy, my law clerk upstairs. By law clerk, I mean, you're a law student, captain university law and graduate. Is that so? It's called law and graduate center.

>> Troy Henriksen: I've never heard it be called law and graduate center. So you were the first Time. Um, I'll kick that around with my friends and see if anyone else used.

>> Steve Palmer: To be capital university law and graduate center, whatever that's worth. Uh, but second year in Law School, working for me upstairs, doing a. Helping us with our criminal defense practice. And, uh, you know, it dawned on me that as we discuss our cases, you got lots of pretty cool questions, and, uh, you got just enough in Law School to sort of understand there's something more there, but they don't teach you that in Law School. Exactly how it applies in the real world. And that's what we're talking about here in this series.

Ohio law says you have to have two things to commit a crime

So we're, uh, talking about, uh, the blue jackets tragedy, uh, the other day. What's your question?

>> Troy Henriksen: Yeah, so little fact pattern on it. Just catch you up on it was two brothers playing for the blue jackets. They're in New Jersey, uh, for their sister's wedding. And they're in the wedding.

>> Steve Palmer: Horrible.

>> Troy Henriksen: Yeah. And they're riding bikes, I don't know the Time of day.

>> Steve Palmer: Bicycles.

>> Troy Henriksen: Bicycles. Yes, bicycles. They're on the berm. And this man tries to pass in a car on the berm, hits them, kills both of them. A, uh, day before the wedding, like, absolutely tragic. Uh, and at the Time, that was all we knew was this guy driving hit him. Um, and then a new development that came out this week was that he was over the legal limit that he blew zero eight seven. So 0.007 over. It might be different New Jersey, but.

>> Steve Palmer: Zero eight seven was his blood alcohol content. Was it a breath test?

>> Troy Henriksen: I don't know.

>> Steve Palmer: You said blue, so. Point. Let's just assume it was a breath test because, you know, there's three types you can do a breath test, blood test, or urine test. They all. They can all be sort of converted into the same, but, oh, let's just say zero eight seven in Ohio, to put in perspective the legal limit to be a per se or just ovi, because, uh, is zero eight. So if you're over zero eight, it's a crime to drive a car. And he was over zero eight.

>> Troy Henriksen: Yeah.

>> Steve Palmer: All right. Um, and the question since that this.

>> Troy Henriksen: New development has came up, can this increase his charges.

>> Steve Palmer: Yeah. So here's how this works, and this is a great question, because, uh, it really, if you haven't wondered about it, you probably will at some point when you're a driver. What happens if I just run a red light and somebody dies as a result? We've all had a fender bender. I've had plenty of them. And, you know, thank the lord that nobody has died as a result of any crash I've been involved in. But what if somebody did? Uh, what's the penalty? What's the consequence? Because on the one hand, you know, running a red light's a minor misdemeanor in Ohio, has a maximum possible punishment of dollar 150 fine. It's hardly anything if I just run a red light and get a ticket for it. So why would it be more, you would ask, if I run a red light, have a crash, and somebody dies as a result of it, it's like, well, wait a minute, I didn't do it on purpose. It was just a mistake. Why is that? Shouldn't that just be running a red light? Well, uh, the law says no. In Ohio, if you just do that, you're, generally speaking, acting negligently. So a lot of this has to do with, uh, with what's up here. And, you know, they do teach you this in Law School. They teach you about something called mens rea, which is the mental thing. So in order to commit a crime, this goes all the way back to like english common law, maybe even french common law, you have to have two things to commit a crime. You have to have an act, some sort of physical act, or the lack of an act when you should have acted. Um, and you have to have a mental thing. So the act is actus reus. The mental thing is mens reuse. So you have to have both those things combined. So if I, in theory, under those parameters, if im running around doing cartwheels in a crowd, or, uh, if I accidentally rather do something like that and hit you against the face, I've got the act. But I didn't intend to do any harm to you, so I didn't really commit an assault. Or the best one I use when I talk to juries is, um, one time I was up in Delaware county municipal court, and I didn't have my pen because I just sort of forgot my pen. I'm ADHD and I needed to borrow the clerk's pen. So my client, we sign the paperwork, and, uh, I get all the way back to the office and sitting in my pocket here is the pen that I borrowed from the clerk. So the question is, did I commit theft? And the answer is no, because I didn't do it with the purpose to permanently deprive the owner, the clerk of courts, of that pen. I had the act, but I didn't have the mens rea. So what did I do? I called the clerk and said, I got your pen. I'm bringing it back next time. And I did. I made it a point to do it. Um, I maybe acted negligently, but I didn't do it on purpose. So there are levels of mens rea that come into play.

If someone dies in a traffic accident in Ohio, it becomes a felony

Now back to our traffic accident. If I'm acting negligently by running a red light, I just screwed up. Change the radio at a Time. I shouldn't have, um, looked this way because I heard a horn, and next thing I know, I'm through it, whatever it would be. The typical traffic accident, that's a misdemeanor of the first degree in Ohio. And m m one, that's the highest level of misdemeanor before you get to a felony. And this doesn't apply to all states equally, but roughly, it's the same, um, that becomes a misdemeanor of the first degree in Ohio. And the maximum possible punishment is six months in jail and a $1000 fine. And, you know, it's remarkable that families of the, uh, victims in car crashes, they tend to want blood. You know, it's one of two ways. They either are forgiving because they realize it's an accident, or they're hurt so much that they still want some retribution. So the law gives the judge the ability to throw somebody in jail for up to six months just on a traffic accident where somebody made a mistake. It changes drastically when you change what's going on up here. Uh, once, um, you start acting recklessly. So say I didn't just run the red light because I heard a horn or I was. Something happened that it was normal, mistaken driving. But let's say I'm texting, you know, I'm just looking this way, and I'm driving with my, with my knees, and I'm texting in one hand, maybe like this, and I'm drinking my coffee over here, and I run the red light. Well, now, the law might change that. It might. I might be a little bit more than negligent. I might. I might be approaching reckless, or let's say I was going 110 in a 50 miles an hour zone or a 55 miles an hour zone. Now, I might have elevated my mental thing up here to being reckless. That changes the equation. Then that becomes a felony. In Ohio, I think it would be a felony of the fourth degree. So, uh, all states have different levels of felonies and they call them different things. And I practice in different states and we all sort of try to figure out the common terms, but generally speaking, Ohio is a felony of the first, which is the highest, 2nd, 3rd, 4th, 5th is the lowest. Then below that you go to misdemeanor. So, in Ohio, it would be a felony of the fourth degree. If I start acting recklessly, and maybe even worse, depending upon other circumstances, like if I didn't have a driver's license, or if something else is going on. Add alcohol to the mix, it gets really ugly really fast. Um, so Ohio, and I'm sure, uh, New Jersey, they are going to have something called vehicular homicide. Vehicular manslaughter. In Ohio, we call it ag. Vehicular homicide. And you can do that in a number of ways. In Ohio, if it's reckless, it's one thing, if it's, um, if it's with alcohol, it's quite another. So, uh, if I am driving and somebody dies as a result of me committing DUI, now, in Ohio becomes a felony. The second degree, not only that, it's mandatory Time. I have to go to prison. It gets really bad. Um, um, what is that?

>> Troy Henriksen: Do you know the Time? Like, what is the.

>> Steve Palmer: I believe it's a felony. The second degree in Ohio, it's, it's, uh, two to eight years in prison, uh, for that. So, you know, there's a lot of people that we know, you know, it's one of those things where this is why drinking driving is so dangerous. I mean, you know, it's like I always say, I don't, I don't consume alcohol anymore, but when people drink and drive, they're like, oh, yeah, I made it home. I was like, no, dumbass, you made it home without killing somebody, but you didn't make it home without getting caught. You made it home without killing somebody. And that's a good thing. But, uh, that's how you have to look at this. Nobody ever. Not nobody. Most people when they drive drunk, they think, dodged a bolt on that one. I made it home, but they're not really thinking, yeah, what if I killed somebody?

>> Troy Henriksen: Mhm.

>> Steve Palmer: Or even yourself, or the, or your girlfriend who's in the front seat, or whoever, you know, gets really ugly. And, um, that's the danger of these ovis. Now there's two ways you can be charged with. In Ohio, we call them Ovis. But think dui. There's two ways you can be charged with this. Uh, one would be, uh, if you just have a blood alcohol content above the legal limit. In Ohio, it's a crime to drive. In most states, they call that a per se violation. The other way would be is if you're just impaired, you're so drunk that you shouldn't be driving, or your ability to drive is impaired. In Ohio, again, we would define that as being appreciably impaired. Um, so there's two ways. And if you are doing either of those things and somebody dies, like in this tragic hockey accident, uh, uh, it'll elevate this to some pretty serious crimes. And, uh, uh. So what happened? I mean, look, this guy was probably driving recklessly to begin with, and we all knew that. And then the alcohol testing came back, and now. Now it's alcohol related. And I gotta tell you, it's a lot less forgiving, isn't it? You know, you hear, like, nobody ever thinks, oh, man, that's tragic. Uh, uh. For that guy. For both sides.

>> Troy Henriksen: Yeah.

>> Steve Palmer: When it's alcohol related, it's like, man, that's son of a. You know, because, look, we all know what it's like to drive when you're drunk. You know, who knows what he was doing? He probably had one eye closed, messing with the radio, jamming on his eye, whatever he's doing, and, uh, he's drunk, it elevates it to a really bad place, and it makes it all the more tragic for the family who think, man.

>> Troy Henriksen: And, like, when you say it's less forgiving, I think I was telling you about the arraignment video beforehand, when he was. I think the quote he says is like, the judge is telling me he's got to stay in, um, the jail until x day or something. He's like, you're telling me, m, I gotta be here till Thursday, and I'm like, man, you just took two people's lives. Like, that's not a good.

>> Steve Palmer: Yeah, you're telling me I gotta be here till Thursday. No, you may have to be here till, like, Thursday, 2020 or 2030, you know, or 2035 or whatever their penalty is out there, sometimes it. I'm sure other states, it's even. It's even worse. So. Yeah, and that's.

Troy says people often don't understand the danger of what they're doing

That's what makes it. When people act flip about it like that. That's what makes it so horrible. Because, again, that sort of makes the point that we were talking about people often don't understand the danger of what they're doing. It's not just that you made it home without getting caught. You made it home without killing somebody. This guy didn't make it home without getting caught. And he killed somebody.

>> Troy Henriksen: Yeah.

>> Steve Palmer: So. Or killed two people, frankly. And, uh, that's the, that's the horribleness of it. Now, I've seen, just as an aside, again, they don't teach you this stuff in Law School because this is the real world. Like, how this stuff applies. I've had plenty of cases like this one, um, and involved a bicyclist who was killed just like this here in Ohio. And what you. The other thing about bicycle is guys on bicycles and even motorcycles. Like, there's a. There's a. There's a, uh, there's a group of those people, you know, there's a. There's like a cause behind that. And, you know, the. This is where the bicyclists show up to court wearing all their bicycling gear. And when their helmets and everything else. Cause they want to make a statement like, look, watch out for us. And, um, people, it's like it becomes this sort of thing of its own. Uh, uh. And then if you add alcohol into the mix, it's. It's even worse. And. But I've seen two different reactions and depending on. And I sort of surmise this has a lot to do with people's faith. Has something to do with the, um. Um. The sort of stages of grief we've all heard about, like anger, denial, whatever. I don't know them all. But, um, um, you know, depending on the stage of grief and people's faith, I will see, say, like, two best friends are in a car and the driver kills his best friend. And I've had both ways where the family comes in and they want to see the family friend who they've known for 20 years, uh, go to prison forever. And they're unforgiving. And then I've seen it the other way where they'll come in and say, look, we've prayed about this. Uh, let's not ruin two lives here. This is tragic, but it doesn't have to ruin his life. Also, um. And I don't presume to know the right way how I would handle it if it were my son or how it would be. But I sort of sense it has to do with the stages of grief and grieving. And I will say this. There is no bringing it back. There's no changing it. I've done many sentencing hearings where I've had to talk about this. And it's, you know, I. It brings me to tears when I do it. So, anyway, that's the real world stuff. They don't teach you in law. They can't teach you that in Law School because most of your professors have not done what I do.

>> Troy Henriksen: No, absolutely not. I will say my criminal professor, I enjoy him a lot. He, he did work at the PD's, uh, office for a long time. He's a good guy.

>> Steve Palmer: It's just good.

>> Troy Henriksen: It's hard to teach all this in 50 minutes time segments three days a week. So.

>> Steve Palmer: Yeah, no, I got you. I got you. And we used to have people come in and give us guest lectures from practicing lawyers, and it's important that people do this. I think if you're going to be effective when you leave Law School, the more of this kind of information you can get, sort of the real world application of the stuff they don't teach you in Law School is, uh, is not only good, but I think it's, it's critical to doing this job as at least getting good at this job as fast as you can. So, anyway, uh, a real morbid topic, but I think a worthy one. Anyway, we are here answering those questions, the things that they don't teach you in Law School. Week, uh, in, week out here with Troy, uh, on lawyertalkpodcast.com, coming at you off the record, on the air, at least until now.