Let’s do a quick virtual survey.  How many have heard of Dating Violence?  A show of your virtual hands please.  I, for one, have never heard the term.  And a good possible reason, as Representative Emilia Sykes stated in her speech defending House Bill 392, is that Ohio is one of the last states in the Union to enact a statute designed to help victims of Dating Violence seek protection!  As The Pretenders once sang, “A, O, way to go Ohio.”

Dating violence is the equivalent to domestic violence, but without the status of the victim being a family or household member.  I would argue then when most people hear domestic violence they think spouses, cohabitating partners, or former spouses or partners with children.  That, in a gist, is what Ohio Revised Code 3113.31 (Domestic Violence Protection Order Hearings) provides as a definition for family or household member.

R.C. 3113.31 states that a family or household member means any of the following:

Any of the following who is residing with or has resided with the respondent (think assailant):

A spouse, a person living as a spouse, or a former spouse of the respondent.

A parent, a foster parent, or a child of the respondent, or another person related by consanguinity or affinity to the respondent.

A parent or a child of a spouse, person living as a spouse, or former spouse of the respondent, or another related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the respondent.

The natural parent of any child of whom the respondent is the other natural parent or is the putative other natural parent.

“Person living as a spouse” means a person who is living or has lived with the respondent in a common law marital relationship, who otherwise is cohabiting with the respondent, or who otherwise has cohabitated with the respondent within five years prior to the date of the alleged occurrence of the act in question.

In other words, for a person seeking a domestic violence protection order, the must be a spouse, a former spouse, living as a spouse, or a child in common.  So, what if you are in a relationship with an individual who is committing what amounts to domestic violence, but you do not fit into the definition to seek a protection order.  Up until recently, there was not much one could do in Ohio.

This loophole in the domestic violence protection order law is now set to change with House Bill 392.  Under the new law, persons in an ongoing, substantial, intimate and romantic relationship would now be included in the definitions for domestic violence protection orders.

The new proposed codified law, R.C. 3133.311, will have the following language:

“Dating violence” means the occurrence of one or more of the following acts against a petitioner alleging dating violence:

Attempting to cause or recklessly causing bodily injury;

Placing the petitioner alleging dating violence by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 (Menacing by Stalking) or 2911.211 (Aggravated Trespass) of the Revised Code;

…..

“Petitioner alleging dating violence” or “person alleging dating violence” means a person who has or has had a dating relationship with the respondent within the twelve months preceding the date of conduct in question that constitutes the alleged dating violence.  “Petitioner alleging dating violence” or “person alleging dating violence” does not include, with respect to a specified respondent, another person who has only a casual relationship with the specified respondent or another person who has engaged solely in ordinary fraternization in a business or social context with the specified respondent.

The existence of a dating relationship between two persons shall be determined based on a consideration of either the following factors:

The nature of the relationship must have been characterized by the expectation of affection between the two persons.

The frequency and type of interaction between the two person involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

Based on the proposed language, I think the majority of cases regarding Dating Violence protection orders will be dealing with the relationship itself.  Essentially, the arguments will be whether or not the parties had a relationship that would fit into the Dating Violence definition.  For example, would an off again and on again relationship count if the violence happened during one of off times of the relationship?

Like all new laws, the courts will have to hammer out the definition based on the specific facts of each case, assuming the proposed law makes it through the Senate and the Governor signs off on it.

First off, that is one hell of a title I came up with to discuss Intervention in Lieu of Conviction (ILC).  I am not even sure what the hell I was trying to convey in the title, but it sure does look like someone smart wrote it.  Or, it looks like a guy that can’t think and write at the same time wrote it.  I am going with the former.

In case you are not aware, but our society has a bit of a substance abuse problem.  Whether it is drugs or alcohol, us Americans love taking mass quantities of said substances.  Obviously, this leads to a majority of individuals abusing drugs and/or alcohol to a potential life of crime to support their habit.  This of course is a very basic interpretation of substance abuse and crime, but it gets the point across.  So we now have a society of individuals who turned to a life of crime due to their substance abuse and are screaming for help.  To boot, these individuals commit non-violent crimes in order to support their habit.  Recognizing that locking up individuals who commit non-violent crimes with substance abuse problems is not the answer, the Ohio State Legislature enacted Intervention in Lieu of Conviction.

Ohio Supreme Court Justice, Paul Pfeifer stated the following with regards to ILC:

“In Ohio, we have a law that we call intervention in lieu of conviction or ILC.  The law states that if a person is charged with a criminal offense, and the court has reason to believe that the drug or alcohol usage was a factor leading to the offense, the court may accept the offender’s request for intervention in lieu of conviction.

When the Ohio legislature enacted the ILC law, it made a determination that when chemical abuse is the cause – or at least a precipitating factor in the commission of a crime – it may be more beneficial to the individual and the community as a whole to treat the cause rather than punish the crime.

For that reason, ILC isn’t designed as punishment.  It’s an opportunity for first-time offenders to receive help for their dependence without the ramifications of a felony conviction.

In keeping with that goal, the ILC law has a section that states if the court grants an offender’s request for ILC, and the offender successfully completes the intervention plan, the court shall dismiss the proceedings against the offender.”

As Justice Pfeifer explained, an individual can receive treatment through the ILC program as well as having their case dismissed if the individual successfully completes the ILC program.  That is a huge win!  Avoid prison and a felony conviction, can’t really beat that one.  However, even with the ILC program, more and more individuals are reoffending.  The death grip drugs and alcohol have over an individual is truly fighting.

Just google heroin addiction, alcohol addiction, opiate addiction, etc. and you will find yourself reading testimonies of addicts describing how easy it is to reoffend or relapse.  I found story about a woman by the name of Vanessa, from the U.K., who has been 17 years sober from heroin.  She stated that “once addicted, your life becomes a dedication to your addiction.”  I find her words to be profound in the struggle against drug/alcohol addiction.

Alright Kopacz, so what the hell are you getting at here?  What I am getting at is that I truly believe that the ILC program is an excellent legislative initiative, but it does not go far enough to cover individuals who would be otherwise eligible for a court’s ILC program had they not been involved with a different court’s ILC program.  To help illustrate my point, let’s take a look State v. Greathouse, 2016-Ohio-1350.

In Greathouse, Greathouse moved the Medina County Common Pleas Court to accept her into an ILC program.  At the initial hearing, Greathouse was referred to the probation department for an assessment and the court requested supplemental briefing.

In support of her motion for ILC, Greathouse admitted that she previously pled guilty to non-violent charges in Summit County, and at the time of her motion she was currently on ILC for those charges.   Greathouse, however, argued that she had not been adjudicated guilty in the Summit County because if she completes the ILC program, the charges would be dismissed.  Greathouse went on to argue that because she had not yet completed an ILC program, she had not been “through” an ILC programs as contemplated by R.C. 2951.041 (B)(1).

The state filed a motion in opposition to Greathouse’s motion for ILC.  After what I am sure was just a bunch whining, the state argued that Greathouse would only be eligible for ILC if the state recommended her participation in the ILC program and the state would not do so.

Taking all arguments into consideration, the trial court held that under R.C. 251.041 (B)(1), Greathouse was eligible for the for ILC and granted her motion.  The state soon after appealed the trial court’s decision.

Before getting into the trial court and appellate court’s analysis, let’s take a look at R.C. 2951.041 (B)(1).

(B)  An offender is eligible for intervention in lieu of conviction if the court finds all of the following:

(1)  The offender previously has not been convicted of or pleaded guilty to a felony offense of violence or previously has been convicted of or pleaded guilty to any felony that is not an offense of violence and the prosecuting attorney recommends that the offender be found eligible for participation in intervention in lieu of treatment under this section, previously has not been through intervention in lieu of conviction under this section or any similar regime….

Looking at R.C. 2951.041 (B)(1), the appellate court held that since Greathouse pled guilty in Summit County, she would need the state’s approval for ILC in Medina County and because the state said no to ILC, Greathouse is shit out of luck.  What is interesting to note is that the appellate court’s reasoning had little to nothing to do with what the trial court held when it granted Greathouse’s motion for ILC.  In fact, the appellate court states, “We not that the trial court’s analysis focused on a different aspect of R.C. 2951.041 (B)(1).  However, because we conclude that Ms. Greathouse is ineligible for ILC for the reasons discussed, and it would be necessary for her to satisfy all of the requirements in order to participate, we need not evaluate the merits of the trial court’s reasoning.”

The trial court, in its reasoning, looked at Greathouse’s criminal course of conduct in Summit County and Medina County to determine if said criminal course of conduct was in fact of the same criminal course of conduct.  To support its decision that Greathouse’s criminal course of conduct was of the same conduct, the trial court used State v. Drager, 2006-Ohio-2329 and State v. Leisten, 2006-Ohio-805.

In Drager, Drager was indicted in Montgomery County and Greene County.  Prior to any court hearing in Greene County, Drager was accepted into Montgomery County’s ILC Program.  When Drager moved the Greene County Court for ILC through its progragm, the trial court was aware of Drager’s Montgomery County ILC Program and subsequently denied Drager based on already participating in an ILC Program.

The Second District Court of Appeals found “given Drager’s very successful progress through intervention in Montgomery County, and given that the Greene County offenses was part of the same course of conduct that resulted in the Montgomery County offenses (and the ongoing successful intervention in Montgomery County), we conclude that the trial court abused its discretion when it determined that Drager was not a suitable candidate for intervention due to his misdemeanor criminal history.”

However, in Lesiten, the Second District Court of Appeals held that “under Ohio Revised Code 2951.041 (B)(1), prior participation in lieu of conviction or similar regime renders an offender ineligible for intervention in lieu of conviction.”

To reconcile these two decisions, trial court for Greathouse found that the offenses that occurred in separate counties need to be the same course of conduct.  Thus, allowing Greathouse to be accepted into the ILC program.

Personally, I believe that the trial court in Greathouse’s case got it right.  I think courts should look to the criminal course of conduct instead of immidately rejecting a defendant who is currently going through ILC.

Side note, I looked up Greathouse’s case to see what actions were taken after the appellate court reversed and remanded the trial court’s decision.  Sadly, Greathouse’s bond was revoked for her failure to abide by terms and conditions of her bond.  I am willing to bet that not using drugs was part of her terms and conditions.

Growing up, I remember catching some of the older cartoons on the boob tube on Sunday mornings.  Don’t get me wrong, they were no Teenage Mutant Ninja Turtles, but still funny.  One particular character from the old cartoons came to mind when I read State v. Hepler, 2016-Ohio-2662.  And that character is none other than Deputy Dawg.

For those who can’t remember or don’t know, Deputy Dawg was a lazy sheriff deputy that just wanted to take naps and avoid work as much as possible.  He would bumble around with his friends Muskie and Vince to solve the case.  In the end, Deputy Dawg would proudly state, in his country bumpkin twang, “I always get my man.”  Unfortunately for one Deputy Swoap, his man got away.

In Hepler, Hepler had a few too many adult beverages before getting into his car to presumably drive home.  One his way home, Hepler caused a single vehicle accident in the rural part of Wood County.  Deputy Swoap was dispatched to the accident to investigate and assist with any injuries.  Upon arrival, Deputy Swoap asked Hepler if he had been drinking and if he needed any medical assistance.  Hepler answered in the affirmative to the former and in the negative to the latter.  Even though Hepler refused medical treatment, Deputy Swoap allowed the paramedics to take Hepler to St. Luke’s Hospital in Lucas County.

Back at the station, Deputy Swoap sent via fax a Statement Requesting The Release Of Records Pursuant to O.R.C. 2317.02 (B)(2) to the hospital Hepler was being treated.  Said fax was sent at 6:01 a.m.

The form stated the following:

I hereby state that an official criminal investigation has begun regarding Hepler and that I believe that one or more tests has been administered to him by this health care provider to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in his blood, breath, or urine at a time relevant to the criminal offense in question.  Therefore, I hereby request that, pursuant to Division (B)(2) of Section 2317.02 of the Revised Code, the health care provider supple me with copies of any records the provider possesses that pertain to any test or the results of any test administered to the person specified above to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in his blood, breath, or urine at any time relevant to the criminal offense in question.

A couple days later, the hospital faxed a copy of a Lab Order Detail report to Deputy Swoap. The report contained urine results for a drug test and a blood results for alcohol.  The urine test report stated that Hepler’s urine was collected on 8/10/2014, it stated no time for collection, it was positive for drugs, and it was collected for “medical purposes only.”

The blood test report stated that Hepler’s blood was collected on 8/10/2014, the collection time was at 6:25 a.m., Hepler’s blood alcohol level (BAC) of .16, and no notation for the purpose of the BAC test.  So unlike the urine test, Hepler’s blood test was not taken for “medical purposes only.”

Hepler was subsequently cited for OVI and various other criminal offenses.  Hepler moved the trial court to suppress the blood results based on a warrantless search and seizure of his medical records without exigent circumstances.  Hepler’s motion to suppress was overruled and Hepler appealed.

On appeal, Hepler argued that patients have a reasonable expectation of privacy in medical records and when under investigation for a crime, “should not be placed in the position where they must decide whether to receive appropriate medical care, which would require diagnostic testing, or refuse medical care due to fear that the government will obtain the results of the diagnostic testing.”

In response, the state asserts that “obtaining a search warrant can sometimes be more difficult than simply filling out an affidavit and presenting it to a judge.  Crossing jurisdictional lines can create havoc for an officer.  In this case the accident which led to the OVI investigation took place in Wood County but the hospital is in Lucas County.  Obtaining a search warrant is that much more difficult for a Wood County Sheriff to find a judge in Lucas County.  Although the difficulty in getting a search warrant is not of great concern when constitutional rights are at stake, such hurdles are unnecessary and do not serve the public good when a search warrant should not be required.”

Oh boo frickin hoo!  I hate it when the U.S. Constitution gets in the way of making life easier for cops!

Moving on, the appellate court starts their analysis by stating that an invasion of bodily integrity such as a compelled physical intrusion beneath an individual’s skin to obtain a sample of blood for use in a criminal investigation implicates an individual’s “most personal and deep-rooted expectations of privacy.”  Missouri v. McNeely, 569 U.S. ____ (2013).

The court then goes into some statutory analysis that I will skip because it is really boring and you would not care anyway.

The court eventually ends up finding that there was no evidence in the record to support that the blood-alcohol test was performed for medical purposes.  The court felt that the evidence suggested that the blood-alcohol test was done in response to law enforcement’s R.C. 2317.02 request sans warrant or a recognized exception to the warrant requirement.

Looking at the facts, Deputy Swoap faxed his request to the hospital at 6:01 a.m.  A specimen for the blood-draw test was collected 24 minutes after the request was made.  And unlike the urine test report, there was no indication on the blood report that the blood-alcohol test was done for medical purposes.

So why not just get a damn warrant Deputy Swoap?!?  Take a look at the following excerpt from Deputy Swoap’s testimony about steps taken after leaving the scene.

Q:        So what did you do then?

A:        Went back to the office and I called St. Luke’s Hospital, requested – to see who I could send the paperwork to hold the blood results.

Q:        And did you do that?

A:        I did.  I sent a request for medical release by Fax.

Q:        And what was your understanding what you would do in filing out this form?

A:        I would fill it out, I would fax it to the hospital, and they would release the toxicology results.

Q:        Now, you filled out that form, let me ask you this.  Why didn’t you choose to get a search warrant to ask for a blood draw?

A:        My understanding that the form has sufficed to get the blood draw before, I didn’t – Lucas County is not in my jurisdiction.  I am not going to attempt to track down a Judge for a search warrant in Lucas County.  And this has worked in the past so I went with the standard practice.

That last answer I read in Deputy Dawg’s country bumpkin twang.  Talk about saying to hell with it and not going the extra mile to get a damn warrant as required by the U.S. Constitution.

With that testimony, the appellate court held that “in no circumstances is an R.C. 2317.02 request a substitute for a warrant for a blood draw test nor is it a recognized exception to the warrant requirement.”  As a final note, the court stated “the trial court put the cart before the horse when it examined Hepler’s expectation of privacy in medical records without first finding that the blood-alcohol test was, in fact, performed for medical purposes.”

As another famous television police character Detective Sgt. Joe Friday use to say, “just the facts ma’am.”  And that is what saved the day for Hepler…the facts.  Something as basic as looking at the time of the blood draw and whether or not the doctor slapped a label that stated “for medical purposes only.”