Jackson attorneys request B.A.C. and other evidence be suppressed
By RANDA WAGNER –
Cory Jackson’s Cleveland attorneys submitted a 50-page motion to suppress pertinent evidence at Jackson’s pretrial hearing March 30.
Defense Attorneys Larry Zukerman and Michael Lear of Zukerman, Daiker & Lear, Co. are requesting Morrow County Common Pleas Court Judge Howard Hall suppress any evidence involving blood or other fluid samples from their client on the grounds the samples were obtained illegally and unconstitutionally. The request includes chemical analysis results of blood alcohol content and other substances as well as any oral or written statements from Jackson before his arrest.
Jackson, of Bellville, is charged with aggravated vehicular homicide in an accident that killed Paul Nauman of Chesterville, on Nov. 17, 2011. At the time, it was determined Jackson had a blood alcohol content of .181. The legal limit in Ohio is .08.
In their motion, defense attorneys maintain that:
- The arresting law enforcement officer lacked probable cause to arrest Jackson, therefore any evidence obtained as a result, ‘is the fruit of an unconstitutional search and seizure in violation of the state and/or federal constitutional rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution’
- Statements obtained from Jackson were obtained in violation of his constitutional rights to be free from self incrimination, as guaranteed by the Fifth Amendment and Sixth Amendment to the United States Constitution
- The State of Ohio will not be able to establish that the fluid samples were withdrawn from the Defendant within three hours of the time Jacksn is alleged to have operated a vehicle
- Evidence of any chemical test of a bodily substance must be suppressed, ‘as the arresting officer did not have reasonable grounds to believe the Defendant was operating a motor vehicle under the influence of alcohol’
- Jackson was not under arrest at the time the Ohio BMV 2255 advisements were read to him, so the blood draw and/or fluid samples were obtained unlawfully
- procedures used in withdrawing, storing, transporting, and/or chemically testing the blood and/or fluids of the Defendant were not followed in compliance with Ohio Department of Health regulations
- The blood and/or fluid samples and/or results obtained by law enforcement officers were physician/patient privileged information
The motion to suppress states, in part, blood samples were drawn from Jackson at 9:50 p.m., just over 3 hours after the first crash call was made at 6:49 p.m., and that Jackson, was not under arrest at the time, was misinformed by the trooper of the consequences of refusing to consent to a blood draw. This, the defense contends, was an unlawful search and seizure. They cited State vs. Rawnsley (2011) and Schmerber vs. California (1966) as cases where blood draws not only constituted a ‘search of persons’ but also when a ‘search’ is not lawful.
The motion also questions how fluid samples were handled and transported through the U.S. mail, lacking refrigeration to preserve the integrity of the samples, as well as methods used for testing. Additionally, the motion maintains statements Jackson made to officers before his arrest about the amount of alcohol he consumed that evening should be suppressed, quoting the fifth, sixth and fourteenth amendments. The defense also requests statements made after Jackson was advised of his Miranda rights also be suppressed, as ‘there is no evidence that the Accused waived his constitutional right to remain silent…’
The ‘witness list’ the defense has compiled contains 80 names that include law enforcement officials, medical personnel, and family, friends and coworkers of Jackson’s.
A jury trial was set for June 11 but, due to the nature of the motion that was filed, Judge Hall took it out of trial assignment and set a hearing on the motion to begin July 2 at 9 a.m. Hall said it is possible the hearing could take two days, so he expects the state will go forward with the presentation of evidence at that time.
Jackson remains free on bond.