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.

Posted by Randa Wagner on May 9 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.