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KELLY COX SEEKS NEW VENUE, COMPETENCY TESTING & SUPPRESSION OF ALCHOL TESTING

By: Steve Magas, November 10, 2011

In Geauga County Kelly Cox has been charged with driving drunk – with a HUGE BAC – and killing Judge Chip Henry. She recently filed three motions asking the court to
– move the case to a different venue.
– determine if she is comptent to stand trial and
– suppress the alcohol testing.

You can read the motions here.

MOVE THE TRIAL

The motion to move the trial is pretty straight forward and claims that Judge Henry was such a good guy, and his death so widely reported, that Kelly Cox can’t get a fair trial.  The motion claims that Election data will show that Judge Henry garnered more votes than anyone else in Geauga County no real data, and argues that his constituents are, in essence, potential jurors.

These motions are rarely granted.  “Big” criminal cases come up all the time.  Judges do not like to declare that the good people of county in which they were elected to the bench are not competent to hear big cases.  I believe a Visiting Judge from another county is hearing this case since all the sitting judges knew Judge Henry.  If I were a betting man, I would bet that the VJ will not move the case out of Geauga County… but we’ll have to wait and see.

MOTION FOR COMPETENCY HEARING

The second motion is more interesting.  Kelly Cox’s attorney has asked the court to have Kelly Cox examined to determine if she is competent to stand trial.

In support of this motion, Ms. Cox cites:

– a 20 year history of mental health treatment

– an emotional breakdown after she ran over Judge Henry

– an October 6, 2011 event where she was found “in a catatonic state.” During two days in the hospital  testing ruled out a stroke, it was decided that this was a “emotional breakdown”

– Cox has suffered four more similar events and her husband has taken over running the household and taking care of the kids

– Cox’s attorney has been unable to meet with her to prepare for trial

As a result of these circumstances, she is “presently incapable of appreciating the nature and objective of the proceedings” and is “incapable of assisting in her defense.”

The prosecutor has no objection to getting her tested.

So the argument here is NOT that she insane or otherwise emotionally disturbed at the time she ran over Judge Henry.  Rather, her attorney states that she has apparently come unglued after the crash and cannot assist in defending herself.  In light of this, the court ordered her to be evaluated by the court’s “Psycho-Diagnostic Unit.”

MOTION TO SUPPRESS

A motion to suppress comes up in virtually every criminal case.  The defendant argues that due to some glitch in the police investigation, or some rule that was not followed, the key evidence in the case should not be admitted.

In this case, the defense argues that the alcohol testing – basically the HUGE BAC number – be suppressed.   The rationale is that:

– Kelly Cox was “unreasonably and unlawfully detained” at the scene of the crash for over three hours.

– While at the scene Cox argues that she “did not exhibit indicia of intoxication nor smell of alcohol.”

– When she asked to go home, Cox states that she was told that police wanted her to submit to a blood test.  She said she was “scared” and did not want to submit to the test.  POlice told her they would get a warrant to draw her blood and she then “consented.”

Cox also argues that the State cannot prove that the blood testing was done in accordance with the various rules which must be followed for such things.

We will await the State’s response on the suppression motion.  Obviously, that’s a big one – without evidence of a huge BAC the primary charges go out the window.

Again, I’m no criminal lawyer, but when you hit and kill someone, then leave the scene and return some time later, I think authorities have the right to “detain” you… but what do I know…

 

 

Printed from: http://www.ohiobikelawyer.com/bike-law-101/2011/11/kelly-cox-seeks-new-venue-competency-testing-suppression-of-alchol-testing/ .
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4 Comments   »

  • Paul says:

    i feel for both familes.
    its sad because no one actually knows if the blood testing was done right.
    how do you know the judge didnt do wrong? he was in the middle of the road!
    how about before you post this stuff imagine what her kids are going through!
    people don’t think about this…

  • Steve Magas says:

    I’m not quite sure where to start responding to your comment Paul – I certainly “feel” for both families – Judge Henry’s family suffered a huge, irreplaceable loss – having communicated with some of his family members and friends, he was clearly a very fine son, father and friend whose death left an emptiness in the hearts of many…

    Your comment that “no one knows” if the blood testing was done right completely ignores the fact that any challenge to this was dropped by Ms. Cox when she withdrew her motion to suppress.

    As for Ms. Cox, I “feel” for her family -I’m sorry the kids of Ms. Cox were subjected to being driven around by someone with a blood alcohol content as high as she had – THAT was criminal – If she has an alcohol “problem” I am very sorry that her family has had to deal with this – alcohol and drug abuse takes a toll not only on the abuser who ingests the poison, but on the friends and family who have to interact with the abuser, or try to clean up the messes the abuser creates. I’m sorry her children had to witness her killing Judge Henry. I’m sorry they had to witness her running away and leaving him to die at the scene. I’m sorry they had to witness Ms. Cox refusing to take responsibility for her actions. I’m sorry they have to watch her go through the court system charged with aggravated vehicular homicide, leaving the scene, DUI, child endangerment and more. I’m sure it is difficult for her family.

    I am NOT sorry for publicizing this case, however. I’m not sure what the best way is to insure that EVERY motorist is aware that cyclists have exactly the same right of way as motorists, that cyclists have the right to ride on virtually every road in Ohio or that there can be very severe consequences to running over a cyclist – but I think publicizing the details of these cases is a start. Motorists, maybe, will behave better when they understand that they can do some serious time in prison if they don’t.

    This case is off the charts from most cases though – Ms. Cox BLEW A BAC OF MORE THAN 0.28%! That’s a HUGE number – and she was driving her KIDS around? That is world class recklessness…

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