Central Ohio DUI-OVI Blog

DOES COURT-ORDERED APOLOGY VIOLATE CONSTITUTIONAL RIGHTS?

2012-02-27T20:49:00.000-05:00

As an O.V.I./D.U.I. attorney, the Constitutional issues I regularly deal with involve the FourthAmendment (search and seizure), the Fifth Amendment (double jeopardy, self-incrimination, due process), and the Sixth Amendment (trial rights). O.V.I. cases, and this blog, typically do not include First Amendment topics. However, an Ohio court’s ruling has peaked my interest.

A magistrate in a Hamilton County court ordered Mark Byron to post an apology to his wife on Facebook every day for 30 days. Byron and his wife were going through a divorce, and his wife accused him of verbally abusing her and threatening her. Although Byron was exonerated of criminal charges, a court issued a civil protection order that prohibited him from doing anything that would cause his wife to “suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.”

Byron was unhappy with what happened, so he posted the following on Facebook:

“…if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely--all you need to do is say that you’re scared of your husband or domestic partner….”

Although Byron had blocked his wife from viewing his Facebook page, she learned of the post. The post came to the attention of the magistrate, and the magistrate found Byron to be in contempt of court. The magistrate ordered Byron to serve 60 days in jail or post an apology (written by the magistrate) on Facebook every day for 30 days. The story, and the apology, are on the website for USA Today.

The magistrate’s contempt finding raises some interesting issues. Byron made the comments to his “friends” on Facebook, knowing that his wife was not a “friend” and therefore could not see his posts. Do people not have the right to vent to friends?

The magistrate’s apology order also raises questions. Does the freedom of speech guaranteed by the First Amendment also include the freedom not to speak? Can a Court order a person to speak (or post) against his will?

Ironically, the magistrate also ordered Mr. Byron to be friends with his wife (on Facebook). I suspect they will not be ‘friends with benefits’.

THE DISAPPEARING INTOXILYZER 8000 RECORDS

2012-02-05T15:41:00.001-05:00

The State of Ohio may be regretting its $6.4 million purchase of Intoxilyzer 8000 breath-testing machines. In State v. Gerome, the judge wrote a decision critical of the Intoxilyzer 8000 that stated the machine is “capable of producing an inaccurate result.” In Statev. Reid, the judge decided the Intoxilyzer 8000 result was not even reliable enough to be admitted as evidence.

Implementing and maintaining the Intoxilyzer 8000s is the responsibility of the Ohio Department of Health’s (ODH) Bureau of Alcohol and Drug Testing. Before the Intoxilyzer 8000s were purchased, individual police departments maintained breath testing machines and the records for the machines. Now, ODH maintains the records for all Intoxilyzer 8000s in Ohio. Like many states, Ohio maintains those records online where, as public records, they can be viewed by anyone at any time.

The records are changing and disappearing. Until recently, the records for breath tests indicated how many “sample attempts” there were in a test. After there were tests with unusually high numbers of sample attempts (indicating a possible problem with the machines), all records of breath tests were changed to delete the number of sample attempts. Also deleted from all records was the breath volume and duration of the breath sample. The records for breath tests also used to indicate the results of “subject test 1” and “subject test 2”. After a judge found the test results did not comply with Ohio regulations (written by the Department of Health), the Department of Health changed all of the online records to say “subject sample 1” and “subject sample 2”. After Intoxilyzer 8000 machines gave outrageous results, (like 10.00 and 23.00), the records of those tests were entirely deleted.

Is ODH permitted to alter and delete records? According to Ohio law, and written on the “Breath Instrument Data Center” of the ODH website, records of breath tests “shall be retained for not less than three years”. Interestingly, this requirement is contained in a regulation authored by ODH. Implicit in that regulation seems to be a requirement that the records be retained without being altered. The deletion and altering of records may be more than a violation of a regulation. Ohio Revised Code section 2921.12 (Tampering With Evidence) says no person shall “alter, destroy, conceal or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such a proceeding or investigation”. Violation of this statute is a felony.

Whether a felony has been committed or not, altering and deleting records that are used as evidence in court has the appearance of impropriety. The ODH may have crossed the line in its efforts to protect the State’s multi-million-dollar purchase of machines that courts are calling unreliable.

NEW BOOK DISCUSSES VEHICULAR HOMICIDE CASES

2012-01-22T16:05:00.000-05:00

Vehicular homicide is the topic of a new book by Aspatore Books. The book, Defending DUI Vehicular Homicide Cases, was released in January, 2012 and is part of the “Inside The Minds” book series.

“Inside The Minds” is a series of books written by lawyers and executives for lawyers and executives. According to Aspatore, the series ‘was conceived to give a first-hand look into the leading minds of top business executives and lawyers worldwide, presenting an unprecedented collection of views on various industries and professions’. Aspatore is a division of Thompson Reuters.

This book, Defending DUI Vehicular Homicide Cases, contains chapters written by nine D.U.I. lawyers from across the country. Topics include case law, client relations, investigation, negotiation, trial preparation, and trial practice. I wrote the last chapter for the book: “Settlement Strategies for D.U.I. Vehicular Homicide Cases”. That chapter outlines my approach to negotiating resolutions with prosecutors and evaluating settlement offers with clients.

I am honored that Aspatore Books asked me to write a chapter for this book, and I hope readers gain insight from the knowledge and experience of all the authors. The book can be purchased from the Aspatore website.

O.V.I. AND CHILD ENDANGERING

2012-01-16T15:50:00.000-05:00

In July of 2011, state Representative Jarrod Martin was driving his children in his pickup truck in Jackson County, Ohio. He was pulled over by a state trooper for a marked lanes violation after his truck drifted left of center. The trooper asked Martin to perform field sobriety tests, and Martin declined. Martin also declined a breath test, which resulted in a one-year license suspension. Martin was charged with O.V.I. and Child Endangering in the Jackson County Municipal Court. He hired an attorney and pled Not Guilty. Six months later, the charges of O.V.I. and Child Endangering are being dismissed, and Martin is pleading guilty to the Marked Lanes violation, according to the Dayton Daily News.

In Martin’s case, the trooper added the charge of Child Endangering to the charge of O.V.I., which is common for officers to do when a driver is charged with O.V.I. and has a child in the car. Ohio’s Child Endangering statute specifically prohibits operating a vehicle under the influence (or over the limit) with one or more children in the vehicle. A driver who operates a vehicle under the influence (or over the limit) and has a child in the car necessarily commits the offense of Child Endangering simultaneously with the offense of O.V.I.

Although the two offenses are committed simultaneously, the Ohio Child Endangering statute say a person can be convicted of both O.V.I. and Child Endangering out of the same incident. The sentence for an O.V.I. includes a jail term, a license suspension, a fine, and probation, as well as possible yellow license plates and ignition interlock. For this type of Child Endangering conviction, the sentence includes a possible jail term, license suspension, fine, and probation.

Although the Child Endangering statute says a person can be convicted off both O.V.I. and Child Endangering out of the same act, it is questionable whether sentencing a defendant for both offenses would be upheld in court. The case of State v. Johson held that, if the two offenses are committed by the same conduct, the offenses merge for sentencing.

In Representative Martin’s case, sentence merger is not an issue because both charges are being dismissed. He does, however, still have an Administrative License Suspension (with limited driving privileges) for refusing the breath test.

COURT OVERTURNS CONVICTION OF DEAF DEFENDANT

2011-12-18T17:08:00.000-05:00

William Kral’s inability to hear made it very difficult for him to communicate with his attorney when he was charged with D.U.I. in the state of Washington. At his arraignment, he was assisted by an unqualified sign language interpreter that led him to believe the document he was signing was a continuance. The document was really a waiver of his right to a speedy trial. Six years later, Kral’s conviction was finally overturned, as reported by The News Tribune.

When a defendant is charged with D.U.I. (called O.V.I. in Ohio), one of the rights the defendant has in the court process is the right to a speedy trial. The right to a speedy trial can only be waived if the waiver is made knowingly and intelligently. Kral argued on appeal that the waiver of his speedy trial rights was not made knowingly and intelligently because he didn’t know he was waiving his rights.

Kral’s ordeal lasted for six years. During that time, he served a nine-month sentence, including three months in an alcohol treatment program. He also lost his job and paid $4,600 in fines. Kral reported that his court-appointed attorneys ignored or mishandled his case. Kral’s appeal was ultimately successful: the appellate court overturned the conviction and ordered the case back to the district court to be dismissed.

This case illustrates the significance of Constitutional rights. It also illustrates the importance of having a good D.U.I. lawyer to ensure those rights are protected. The reversal of Kral’s conviction is a victory for the deaf and a victory for Constitutional rights.

INTERESTING SEMINAR ABOUT MISTAKES COMMONLY MADE IN O.V.I. CASES

2011-12-11T21:29:00.000-05:00

Lawyers are required to attend a certain number of hours of continuing education every two years. Compliance with this rule is reported in January, so there are always a lot of continuing education programs in December. One of the programs offered this December was the Columbus Bar Association’s 2011 O.V.I. seminar. This year’s program not only fulfilled continuing education requirements but was also very interesting and educational.

The theme of the seminar was “mistakes commonly made in O.V.I. cases”. D.U.I.attorneys from central Ohio and across the state made presentations on how to avoid those common mistakes. I presented on the topic of “don’t be bullied into throwing away your client’s rights”, and the general message was how to be a strong advocate for your client in the court process but still treat opposing counsel with respect and professionalism. It was consistent with the post in this blog about ‘the under-rated lawyering skill”.

The most interesting presentation was from two people that served as jurors in a vehicular homicide case. One of the jurors happened to be a judge from the Franklin County Municipal Court. The other juror was a young woman with no prior jury service. It was helpful to learn what evidence the jurors found persuasive, what evidence did not have an impact, and how the jurors responded to the attorneys’ questioning and arguments. It was especially interesting to hear about the dynamics of the jury deliberation and voting.

Continuing education seminars are notorious for being boring (it is now time to get out your newspaper and/or smart phone…). This seminar, however, was interesting from start to finish (assuming mine was interesting!). Well done, Columbus Bar Association.

BLOOD TEST THROWN OUT BECAUSE DEFENDANT’S CONSENT WAS INVALID

2011-11-13T15:18:00.000-05:00

Occasionally, evidence in Ohio O.V.I. (D.U.I.) cases comes from a blood sample taken at a hospital. When the blood sample is obtained in a hospital setting, issues arise regarding the admissibility of the blood test. One issue is whether the suspect’s consent to giving the blood sample is valid. For the second time in a year, a court of appeals has concluded that a defendant’s consent to a blood draw was not valid because it was not made knowingly and voluntarily.

The case in which the court of appeals reached this conclusion is State v.Rawnsley. In Rawnsley, the defendant was involved in a two-car accident and taken to the hospital. At the hospital, a police officer read to the defendant an Ohio BMV form that informed the defendant of the consequences of consenting to a blood test and refusing a blood test. Ohio’s ‘implied consent’ law says there is an Administrative License Suspension for refusing the test or testing over the limit. The defendant consented to a blood test, and the result was presumably over the limit. The other driver involved in the accident was seriously injured, so the defendant was charged with Aggravated VehicularAssault.

The appeals court analyzed whether the defendant’s consent to the blood test was valid. The court reasoned that, for the defendant to be subjected to an Administrative License Suspension, the defendant must be under arrest. As this defendant was not under arrest, she could not be subjected to an Administrative License Suspension for refusing the test. Because the officer erroneously told the defendant her license would be suspended for refusing the blood test, the defendant’s consent to the blood draw was not made knowingly and voluntarily. As her consent was invalid, the blood test evidence was suppressed. The prosecution will not have to decide whether there is enough evidence to go forward with the charge of AggravatedVehicular Assault without the blood test evidence.

The officer was in a difficult position because he was following the typical protocol for O.V.I. cases, but there are some exceptions for unusual circumstances. The best practice for an officer in that position is to obtain a search warrant for the defendant’s blood sample rather than relying on the defendant’s consent. This case illustrates some of the complexities of Ohio O.V.I. law and the need for a skilled O.V.I. / D.U.I. lawyer.

THE UNDER-RATED LAWYERING SKILL

2011-11-01T15:03:00.000-04:00

Plea bargaining is an under-rated lawyering skill. Each Law And Order episode has about one minute of plea negotiations and 20 minutes of trial. That show would have us believe every case goes to trial. The reality is that fewer than five percent of criminal cases go to trial. The other 95 percent or more are resolved with plea agreements. Negotiating plea agreements may not be the sexy substance of television and movies, but it’s an important skill for criminal defense attorneys.

By ‘negotiating’ I do not mean taking a high volume of cases and pleading everyone guilty at the arraignment. That’s not negotiating, it’s being a “dump truck lawyer”. I’m talking about investing energy and resources to structure an agreement that is a win for both sides. Win-win agreements require defense counsel to understand the client’s goals and priorities, then communicate those to opposing counsel with logical and emotional appeal. Effective negotiations require thorough investigation and trial preparation before the negotiations even occur.

Interacting with opposing counsel is only part of reaching agreed resolutions. The other part is evaluating plea bargain offers with clients. To do this, I use the following approach: 1. What is the best case scenario? 2. What is the likelihood of the best case scenario? 3. What is the worst case scenario? 4. What is the likelihood of the worst case scenario? 5. What is the certain scenario of the proposed settlement? 6. Determine the client’s risk tolerance. 7. Analyze the factors in steps 3-6.

Although it’s not the stuff movies are made of, the art of negotiation is an important subject in criminal defense. It will be the subject of a chapter I’m writing for the upcoming book Defending DUI Vehicular Homicide Cases. The book, part of the Inside The Minds series by Aspatore Books, is expected to be published in early 2012.

LOCATION, LOCATION, LOCATION

2011-10-17T21:39:00.001-04:00

I’m moving my office to a new location. Beginning in October of 2011, my office is located in suite 450 of the Mettler Toledo building at 1900 Polaris Parkway in Columbus, Ohio. The building is pretty hard to miss: it’s a six-story office building at the intersection of Interstate 71 and Polaris Parkway (just north of I-270) and says “Mettler Toledo” in huge letters that can be seen from I-71 (and almost from I-270!).

I’m always looking for ways to improve the operation of my office. With the changes in technology over the course of my practice, my office operation has changed. My office is now essentially paperless, and all the information for my practice is on my laptop. With these changes, and after reading “The Four Hour Workweek” by Timothy Ferriss, I realized I can change the operation of my practice to be more flexible and efficient, if I have ‘the right office’.

My new office is ‘the right office’. The receptionist uses a phone system with voice over IP technology, so I can take client calls from anywhere. The administrative assistants use software that allows us to collaborate on tasks even when I’m not in the office. I suddenly feel free. I can get work done, review staff work, communicate with staff, and communicate with clients whether I’m at the office, the courthouse, or my house.

My new office is also good for clients. Most of my clients have cases in Franklin County or Delaware County, and I also have clients with cases in other central Ohio counties, so the new location is perfect. The location at I-71 and Polaris Parkway is convenient from just about any location in central Ohio. The suburban location is also nice because parking is so much easier for clients than when I was downtown.

My new office is also good for sentimental reasons. I grew up in this area, not far from the location of my new office (although it was then a corn field). I went to Olentangy schools and The Ohio State University, and I chose to stay in central Ohio to raise a family. I like practicing in the place that is home to me.

GOOD FRIENDS AND FIELD SOBRIETY TESTS

2011-10-08T19:06:00.000-04:00

Justin’s buddy was arrested for O.V.I. (D.U.I.) and called Justin to pick him up at the police station. Being a good friend, Justin drove to the police station. When he arrived, Justin was greeted by an officer who noticed that Justin had glazed eyes, slurred speech, and an odor of alcohol. The officer had Justin get out of the car, and the officer administered field sobriety tests. The officer arrested Justin and charged him with O.V.I. Justin later appealed his O.V.I. conviction, claiming the officer did not have justification to administer field sobriety tests.

The court of appeals decided Justin’s case in September of 2011 (State v. Trimble). The court reviewed the law regarding this part of the O.V.I. arrest process, which essentially says that, to administer fieldsobriety tests, an officer must have a reasonable, articulable suspicion that the suspect is under the influence. The court then evaluated Justin’s situation using a list of factors from the 1998 case State v. Evans and concluded that the officer was justified in administering field sobriety tests to Justin due to the time of day, Justin’s glazed eyes, the odor of alcohol, and Justin’s slurred speech. Justin’s conviction was upheld.

Justin learned the hard way that it doesn’t take much evidence to justify the administration of field sobriety tests. What he probably didn’t know, which most people don’t, is that he could have refused to perform the field sobriety tests. At least Justin is a good friend: a friend picks you up from jail, but a good friend is in jail with you.

WHAT HAPPENS IN VEGAS...

2011-09-18T16:29:00.000-04:00

What happens in Vegas in the fall is theannual seminar “DWI Means Defend With Integrity”. The seminar is presented by the NationalCollege For DUI Defense (NCDD) and the National Association of Criminal DefenseLawyers (NACDL). The seminar is greatbecause these two organizations are the best sources of continuing educationseminars for D.U.I. lawyers and criminal defense attorneys. Having the seminar in Vegas also doesn’thurt, as attendees can get an annual refresher on when to hit, stand, split anddouble- down.

Each year, I attend many seminars (and also speakat some), and the presentations at the Vegas seminar are consistently among thebest. This year, top DUI attorneys spokeon topics such as “The Cure For Bad Breath” for breath testing, “Winning FST Cross”for field sobriety tests, and “Gas Chromatography” for blood tests and urinetests. As always, I received several usefultips for my practice, and this year I also learned not to go all-in onthree-of-a-kind when there is a flush draw on the board.

Continuing education is critical for DUI attorneys, because the practice of law is constantly evolving. I attend more seminars than required because doingso really helps me keep up with changes in the law, strategies, and technology. At this seminar, I learned nearly as muchfrom the informal idea exchange among the lawyers as I did from the formalpresentations. I also was reminded thatthere are only five ways to roll a six or eight, but there are six ways to rolla seven.

What happens in Vegas doesn’t always have to stay inVegas. I’m ready to incorporate some key“take-aways” in my practice immediately. In addition to providing valuable strategies, the Vegas seminar also alwaysrefreshes my passion for my practice. Maybe I should go to Vegas more often….

O.S.U. GAME DAY CASES

2011-09-11T16:16:00.000-04:00

Plea bargaining is part of the criminaljustice system. If there weren’t pleabargains in large jurisdictions with high volumes of cases, the system wouldquickly be overwhelmed and log-jammed. In certain types of cases, however, there are no plea bargains. One of those case types is a “game daycase”.

A “game day case” in Columbus, Ohio is acourt case in which the alleged criminal conduct occurred on the day of anO.S.U. football game. The misdemeanorgame day offenses are prosecuted by the Columbus City Prosecutor’s Office. A few years ago, the prosecutor’s officeadopted a policy that game day offenses would not be plea bargained. The policy was part of a more comprehensiveeffort by campus and city officials to modify game day behavior.

Game day cases include offenses such as OpenContainer, Underage Alcohol Consumption, Disorderly Conduct, and O.V.I. The policy against plea bargaining game dayscases applies to college students and non-students alike.

Game days can be a lot of fun, but if you are celebratingan O.S.U. football game, use your head. Being arrested for a game day offense is a sure way for the fun to beruined.

AUTUMNAL D.U.I. CRACKDOWN

2011-08-27T15:55:00.000-04:00

It’s hard to believe that time of year is here already. Kids are going back to school, the leaves will soon be changing colors, and law enforcement is cracking down on D.U.I./O.V.I. in the Columbus, Ohio area.

This weekend in central Ohio, officers are operating four D.U.I. checkpoints. One checkpoint will be on Sawmill Road north of 270, and another will be on Refugee Road west of Hamilton Road. The other two roadblocks will be in Washington Courthouse and Logan. In addition to the sobriety checkpoints, officers will be conducting ‘saturation patrols’ in areas with the highest occurrence of alcohol-related crashes.

If a driver is stopped at a D.U.I. roadblock, officers may ask the driver to take field sobriety tests and a breath test. The officers may charge the driver with O.V.I. and may also immediately impose an Administrative LicenseSuspension.

The most recent checkpoint in central Ohio was on August 21, 2011 on West Broad Street. That evening, 157 vehicles were checked, and five drivers were arrested for O.V.I. That means about three percent of the drivers were suspected of being under the influence, and the other 97% were just hassled. However, according to NBC4i, a corporal with the Franklin County D.U.I. Task Force says the increased checkpoints have been ‘very successful’.

Successful or not, we can anticipate the annual increase in D.U.I. checkpoints will continue, as next weekend is Labor Day. Drive safely.

MIAMI COP INVOLVED IN STRANGE AND TRAGIC INCIDENT ON ATV

2011-08-13T15:01:00.000-04:00

In Miami, there’s nothing strange or tragic about a police officer riding down the beach on an ATV. What makes this incident strange is the on-duty officer is taking a female passenger on a joyride while he’s on duty. What makes this incident tragic is the officer plows into two pedestrians and severely injures both.

According to the Miami Herald, the officer and his partner went, on-duty, to a bachelorette party. After drinking and dancing with the women at the party, the officer gave the bachelorette a ride on his ATV and struck the two pedestrians. One suffered a broken leg, and the other was treated for a broken leg and a damaged spleen. Five hours after the accident, the officer’s blood alcohol concentration was .088. The officer now faces charges of D.U.I. with serious bodily injury and Reckless Driving with serious bodily injury. He posted bond of $30,000 and is scheduled to appear in court on August 24, 2011.

In Ohio, the officer would be charged with two counts of Aggravated Vehicular Assault. A person is guilty of Aggravated Vehicular Assault if it is proven that his operation of the vehicle under the influence (or over the legal limit) caused serious physical harm to another person. The penalties include a prison sentence of one year to five years (on each count) and a license suspension of up to ten years (on each count).

It is curious that it took five hours to take a blood sample from the officer. The blood sample was drawn by Miami Fire & Rescue personnel. In Ohio, a blood test is admissible if the sample is drawn within two hours of operating the vehicle (R.C. 4511.19). After two hours, the blood test is admissible only with expert testimony.

The officer has already been fired from the Miami Beach Police Department. According to the Miami Newtimes Blogs, he has a less-than-stellar record with the police department. Strange and tragic indeed.

SECOND D.U.I. CHARGE WITH A TWIST

2011-07-29T21:41:00.000-04:00

“Shawn, it’s Joe Smith. You’re not going to believe this, but….” I believe it, because I’ve received this call more than once. My client has a D.U.I. (O.V.I.) pending, we’re scheduled to go back to court soon, and the client is charged with a second D.U.I. This recently happened in a Florida case, with a twist.

The case in Florida involved a young woman named Jennifer. After receiving a report about Jennifer driving recklessly, an officer observed Jennifer stumbling out of a store with a can of beer. When the officer pulled her over, Jennifer had two empty bottles of Vodka in her car. She refused field sobriety tests, was arrested, and was charged with a D.U.I. The twist: she was on her way to court for a previous D.U.I charge.

For O.V.I. offenses in Ohio, the penalties increase significantly for a second offense within six years. While a first offense carries a minimum jail sentence of three days, a second offense carries a minimum jail sentence of ten days. That minimum sentence is doubled if the suspect refuses the breath test or tests at or over .170. A second offense also carries a longer license suspension and mandatory yellow license plates.

Ohio O.V.I. law has a twist of its own. Ohio Revised Code section 4511.19(G) says it’s a “second offense” if “an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to one” O.V.I. If the defendant pleads guilty to O.V.I. #1, then is charged with O.V.I. #2 and pleads guilty to O.V.I. #2, the second one will be a “second offense” for sentencing.

However, if the defendant is charged with O.V.I. #1 and is charged with O.V.I. #2 before being found guilty of O.V.I. #1, both will be “first offenses” with regard to the minimum mandatory sentence. This is due to the phrase “within six years of the offense, previously has been convicted….” At the time of offense #2, the defendant had not been previously convicted of an O.V.I.

There are lessons to be learned from the twist in Ohio law and the twist in the Florida case. First, if you get charged with O.V.I. and you think you may get charged with a second O.V.I. in the near future, don’t plead guilty until after you are charged with the second one! Second, don’t drive drunk to your O.V.I. court appearance!!

BULLCOMING!!

2011-07-02T16:13:00.002-04:00

The Sixth Amendment to the United States Constitution says a defendant in a criminal prosecution shall enjoy the right to be confronted with the witnesses against him. The extent of that right has undergone significant changes by courts interpreting the Constitution. A recent example is the case of Bullcoming v. New Mexico, in which the United States Supreme Court addressed the right of a defendant in a D.U.I. (O.V.I.) case to confront the analyst that determined the concentration of alcohol in the defendant’s blood.

The Bullcoming decision is actually the third case in a series of three modern U.S. Supreme Court cases discussing the confrontation clause. In Crawford v. Washington (2004), the Court held that any “testimonial” statements cannot be admitted in a trial unless the defendant has an opportunity to cross-examine the person that made the statements. In Melendez-Diaz v. Massachusetts (2009), the Court concluded that an analyst’s report identifying a drug is "testimonial", so it cannot be admitted at trial without live testimony. That case left open the question of whether the witness testifying has to be the analyst that actually performed the analysis.

That question was answered in Bullcoming. In this case, the defendant caused a two-car accident, failed field sobriety tests, and refused a breath test. He was given a blood test, and the result was .21. At the trial, the prosecution called an analyst to testify regarding the blood test. It was not, however, the analyst that actually performed the blood test. Bullcoming was convicted, and his case ultimately went to the U.S. Supreme Court. The Court concluded that the analyst who actually performed the test must testify at the trial unless the witness is unavailable and was previously subjected to cross-examination. Admitting the testimony of the other analyst violated Bullcoming’s right to confront the witnesses against him, so the conviction was reversed.

Bullcoming is an important decision for protecting defendants’ confrontation rights in O.V.I. cases and in criminal cases generally. An added bonus is that it’s also an easy case name for attorneys to remember.

CAN I TALK WITH AN ATTORNEY BEFORE FIELD SOBRIETY TESTS?

2011-06-21T13:52:00.001-04:00

Suddenly, there are flashing lights in your rear-view mirror. ‘What did I do?’ The officer slowly approaches your window. “Good evening. I noticed you had some trouble staying in your lane back there. I need to see your license, registration, and proof of insurance.” The nervousness makes it nearly impossible to get that stupid license out of your wallet. Where is the registration? You finally give the officer the documents. “Just sit tight”, he says, “I’ll be ‘right back.”

After what seems like forever, he returns. “I smell the odor of alcohol. I’ll need you to get out to make sure you’re okay.” Your mind races. ‘Is that glass of wine I had with dinner going to be a problem?’ You find the door handle, open the door, and get out. “Just stand on the spot where I’m shining my flashlight.” “I’m going to give you a few field sobriety tests to see if you are under the influence.”

‘Time out. Can I talk with an attorney first?’

The short answer is ‘no’. Keep reading for the longer answer.

The Constitution says we have the right to counsel, and the United States Supreme Court says that right exists at “critical stages” of criminal cases. A critical stage was defined in United States v. Wade as “any stage in the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.” Courts have interpreted the phrase “critical stage” to include police interrogations and post-accusation lineups.

Field sobriety tests, however, are not considered “critical stages”. Courts in Ohio have repeatedly held that there is no Constitutional right to counsel before taking field sobriety tests: as early as 1999 in State v. Arnold and as recently as 2011 in State v. Davis. Courts have also held that there is no right to counsel when deciding whether to take a breath test, blood test, or urine test because that also is not a “critical stage”.

As you do not have the right to talk with a DUI lawyer before the field sobriety tests, your ‘time out’ isn’t going to help much. Is that glass of wine going to be a problem now? A future post will discuss whether you have to take field sobriety tests, whether you should, and what happens if you don’t.

JUDGE RULES INTOXILYZER 8000 EVIDENCE INADMISSIBLE

2011-06-11T16:47:00.001-04:00

The last post of this blog discussed the Gerome case in Athens, Ohio. In that case, which is still pending, the judge will make decisions about the reliability of the Intoxilyzer 8000 and whether a defendant must be given an opportunity to challenge the breath test’s general reliability at trial. In a similar case in Circleville, Ohio, the judge recently ruled that evidence from the Intoxilyzer 8000 is not even reliable enough to be introduced as evidence at trial.

The case in Circleville is State v. Reid. In that case, three defendants were charged with O.V.I. and tested over the legal limit on Intoxilyzer 8000 breath tests. The defense attorney filed a motion challenging evidence concerning the Intoxilyzer 8000, and Judge Gary Dumm ruled in favor of the defendants.

In his decision, the judge stated, “The court has an obligation as a gatekeeper of evidentiary concerns to make its own assessment of the accuracy and reliability of the Intoxilyzer 8000 and this court has heard no evidence from ODH to lead it to believe that the machine is accurate and reliable.” The judge went on to conclude, “Having heard the testimony presented in the above cases, the court finds that the Intoxilyzer 8000 has not been demonstrated by expert testimony by the Ohio Department of Health to be an accurate and reliable instrument for breath testing in OVI cases.”

According to the Circleville Herald, Intoxilyzer 8000s in the Circleville area were immediately taken out of service and replaced with other breath-testing machines. According to my sources, the Ohio State Highway patrol is returning to using different breath-testing machines throughout the state. If the Intoxilzyer 8000 is no longer used in Ohio, what will the state do with the 700 machines it purchased at a cost of $6.4 million?

INTOXILYZER 8000 CASE MAY OPEN DOOR TO CHALLENGING BREATH TESTS AT TRIAL

2011-05-30T15:16:00.002-04:00

In previous posts, this blog has discussed two separate but related issues. The post on May 3, 2010 explained that defendants in Ohio O.V.I. cases do not have the ability to challenge the general reliability of breath testing machines at trial due to the holding in State v. Vega. The post on May 29, 2010 described how the Ohio Department of Health purchased 700 Intoxilyzer 8000 breath testing machines and is implementing use of the machines throughout Ohio. This post ties together those two issues because a case in Athens County involving the Intoxilyzer 8000 may open the door to challenges regarding the general reliability of breath tests.

The case in Athens County is State v. Gerome. In that case, the defendant was arrested for O.V.I. and tested over the legal limit on an Intoxilyzer 8000. The trial judge indicated that this case would be a test case to assess the reliability of the Intoxilyzer 8000. The local attorney representing the defendant obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Jon Saia and Timothy Huey).

The defense attorneys filed a motion challenging evidence concerning the Intoxilyzer 8000, and the prosecutor filed a motion seeking to exclude evidence at trial regarding the reliability of the breath test. The issues are framed as: (1) whether the holding in Vega still applies due to changes in the O.V.I. statute and case law; (2) whether evidence from the Intoxilyzer 8000 is reliable enough to be introduced as evidence at trial; and (3) if evidence from the Intoxilyzer 8000 is admissible at trial, must the defendant be given an opportunity to challenge the breath test’s general reliability.

The Gerome case has captured the attention of the media. The case was the subject of multiple television news report and a Columbus dispatch article. The first hearing was held on May 28, and the next hearing will be held in June. It is anticipated that the trial judge will issue a decision by the end of June.

As part of the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers, I have had the pleasure of working on this case in preparation for these hearings. It is our hope that the Gerome case will mark the beginning of a new era in defending clients against O.V.I. charges in Ohio.

IS THERE A RIGHT TO COUNSEL BEFORE TAKING A BREATH TEST?

2011-05-14T17:17:00.000-04:00

Imagine you have been arrested for a D.U.I. (O.V.I. in Ohio), and the officer is requesting that you submit to a blood, breath or urine test. You don’t know what you should do, so you ask to speak with an attorney before you make a decision. But the officer doesn’t let you. Is this a violation of your right to counsel? If so, what is the remedy? A recent decision by an Ohio Court of Appeals presents an interesting twist on these issues.

Generally, we have the right to counsel at “critical stages” of criminal cases (see, e.g., United States v. Wade). In Wade, the Court defined a critical stage as “any stage in the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.” Courts have interpreted the phrase “critical stage” to include police interrogations and post-accusation lineups. Courts in Ohio have held, however, that there is no Constitutional right to counsel before taking a breath test (see, McNulty v. Curry).

Although there is no Constitutional right to counsel before taking a breath test, Ohio does have a statute (legislative law) that addresses this issue. That statute says an arrested person must be permitted to communicate with an attorney and has a right to be visited immediately by an attorney for a private consultation (R.C. 2935.20). Violating this statute is punishable by a fine and a jail sentence.

This issue was the subject of a recent appeal in State v. Voorhis. In that case, the defendant was arrested for O.V.I. and asked to speak with a lawyer before deciding whether to take the breath test. The arresting officer did not permit Voorhis to speak with a lawyer. At the defendant’s trial, defense counsel wanted to explain to the jury that the officer violated the law, but the trial court prohibited this information. On appeal, the Court of Appeals upheld the decision of the trial court. The Court of Appeals did not give much reasoning for its decision, other than the trial court had discretion to deal with the issue and did not abuse that discretion.

On television, we always hear officers tell suspects, “you have the right to an attorney….” In the real world, there are limitations on the right to counsel. As long as courts do not see taking the breath test as a “critical stage”, the right to counsel has little meaning in this context.

TRAGIC BUS ACCIDENT RAISES QUESTIONS

2011-05-06T21:32:00.000-04:00

The Chicago Tribune reported that the driver of a tour bus in Chicago struck and killed a pedestrian, and a blood test following the accident was positive for cocaine. The bus driver is now being held without bail and likely facing charges of D.U.I. and Aggravated Vehicular Homicide. This tragic incident highlights the issues of driving under the influence of drugs, vehicular homicide, and commercial drivers.

When we hear a bus driver was charged with D.U.I., most people think of driving under the influence of alcohol. Under Ohio Law, an O.V.I. (same as D.U.I.), can be committed with drugs in two ways: (1) operate a vehicle under the influence of a drug of abuse; and (2) operate a vehicle with a prohibited concentration of a drug in one’s blood or urine (for cocaine, the prohibited concentration is 150 nanograms). The penalties for O.V.I.-drugs are the same as the penalties for O.V.I.-alcohol.

The bus driver will also likely be charged with the Illinois equivalent of Ohio’s Aggravated Vehicular Homicide law. A person is guilty of this offense if the person causes the death of another person by driving recklessly or operating a vehicle under the influence. The penalties for Aggravated Vehicular Homicide include a prison sentence up to eight years and a lifetime driver’s license suspension.

The bus accident also involves consequences for the driver’s commercial driver’s license (CDL). In Ohio, a commercial driver found operating with a prohibited concentration of alcohol or drugs will have an immediate license suspension with no driving privileges for commercial vehicles. If the commercial driver is convicted of an O.V.I., there is a one-year CDL disqualification.

It turns out the bus driver involved in this tragic accident had prior traffic violations, had served time in prison for sexual assault, and had additional sexual assault charges filed after the accident. It makes one wonder what kind of background check was done before he was hired to drive a tour bus and be responsible for the well-being of so many people.

SHOULD THE GOVERNMENT BAN APPS FOR DUI EVASION?

2011-04-16T15:53:00.000-04:00

There is an ever-increasing number of apps for Iphones, Droids, and BlackBerrys. In addition to finding local restaurants and launching angry animals, smartphone users can now download apps designed to help the users avoid DUI charges. United States senators recently moved smartphone manufacturers to discontinue these apps, which raises the question: should the government ban apps for DUI evasion?

Apps such as Fuzzalert, Phantom Alert, and Trapster give users real-time information regarding topics such as speed traps, traffic cameras, and DUI checkpoints. United States senators recently sent letters to Google (Droid), Apple (Iphone), and Research In Motion (BlackBerry) requesting the manufacturers to remove these apps from their app stores. According to Digitaltrends.com, Research In Motion agreed to pull the apps, Google declined, and Apple has taken no action.

The involvement of U.S. senators in this issue may foreshadow a government move to legislatively ban these apps. Such legislation would be similar to state laws that ban radar/laser detectors. While drivers shouldn’t need a DUI evasion app because they shouldn’t be driving drunk, this doesn’t seem like a critical issue requiring national legislation.

SHOULD I TAKE THE BREATH TEST?

2011-03-27T17:38:00.000-04:00

As a D.U.I. defense attorney, this is one of the most frequently asked questions I receive (second only to “how can you do that?”). The answer is surprisingly complicated: it depends on factors that include how much alcohol you drank, whether you are more concerned about the short-term or long-term status of your driver’s license, whether you have prior convictions, whether you’re on probation, and whether you have a commercial driver’s license.

If you are investigated for D.U.I. (O.V.I.), the process is going to involve the officer asking you to submit to a breath, blood or urine test. The first question to ask yourself is this: do I have a concentration of alcohol in my blood that is .08 or higher? Unfortunately, most people that have been drinking don’t know the answer to this. While there are many variables that affect one’s blood alcohol concentration (number of drinks, time period of drinking, weight, gender, etc.), a simple estimation can be found at the "drink wheel".

If you think there is a chance you are over .08, you probably don’t want to take the test (subject to exceptions, including those discussed below). If you take the test, the prosecution will have additional evidence to use against you in court. If you don’t take the test, there will be no test result to use against you, and the prosecution will have to prove that consuming alcohol impaired your ability to drive. If you take the test and the result is over .08, the prosecution must simply prove you operated a vehicle with a blood alcohol concentration over .08, even if the alcohol was not impairing your ability to drive.

A downside of declining the test is that the immediate license suspension is longer. If you refuse the breath test in Ohio (and you do not have prior convictions), the Administrative License Suspension is one year, and you are eligible for limited driving privileges in 30 days. If you take the test and are over the limit, the Administrative License Suspension is 90 days, and you are eligible for limited driving privileges in 15 days. The length of the Administrative License Suspension (and the waiting period for driving privileges) increases based on prior convictions and prior test refusals.

If you have prior convictions, there is additional incentive to take the test. Under Ohio Law (R.C. 4511.19[A][2]), a person with a prior O.V.I. conviction within 20 years who refuses the test is charged with a separate offense for refusing the test. That separate offense carries a jail sentence that is double the jail sentence for the O.V.I. charge.

You may also have additional incentive to take the test if you are on probation for an alcohol or traffic offense. Judges commonly order, as a condition of probation, that defendants not refuse chemical tests requested by law enforcement officers. If you are on probation and refuse the test, the refusal may be a probation violation that can result in a jail sentence.

If you have a commercial driver’s license (CDL), refusing the test can be disastrous. Although a court can grant limited driving privileges during an Administrative License Suspension, a court cannot grant privileges to use a CDL. That means, if you refuse and get a one-year license suspension, it is actually one year without using the CDL.

Although “should I take the test” is a frequently asked question, there is not an easy answer. Hopefully, the issues discussed here will help you think through the issues to make the best decision. The issues are discussed from a strategic perspective: the best course of action is don’t put yourself in a position where you have to make this decision.

AND THE RESULTS ARE IN…FROM THE DUI CHECKPOINTS

2011-03-19T16:05:00.000-04:00

St. Patrick’s day is one of the biggest days of the year for drinkers. In central Ohio, it’s second only to Independence Day. It is no surprise, then, that the Franklin County DUI Task Force announced two DUI checkpoints for St. Patrick’s Day, 2011. What may come as a surprise is that, after stopping 727 cars, only seven people were charged with D.U.I. (O.V.I.).

At DUI checkpoints, also called roadblocks, officers stop every vehicle (or subset of vehicles) that comes through the checkpoint location to question drivers about driving under the influence. The United States Supreme Court upheld the validity of sobriety checkpoints in Michigan v. Sitz. The Court found the inconvenience of drivers being stopped is outweighed by the government’s legitimate interest in reducing drunk driving. The National Highway Traffic Safety Administration (NHTSA) established recommended procedures for the locations of checkpoints, the operation of checkpoints, the publicity of checkpoints, and the extent of officer discretion involved in checkpoints.

If a driver is stopped at a checkpoint and suspected of being under the influence, the driver is further detained and subjected to field sobriety testing and breath testing. If the officer has probable cause to believe the driver is under the influence, the officer arrests the driver and charges the driver with Operating a Vehicle under the Influence (O.V.I.).

The goals for sobriety checkpoints are to deter drunk driving, detect drunk driving, and punish drunk drivers. While these are worthy goals, checkpoints really are not an effective method for enforcing D.U.I. laws. In the Sitz case, 1.6% of the drivers stopped were found to be under the influence. In the recent Franklin County checkpoint, that number was fewer than one percent (seven out of 727). While few drunk drivers are detected or punished using D.U.I. checkpoints, hundreds of drivers are inconvenienced in the process.

COURT SAYS FORCED BLOOD DRAWS ARE CONSTITUTIONAL

2011-02-19T14:13:00.000-05:00

Historically, if a driver refused to give a sample of blood, breath or urine, the driver’s license would immediately be suspended for refusing, but there would be no alcohol test to use as evidence against the driver. Things changed in 2009, when the Ohio legislature passed a law saying, if a person with prior O.V.I. convictions refuses to submit to a chemical test, “the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” R.C. 4511.191(A)(5).

The law authorizing forced blood draws was recently reviewed by an Ohio court of appeals in State v. Slates. Slates was arrested for O.V.I. and had prior convictions. The arresting officer requested that Slates submit to a breath test, but Slates refused, so the officer took him to the emergency room for blood to be drawn. Slates repeatedly said he did not want his blood drawn and physically resisted. The officer held down his arm while the nurse inserted the needle and drew his blood. The trial court ruled that the blood test would be admissible at trial, so Slates pled No Contest to O.V.I. and appealed to the Ninth District Court of Appeals.

On appeal, Slates argued that the law authorizing forced blood draws is unconstitutional because a forced blood draw is an unreasonable search and seizure. The Court of Appeals found that the intrusion on an individual’s Fourth Amendment interests is outweighed by the promotion of the government’s legitimate interest in public safety. Therefore, the court concluded, a forced blood draw in these circumstances is constitutional.

A person with prior O.V.I. convictions who refuses a chemical alcohol test will be in a lose-lose situation: there will be a longer Administrative License Suspension for refusing the test, and the results of the blood test will be admissible at trial. At least Ohio has not gone to the use of “phlebotocops” like those in Arizona, where police officers conduct forced blood draws on the street.

HOW DO I CHOOSE A D.U.I. ATTORNEY?

2011-02-06T14:19:00.000-05:00

The last two posts of this blog have addressed two frequently asked questions: (1) should I contest my D.U.I. charge? and (2) should I represent myself in a D.U.I.? This post discusses a common follow-up question: if I have decided to contest my D.U.I. charge and I’m not going to represent myself, how do I choose a D.U.I. attorney?

Choose an attorney that focuses on D.U.I. The last post compared choosing an attorney to choosing a doctor. If you are choosing a doctor for a problem with your big toe, you want a doctor that only treats feet, and preferably a foot doctor that focuses on big toes. If you are seeking a lawyer for a D.U.I. you want a lawyer that practices criminal defense and focuses on D.U.I. defense.

Choose an attorney that has education and training in D.U.I. issues. Look for an attorney that has completed courses in field sobriety testing, breath testing, and testing of blood and urine. Also look for a lawyer that is a member of the National College for DUI Defense and regularly attends continuing legal education seminars for D.U.I. law.

Choose an attorney that has experience in D.U.I. cases. You would not want a foot doctor that has been educated in foot medicine but has little experience actually treating feet. Look for a lawyer that regularly contests D.U.I. cases and has taken many cases through contested motion hearings and trials. It may also be helpful to find an attorney that practices regularly in the court where your D.U.I. case is being held.

Choose an attorney that has good communication skills. The lawyer needs to clearly communicate with you, the prosecutor and the judge. The lawyer should be able to educate you on the law and the process for your case. Communication also involves listening, so the attorney should listen to your situation and concerns, and answer all of your questions.

Choose an attorney that charges appropriate fees. The fee for contesting your D.U.I. charge is naturally going to be higher than the fee for walking you through the process of pleading guilty. The fee for a lawyer that focuses on D.U.I. is likely going to be higher than the fee for a lawyer that practices several areas of the law. If the fee is too low, the lawyer probably doesn’t value his or her time highly or does not plan to put a lot of work into the case.

There are many attorneys that handle D.U.I. (O.V.I.) cases in central Ohio. Hopefully, the criteria discussed here will help you evaluate which attorney is the best one for your case.

SHOULD I REPRESENT MYSELF (PRO SE) IN A D.U.I.?

2011-01-08T16:07:00.001-05:00

If you are charged with a D.U.I. (O.V.I.) in Ohio, do you really need to hire an attorney, or can you just represent yourself (proceed “pro se”)? This post could be cut short with the old adage “he who represents himself has a fool for a client”, but I think there are exceptions to this adage. However, if you are going to contest a D.U.I. charge, you are almost certainly going to need an attorney.

Attorneys know the court process and the people involved in the process. If you were going to a foreign country, wouldn’t it be nice to have a travel agent prepare you for all of the details about your destination? Wouldn’t it be even better to have a tour guide there to provide the information and answer your questions each step of the way? That’s one benefit of hiring an attorney, even if you don’t contest the charge.

If you do contest the charge, an attorney is crucial. I can read about my medical condition and become pretty informed. In fact, maybe I can diagnose my condition, choose my own over-the-counter medication, and administer the medication without consulting a doctor. You can read the law, you can brush up on the science (just watch CSI!), and you can practice your public speaking. But acting as your own doctor or attorney has its limits. If I need surgery, I’m going to a doctor with training and experience in surgery. If you are contesting a charge in court, you need an attorney that has training and experience in criminal defense litigation.

Maybe you are especially learned and articulate, and you really just intend to plead guilty and ask for a lenient sentence. Then go right ahead and represent yourself. If you are going to contest a D.U.I. charge, however, don't have a fool for a client.

SHOULD I CONTEST MY D.U.I. CHARGE?

2011-01-04T18:41:00.001-05:00

So you’ve been charged with a D.U.I. (O.V.I.) in Ohio, and you’re wondering if you should contest it or just plead guilty at the first court appearance (the arraignment). Pleading guilty at the arraignment would get it over with quickly, thereby saving time and money. On the other hand, a D.U.I. conviction will likely have a significant impact in the future.

If you plead guilty to a D.U.I., there will be court penalties for the D.U.I. conviction, and there will be secondary consequences. The court penalties include a mandatory jail sentence, a mandatory license suspension, a mandatory fine, probation, and the possibility of the following sanctions: yellow license plates, ignition interlock device, continuous alcohol monitoring, vehicle immobilization, and license reinstatement fees. D.U.I. sentences increase in severity for repeat offenses. In addition to the court penalties, a D.U.I. conviction has secondary consequences for issues such as auto insurance, life insurance, employment, education, military, professional licensing, immigration, and international travel.

You may be thinking that there’s no point in fighting the D.U.I. because the officer concluded you were under the influence or the machine concluded you were over the limit, so there is no chance of avoiding the DUI conviction. Not necessarily true. In many cases, you can beat the D.U.I. charge or at least have it amended to an offense that is not a D.U.I. If you plead guilty, there is a 100% chance you will be found guilty of D.U.I.. If you contest the charge, there is a good chance you will have a better outcome.

I’m not suggesting that every person charged with a D.U.I. should contest it. I’m suggesting that, before you decide what to do, you should weigh the pros and cons of pleading guilty vs. contesting the charge. The possibility of avoiding a D.U.I. conviction (as well as the penalties and the secondary consequences) may outweigh the time and money saved by pleading guilty at the arraignment. It’s wise to do a cost-benefit analysis and do what’s best for you.

HOPE OF CHALLENGING CRITICAL EVIDENCE

2010-12-18T18:02:00.000-05:00

The last post for this blog discussed the defendant’s right to confront and cross examine the people responsible for the chemical test that determines a defendant’s blood alcohol level. On one hand, the United States Supreme Court strengthened this confrontation right in Melendez-Diaz. On the other hand, an Ohio court of appeals in State v. Collins later held it is not a violation of the defendant’s confrontation rights to admit records at the motion hearing regarding maintenance of the breath-testing machine without the testimony of the person that maintained it. This post addresses a case decided after the Collins decision.

In the case of State v. Syx, the prosecution sought to introduce evidence that the defendant’s blood test showed an alcohol concentration of 0.11. The defendant filed a motion to suppress the results of the blood test. At the hearing on that motion, the prosecution did not call as witnesses the nurse that drew the blood sample or the toxicologist who performed the blood test. Instead, the prosecution called the chief toxicologist to testify about the blood test. The chief toxicologist was not present for the blood draw and was not involved in testing the blood. Nevertheless, the trial court concluded that the blood test was admissible.

The court of appeals concluded otherwise. The Court said the defendant has a constitutional right to cross-examine the nurse and the toxicologist. Because the prosecution did not present the testimony of those witnesses, the prosecution failed to prove that the blood test substantially complied with Ohio regulations regarding blood tests. As a result, the court of appeals reversed the defendant’s conviction.

The court of appeals in Syx recognized that the motion to suppress hearing is the only time the defendant can challenge the admissibility of the breath/blood/urine test, so the defendant must be permitted to cross examine, at the motion hearing, the individuals responsible for the test. This decision gives hope that there is, in fact, a right to challenge the most critical evidence in O.V.I. cases.

NO RIGHT TO CHALLENGE THE MOST CRITICAL EVIDENCE?

2010-12-11T17:28:00.000-05:00

Imagine a case in which the defendant is not permitted to challenge the most critical evidence. For example, imagine a products liability case in which the plaintiff says, “we know the product was defective because we did scientific testing which showed it was defective.” The defendant would challenge the scientific testing through cross examination to show why the plaintiff’s test was unreliable. In OVI cases in Ohio, the prosecution often introduces a scientific chemical test to prove the defendant’s concentration of blood, breath, or urine. The defense, however, is prohibited from challenging the general reliability of those chemical tests due to State v. Vega (see blog entry May 3, 2010).

As the defense cannot challenge the chemical test at trial, the defense challenges the admissibility of the test by filing a motion to suppress the chemical test and having a hearing on that motion. At the hearing, the prosecution must demonstrate that the machine used for the test was maintained in compliance with regulations issued by the Ohio Department of Health.

One would expect that, at the motion hearing, the defense would have an opportunity to cross-examine the person that conducted the test and maintained the machine. In fact, the United States Supreme Court declared a similar right to confront witnesses in Melendez-Diaz v. Massachusetts. In that case, the prosecution was trying to prove the defendant possessed cocaine and introduced a laboratory report concluding the substance possessed by the defendant was in fact cocaine. The Court held that admitting the laboratory report without having the testimony of the person who conducted the test violated the defendant’s right to confront witnesses against him.

Even after the Melendez-Diaz decision, however, some Ohio courts continue to admit evidence regarding the maintenance of chemical-testing machines without the testimony of the person responsible for it. In State v. Collins, decided in October of 2010, the court of appeals held that it is not a violation of the defendant’s confrontation rights to admit records at the motion hearing regarding maintenance of the breath-testing machine without the testimony of the person that maintained it.

Under Ohio law, the motion hearing is the time to challenge the admissibility of the breath/blood/urine test, and some courts (like that in Collins) now say the defense has no right to cross examine the person that maintains the testing machine to make its results reliable. Hopefully, this issue will soon be addressed by the Ohio Supreme Court and decided differently.

NAKED MAN CHARGED WITH D.U.I. AND OTHER OFFENSES

2010-11-28T16:17:00.000-05:00

After crashing his SUV into another car at the gated entrance to his Florida neighborhood, a man crashes through the entrance gate and comes to a stop. He then runs, naked, carrying his dog, into his home. An officer goes to the man’s home and finds him lying in bed with blood on his body and the bed sheets. As medical personnel treat him, the man becomes combative and kicks the officer, which leads to the man being tased. He is eventually charged with D.U.I. (second offense), leaving the scene of an accident, criminal mischief, resisting arrest, and battery on an officer. The incident was reported by the Panama City News Herald.

The state attorney’s office has not yet received the man’s medical records, which will include the result of his blood alcohol test. It would be interesting to know the results of that test. Apparently, no field sobriety tests were performed by the naked man. No word on the condition of his dog.

The defendant has not yet been convicted or sentenced in Florida. If this were a second offense D.U.I. (O.V.I.) in Ohio, the penalties would include a mandatory jail sentence of ten days to six months, a mandatory license suspension of one year to five years, a mandatory fine, mandatory alcohol treatment, mandatory yellow license plates, and a mandatory ignition interlock device on his car. These penalties are in addition to whatever sentence he may receive for the other offenses.

Not all D.U.I. cases are the same. What could have ended up as charges of D.U.I. and Failure To Control turned into a much more complicated situation. Given the long list of charges, it’s surprising the man was not also charged with Public Indecency and Cruelty to Animals.

HALLOWEEN COSTUME LEADS TO ANOTHER D.U.I. ARREST

2010-11-14T16:10:00.000-05:00

Earlier this month, a 19-year-old was pulled over for driving erratically in Lincoln, Nebraska. When police searched his vehicle, they found beer and a bottle of vodka. Following field sobriety tests, he was arrested for D.U.I. and had a breath alcohol concentration more than twice the legal limit (see article on The Smoking Gun). Most interesting is the Halloween costume the suspect was wearing when he was arrested: a breath-testing machine.

According to an older Smoking Gun article, history repeats itself. In November of 2009, another man was arrested for D.U.I. (O.V.I.) in Ohio while wearing a breathalyzer costume. In that incident, the 18-year-old blew slightly below twice the legal limit. Almost as ironic as his costume was his name: Miller.

Both of the costumed arrestees were under 21. In Ohio, there are slightly different penalties for adults and juveniles convicted of drunk driving. While the O.V.I. penalties for people 21 and over can be slightly more severe, the O.V.U.A.C. penalties for people under 21 include a longer waiting period for driving privileges (60 days rather than 15 days) and a requirement that the defendant re-take the driver’s license test.

It doesn’t take a D.U.I. lawyer to give sound Halloween advice:

(1) Don’t drive drunk

(2) Don’t drink underage

(3) Don’t violate rules (1) and (2) when dressed as a breath-testing machine.

SHOULD OHIO ADD A NEW D.U.I. CHARGE?

2010-10-31T15:06:00.000-04:00

The police chief in Austin, Texas recently proposed that the State add a new charge of “Driving While Ability Impaired”. Currently in Texas, a driver with a BAC of .08 or higher is considered to be under the influence. The proposed law would punish those drivers whose blood alcohol concentration (BAC) is between .05 and .07, according to a report by Fox News. The proposal in Texas raises the question of whether Ohio should consider adding a new charge for drivers with a BAC between .05 and .07.

Ohio’s current laws already punish drivers who “drive with ability impaired”. R.C. 4511.19(a)(1)(a) makes it illegal to operate a vehicle “under the influence” of alcohol. A driver is considered to be “under the influence” in Ohio if the consumed alcohol adversely affects and noticeably impairs a driver’s ability to operate a vehicle. Under this “impaired” law, it does not matter how much alcohol is consumed; if it is proven that the alcohol is adversely affecting the driver’s ability to drive, the driver is guilty, regardless of how much or how little alcohol was consumed.

Ohio’s current laws also punish drivers who drive with a prohibited concentration of alcohol in their system. R.C. 4511.19(a)(1)(b) to (a)(1)(k) make it illegal to operate a vehicle with prohibited concentrations of alcohol in one’s blood, breath, or urine. This law doesn’t merely presume a driver is under the influence, it flatly makes it illegal to drive with prohibited amounts of alcohol in your system. Under these “per se” laws, if a driver is caught driving with an alcohol concentration above the legal limit, the driver is guilty of O.V.I. even if the alcohol is not adversely affecting the ability to drive.

As Ohio’s current laws already address “driving while ability impaired” and also address driving with a prohibited concentration of alcohol, adding a new charge like the one proposed in Texas would be redundant and would only serve to add confusion to the already convoluted O.V.I. laws with severe O.V.I. penalties.

ADMINISTRATIVE LICENSE SUSPENSION REQUIRES ARREST

2010-10-09T15:10:00.000-04:00

R.W. lay in the hospital bed waiting for his injuries to be treated. A police officer came in the room and said she wanted to talk with him about the accident. The officer read to him the B.M.V. 2255 form regarding the consequences of taking and refusing the blood test. She asked him to submit to a blood test, and he refused. The officer wrote him a ticket for O.V.I. (D.U.I.) and imposed a one-year Administrative License Suspension (A.L.S.); the consequence for refusing the blood test.

We filed a motion to terminate R.W.’s A.L.S. At the hearing on our motion, the officer testified that she did not handcuff R.W. and did not intend to actually arrest him. She only intended to question him, request a blood sample, and write him a ticket. We argued that, based on the recent case of State v. Whitt, the judge should terminate R.W.’s A.L.S.

State v. Whitt was decided in August of 2010 by the Fifth District Court of Appeals. The facts of the Whitt case are nearly identical to the facts in R.W.’s case. In Whitt, the court reviewed the legislative language related to A.L.S. and concluded that an “arrest” is necessary before an A.L.S. can be imposed. In the Whitt case, the issue was whether the defendant’s submission to the blood test was coerced. The officer told Whitt the consequences of refusing a test (an A.L.S.), but those consequences couldn’t really be imposed; there could not be an A.L.S. because there was no arrest. The Court in the Whitt case concluded that the defendant’s submission to the blood test was therefore coerced and consequently inadmissible.

In R.W.’s hearing, the prosecutor argued that R.W. was arrested, so the A.L.S. should not be terminated. The judge, however, concluded otherwise. R.W.’s A.L.S. was terminated, and R.W. got his license back that day.

SHOULD WE GET TOUGH ON BICYCLE D.U.I.?

2010-09-25T17:24:00.000-04:00

A guy rode his bike to the ATM because he thought he was too drunk to drive (he probably needed the cash for Taco Bell or White Castle). To his surprise, a police officer arrested him for O.V.I. (D.U.I.) as he rode through a shopping center parking lot. As part of a plea agreement, the O.V.I. charge was amended, and the bicyclist pled guilty to a charge of Reckless Operation. In response, the city council of Upper Arlington, Ohio is considering toughening the city’s laws regarding riding a bicycle under the influence.

The law in Ohio regarding O.V.I. on a bicycle has developed over decades. When the Ohio Revised Code was adopted in 1953, bicycles were considered “vehicles”, but one couldn’t be charged with D.U.I. on a bicycle. That changed in 1983, when there was a major revision of Ohio D.U.I. law. Currently, Ohio traffic laws (including O.V.I.) apply to bicyclists when they operate “upon any highway or upon any path set aside for the exclusive use of bicycles” (R.C. 4501.01). That is Ohio law; Upper Arlington wants to make its own law so the O.V.I. prohibitions apply to bicyclists on private property open to the public (like the shopping center parking lot).

Should people be subjected to O.V.I. penalties for riding a bicycle under the influence? The relative risk of harm created by riding a bicycle drunk does not compare to the risk of harm caused by driving a car drunk. Nevertheless, a person who rides a bicycle drunk in Ohio is facing a mandatory jail sentence of three days to six months, a mandatory license suspension of six months to three years, and the possibility of having yellow license plates on his car. The license suspension really doesn’t make sense; the guy wasn’t using his driver’s license to ride the bike! It’s worse than charging someone with Boating Under The Influence (B.U.I.) for being on water skis under the influence (yes, this is also illegal).

Should the city change the law to make it easier to charge someone for O.V.I. on a bicycle? If the law is changed as proposed, the guy would be guilty for riding drunk in the parking lot, but not on the sidewalk. Does this make sense? Perhaps the city will next stiffen penalties for being under the influence on skateboards and roller blades.

Driver Arrested For DUI Twice In One Night

2010-09-12T14:07:00.000-04:00

A man in Casper, Wyoming was charged with D.U.I. twice in the same night. It was not the first such occurrence in this Wyoming town. The incident raises the issue of increased penalties for repeat D.U.I. offenses, additional charges for Driving Under Suspension, and the policy of releasing arrestees after they post bond.

The 67-year old retired physician was charged with D.U.I. after he blew a .087 on a portable breath test. He was taken to jail, where he posted bail and was released. About 25 minutes later, he was arrested and charged with a second D.U.I. as he drove away from the jail. According to the Casper Star-Tribune, he told the second arresting officer that he had been in jail and had not been drinking there. He pled not guilty to both charges, and his case is pending.

If this incident were to occur in Ohio, the potential sentences for the D.U.I.s (called O.V.I. in Ohio) would be increasingly severe. While the first offense would carry a mandatory three days in jail that may be satisfied by a three-day driver intervention program, the second offense would carry a mandatory minimum sentence of ten days in jai. For the second offense, there would also be a higher fine, a longer license suspension, and the defendant would be required to have yellow license plates.

The other complication in Ohio would be that the defendant would be charged with driving under suspension. When a person is arrested for O.V.I., they are asked to take a breath test, blood test, or urine test. If the result is at or over the limit (.08), or if the person refuses the test, the person is subjected to an Administrative License Suspension. If the retired doctor was driving away from the jail in Ohio, he would be driving under the administrative suspension, which would be a separate offense carrying a minimum of three additional days in jail.

This incident raises a question about the jail’s policy of releasing D.U.I. arrestees after they post bond. The Star-Tribune article indicated that each county in Wyoming has its own policy on this issue. This county, however, had a previous incident in 2007 in which the arrestee was released and hit a pedestrian as he drove home. Maybe they should require that the person be picked up at the jail rather than allowing the person to drive away.

“Over The Limit, Under Arrest” Campaign Kicks Off In Ohio

2010-08-21T14:22:00.004-04:00

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Law enforcement in Central Ohio is participating in a state-wide crackdown on drunk driving, as reported by NBC4i. They are trying to send the message: “if you drive drunk, you will be caught and arrested”.

The state-wide campaign, “Over The Limit, Under Arrest” began on August 20, 2010 and continues through Labor Day. The campaign is planned to include dozens of checkpoints and more than 1,300 hours of saturation patrols around the state. In central Ohio, part of the “enforcement blitz” included an O.V.I. (D.U.I.) checkpoint in Westerville on August 20. When the campaign was announced, leaders of various law enforcement organizations also announced a "Joining Forces To Save Lives" partnership.

Joining forces to save lives is a worthy cause. Unfortunately, sobriety checkpoints are ineffective: hundreds of drivers are stopped, only a very low percentage are driving under the influence, but all are inconvenienced. For example, 853 drivers went through the D.U.I. checkpoint in Westerville on August 20, 359 were stopped, and two were under the influence.

Additionally, an “enforcement blitz” sometimes snares the wrong people in its net. Imagine a driver that gets pulled over for a minor traffic violation and has an odor of alcohol on her breath because she had one drink with dinner. If she has poor balance and “fails” field sobriety tests, she’s likely to be charged with O.V.I. as part of the crack-down, even though the drink really wasn’t impairing her ability to drive.

Everyone agrees that we need to apprehend and punish drunk drivers. However, we also need to distinguish between “drinking and driving” and “drunk driving” to make sure that hyped-up crack-downs do not result in overzealous enforcement and undeserved punishment.

12-YEAR-OLD IS ONE OF THREE CHARGED WITH DUI IN ONE INCIDENT

2010-08-14T15:49:00.001-04:00

Police in Minnesota arrested three people for DUI in one incident. Police received a call that a car went off the road and crashed into a shed. When they arrived, they found the driver and passenger in the car. The driver was a 12-year-old girl, and she was ultimately charged with DWI. The passenger, a 19-year-old man, attempted to move the vehicle, and he too was charged with DWI. Another 19-year-old man drove a moped to the scene to pick up the passenger, and the moped driver was also charged with DWI. The story was published online in the Crimesider page of the CBS News website.

In Ohio, if a 12-year-old were suspected of drunk driving, the juvenile may face multiple charges. First, the juvenile may be charged with O.V.I. (D.U.I.) for operating a vehicle under the influence of alcohol and subjected to O.V.I. penalties. Second, the juvenile may be charged with O.V.U.A.C. for operating a vehicle after underage consumption and be sentenced for underage O.V.I. Third, the juvenile may be charged with Underage Alcohol Consumption which carries additional sanctions.

The Minnesota deputies must have been surprised to find a 12-year-old behind the wheel of the wrecked car and even more surprised to arrest three people for DUI out of the same incident.

DRIVING UNDER THE INFLUENCE OF PRESCRIPTION MEDICATION

2010-07-24T17:51:00.001-04:00

When we think of O.V.I. (D.U.I.) cases, we tend to think of cases involving a person driving under the influence of alcohol. However, Ohio O.V.I. law also prohibits operating a vehicle under the influence of a drug of abuse, and many prescription medications are “drugs of abuse”. In a recent O.V.I. case, the court of appeals stated the defendant could be convicted of O.V.I. for operating a vehicle under the influence of prescribed medication.

The Ohio O.V.I. statute (R.C. 4511.19) says, “No person shall operate any vehicle *** within this state if, at the time of the operation…the person is under the influence of alcohol, a drug of abuse, or a combination of them.” The law also prohibits operating a vehicle with certain concentrations of alcohol or certain drugs in a person’s system. At or above those concentrations, a driver is per se under the influence. The statute lists certain drugs and their prohibited concentrations, including amphetamine, marijuana, cocaine, heroin, and L.S.D. The statute does not list prohibited concentrations for prescription medications like Percocet, Vicadin, and Valium. Drugs are typically detected by urine tests and blood tests.

The recent case involving a conviction for O.V.I. based on prescription medications was State v. Andera. In that case, the defendant caused an accident which led to the death of one person and injuries to two others. The defendant was charged with O.V.I., Aggravated Vehicular Homicide, and Aggravated Vehicular Assault.

At trial, the evidence showed that the defendant had Vicadin (hydrocodone) and Valium (diazepam) in his blood. The defendant argued that he should not be found guilty because he was following the advice of his doctors by taking his prescription medication, so he did not have any intent to commit the offense. The defendant was convicted and sentenced to 15 years in prison. The court of appeals commented that the prescription medication defense was futile because O.V.I. (and the other charges) is a strict liability offense; no intent is required…the prosecution need only prove the defendant was under the influence while operating a vehicle.

Interestingly, if a defendant is charged with a per se O.V.I. offense (operating with a prohibited concentration of a drug), he can raise the defense that he was following the advice of his doctors by taking the prescribed drug because this defense is built-into the O.V.I. law in paragraph (K) of R.C. 4511.19. In the Andera case, this defense would not have worked for two reasons. First, Vicodin and Valium are not in the list of drugs with per se offenses. Second, his blood test showed he had approximately ten times the therapeutic dosage of Valium and five times the therapeutic dosage of Vicodin in his system at the time of the crash.

Even if a driver only has the therapeutic dose of prescribed medication, the driver can be convicted of O.V.I. in Ohio if the prescribed medication is a “drug of abuse” and is impairing the driver’s ability to operate the vehicle. Learn from this case:
Lesson #1: If a prescribed medication impairs your ability to drive, don’t drive.
Lesson #2: Don't argue you were following your doctor's advice if you took ten times the prescribed amount.

MY FIRST CASE WITH THE INTOXILYZER 8000

2010-07-17T18:52:00.001-04:00

In a previous post, I discussed the Intoxilyzer 8000. The Ohio Department of Health made a controversial purchase of 7000 of these breath-testing machines, and a few are being used in central Ohio D.U.I./O.V.I. cases. In the previous post, I said I would give developments from my first 8000 case.

My client was pulled over for speeding; based on the officer’s visual estimation of my client’s speed. The officer observed the odor of alcohol and had my client get out of the car. The officer administered field sobriety tests, which my client reportedly failed. The officer arrested my client, took him to the police station, and asked him to take a breath test. My client took the breath test twice on the Intoxilyzer 8000. The first test result was .203, and the second test result was .235.

I reviewed the records and found an obvious error. The written report printed by the 8000 said in bold letters “Invalid Test Information”. According to the Intoxilyzer 8000 manual provided by the Ohio Department Of Health, this error code is produced when the “start” button is pressed during the testing sequence.

I filed a motion to suppress the results of the breath test, in addition to a motion to suppress the field sobriety tests. The prosecuting attorney acknowledged that the “invalid test” report was problematic, and the results of the breath test were suppressed. The judge also suppressed the results of the horizontal gaze nystagmus (HGN) test (where the suspect follows a pen with his eyes).

It is disappointing that, despite the bold letters saying “Invalid Test Information”, my client was charged with D.U.I./O.V.I. for having a prohibited concentration of alcohol in his breath. In addition, my client’s license was taken due to an administrative license suspension based on that same invalid test. Thankfully, he now has his license back, and the case will go to trial, without evidence regarding the breath test and the HGN test.

NEW DISCOVERY RULE FOR OHIO O.V.I. (D.U.I.) CASES

2010-07-10T14:26:00.001-04:00

Discovery is the process by which the prosecution and defense exchange evidence. In Ohio, the discovery process for criminal cases (including O.V.I./D.U.I. cases) is governed by Rule 16 of the Ohio Rules Of Criminal Procedure. Rule 16 was recently revised, and the revised rule became effective on July 1, 2010.

Rule 16 tells us what information the prosecution and defense must exchange. The stated purpose of the rule is “to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.”

The discovery process in an Ohio D.U.I. (O.V.I.) case is initiated by the defense attorney filing a “demand for discovery”. After the defense lawyer files this demand, the prosecution must provide the following items to the defense:
(1) Statements by the defendant or a co-defendant;
(2) Criminal records of the defendant, co-defendant, and prosecution witnesses;
(3) Laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, and places;
(4) Physical or mental examinations, experiments and scientific tests;
(5) Evidence favorable to the defendant and material to guilt or punishment;
(6) Reports from peace officers; and
(7) Statements of prosecution witnesses.

After the prosecution provides the requested items, the defendant must provide the following items to the prosecution:
(1) Laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings and places;
(2) Physical or mental examinations, experiments or scientific tests;
(3) Evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alib;
(4) Investigative reports; and
(5) Statements of defense witnesses.

In addition, expert witnesses for both sides must prepare a report summarizing the expert witness’s testimony, findings, analysis, conclusions and qualifications.

The new version of Rule 16 is different from the previous version in at least three significant ways. First, the new rule requires the prosecution to provide the defense with reports from peace officers. Second, the new rule requires the exchange of witness statements. Third, the new rule requires the preparation and exchange of expert witness reports.

It is too early to tell what impact the new discovery rule will have on D.U.I./O.V.I. cases in Ohio, as the new version of Rule 16 became effective on July 1, 2010. From the defense perspective, it is a welcome change that the prosecution must provide reports from peace officers and witness statements. These changes certainly are consistent with the rule’s goal “to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts.”

BOATING ON 'DRY WATER'

2010-07-03T16:14:00.001-04:00

Some people think that boating and beer go hand-in-hand, like baseball and hotdogs or hockey and fighting. The Ohio Department of Natural Resources, however, is taking part in a nation-wide crackdown on boating under the influence (B.U.I.): “Operation Dry Water”.

Operation Dry Water is a national campaign to enforce laws prohibiting boating under the influence. This is the second year for the campaign. In the United States last year, officers nationally wrote 5,320 warnings and arrested 283 people for drunk boating. In Ohio last year, more than 100 citations were written, and 12 people were arrested for operating a boat under the influence.

The Ohio law regarding B.U.I. is found in Ohio Revised Code section 1547.11. That statute prohibits operating or being in physical control of any vessel (including water skis!) on the water if the person is under the influence of alcohol or drugs. The law makes it illegal to operate or be in physical control of a water vessel with a prohibited concentration of alcohol or certain drugs in the person’s breath, blood or urine. Penalties for B.U.I. include a jail sentence of three days to six months, a fine of $150 to $1,000, and up to five years of probation.

Boating under the influence is increasingly monitored. There is even a website: boatingundertheinfluence.org. Enforcement of B.U.I. in central Ohio will be especially heavy this summer, particularly on weekends and holidays. As advised by a DNR officer in the Columbus Dispatch, “If you don’t feel you can get behind the wheel of a car, you shouldn’t be driving a boat”.

VISUAL ESTIMATION OF VEHICLE'S SPEED

2010-06-12T21:44:00.001-04:00

Was that car going 47 mph or 45 mph in the 45 zone? Can you tell? Can a trained police officer tell? A recent Ohio Supreme Court case suggests they can.

In Barberton v. Jenney, the Ohio Supreme Court held that a police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding without independent verification of the vehicle's speed if the officer is trained, is certified, and is experienced in visually estimating vehicle speed.

Visual estimation of speed may be significant in central Ohio O.V.I. (D.U.I.) cases because an officer’s visual estimation of a car’s speed may provide the justification for making a traffic stop. As I mentioned in an earlier post, an officer must have ”reasonable articulable suspicion” to make a traffic stop: the officer must be able “to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” making a traffic stop.

Ohio appellate courts have held that officers lacked reasonable and articulable suspicion to stop defendants’ vehicles for speeding. In Maumee v. Johnson and State v. Fountain, the trial courts granted the defendants’ motions to suppress evidence when officers made traffic stops based on the officers’ visual estimation of the defendants’ speed. In both cases, the appellate courts upheld the trial courts’ decisions because the evidence did not establish the officers’ qualifications for visually estimating the vehicles’ speed.

I currently have two cases pending that involve traffic stops based on officers’ visual estimation of speed. In one case, the officer concluded that the defendant must have been speeding because the defendant got from one point to another faster than the officer would have expected if the defendant were going the speed limit. In the other case, the officer predicted that the defendant was going 47 mph in a 45 mph zone.

Permitting traffic stops and speeding convictions based on visual estimations of speed is questionable. Within a week of the Ohio Supreme Court’s decision in Barberton v. Jenney, the Columbus Dispatch reported that multiple legislators have already introduced legislation to prevent officers from writing tickets based only on visual speed estimations.

THE INTOXILYZER 8000 IN CENTRAL OHIO

2010-05-29T14:59:00.001-04:00

Breath-testing machines have been used for O.V.I. (D.U.I.) in Ohio for decades. Until recently, the breath-testing instruments approved by the Ohio Department of Health (ODH) were the BAC Datamaster and the Intoxilyzer 5000. In 2009, the Ohio Department of Health approved the use of the Intoxilyzer 8000. In addition, the ODH purchased 700 Intoxilyzer 8000s, at a cost of $6.4 million, to be used throughout the state.

The state’s purchase of the Intoxilyzer 8000s was controversial, as reported in the Columbus Dispatch and the Cleveland Plain Dealer. At the time of the purchase, the 8000 had already been the subject of legal challenges in other states, including Arizona, Florida and Minnesota. Some of those challenges continue. The state of Florida has ordered the manufacturer of the 8000, CMI, Inc., to pay monetary penalties for not divulging the source code for the machine’s software. The state of Tennessee considered the 8000 for use in that state and ultimately rejected the 8000. Despite these challenges, the 8000 was chosen over an Ohio-made Datamaster.

In addition to the legal challenges, the ODH decision to purchase Intoxilyzer 8000s was controversial due to the relationship between an ODH employee and CMI. Dean Ward, then head of the ODH Bureau of Alcohol and Drug Testing, wrote the specifications that led to adopting the 8000 and was a friend of CMI president Toby Hall. Now retired from ODH, Ward is rumored to be employed in some capacity by CMI.

Use of the Intoxilyzer 8000 has been implemented in a few counties throughout Ohio. In central Ohio O.V.I. (D.U.I.) cases, the 8000 is now being used in Marion County and Union County. I was recently retained for my first case involving an 8000 in Marion County. In a few weeks, I have a hearing on a motion to suppress the breath test in that case. Should be interesting…I’ll post the outcome.

MARKED LANES VIOLATIONS

2010-05-24T15:25:00.001-04:00

A police officer must have some justification for making a traffic stop. In some traffic stops that lead to O.V.I. (D.U.I.) arrests, the justification for the stop is a “Marked Lanes” violation. But what is a Marked Lanes violation, and when does it justify a traffic stop?

The Ohio statute containing the rules for driving in marked lanes is R.C. 4511.33. That statute states: “A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety.”

To stop a vehicle for a Marked Lanes violation (or other traffic violation), Delaware v. Prouse says an officer must have “articulable and reasonable suspicion” that an offense has been or is being committed. ”Reasonable articulable suspicion” is defined as the ability of the officer “to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” making a traffic stop.

The Ohio Supreme Court addressed Marked Lanes violations in State v. Mays. In that case, a trooper observed the defendant’s vehicle drift across the white fog line by approximately one tire width two times. The trooper made a traffic stop and ultimately charged Mays with O.V.I. (D.U.I.). The trial court ruled that the officer did not have justification for the traffic stop, but the Fifth District Court of Appeals reversed the trial court’s decision. Mays appealed to the Ohio Supreme Court, and the case was determined to be in conflict with the Third District’s decision in State v. Phillips (the Third District concluded that crossing the fog line three times did not justify the traffic stop). The Ohio Supreme Court in Mays held that crossing the white fog line gave the trooper reasonable suspicion to justify the traffic stop and also commented that probable cause (a higher standard of proof) is not required to make the stop.

One interesting issue regarding Marked Lanes violations is the statute’s requirement that a vehicle must be driven within one lane “as nearly as is practicable”. Two Ohio Appellate courts have reached different interpretations of the phrase “as nearly as is practicable”. In State v. Rochowiak, the Second District Court of Appeals reasoned that a driver who crosses the lane line must prove, as an affirmative defense, that the vehicle was still “as nearly as is practicable” within a single lane. In State v. Hernandez, however, the Tenth District Court of Appeals concluded that the prosecution must prove beyond a reasonable doubt that the driver did not drive within one lane “as nearly as is practicable”.

Another interesting issue regarding marked lanes violations is this: is it a violation if the vehicle’s tire touches the line? I have handled cases in which the justification for the traffic stop was touching the lane line. I have argued, successfully, that touching the line is not a marked lanes violation, as the vehicle touching the line is still “entirely within a single lane”, and Mays apparently requires drifting “across” the line for a marked lanes violation to occur.

WHEN DOES “EXPIRED” NOT REALLY MEAN “EXPIRED”?

2010-05-15T17:15:00.001-04:00

A police officer is only authorized to administer breath tests in O.V.I. (D.U.I.) cases if the officer has a valid operator’s permit issued by the Ohio Department of Health. To obtain an operator permit, an officer must complete a basic operator training course. Operator permits expire one year after the permit’s issue date, and an officer can apply to renew a permit up to six months before it expires. To renew a permit, an officer must complete an in-service renewal course. These regulations are contained in chapter 3701-53 of the Ohio Administrative Code. A breath test is only admissible if the operator had a valid permit.

An expired operator’s permit was the central issue in the case of State v. D*. In that case, Ms. D* was charged with O.V.I. (D.U.I.) in the Franklin County Municipal Court. I represented Ms. D*, and we filed a motion to suppress the breath test because the officer that administered the test allowed his permit to expire, then renewed it 25 days after it expired. Our argument was that the officer could not renew his permit because it expired, so he had to go through the process of obtaining a new permit, which he did not do. The judge in the trial court agreed with our argument and threw out the breath test.

The prosecutor’s office appealed the judge’s decision, and the Tenth District Court of Appeals was not so impressed with our argument. The Court of Appeals acknowledged that the officer did not strictly comply with the requirement that he renew his permit within one year. However, the Court concluded that the officer substantially complied with that requirement because renewing the permit 25 days after it expired was a “de minimis or minor procedural deviation”. As a result, the court of appeals reversed the trial judge’s decision and sent the case back to the trial court.

For Ms. D*, there was ultimately a good resolution to her case. After her case was sent back to the trial court, there were other motions to suppress that had to be addressed. Rather than addressing those motions, the O.V.I. (D.U.I.) charge was amended to a no-points, non-moving offense. She paid her fine, and she did not wait until 25 days after the fine’s due date to pay it.

Sometimes expired does not really mean expired. Only sometimes...I do not recommend using this reasoning when your milk container says the milk expired 25 days ago.

COLUMBUS BANS TEXTING WHILE DRIVING

2010-05-11T21:21:00.001-04:00

Texting while driving is dangerous. In fact, studies indicate that texting while driving is actually more dangerous than driving under the influence of alcohol or drugs. A study by the Transport Research Laboratory found that texting slows reaction time by 35% while being at the legal limit for alcohol slows reaction time by 12%. A study by Car And Driver showed that the time it took drivers to stop while texting was considerably higher than when the same drivers were under the influence of alcohol.

On May 5, 2010, it became illegal to drive while texting in Columbus, Ohio. The new law, Columbus City Code section 2131.44, prohibits operating a motor vehicle while using a communication device to: (1) compose, send or receive a text message (including email); and (2) send, receive, create, play or interact with internet based content.

It will likely be difficult for police to enforce the anti-texting law. If an officer observes a driver allegedly texting, the officer can make a traffic stop. The officer can ask the driver if he was texting and ask to look at the driver’s phone. If the driver declines, the officer would have to get a warrant to look at the phone. Sounds unlikely.

If a driver is somehow convicted of driving while texting, the offense is categorized as a minor misdemeanor, so the possible punishment includes a $150 fine and possible community service. An offender cannot go to jail or lose her driver’s license. For driving over the legal alcohol limit, an activity that affects reaction time less than texting, first offense O.V.I. (D.U.I.) penalties include mandatory jail time of three days to six months, a mandatory license suspension of six months to three years, a possible requirement of yellow license plates, a posible requrement of an ignition interlock device, and a mandatory fine of $375 to $1,075.

The anti-texting law does not prohibit talking on the phone. It also does not prohibit eating your breakfast while you put on your makeup and look for that quarter you dropped on the floor.

VEGA WAS NOT JUST AN UNRELIABLE CAR

2010-05-03T21:16:00.001-04:00

When most people think of “Vega”, they think about the 1970s Chevrolet vehicle, named as one of the “10 most Embarrassing Award Winners in Automotive History” by CarAndDriver.com. When Ohio DUI attorneys think of Vega, we think about the Ohio Supreme Court decision regarding our ability to challenge the reliability of breath testing machines.

In 1984, the Ohio Supreme Court decided the case of State v. Vega. In that case, Pete Vega was charged with OMVI and wanted to have an expert testify about the reliability of the type of breath-testing machine used in Mr. Vega’s case. The trial judge excluded the testimony of Mr. Vega’s expert, and Mr. Vega was convicted. The Court of Appeals reversed Mr. Vega’s conviction, concluding that his expert should have been permitted to testify. The Ohio Supreme Court, however, reversed the decision of the Appeals Court, holding that an accused may not make a general attack upon the reliability and validity of the breath testing instrument. The Court reasoned that the Department of Health (part of the executive branch of government) determined the breath-testing machines were generally reliable, so a defendant cannot argue the machines are not generally not reliable.

Here’s the situation in a nutshell:

• the executive branch of the government uses a machine to prosecute a person for OVI (DUI);
• the person being prosecuted wants to demonstrate the machine is not reliable;
• the government says, “you are not permitted to argue that”;
• the person says, “how do we know it’s reliable?”;
• the government says, “because we (the government) declared it is reliable”.
That’s the status of breath-testing law in Ohio.

The status of breath-testing in Ohio was recently aggravated when the executive branch adopted the use of Intoxilyzer 8000 machines (a topic to be covered in the near future). Although the reliability of those machines has been seriously questioned in other jurisdictions, Ohio intends to use those machines throughout the state. One encouraging possibility is that, with the use of the Intoxilyzer 8000, perhaps courts will question the reliability of the machines and permit the defense to do so as well. There is hope that Ohio will get ride of Vega, just like Chevrolet did in 1977.

WHAT IS THE STANDARD FOR STANDARDIZED FIELD SOBRIETY TESTS?

2010-04-26T11:52:00.001-04:00

Standardized field sobriety tests are administered in nearly every OVI (DUI) case in central Ohio. But what it the standard for admitting the field sobriety tests as evidence in an OVI (DUI) trial? To answer this question, we must look at decisions by the Ohio Supreme Court, legislation by the Ohio General Assembly, and the manual published by the National Highway Traffic and Safety Administration.

What has the Ohio Supreme Court said? In 2000, the Ohio Supreme Court held that, for the results of field sobriety tests to serve as probable cause to justify an arrest, the tests must be administered in strict compliance with standardized testing procedures. State v. Homan. The Court stated, “When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable.” In 2004, the Ohio Supreme Court held that, for the results of field sobriety tests to be admissible at trial, the tests must be administered in compliance with standardized testing procedures. State v. Schmitt.

What has the Ohio legislature said? The legislature apparently did not approve of the result in Homan. In 2002, the Ohio General Assembly amended Ohio Revised Code section 4511.19(D). The amended statute provides that, if the prosecution demonstrates by clear and convincing evidence that the tests were administered in substantial compliance with testing standards, then: (1) the officer may testify concerning the results of the tests; (2) the prosecution may introduce the results of the tests; and (3) the Court shall admit such evidence if it is admissible under the Rules of Evidence. R.C. 4511.19(D)(4)(b).

So what is substantial compliance? In 2007, the Ohio Supreme Court held that the substantial compliance standard of R.C. 4511.19(D) does not violate the Ohio Constitution. State v. Boczar. Although the Ohio Supreme Court has not defined substantial compliance in the context of field sobriety tests, that Court did stated that substantial compliance means complying with procedures to the extent that the only errors are de minimus. State v. Burnside (2003), 100 Ohio St.3d 152.

What does the manual say? The manual that contains the standards for administering the tests is “DWI Detection and Standardized Field Sobriety Testing”, published by the National Highway Traffic and Safety Administration (NHTSA). On page VIII-19, the manual states: “It is necessary to emphasize this validation (of the tests) applies only when: *The tests are administered in the prescribed standardized manner *The standardized clues are used to assess the suspect’s performance *The standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised.”

How do we synthesize the manual, the legislation, and the decisions? We can determine if the officer substantially complied with testing standards by looking at the language of the NHTSA manual and the language of Burnside. If the officer changes any one element of the field sobriety tests (how the test is administered and how the suspect’s performance is interpreted), the validity of the test is compromised. Any error that compromises the validity of the test certainly is no "de minimus".

Why does this matter? If officers do not substantially comply with the standards of the NHTSA manual, the results of the field sobriety tests may not be used for determining probable cause, and the results of the tests may not be admissible in trial. Given that nearly every OVI (DUI) case involves field sobriety tests, the standard of admissibility for standardized tests is very important.

YOU MAY REFUSE TO CONSENT TO ALCOHOL TESTS…SOMETIMES

2010-04-17T10:25:00.001-04:00

Imagine that the police show up at your door and want to search your house. If you don’t consent, the police can’t search without a warrant or an applicable exception to the warrant requirement. Refusing to consent to a search is not ordinarily a criminal offense. In a recent case from the Ohio Supreme Court, however, the Court concluded that it can be a criminal offense for some people to refuse consent in some circumstances.

In State v. Hoover, the Court upheld the Constitutionality of Ohio’s law criminalizing the refusal of a chemical alcohol test (breath, blood, or urine). The Ohio law, R.C. 4511.19(A)(2), makes it a separate criminal offense to refuse to submit to a chemical alcohol test if the suspect is arrested for OVI (DUI) and has a prior OVI (DUI) conviction in the last 20 years. Violating this law carries a minimum mandatory jail sentence that is double the minimum mandatory jail sentence for the underlying OVI charge.

In Hoover, the Ohio Supreme Court held that R.C. 4511.19(A)(2) does not violate the fourth amendment to the United States Constitution or Article I, section 10 of the Ohio Constitution. The Court pointed out that, as part of enjoying the privilege to drive in Ohio, a driver implicitly consents to a chemical test to determine the amount of intoxicating substances in the driver’s body. The Court acknowledged that the test is a search but decided that certain drivers cannot refuse the search. The Court went on to conclude that, “Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”

The Constitutional provisions discussed in Hoover protect individuals from unreasonable searches and seizures. Taking a breath, blood, or urine sample for a chemical alcohol test is a search. A search must be done pursuant to a warrant or some applicable exception to the warrant requirement. One exception to the warrant requirement is consent.

If a person does not consent to a chemical alcohol test, police may be able to obtain a blood, breath or urine sample without a search warrant anyway (based on another applicable exception to the warrant requirement, such as “exigent circumstances”). The presence of another exception to the warrant requirement should not affect the suspect’s right to refuse to consent or criminalize that refusal. As far as I know, there is not what some commentators call a “DUI exception to the Constitution”.