Columbus OVI/DUI Attorney Blog

SHOULD OHIO HAVE IMMEDIATE TRIALS FOR O.V.I./D.U.I?

Fri, 10 May 2013 16:35:33 -0500

There is little tolerance for drunk driving in Mumbai, India. Like Ohio, the penalty for a first D.U.I. offense in India is up to six months in jail. Unlike Ohio, the legal limit for blood alcohol content in India is .03 (Ohio's is .08), and there is no plea bargaining. In the month of March, Mumbai traffic police charged 3,727 people with D.U.I. The traffic police recently requested the creation of mobile courts, according to an article in The Times Of India. If the request is granted, magistrates will hear D.U.I. cases at those mobile courts, and the trial will take place immediately.

Police like the idea of having trials immediately after the offense allegedly occurs. One officer said, "If the proposal gets a green signal, the magistrate can hear out the prosecutor as well as the offender on the spot and the verdict will come out much sooner. The current system, where the offender has to appear before court the next day, will end." The officer went on to say, "The offender can put forth his grouses, such as having consumed alcohol within permissible limits, without any delay. The disposal of cases would be speedier."

The disposal of cases would, in fact, be 'speedier', but would it fair? In the United States, the mobile courts and immediate trials would not fit with our system of justice. Although the defendant in a mobile court case would be afforded a trial, the defendant would be denied many of the rights that make a trial fair. The defendant would not have a trial by a jury of his peers and would instead have a trial by magistrate for a 'speedier' verdict. In addition, the defendant would not have the opportunity to subpoena witnesses to testify at the trial.

U.S. SUPREME COURT DECISION RAISES QUESTIONS ABOUT BLOOD TESTS IN OHIO D.U.I./O.V.I. CASES

Sat, 20 Apr 2013 15:39:01 -0500

In a previous post, this blog questioned whether police should be able to draw blood against your will without a search warrant. At that time, oral arguments had recently been held in the case of Missouri v. McNeely. A few days ago, the United States Supreme Court issued a decision in the McNeely case. Based on that decision, the Constitutionality of the law for forced blood tests in Ohio O.V.I. cases is questionable.

In McNeely, the defendant was arrested for D.U.I. and taken to a hospital. When McNeely declined to give a blood sample, his blood was drawn without his consent and without a warrant. The trial judge suppressed the blood test, and the case was appealed through the Missouri state courts to the United States Supreme Court. The Court framed the issue as follows: "The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases."

The Supreme Court analyzed the search and seizure issue. A blood draw is invasion of the suspect's bodily integrity that implicates the most personal expectations of privacy. A warrantless search of a person's body is only reasonable if conducted pursuant to a warrant or a recognized exception to warrant requirement. One recognized exception to the warrant requirement is 'exigent circumstances', times when "there is a compelling need for official action and no time to secure a warrant". One situation involving exigent circumstances is preventing imminent destruction of evidence. In drunk driving cases, the evidence is being destroyed because blood alcohol concentration decreases by .015% to .02% per hour once the alcohol is fully absorbed. The question is, therefore, whether that dissipation of evidence creates 'exigent circumstances'.

SANCTIONS FOR DISCOVERY VIOLATIONS IN OHIO CRIMINAL AND D.U.I./O.V.I. CASES

Sat, 06 Apr 2013 13:41:41 -0500

How are sanctions to be imposed for violations of Ohio's discovery rules? That question was the subject of a recent decision by the Ohio Supreme Court. In a previous post, this blog described the changes to the rules for discovery (exchanging evidence) in Ohio criminal and D.U.I./O.V.I. cases. In a case decided a couple weeks ago, the Ohio Supreme Court interpreted the new discovery rules for the first time.

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The case is State v. Darmond. Darmond and his codefendant were charged with drug trafficking and drug possession after allegedly receiving shipped packages containing marijuana. Before the trial, the prosecution and defense engaged in reciprocal discovery. During the trial, an investigator testified, and it became clear the prosecution had not given the defense all the evidence that should have been provided. The agent had written seven reports, because there were seven packages delivered, but only two reports were provided to the defense. The other reports may or may not have contained information helpful to the defense. After hearing arguments from the prosecution and defense, the trial judge dismissed the case with prejudice (the case could not be re-filed). The Eighth District Court of Appeals affirmed the trial court's decision, concluding that the trial court did not abuse its discretion.

THE PREMIERE OHIO D.U.I. DEFENSE LAWYERS' SEMINAR

Tue, 12 Mar 2013 15:19:46 -0500

A Buddhist proverb says, "When the student is ready, the master appears." For three days last week, D.U.I. lawyers from across the state, and across the country, convened in Columbus for 'The Premier Ohio D.U.I. Defense Seminar' sponsored by the Ohio Association of Criminal Defense Lawyers (OACDL). The students were ready, and the masters appeared.

Continuing education for lawyers is crucial. Law school is not the end of our education; it's only the beginning. The law is constantly changing. Our understanding of science continually develops. There are never-ending improvements of lawyering techniques. There is a lot to learn.

One great way to learn is to find out what other lawyers are doing throughout the state and throughout the nation. One of the best educational sources for D.U.I. lawyers is the National College for DUI Defense (NCDD). NCDD members are required to regularly attend NCDD-approved seminars, and the Ohio DUI Defense Seminar is one of the few seminars in the country that qualifies as an NCDD-approved seminar. This year's seminar featured several outstanding presentations on Thursday and Friday, as well as a "Trial Skills Academy" on Saturday.

APPELLATE COURT RULES ON INTOXILYZER 8000 ADMISSIBILITY IN CENTRAL OHIO OVI CASES

Sat, 16 Feb 2013 14:17:39 -0500

For the first time, an appellate court in Central Ohio addressed whether evidence from an Intoxilyzer 8000 is admissible in an O.V.I./D.U.I. trial. The court of appeals ultimately decided that the defendant is prohibited from challenging the general reliability of the Intoxilyzer 8000, so the results of that machine's breath tests are admissible. The court's opinion, however, contained language questioning whether that prohibition should continue to be the law in Ohio O.V.I. cases.

The case is State v. Reid. A previous post in this blog (June 11, 2011) discussed the ruling of the trial court. The trial judge concluded that breath test results from the Intoxilyzer 8000 are not reliable enough to be admitted as evidence. The trial judge wrote, "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 O.V.I. cases." Because the breath test result was not reliable, the judge excluded breath test evidence from the defendant's trial. Without the breath test evidence, the defendant took the case to trial and was found not guilty. The prosecution appealed the trial judge's decision to the Fourth District Court of Appeals.

SHOULD OHIO POLICE BE ABLE TO DRAW BLOOD AGAINST YOUR WILL?

Fri, 25 Jan 2013 08:01:11 -0500

Trooper Mark Winder stopped Tyler McNeely for speeding and observed the usual trilogy of intoxication signs: odor of alcohol, bloodshot eyes, and slurred speech. Winder gave McNeely field sobriety tests and arrested him for driving while intoxicated. The trooper drove McNeely to a hospital and asked McNeely to give a blood sample. McNeely declined. Without obtaining or even seeking a warrant, the trooper had a lab technician take a blood sample from McNeely while McNeely was restrained. The blood sample was later analyzed, and it was determined that the concentration of alcohol in the blood was .154.

The trial court suppressed the results of the blood test, and the case made its way through the Missouri Court of Appeals and the Missouri Supreme Court to the United States Supreme Court. The question before the Supreme Court is: whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. The McNeely oral argument was held earlier this month and can be heard here.

The prosecution in McNeely argues that involuntary warrantless blood tests are necessary to effectively enforce D.U.I. laws. The prosecution points out that alcohol in a suspect's blood dissipates with time, so the blood alcohol evidence is destroyed if time is taken to obtain a warrant. Due to those "exigent circumstances", the prosecution states, officers should be permitted to draw blood without a warrant.

HOLIDAY GREETING: DRIVE SOBER OR GET PULLED OVER

Sat, 22 Dec 2012 13:17:29 -0500

The holiday season is at its climax. Some of us who would not ordinarily step foot in a mall battle huge crowds to buy last-minute gifts. Most of us attend more parties in two weeks than they we do the rest of the year. All of us are being told "drive sober or get pulled over".

"Drive sober or get pulled over" is a campaign by the National Highway Traffic Safety Administration (NHTSA) aimed at raising awareness about drunk driving (called O.V.I. in Ohio). The campaign includes television commercials, radio advertising, and online videos. Although the campaign began earlier this year, efforts to implement the campaign and detect drunk drivers is being ramped-up for the holidays.

The holiday D.U.I./O.V.I. crackdown was the subject of a meeting earlier this month supported by NHTSA, MADD and the Governors Highway Safety Association. At that meeting, NHTSA released state by state drunk driving statistics for 2011 and reinforced the message that D.U.I. / O.V.I. enforcement will be increased significantly through New Year's Day. U.S. Secretary of Transportation Ray LaHood was quoted as saying, "The holiday season can be an especially dangerous time on our nation's roadways due to drunk drivers - that's why law enforcement officers will be out in full force".

We know the officers are going to be out in full force during the holidays, so don't go out and drink full force. With the money you save by not having to hire a good D.U.I./O.V.I. lawyer, you could buy a lot of last-minute gifts at the mall. Better yet, you could stay off the road entirely, order those gifts online, and give some of that saved money to charity!

INTOXILYZER 8000 CHALLENGES CONTINUE

Sun, 18 Nov 2012 13:31:53 -0500

Previous posts in this blog discussed developments with the Intoxilyzer 8000 breath-testing machine. On May 3, 2012, the post summarized the Gerome case in Athens. In Gerome, the judge held the defendant is permitted to introduce evidence of factors affecting the breath test results. Another post reported the disappearing Intoxilyzer 8000 records maintained by the Ohio Department of Health. On June 11, 2012, this blog reported the judge's decision in the Reid case in Circleville. In Reid, the prosecution did not present expert witnesses, and the judge concluded the machine's results are not reliable enough to be considered as evidence. After the Reid decision, prosecutors have taken a couple different approaches with Intoxilyzer 8000 cases.

In the Bedford Municipal Court, the prosecutor used a novel approach. At the prosecutor's request, the two judges held a hearing with an "expert" witness for the prosecution but with no defense attorney even involved. When one side is not present, that's an ex parte hearing, which is generally prohibited in criminal law. With the "expert" witness from the Ohio Department of Health not being cross-examined by a d.u.i. defense attorney, guess what happened? The judges concluded that the Intoxilyzer 8000 is accurate and reliable! In addition to having the appearance of impropriety, the decision is not binding because it was held ex parte.

In the Marietta Municipal Court, the prosecutor is doing things in the way contemplated by the adversarial system. In response to the defense challenging the reliability of the 8000, the prosecutor provided reports of four expert witnesses, and the judge is holding hearings in which the defense can cross-examine the prosecution's expert witnesses. Like the Gerome case, the local defense bar obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Timothy Huey and me). On November 15, 2012, the first day of hearings was held, and two of the four expert witnesses testified. I had the privilege of cross-examining the manager of engineering for CMI, the manufacturer of the 8000.

Two additional days of testimony have been scheduled for the Marietta case. In addition to the prosecution witnesses, the defense is going to call its own expert witnesses to discuss the 8000's reliability. When a decision is issued, which will be a few months, I'll report it here.

NCDD VEGAS SEMINAR 2012: A SURE WINNER

Sat, 27 Oct 2012 13:39:20 -0500

Last week was the annual seminar sponsored by the National College for DUI Defense in Las Vegas. I have attended the seminar for years, and it is consistently a great seminar. It doesn't hurt that it's in Vegas, but what really makes it great is the caliber of presenters.

The seminar is co-sponsored by the National Association of Criminal Defense Lawyers (NACDL), and current NACDL president Steven Benjamin gave a great presentation about the report from the National Academies of Sciences (NAS) report: "Strengthening Forensic Science in the United States: A Path Forward". Other outstanding speakers included Troy McKinney on the topic of blood testing discovery and William "Bubba" Head on the issue of winning the unwinnable case by proving police perjury.

The highlight of the seminar for me was the presentation by F. Lee Bailey. Bailey is literally a living legend, having defended such high profile clients as Sam Sheppard ("The Fugitive"), Ernest Medina (the My Lai Massacre), Patty Hearst (bank robberies after being kidnapped by the Symbionese Liberation Army), and O.J. Simpson (no parenthetical explanation required!). He touched on some of those cases as he delivered an outstanding presentation about taking command of the courtroom. A surprising part of his talk was that Bailey (age 79) discussed the importance of technology in the courtroom and even gave specific recommendations for tablets, apps, and projectors.

F. Lee Bailey was the superstar of another great NCDD/NACDL DUI seminar in Vegas. I plan to incorporate some of the seminar's material in my D.U.I./O.V.I. practice, including the recommended apps and projector!

DRUNK DRIVING DECLINES FOR THOSE NOT PERMITTED TO DRINK

Sat, 06 Oct 2012 13:41:39 -0500

According to the Columbus Dispatch, drunk driving fell 54 percent in the past two decades...among teens. This conclusion was reached in a recent report by the Centers for Disease Control and Prevention (CDC). The primary reasons for the decline of teen drunk driving are reported to be increased gas prices, decreased underage drinking, and tougher laws for underage alcohol consumption.

It's good to hear there have been decreases in both underage drunk driving and underage alcoholconsumption. It's noteworthy, however, that the C.D.C. report was based on self reporting by the teens and apparently did not include college students.

In Ohio, drunk driving by teens can result in several different offenses. First, if the teen's driving ability is impaired, he can be prosecuted for a standard Ohio O.V.I. (D.U.I.). Second, if the driver's blood alcohol concentration is over .08, she can be prosecuted for Ohio O.V.I. (D.U.I.) per se. Third, if a driver under 21 has a blood alcohol concentration over .02 (but under .08), the driver may be prosecuted for O.V.U.A.C. (Operating a Vehicle after Underage Consumption).

You may be thinking "teens aren't supposed to be drinking alcohol anyway...shouldn't there be a separate punishment for that?" There is. In addition to the offenses mentioned above, a person under 21 who is caught driving drunk will likely be charged with Underage Alcohol Consumption as well.

RULES NOT FOLLWED = BLOOD TEST THROWN OUT

Sat, 22 Sep 2012 13:45:02 -0500

There are rules for blood testing, and they aren't new. If the prosecution wants to admit a blood test as evidence in an Ohio O.V.I./D.U.I. case, the prosecution has to prove certain procedures were followed for the blood test. A few days ago, an Ohio court of appeals held that the procedures weren't followed, so the blood test should have been thrown out in Statev. Ragle.

The procedures that must be followed for an Ohio O.V.I./D.U.I. blood test are listed in chapter 3701‑53 of the Ohio Administrative Code. Section 3701-53-05 says "Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant...." In the Ragle case, there was no testimony about whether the needle was sterile and dry, and when the nurse was asked if there was an anticoagulant in the container where the blood was stored, she said: "You know, I don't have any idea what's in there."

The Ohio 9th District Court of Appeals concluded that the prosecution did not prove compliance with the rules in Section 3701-53-05. As a result, the court of appeals reversed the defendant's O.V.I. conviction. This result is not surprising. What's surprising is that the trial court concluded the blood test was admissible with testimony that "I don't have any idea" whether the rules were followed.

The Ragle case is a good example of an Ohio D.U.I./O.V.I. case that may seem hopeless for the defendant at the beginning (a blood test result over the limit) but turns out to be problematic for the prosecution. It's a good reminder that an Ohio D.U.I./O.V.I. lawyer needs to fully investigate cases, file motions to suppress evidence, and litigate those motions to effectively represent clients in Ohio D.U.I./O.V.I. cases.

STATEWIDE TEXTING BAN BEGINS IN OHIO

Sat, 01 Sep 2012 16:34:24 -0500

Those 160 characters could cost you 150 dollars. If you are under 18, driving and texting could also cost you your license. Ohio's statewide ban on texting while driving became effective yesterday.

Ohio revised code section 4511.204, effective August 31, 2012, prohibits driving a motor vehicle 'while using a handheld electronic communications device to write, send, or read a text-based communication'. There are exceptions to the law, including an exception for texting from your vehicle when you are stationary and not in a lane of travel. For adults, violating this law is punishable by a fine of up to $150.

For juveniles, the law is a little different. Ohio revised code section 4511.205 prohibits driving a motor vehicle and using any electronic communications device in any manner. This means juveniles cannot text or email and also cannot talk on the phone or use GPS navigation. A violation of this law can lead to a fine of $150 and a license suspension for 90 days. A second conviction for this offense results in a $300 fine and a license suspension for one year.

The statewide texting ban is a good policy, as texting while driving is arguably more dangerous than drunk driving, as reported by CNBC. There will be some difficulty in enforcing the new law. Passing the law, however, makes a public declaration that we don't approve of the conduct and will likely be a deterrent even if enforcement is limited.

FAKE I.D. CASES IN COLUMBUS, OHIO

Sat, 18 Aug 2012 16:36:24 -0500

Ordinarily, this blog discusses issues related to Ohio D.U.I./O.V.I. law, but today I want to tell you about Jason. Jason had good grades, and he expected to get a good job when he graduated from The Ohio State University. His expectations changed when he was arrested at an O.S.U. football game for Underage Alcohol Consumption and False Identification. He found out that the diversion programs offered to some defendants for the underage alcohol charge are not offered to those caught with a fake i.d. Now, he has the offenses on his record as he looks for his first real job in a tight economy.

Diversion programs, if successfully completed, result in cases being dismissed. Local law enforcement agencies and the Columbus City Attorney's office have a policy that no diversion programs are offered to a defendant when a fake i.d. is involved. This policy is consistent with the 'no plea bargaining' policy for O.S.U. 'game day offenses'.

O.S.U. president Gordon Gee and many other college presidents have proposed reconsidering the drinking age law. If the Ohio drinking age is ever changed to 18, underage consumption and fake i.d. offenses for Ohio college students will be a non-issue. For now, however, Ohio law says you have to be 21 to drink, and you can't use or possess a fake i.d. Diversion programs and case dismissals recognize we are often a land of second chances, but there are no second chances in Columbus when you're caught with a fake i.d.

THE GOLD STANDARD FOR D.U.I./O.V.I. SEMINARS

Sat, 04 Aug 2012 16:40:37 -0500

For some lawyers, attending continuing legal education seminars is like going to the dentist; necessary, but not something you look forward to. For me, I actually look forward to many of the seminars I attend, and there are a few I have repeated. One I just attended for the second time is the "summer session" of the National College for D.U.I. Defense.

The NCDD summer session is inspirational, educational, and intense. The seminar is held at the Harvard Law School, and settings for academic excellence don't get much more inspirational than the historic Austin Hall. Some of the best D.U.I. lawyers from around the country attend the seminar to hear from the 'best of the best'. The topics included breath testing, gas chromatography (for blood and urine testing), and field sobrietytests.

A focus of the seminar is trial skills, so speakers discussed advanced techniques for jury selection, cross examination, and closing arguments. After lectures, we met in small groups for workshops to improve skills on the techniques discussed in the presentations. Following a long day of lectures and workshops, the education continued on the patio of the Charles Hotel, where one can learn nearly as much from the informal conversation as the formal lectures.

The summer session is the gold standard for seminars and is a must for serious D.U.I. lawyers. I returned with re-charged batteries and a renewed enthusiasm for my practice. I look forward to using improved techniques to help my clients with O.V.I. cases in Columbus and the central Ohio area.

KERRY KENNEDY'S CRASH RAISES QUESTIONS ABOUT D.U.I. AMBIEN

Sat, 21 Jul 2012 16:47:47 -0500

Kerry Kennedy recently ran her vehicle into a truck and continued driving. She was soon found slumped over the steering wheel, and she was unable to remember what happened, as reported by ABC News. Kennedy said it was possible she accidentally took Ambien that morning rather than a thyroid pill. She also said an examination by her doctors revealed she had a seizure. Kennedy was charged with driving under the influence of drugs and has pled not guilty. Her crash raises questions regarding driving under the influence of Ambien.

Ambien, the brand name for Zolpidem, is a sedative-hypnotic drug used to treat insomnia by slowing activity in the brain to allow sleep. It is intended to be taken just before sleeping, as "you will probably become very sleepy soon after you take zolpidem and will remain sleepy for some time after you take the medication", according to the U.S. National Library of Medicine. As cautioned by the F.D.A., "After taking Zolpidem Tartate Tablets, you may get up out of bed while not being fully awake and do an activity that you do not know you are doing. The next morning, you may not remember that you did anything during the night."

In Ohio D.U.I.(O.V.I.) cases, Ohio Revised Code section 4511.19 says no person shall operate a vehicle if the person is under the influence of alcohol, a drug of abuse, or a combination of them. Ambien is considered a drug of abuse, so a person could be found guilty of O.V.I. in Ohio for driving under the influence of Ambien.

On the other hand, a driver's use of Ambien may present an Ohio D.U.I. lawyer with a defense to an O.V.I. charge. Ohio Revised Code section 2901.21 says that a person is not guilty of an offense unless the person's conduct was a voluntary act. That section also says "reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's volition, are involuntary acts." It is questionable whether a person affected by Ambien is acting voluntarily when they may "do an activity that you do not know you are doing."

Kerry Kennedy's accident raises questions about the danger of driving under the influence of Ambien. One question is, from a policy perspective, what do we do about it? Is driving while affected by Ambien an offense, or is it a defense to an offense? It will be interesting to see how the Kerry Kennedy case plays out.