They Can’t Arrest Me. I was in My Home.

Ordinarily, a person’s Fourth and Fourteenth Amendment rights against illegal searches and seizures applies to one’s home. The police are not permitted to enter a person’s home without a warrant. By extension, entering an unattached garage, in most instances, is considered part of the home and, once again a warrantless search and subsequent arrest is not permitted. By extension, any evidence obtained is subject to suppression.

This principle applies to DUI/OVI arrests. Normally, a police officer is not permitted to enter one’s home to arrest that person for this offense. Nor can the officer enter the garage for the same reason.

Of course there are exceptions to this rule. A recent Ohio case, State v. Lake, outlines one of those exceptions. In the case, the Defendant was observed violating several traffic laws and proceeded to drive his vehicle into his garage. The Defendant argued in his suppression motion that he was illegally arrested because he was in his garage at the time of the arrest and the police were not permitted to enter his garage without a warrant. The trial court overruled the Defendant’s motion and he was eventually found guilty. The Defendant appealed the court’s ruling stating his Fourth and Fourteenth Amendment rights were violated by the police coming onto his property to effectuate his arrest.

The Seventh District Court of Appeals (Columbiana County) took exception to the Defendant’s argument. The Court held that the "hot pursuit" entry exception applied. They then stated that a defendant cannot defeat an arrest which has been set in motion in a public place by the escape to a private place, reiterating U.S. v. Watson, a 1976 U. S. Supreme Court case on point. In 2002, the Ohio Supreme Court extended this principle to misdemeanors, see Middletown v. Flinchum.

The court reasoned that since the officers observed at least two traffic violations, they had probable cause to stop the Defendant and pursue the Defendant into his “home” to effectuate an arrest.

So the next time you opine that a policeman can not arrest you when you are in your own home, you may want to think about the fact pattern cited in this post.

The Decision to Plea

Many ask me when do I know when a client should plead and to what? The question is a good one but one that can not be answered easily. A number of factors come into play when advising a client.

The evidence. The first and most obvious factor is the evidence. In a prior post I discussed an attorney’s due diligence responsibility to their client. After performing this task, your attorney should be in a position to tell you the evidence against you, any anomalies in the police departments records, problems with FST’s and failures by the police department in any stage of the arrest and/or tests.

The court’s history. As I’ve said before, some courts have agendas, some have precedents relating to sentencing, and others, and in most cases, thankfully, take each matter on a case by case basis. Your attorney should have such knowledge and be able to advise you accordingly.

Politics. The topic of DUI/OVI is constantly in the news. Every day we are bombarded with news of those being charges with DUI, aggravated vehicular assault or manslaughter as a result of a alcohol or drug related incidents. This morning I even heard a radio ad from a national agency decrying “drunk motorcyclists.” Mothers Against Drunk Driving (MADD) are monitoring courts and petitioning the legislature seeking tougher laws. Judges and juries can not be blind to this. Judges, especially, are looking over their shoulder and being influenced in what has become a political hot potato.

As a result, taking a case to trial requires enormous skill and deference to the factors outlined above. There are many alternatives. The most obvious is to plead guilty (or no contest) to one of the DUI/OVI charges. If a strong issue is found, perhaps a reduced plea or sentence can be negotiated. If the court has a history of denying suppression motions or returning guilty verdicts notwithstanding the evidence, perhaps a no contest plea with a request to stay sentencing pending an appeal is appropriate. These are but a few of the alternatives that may be available.

Whichever, any plea should be forthcoming only after consultation with your attorney after they research the facts thoroughly and take into account those factors outlined above.

Avery Fromet Chosen to Organize DUI Update Seminar for Ohio Attorneys

Each year, the Ohio State Bar Assocation presents a seminar to update practicing defense attorneys, prosecutors and judges in Ohio on the topic of DUI/OVI. This seminar is presented by some of the most pre-eminent practitioners in Ohio. The seminar is presented from the Columbus offices of the OSBA and broadcast throughout Ohio to designated locations where attorneys gather to see and hear the seminar. The DUI Update seminar is the largest of its kind presented in Ohio. All practicing Ohio attorneys are required to obtain 24 continuing legal education credits biannually. Successful completion of the seminar will offer each participant 6 1/2 hours of those credits (over 25% of required credits).

This year, the Ohio State Bar Association has asked me to organize this seminar. Among the topics to be discussed are case law updates, motions to suppress, commercial drivers license issues, ALS appeals, destroyed videos, the use of field sobriety tests at trial, felony DUI's, and OAC requirements for blood and urine collection. These topics encompass some of the major "hot" topics of today.

I am honored the OSBA has asked me organize the seminar and have begun soliciting top DUI defense practitioners and judges to present these topics.

The Ohio State Bar Association, founded in 1880, is a voluntary professional association open to any person who has been admitted to the practice of law. The OSBA represents more than 25,000 Ohio lawyers and judges, nearly 75 percent of Ohio law practitioners. Total membership is about 30,000, which includes legal assistant and law student associate members.

The Issue of Substantial Compliance and Generic Motions

In the State of Ohio, a basis must shown for the introduction of certain types of evidence. For example, in order for field sobriety tests to be admitted, the state must show its police officer “substantially complied” with printed standards for the administration of such tests. Most courts required the standards required by the National Highway Traffic Safety Administration (NHTSA).

The same standard is required when introducing the results of a chemical test such as a breathalyzer. The state must show that its substantially complied with the requirements of the Ohio Administrative Code (OAC) in the maintenance and repair of the police department’s breath alcohol testing machine before the results are admissible or that the OAC standards were met when taking a blood or urine sample.

BUT, in order to require the state to produce such evidence, the defendant, through their attorney, must file an appropriate motion with the court challenging the introduction of such evidence. If you will recall my last blog, I discussed an attorney’s duty to review the records of the arresting police department to determine if that department substantially complied with the NHTSA standards or the OAC. If some anomaly is found, the attorney should file a motion presenting these issues to the court for possible suppression.

NOW, what type of motion should be filed? Some attorneys file what are characterized as “generic” motions that set forth every conceivable issue set forth in the OAC or the NHTSA manual without setting forth any specific facts. This is sometimes called the “dart board” approach. Throw a dart at the board and hope that one hits the bulls eye.

This is a dangerous approach because it lessens the burden on the prosecutor to show substantial compliance. Such motions only require the prosecutor to introduce general testimony of substantial compliance, see State v. Nicholson. Most courts in Ohio have long stood by the rule that any motion to suppress must set forth, with specificity, the facts for which the defendant seeks suppression. Some courts will sustain a prosecutor’s motion to strike (throw out) any motion that is not specific.

So, when you speak with an attorney, be sure they fully investigate the police department’s compliance with all standards required and they set forth, with specificity, all facts that will support any suppression motion.

What Should You Expect from Your Attorney?

When you hire any professional, you have a right to know what they are doing for the fees you are paying. More importantly, you have a right to know that any attorney you hire is doing their “due diligence”- completing sufficient research and investigation to properly advise you. But, as Abraham Lincoln said, “An attorney’s time is his stock and trade.” Therefore, you have a dichotomy between what an attorney intends to charge and the time needed to properly represent your interests.

So, what should you expect from your attorney when representing you on a DUI/OVI case? Because the defense of such a case is highly technical, any Ohio attorney representing you should, at the least, do the following:

1. Review all evidence to determine whether the officer had probable cause to stop you. Normally, this means you were stopped for some existing traffic violation, i.e. speeding, weaving, making an improper turn, etc., or you were stopped for some other peculiar driving issue, i.e. driving to slow, hesitating at a traffic light too long. If you were improperly stopped all subsequent evidence gathered against you must be suppressed.

2. Determine if there is sufficient evidence to appeal the administrative license suspension (ALS). Ohio law permits the arresting officer to immediately confiscate your driver’s license under most circumstances. Your attorney should determine if there is the possibility that your license was confiscated improperly and, if so, appeal the suspension.

3. Was there sufficient evidence to require you to submit to field sobriety tests (FSTs)? The arresting office must point to articuable facts that would require your taking these tests. If not, appropriate action should be taken by your attorney.

4. Was there probable cause to arrest? The attorney must determine if the the FSTs were properly administered. If not a suppression motion is appropriate. If the FSTs were improperly given, were the other extrinsic facts that would permit the arrest, i.e. slurred speech, glassy eyes, instability, etc.? If the FSTs are suppressed (or none given) and there was insufficient other evidence of insobriety, then there was no probable cause to arrest. Your attorney should review all documentation and, if available, any field video of the stop.

5. Are the results of the chemical test admissible? This requires your attorney to view any video of your police booking, inspect the police department’s records to be sure proper records were maintained and that, whichever chemical test was given (breath, urine or blood), all procedures used were in compliance with Ohio Department of Health requirements and in conformity with the Ohio Administrative Code.

6. Were you given all your constitutional and other legal rights? The attorney must determine if you were properly Merandized (given your rights) and told the consequences of your failure to take a chemical test. Again, if these procedural requirements were not met, then any statements made or tests conducted might not be admissible.

All of the above require the time to file proper discovery requests, demands to preserve evidence, travel to the police department to review their records, view any videos taken in the field or at the police department, attend pre-trials, and do research to determine if there are any anomalies that could result in the suppression of inculpatory evidence.

As you can tell “due diligence” is time consuming and requires a skill set that is gained by extensive experience and education in the area of DUI/OVI defense. You have a right to know that your attorney has the background to represent you properly.

And remember, you get what you pay for. It is obvious that the amount of time necessary to complete this “due diligence” is formative. Any attorney that is willing to charge you a minimum amount and appear in court “to see what they can do for you” is not properly representing your interests.

When does Questioning become Interrogation?

If you will remember my recent blogs, I discussed the importance of keeping quiet - not stumbling into providing inculpatory statements to police during a traffic stop by answering question you are not required to answer. The question raised by many readers is when does investigatory questioning become an interrogation that requires Miranda warnings?

The law normally requires that Miranda warnings must be given when an individual is in “custody.” "Custody" for purposes of entitlement to Miranda rights exists only where there is a restraint on freedom of movement of the degree associated with a formal arrest. "Interrogation" is defined as any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Whether a person is in custody depends upon the facts and circumstances of each case. The test is whether, under the totality of the circumstances, a reasonable person would have believed that he was not free to leave.

A recent Ohio case exemplifies the fine line between custodial and non-custodial interrogation. The case of State of Ohio v. Feaster, involved an individual who was in the hospital being treated for multiple gun shot wounds. He was interviewed by police officers regarding the incident that caused his injuries. Subsequently, he was indicted on various felony charges. His attorney filed a motion with the court claiming he had not been given his Miranda warnings prior to his interrogation and, therefore, any statements he gave to the police should be suppressed.

The court denied the defendant’s motion. The court reasoned the interview was conducted without the presence of guards or the use of handcuffs and that the defendant understood what was happening and voluntarily engaged in the interview with the officers. The trial court also found that during the interview of the defendant "[he] was not able to go anywhere due to his own medical situation," not because of any action on the part of the officers. Therefore, the interview was not a custodial interrogation.

While in this writer’s opinion, this is a very narrow interpretation of custodial interrogation, it does point to the dangers inherent when agreeing to be questioned. In applying this case to an DUI/OVI arrest, many an arrest occurs subsequent to an accident while the injured is being treated by EMS or by hospital personnel. The court will look at the “totality of the circumstances” to determine whether questioning is custodial in nature or not. Anything you say might be used against you. Do you want to rely on the court’s interpretation? If the court uses the Feaster case as its precedent, I think not.

Do I Need an Attorney?

I receive many calls from those facing OVI or DUI charges seeking legal advise. Nearly every conversation gets around to the cost and eventually to the question, “Do I need an attorney?” Lets explore that issue. There are a number of reasons why you should have the benefit of counsel.

The Legal Issues Are Very Complex

The defense of an alcohol related driving offense is very complex. A number of areas need to be investigated before you can determine your best approach. Was there probable cause to stop? Was there probable cause to ask for a chemical test? Were the field sobriety tests administered properly? Were the records of the breathalyzer, blood draw, or urine test kept in accordance with Department of Health and Ohio Administrative Code guidelines? Were you properly notified of the consequences of your failure to take a test? If you refused to take a test or the reading was greater the .17 (breath) there can be additional consequences that must be explored. These questions must all be answered before any plea should be given. See my web site for further dicussions of these topic.

Cost of a Conviction

The cost to you of pleading guilty (or no contest) can be staggering. First a DUI/OVI conviction can never be purged from your driving record. It will remain on your driving record your entire life. DUI/OVI is a 6-point offense. An accumulation of 12 points can result in your driving privileges being suspended for an additional one year over and above any suspension resulting from your DUI/OVI conviction. Your insurance rates will surely rise dramatically and your insurance may be cancelled altogether. You may suffer travel restrictions. Many countries, including Canada, have restrictions on admitting anyone convicted of DUI/OVI. Your employment may be impaired if driving on company business is part of your job description. If you have a CDL license you face a mandatory 1-year suspension of your commercial drivers license, with no privileges.

Politics

DUI/OVI is one of today’s political “hot potatoes.” Some judges and police departments have “agendas” to ensure there is a conviction. Many organizations, including MADD actual monitor courts to determine if judges are being too lenient. As a result, a politically charged issue such as DUI or OVI is nearly impossible to win, or get reduced to a non-alcohol offense without some leverage being applied to motivate the prosecutor into thinking the case might be lost..

So, do I need an attorney? I think the answer is self-evident.

The Case for Silence - Part II

In a recent blog I discussed the importance of remaining silent during on OVI investigation. A recent US Supreme Court provides another scenario that buttresses that advice.

The case, Kansas v. Ventris, involved the use of an informant to impeach the testimony of a defendant who denied involvement in a murder. Prior to trial, the police placed an informant in the same cell as the defendant instructing him to “keep [his] ears open and listen” for incriminating statements. According to the informant, the defendant admitted his involvement.

Ordinarily the use of an undisclosed informant used by the police to elicit incriminating statements is in violation of a defendant’s Sixth Amendment right to counsel and is subject to suppression.

The Ventris case carved an exception to that legal tenant. The exception is as follows: If the defendant takes the stand, the informant’s testimony, concededly elicited in violation of the Sixth Amendment, is admissible to challenge the defendant’s inconsistent testimony at trial. In other words, although a statement made by a defendant is ordinarily excluded due to a violation of the defendant’s right to counsel, the statement is admissible to impeach the defendant if the defendant takes the stand and makes a statement inconsistent with that made to the informant.

Applying this case to a typical OVI scenario, you have remained silent during the initial stop and you remained silent during subsequent road side interrogations, during the drive to the police station and during questioning at the station. You are placed in a jail cell with another individual who, in fact, was placed there to elicit incriminating evidence. You admit to him you were driving drunk. He tells the officers what you said. You take the stand and deny you were OVI. Under the Ventris case, the informant’s testimony is now admissible to impeach your testimony!

REMAIN SILENT.

The Case for Silence

There’s an old saying: “Better to keep your mouth shut and allow people to think you’re stupid than to open your mouth and remove all doubt.” The same can be said for a Defendant’s propensity to talk thinking that they can somehow talk themselves out of an arrest.  In the vast majority of cases this is simply untrue.  In fact, the arresting officer wants the individual to keep talking hoping to obtain inculpatory evidence against the them. 

Two recent cases exemplify the importance of keeping quiet.  The first was discussed in my prior article, Recent Court Decisions Expand and Detract Defendant’s Rights.  In that article, I examined the case of Montejo v. Louisiana, a US Supreme Court case that permitted police officers to continue questioning an arrestee even though they know the arrestee is represented by counsel.

Another case, heard in the 11th Appellate District of Ohio (Geauga County) further demonstrates the necessity to “remain silent.”  In that case, the court examined an officer's decision to conduct roadside sobriety tests.  In its opinion, the court discussed factors that must be considered in evaluating a justification for requiring the Defendant to submit to field sobriety tests (tests used by police to determine whether the Defendant’s physical and/or mental capabilities are impaired).  The court outlined eights factors to be considered.  Of those eight, three require the Defendant’s statements:  impairments of the suspect's ability to speak, the suspect's demeanor (belligerent, uncooperative, etc.), and the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. 

Simple math, shows that 37½ % of the factors involve the Defendant’s oral statements.  By remaining silent, the factors used by the officer are significantly reduced making it more difficult to justify the use of field sobriety tests.

Both cases demonstrate the importance of silence.  You have no obligation to respond to the officer’s inquiries and, more importantly, you have no obligation to respond to any questions without benefit of counsel.  Silence might be awkward, but may prevent an OVI conviction.

Recent Court Decisions Expand and Detract Defendant’s Rights

Recent U.S. Supreme Court decisions have resulted in major shifts in police power, thus expanding a defendant’s right, on one hand, while reducing those rights on the other.

In the recent case of Arizona v. Gant, the defendant, Gant, was stopped by the police for Driving under Suspension.  His driving privileges had been suspended by the state for a previous violation of Arizona’s traffic laws.  Gant was removed from the vehicle and placed in the officer’s police cruiser.  The officer then searched the defendant’s vehicle and found rock cocaine in the defendant’s jacket pocket.  The defendant was subsequently charged with the drug office in addition to his traffic violation. While the court failed to characterize the search as such, the search was conducted pursuant to a police policy to do so prior to towing the vehicle after an arrest - commonly referred to as an “inventory” search.

The court in its decision stated, 

“Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” 

Because the court did not use the term “inventory search,” a debate has raged among many academics, prosecutors and defendants as to the court’s intent.  Nonetheless, the U.S. Supreme Court has narrowed the right of police to search a vehicle incident to a traffic stop.

In the second case, the court has actually reversed a prior decision of the court regarding the interrogation of arrestees.  Previously, the law stated that police may not initiate questioning of a defendant who has a lawyer or has asked for one unless that attorney is present.  The rule applied even if the Defendant agreed to speak to authorities without their attorney.

This opinion has been overturned.  In Montejo v. Louisiana, the U.S. Supreme Court’s opinion stated, “It would be completely unjustified to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer.”  

Therefore, it appears the court has shifted the burden to the defendant to show that the defendant was somehow coerced into speaking with the police without the benefit of counsel. Previously, the police could not even ask the defendant who had an attorney if he wanted to talk.  Now, this protection was been overruled and the police can initiate questioning of the defendant, even if the defendant is represented by counsel and it will be the defendant’s burden to seek suppression based upon coercion, threat, or other unconstitutional procedures by the police.

How do these cases impact on a DUI arrest?  Previously, if one is stopped and the police find probable cause to arrest for DUI, the police then initiated an inventory search ostensibly to safeguard valuables of the Defendant when the car was being towed.  If any contraband was found (drugs, open containers, guns, etc.) the Defendant then could be charged with additional offenses, some that may be major crimes.  The court has put an end to this type of search when a defendant is being arrested for a non-contraband offense such as a traffic violation such as DUI.

The impact of the other case impacts on voluntary statements made by a defendant while in custody.  Let us assume the defendant tells the arresting officer they do not wish to speak without the benefit of counsel.  Previously, the questioning had to stop.  Now, this is no longer true.  Using the Montejo opinion, the police can initiate questioning unless the defendant continues to insist on his right to counsel and deeps quiet.  So, it is vitally important that defendant keeps their wits about them and does not respond to the police questioning.  Remember, it is the defendant’s word against the police officer’s word as to the circumstances surrounding a given interrogation,  and the tendency is to side with the police officer.

Refusal to Submit to a Chemical Test - Part II

My last article concerned the consequences of refusing to submit to a chemical test.  I cited the recent Coshocton case where the judge added 10 days to a Defendant’s sentence because he refused to submit to a breathalyzer test.  In my article I submitted that you need to think twice before refusing to submit to a test due to this ruling.

Well, I submit to you an additional reason.  In a recent amendment to Ohio’s OVI laws, the legislature tweaked the “look back” rules.  Previously the court “looked back” 5 years to determine if the Defendant had a previous conviction.  If so, the penalty for each subsequent conviction was enhanced.  Due to the recent legislation, the court can now look back 20 years for any prior conviction and enhance the sentence if the court finds a prior conviction within that time period.  

I recently represented a gentlemen on an OVI felony case.  Why?  On the day of the incident, my client was drinking at his girlfriends home. While driving home, he was stopped for weaving and the officer smelled alcohol his breath.  He was subsequently arrested for OVI and asked to submit to a breathalyzer test.  He refused.  My client thought he was safe as he had not been convicted of an OVI offense for over 6 years.  Unfortunately, he did not know about the new law. He had been convicted of three prior OVI’s prior to that time.  Therefore, because of his refusal, he now faced a felony due to having his fourth OVI in 20 years!

Therefore, if you had a conviction within the last 20 years, you must think twice about refusing.

Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test

You’ve heard the advertising from some DUI defense practitioners: “Refuse the breathalyzer.  It will make it harder to prove you were driving under the influence.”  This might be true, but a recent Ohio case might give you and your attorney second thoughts.

As now constituted, Ohio’s DUI law incorporates penalty enhancement for subsequent offenses.  For example, a first DUI calls for a minimum of three days in jail or diversion, a second in six years requires a minimum of ten days in jail and so on.  Historically, in most instances, courts adhered to these minimums notwithstanding the defendant’s refusal to submit to a test.

Due to a case decided in the Fifth Appellate District (Coshocton, Ohio), this may drastically change.  The case, State of Ohio v. Adam Hill, upheld a courts right to punish a defendant for refusing to take a breathalyzer.  In that case Mr. Hill was arrested for driving under the influence.  He was asked to take a breathalyzer and he refused.  The court gave the Defendant an additional ten days in jail for refusing to take the breathalyzer.  

The Defendant appealed his sentencing arguing his constitutional rights were violated when the court sentenced him to an additional ten days incarceration solely because he refused to submit to a breath alcohol test.

The court stated, “...there is no constitutional right to refuse a chemical test...the choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.”  

The court went on to say, “Since Ohio has long accepted the principle that a defendant’s refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment.”  

Therefore, this appellate court upheld the lower court’s decision to add ten days to the defendant’s sentence for refusing to the breath test.  

While this case is only law within the Fifth Appellate’s area of jurisdiction, other Ohio courts are permitted to adopt this reasoning to enhance sentences for a defendant’s refusal to take a test.  And while this decision was made on the appellate level, if the Ohio Supreme Court sustains this case, it will become the law throughout Ohio allowing police to use this leverage to mandate a defendant’s compliance.Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test