Ohio Dui

Saturday, February 27, 2010

Your Constitutional Right Against Self-Incrimination Now has a 14 Day Warranty!

A recent US Supreme Court case dealt a serious blow to your right against self-incrimination. Historically, “Miranda” rights included the rule that once the police were aware the accused was represented by counsel, they could not interrogate the accused without having the accused’s attorney present. This rule applied to any interrogation whether during initial or subsequent interviews of the accused.

The case, Maryland v. Shatzer, 2010 U.S. LEXIS 1899, established new, more lenient rules for police when interrogating an accused for a second time after the accused has invoked their “Miranda” right to counsel. The court ruled that confessions are admissible when there is a “break in custody” between the first and second interrogation.

The opinion, written by Justice Scalia, stated that the right against self-incrimination should not act as an “eternal” bar against further interrogation. To produce a clear definition of “break in custody,” Justice Scalia said that a 14-day separation between interrogations is sufficient before the police may question the accused again without fear of any resulting confession being inadmissible.

Therefore, if you are stopped and interrogated relating to a possible OVI investigation and invoke your right to counsel, the police may interrogate you 14 days later in an attempt to extract incriminating statements without fear of these statements will be suppressed even though they know you are represented by counsel.

So, although the US Constitution specifically guarantees you the right against self-incrimination, this “guarantee” only has a 14-day limited warranty.

Wednesday, February 10, 2010

The Intoxilyzer 8000 - Your Tax Dollars at Work

In December, 2008, the State of Ohio used a federal grant of $7 million for the purchase of 710 portable breath test (PBT) machines in spite of warnings that the machines were unreliable and subject to legal challenge.

The machines have proven to be vulnerable to errors based on environmental factors including heat and cold, as well as variable such as the length of time a suspect blows into the device.

Undaunted, The Ohio Department of Health began distributing the machines to rural counties hoping to avoid legal challenges by having the machines used in areas of Ohio having less than 3% of the state’s population.

Lawyers in several other states have gotten thousands of convictions thrown out because the manufacturer of the machine, CMI, Inc. of Kentucky refuses to turn over details of the machine’s operations.

But in Ohio, it appears the device will need to be challenged on other grounds due to the fact that a 1984 ruling by the Ohio Supreme Court barred defendants from attacking the reliability of breath tests once they’ve been certified by The Ohio Department of Health. On the other hand, no device may be used in Ohio unless it appears on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices. PBT’s are generally not on the list.

Meanwhile the state continues to put more instruments in the field - slowly. Just 17 out the of 714 original purchased have been used.

Stay tuned!