tag:blogger.com,1999:blog-74459850000364249352024-03-13T11:42:47.760-07:00Ohio DUI Attorney BlogBy Avery H. Fromet, Attorney at Law -
Representing Individuals Charged with Driving Under the InfluenceAVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.comBlogger48125tag:blogger.com,1999:blog-7445985000036424935.post-68238349218213113882010-04-19T10:34:00.000-07:002010-04-19T10:35:32.468-07:00The Futility of Appeal<div>A recent Ohio Supreme Court case demonstrates the futility felt by many Defendants and their attorneys even when the higher court sustains the Defendant’s motion to suppress evidence that is fundamental to the prosecution of one accused of OVI in Ohio.</div><div><br /></div><div>The case, <i>O'Neill v. Mayberry</i>, 2010 Ohio 1707, involved a defendant charged with (1) aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony; (2) failure to stop after an accident in violation of R.C. 4549.02(A) and (B), a third degree felony; (3) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree felony; (4) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; and (5) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f), a first degree misdemeanor. A conviction of the more serious charges had to be predicated on a successful prosecution of one of the charges under R.C. 4511.19.</div><div><br /></div><div>The trial court denied O'Neill's motion to suppress the results of his blood alcohol tests performed after his arrest. Pursuant to a negotiated plea agreement, O'Neill entered pleas of no contest to Counts 1, 2, 3, and 5, Count 5 being the OVI charge. In exchange, the state dismissed Count 4, the per se violation, and O'Neill was sentenced on his no contest pleas. The Defendant appealed his convictions and the Supreme Court sustained his motion to suppress. resulting in the dismissal of the per se violation. It is important to note that the court in its opinion stated that “...O'Neill's convictions for aggravated vehicular homicide and aggravated vehicular assault depended upon a violation of R.C. 4511.19.”</div><div><br /></div><div>Nonetheless, the state re-instituted prosecution of O’Neill on the original charges.<span class="Apple-tab-span" style="white-space:pre"> </span>O’Neill attempted to have these charges dismissed by filing a Writ of Prohibition with the Supreme Court claiming the lower court no longer had jurisdiction to try the charges.</div><div><br /></div><div>The Ohio Supreme Court disagreed saying, “[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal,” <i>State ex rel. Shimko v. McMonagle</i> (2001), 92 Ohio St.3d 426, 428-429...Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred...Accordingly, when we remanded the case to the trial court following our determination that the trial court should have granted the motion to suppress, respondent was required to proceed from the point at which the error occurred, that is, after he denied the motion to suppress but before the plea agreement in which the state dismissed the general DUI charge.”</div><div><br /></div><div>So, while the per se violation was dismissed, the state was permitted to go forward on the OVI charge, thus predicating a conviction of the more serious offenses based upon a conviction of that OVI case.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-81996274929171932562010-03-19T11:00:00.000-07:002010-03-19T11:04:55.499-07:00Searches Incident to Arrest<div>The <i>Gant</i> decision may be a bit afield of the issue of DUI, but it is important that anyone being arrested for a traffic offense be aware of their rights against illegal searches. To summarize <i>Gant</i>, the US Supreme Court limited an arresting officer’s right to search the vehicle when 1) the occupants are outside the vehicle and no longer have access to the vehicle and 2) there is no indication that the search was initiated to preserve evidence of the offense for which the offender was arrested.</div><div><br /></div><div>A recent Ohio decision used the <i>Gant</i> decision in determining an officer’s right to search even if the subject of the arrest was other than a traffic violation. The case, <i>State v. Gilbert</i>, 184 Ohio App.3d 642 involved the arrest of the driver and his passengers. The automobile was stopped for a traffic offense. A warrant search found that the driver was driving under a suspended license and the front-seat passenger had an outstanding warrant for robbery. All three occupants were vacated from the car and the arresting officer proceeded to make a search of the vehicle.</div><div><br /></div><div>The syllabus stated the following:</div><div><br /></div><div>“Police may search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”</div><div><br /></div><div>The court’s opinion expanded on this point by stating:</div><div><br /></div><div>“...the search is not justified under either branch of the standard established in Gant. When the search occurred...and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle's passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued.”</div><div><br /></div><div>A major debate is raging in Ohio relative to the right of an officer to search the vehicle after an arrest as a result of the <i>Gant</i> decision. The <i>Gilbert</i> case, I believe, further defines the limits of a police office’s right to search a vehicle for ANY reason. It appears <i>Gilbert</i> estops the officer from conducting an “inventory” search subsequent to arrest. Unless the search can be justified in furtherance of a search to accumulate evidence of the crime for which the accused is being charged, a search warrant must be obtained prior to any search.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-72331247270072980792010-02-27T08:19:00.000-08:002010-02-27T08:26:45.646-08:00Your Constitutional Right Against Self-Incrimination Now has a 14 Day Warranty!<div><div>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.</div><div><br /></div><div>The case, <i>Maryland v. Shatzer</i>, 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.</div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>So, although the US Constitution specifically guarantees you the right against self-incrimination, this “guarantee” only has a 14-day limited warranty.</div></div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com1tag:blogger.com,1999:blog-7445985000036424935.post-64416226622157426362010-02-10T08:29:00.000-08:002010-02-10T08:31:23.440-08:00The Intoxilyzer 8000 - Your Tax Dollars at Work<div>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. </div><div><br /></div><div>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.</div><div><br /></div><div>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. </div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>Meanwhile the state continues to put more instruments in the field - slowly. Just 17 out the of 714 original purchased have been used.</div><div><br /></div><div>Stay tuned!</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-55367134546939247472010-01-30T14:44:00.000-08:002010-01-30T14:46:29.211-08:00Can Political Subdivisions be Liable When the Actions of Their Police Officers Permit an OVI Offender to Drive?<div>A recent Ohio Supreme Court case has opened a Pandora’s box. In the case of <i>Estate of Graves v. City of Circleville</i>, 2010 Ohio 168, the court let stand a lawsuit filed against a city and its police officers resulting from the death of an individual killed by a drunk driver.</div><div><br /></div><div>In the case, a multiple OVI offender names Copley was arrested, once again, for OVI. The next afternoon Copley was released. Finding no “hold” on the vehicle, the police released the vehicle to Copley. The next morning Copley drove his vehicle while intoxicated and caused a collision killing both he and Graves.</div><div><br /></div><div>The estate filed suit against the officers, alleging that they had breached their duty to Graves by failing to remove Copley's license plates from his vehicle and by releasing the vehicle to him. More specifically, the estate claimed that (1) R.C. 4507.38 required that Copley's vehicle be held until his initial court appearance because he had been charged with driving on a suspended license and (2) R.C. 4511.195 required that Copley's vehicle remain impounded because he had been convicted of operating a motor vehicle under the influence of alcohol ("OMVI") within the prior six-year period. The estate alleged that the officers were aware that Copley was a recidivist drunk driver who was driving on a suspended license and that the officers violated the law by allowing Copley to obtain his vehicle from the impound lot. The estate further alleged that the officers acted wantonly, recklessly, and with complete disregard for the foreseeable consequences of their actions.</div><div><br /></div><div>The city and officers defended themselves based upon Ohio’s Sovereign Immunity Statute contained in O.R.C. Chapter 2744. That statute bars any suit against any political subdivision of the state and/or its employees in the performance of their duties. However, the one exception is when the employee acts in a wanton and reckless manner (O.R.C. 2744.03(A)(6)(b)). The city asked the lower court to dismiss the case on that basis.</div><div><br /></div><div>In its ruling, the court acknowledged the sovereign immunity statute but alluded to the Plaintiff’s claim of wanton and reckless behavior. Therefore, it remanded the case back to the lower court to determine the culpability of the officer’s behavior.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-2083052729528563472010-01-24T07:32:00.000-08:002010-01-24T07:34:46.946-08:00The Consequences of Refusing a Chemical Test<div>Recently, I received my new telephone books and glued to the front of the book was an advertisement from a local attorney with his “Advise When Stopped for a DUI.” One of his prominent pieces of advise was “Never....Never Agree to take a Breathalyzer Test.” Is this blanket advise sound? In some instances yes. In most instances no. Like most advise, the surrounding circumstances play a major role in the decision. This blog discusses the consequences of one’s refusal.</div><div><br /></div><div>First, one’s refusal to agree to take a test is a violation of Ohio’s “implied consent” statute. That statute, O.R.C. 4511.191, sets forth the law that the right to drive in Ohio implies the driver’s agreement to submit to a chemical test when requested. They may refuse, but that refusal will result in a one year suspension of their driving privileges in Ohio.</div><div><br /></div><div>In addition to one’s violation of the implied consent statute, that refusal will trigger the new twenty year “look back” rule. Ordinarily, the enhancement provisions of Ohio’s OVI laws depend upon the number of OVI convictions within the prior six years. As a result of a refusal, the enhancement provision are triggered for any prior OVI violations in the last TWENTY years.</div><div><br /></div><div>Finally, a recent Ohio Supreme Court decisions permitted courts to increase a violator’s penalties for refusing a chemical test. Historically, Ohio courts held to the rule that while a person’s refusal to take a test violated Ohio’s implied consent law, that person did have a constitutional right to refuse. As such, courts rarely increased a person’s penalties for their refusal to take a test. The Ohio Supreme court’s ruling changed that. The court ruled that the right to drive in Ohio is a privilege and not an inherent constitutional right. Therefore, a court is permitted to increase penalties for refusing without violating the person’s constitutional rights.</div><div><br /></div><div>Allow me to provide you an example of the hornet’s nest that can result from one’s refusal to take a test. This was true case. My client was driving home from his girlfriend’s house where they were watching a football game. While watching the game, they had a pizza and a “couple of beers.” At one time my client was a heavy drinker and had several violations for OVI earlier in his life. But he had reformed and had no violations for OVI in the last six years. On the way home, he crossed the center line and was stopped by the local police. When asked to take a test, he refused. </div><div><br /></div><div>Let’s assume he had taken the breathalyzer and been convicted. As a first time offender in six years, he would have faced a first degree misdemeanor carrying the following possible sentence:</div><div>Three days in jail or a three day driver’s intervention program, a $375-$1075 fine, a license suspension for six months to one year, and the right to request limited driving privileges for work, medical, etc after fifteen days.</div><div><br /></div><div>So what were the consequences of his refusal?</div><div><br /></div><div>First, he received a suspension of his driving privileges for one year. But, that wasn’t the worst of it. His refusal triggered the twenty year look back rule. While he had no violations in the last six years. He had five others in the prior twenty years. Therefore, under Ohio law, he faced a forth degree felony OVI conviction as it was his sixth violation in twenty years. He faced the following penalties: Actual incarceration for a minimum of 120 days (four months) up to 1 year, a $1350-$10,500 fine, a mandatory alcohol addiction program, license suspension for three years to life with no privileges for three years, an alcohol interlock on any car he drove, and a forfeiture of his car to the State of Ohio (he had just purchased, for cash, a new Jeep Cherokee).</div><div><br /></div><div>So should he have agreed to take the breathalyzer? Of course. Even if convicted, the consequences were minimal compared to what he faced as a result of his refusal. </div><div><br /></div><div>Knowing the accused’s background is critical in properly advising them. Offering blanket advise against submitting to a test can have dire consequences.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com2tag:blogger.com,1999:blog-7445985000036424935.post-86206841466109373012009-12-23T09:06:00.001-08:002009-12-23T09:06:59.188-08:00Expansion of an Investigatory Stop Violates Individual’s Right Against Illegal Searches and Seizures<div>A recent Ohio case demonstrates the illegality of an expanded investigatory stop. As any reader of this blog knows, a police officer may stop a vehicle for a brief investigatory stop if that officer has probable cause to believe the vehicle is engaged in or is about to engage in some criminal act or traffic violation. The Forth Amendment to the United States Constitution protects against unreasonable searches and seizures. A “Seizure” occurs when an office restrains an individual’s freedom for an investigatory stop.</div><div><br /></div><div>But, short of being able to point to specific and articuable facts, which , under the totality of the circumstances, warrant a reasonable belief that criminal behavior has occurred or is imminent, the officer can not seize the individual or expand the investigation.</div><div><br /></div><div>In the case of <i>State v. Brown</i>, 183 Ohio App.3d 337, the court stopped an officer’s “fishing expedition.” In that case, the defendant was stopped for following too close, a minor traffic violation. The police officer than began asking irrelevant questions unrelated to the purpose of the stop. Questions included the specific reasons for the defendant’s travel, details of the reasons given, and whether they were carrying drugs or large amounts of cash.</div><div><br /></div><div>The court stated, “The scope of a detention, to be consistent with Fourth Amendment protections, must be carefully tailored to its underlying justification and last no longer than is necessary to effectuate the purpose of the stop. The lawfulness of an initial stop will not support, under the Fourth Amendment, a fishing expedition for evidence of a crime.”</div><div><br /></div><div>The Woods County Appellate Court went on to say, “When conducting the stop of a motor vehicle for a traffic violation, an officer may detain the vehicle for a time sufficient to investigate the reasonable, articuable suspicion for which the vehicle was initially stopped...”</div><div><br /></div><div>The reader is cautioned that if the car itself is seized in the event of a OVI arrest, for instance, the police could initiate a legal inventory search of the vehicle and, if contraband is found, could charge the driver accordingly.</div><div><br /></div><div>But, for an ordinary traffic stop, the officer can not go any further than the initial investigation of the traffic violation. Individuals should be aware that the officer is not permitted to go beyond the scope of their initial traffic investigation and are under no obligation to respond to any questions that go beyond the scope of the traffic investigation.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-59351960086598019662009-12-07T08:12:00.000-08:002009-12-07T08:14:51.932-08:00When are Miranda Warnings Required<div>Most practitioners might assume once an individual is placed in a police car, they are in custody and subject to Miranda warnings before any statement made be the person is admissible. A recent Hamilton County case might force an attorney to rethink this assumption.</div><div><br /></div><div>Miranda warnings must be provided when a defendant is subject to a “custodial interrogation.” A custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” <i>Miranda v. Arizona</i> (1966), 384 U.S. 436, 467-468, 86 S.Ct. 1602, 16 L. Ed. 2d 694. </div><div><br /></div><div>Generally, "motorists temporarily detained pursuant to ordinary traffic stops are not in custody for purposes of Miranda," <i>State v. Leonard</i>, 1st Dist. No. C-060595, 2007 Ohio 3312, P 19, citing <i>Berkemer v. McCarty</i> (1984), 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317. But "if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda," <i>Berkemer v. McCarty</i> (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L. Ed. 2d 317.</div><div><br /></div><div>The case that redefines this assumption is<i> State v. Rice</i>, 2009 Ohio 6332. In that case, the defendant was placed, uncuffed, in a police car and admitted have four 16 oz. beers prior to being stopped. He was not Mirandized prior to this statement. The defendant sought to suppress this statement along with field sobriety tests given prior to the Miranda warnings.</div><div><br /></div><div>The courts reasoning was as follows:</div><div><br /></div><div>“In this case, Rice was not in custody. Trooper Shimko had valid reasons for removing Rice from his vehicle and placing him in the cruiser. Two other passengers were in the vehicle that was stopped, and Shimko needed to determine whether the odor of alcohol had come from Rice. The interests of safety further justified placing Rice in the cruiser, since Rice had been stopped near high-speed traffic on the side of an interstate highway. Although Rice had been placed in the back seat of the cruiser, this did not transform a routine stop into a custodial interrogation. Trooper Shimko did not subject Rice to a lengthy interrogation, and Rice was not handcuffed while he was in the cruiser. Further, the interaction between Rice and Shimko was neither combative nor intimidating. Because Rice had not been subject to a custodial interrogation, Miranda warnings were not required, and his statements made in the cruiser should not have been suppressed.”</div><div><br /></div><div>The obvious conclusion that must be drawn from this case (at least for those practicing DUI defense in Hamilton County) is that even though an individual is placed in a police car does not necessarily infer that they are in custody. Apparently, the fact that the individual was placed in a police car where the back doors automatically lock, and his movements restricted, had little influence on the court’s decision. </div><div><br /></div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-29214179706023922562009-11-30T11:57:00.000-08:002009-11-30T12:01:01.983-08:00Traffic Stops and Probable Cause<div><i>On November 20 I had the honor to participate in the 2009 OVI Update seminar presented by the Ohio State Bar Association. One of the participants in the seminar was the Honorable Jennifer Weiler, Judge of The Garfield Heights, Ohio Municipal Court and co-author of “Ohio Driving Under the Influence Law,” a publication of Thompson-West Publishing. Judge Weiler’s topic was “Motions to Suppress in Operating a Vehicle Under the Influence Cases.” This blog is a discussion of the judge’s excellent presentation regarding traffic stops and their constitutionality.</i></div><div><br /></div><div>There are two types of traffic stops and different constitutional standards apply to each. These traffic stops are characterized as the “non-investigatory” traffic stop and the other the “investigatory” traffic stop.</div><div><span class="Apple-tab-span" style="white-space:pre"> </span></div><div><b>Non-Investigatory Traffic Stop</b></div><div>The most common stop is the non-investigatory traffic stop. It occurs when an officer observes a violation of the traffic code. Upon observing the violation, the officer stops the driver to issue a citation.</div><div><br /></div><div>This type of stop requires probable cause, that is, a reasonable ground for belief of guilt, which is provided when the officer witnesses the traffic violation, <i>State v. Downs</i>, 2004 Ohio 3003, <i>State v. Moelle</i>r, 2000 WL 1577287. De minimus violations can form a sufficient basis for this type of stop owing to the fact that the officer personally observed the violation. </div><div><br /></div><div>This does not mean that the stop can be pretextual - an alleged violation for the purpose of stopping the driver when no actual violation occurred, ie. Low tire pressure, spider crack in the windshield, gas tank cap open. But, as long as a legitimate basis for the stop exists, the subjective intent or motivation of the officer does not invalidate the stop, <i>Whren v. United States</i>, 517 U.S. 806. The stop can be pre-textual as long as there is some violation that the officer observes or believes he observes.</div><div><br /></div><div><b>Investigatory Traffic Stop</b></div><div>The second type of traffic stop is an investigatory traffic stop. It has been referred to as “the motorized equivalent of a Terry Stop,” <i>State v. Downs</i>, 2004 Ohio 3003. This stop permits the officer to stop the vehicle is the officer has reasonable suspicion based on specific, articuable facts than an offense has been or is being committed, <i>State v. Slider</i>, 2008 Ohio 2318., <i>State v. Downs</i>, Supra.</div><div><br /></div><div>In this type of stop the officer does not necessarily see a specific violation but does have sufficient reason to believe a criminal act has occurred or is occurring and the officer seeks to confirm or refute his or her suspicion, <i>State v. Moeller</i>, Supra. Reasonable suspicion is a lesser standard than that of reasonable cause required to make an arrest. </div><div><br /></div><div>This type of stop is predicated upon informant’s tips, 911 calls, or random plate checks. The reader is directed to prior blogs regarding the discussion of informant’s tips as a basis for a traffic stop.</div><div><br /></div><div>In summary, where the officer personally observes a traffic violation (a non-investigatory stop), he may stop the vehicle. Where the officer does not personally observe the traffic violation (an investigatory stop), the officer must point to specific articuable facts that an offense has occurred or is occurring.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-74907601987160120052009-11-11T07:35:00.000-08:002009-11-11T07:36:57.187-08:00What is the Court’s Discretion in Sentencing in OVI Cases?<div>Historically, courts have normally sentenced defendants to the minimum sentence upon conviction or plea to an OVI, i.e. three days for a first time offender, ten days to a second offense, and so on, depending upon the number of prior convictions within a six year period. With the enactment of the “look-back rule” and the recent Hoover decision, more and more defendants are looking at sentences exceeding the minimum.</div><div><br /></div><div>A recent case from Clermont County is typical of this trend. The case, <i>State v. Elliot</i>t, 2009 Ohio 5926, involved a multiple offender. Since the defendant had refused the breathalyzer, the look back rule was imposed and it was found that this offender had been convicted more that 5 times for OVI. In fact, he had 15 convictions in his lifetime. The court sentenced the defendant to the maximum 30 months in jail. Additionally, because the defendant was on community control sanctions at the time of his arrest, the judge sentenced the defendant to an additional 12 months in jail to run consecutively with his sentence on the OVI. In total, the defendant was given 42 months in jail (3½ years). </div><div><br /></div><div>The defendant appealed his sentence claiming the court abused it discretion in imposing such a draconian sentence. He appealed on two grounds. First, he claimed the sentence imposed was not supported by the record and is contrary to law. Second, he claimed the sentence imposed was excessive and failed to achieve the overriding purposes of felony sentencing.</div><div><br /></div><div>The court disposed of the first issue by stating “Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences," <i>State v. Foster</i>, 109 Ohio St.3d 1, 2006 Ohio 856, P100, 845 N.E.2d 470. In applying Foster appellate courts must apply a two-step approach. First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard," <i>State v. Kalish</i>, 120 Ohio St.3d 23, 2008 Ohio 4912, P4, 896 N.E.2d 124.</div><div><br /></div><div>The court went on to say, “A sentence is not clearly and convincingly contrary to law, where the trial court consider[s] the purposes [of the sentencing guidelines], ...properly applie[s] post-release control, and ... sentence[s] [appellant]...within the permissible range." In addition, so long as the trial court gives "careful and substantial deliberation to the relevant statutory considerations" the court's sentencing decision is not an abuse of discretion.</div><div><br /></div><div>The appellate court found that the judge, on the record. had reviewed the sentencing guidelines, balanced the seriousness and recidivism factors set forth in the guidelines, and as, required, informed the appellant he could be subjected to three years of post release controls.</div><div><br /></div><div>The court addressed the appellant second claim by reviewing the appellant’s record. The record clearly showed that the appellant had 15 prior convictions for OVI, the he was ordered into treatment that failed, and that the defendant’s license had been suspended several times but he continued to drive. </div><div><br /></div><div>Therefore, the court concluded that the judge did comply with the law by applying the sentencing guidelines set forth in the Ohio Revised Code. Further, addressing the second prong of the sentencing review, found that the lower court did not violate the abuse-of-discretion standard.</div><div><br /></div><div>As a result, in applying this court’s opinion, a court’s sentence will not be overturned if the record on appeal shows:</div><div><br /></div><div>1. That the court balanced the seriousness and recidivism factors set forth in the statute.</div><div>2. Told the defendant of the possibility of post relief control (if applicable), and</div><div>3. The record of the defendant justified the sentence being imposed (abuse- of-discretion standard). </div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-53484560669451407232009-11-11T04:52:00.000-08:002009-11-11T04:53:39.576-08:00The Observations of the Informant Must be Placed on the Record to Justify a Stop<div>If you’ve been a reader of this blog, I’ve discussed the justification for a traffic stop based upon the observations of an informant. A recent Third Appellant District Court case further defines the information necessary to justify the stop.</div><div><br /></div><div>In this case, <i>State v. Fields</i>, 2009 Ohio 5909, an informant called police dispatch to inform them of a suspected drunk driver. The defendant filed a motion to suppress claiming the police officer had insufficient cause to stop the Defendant. At the motion hearing, the state called the informant who testified as follows:</div><div><br /></div><div>Q Did you have an opportunity to make a 911 call on November 28th, 2008, around 6 o'clock in the event?</div><div><br /></div><div>A Yes.</div><div><br /></div><div>Q And where were you at when you made that call?</div><div><br /></div><div>A I was heading south on South Sandusky.</div><div><br /></div><div>Q And is that in the City of Upper Sandusky?</div><div><br /></div><div>A Yes. Hm-hmm.</div><div><br /></div><div>Q Wyandot County, Ohio?</div><div><br /></div><div>A Yeah.</div><div><br /></div><div>Q Could you describe what you observed?</div><div><br /></div><div>At no time did the informant testify as to his personal observations of the defendant at the time of the incident. In addition, the officer’s testimony failed to illustrate that he or the dispatcher were aware of the details of the informant’s personal observations.</div><div><br /></div><div>In its analysis, the court cited <i>State v. Bailey</i>, 2008 Ohio 2254. In that case the arresting officer testified that he had received a dispatch that another police department had received a call of a "possible drunk driver" and that one of the officers at the other department had witnessed the same vehicle speeding. The arresting officer located the vehicle and pulled it over after observing the vehicle's failure to signal. Neither the other police officer who had observed the vehicle's speeding nor the dispatcher who had received the citizen's phone call testified at the hearing. In addition, the citizen informant who had made the original call to the other police department testified extensively to his personal observations of the defendant's erratic driving. However, there was no testimony demonstrating what, if any, information the eyewitness had relayed to the other police department's dispatcher concerning the defendant's erratic behavior. Since the State had failed to demonstrate that the law-enforcement community as a whole possessed facts constituting probable cause to arrest.</div><div><br /></div><div>In its conclusion, the court stated, “there is an absence of evidence demonstrating that someone in the law enforcement community knew specific facts that would support reasonable, articulable suspicion of criminal activity. The State failed to demonstrate that [the informant’s] personal observations were relayed to the dispatcher, thereby allowing [the arresting officer] to solely rely on the dispatch to justify his investigative stop of [the informant]. Furthermore, [the officer’s] testimony, considered alone, fails to demonstrate reasonable, articulable suspicion of criminal activity. While we acknowledge that there is evidence that a law enforcement officer...eventually talked to [the informant] at the scene, this did not occur until after [the arresting officer] had already approached Fields to make the detention and investigation.</div><div><br /></div><div>Therefore, this court held that the state must place the following on the record in support of a stop based upon the observations of an informant:</div><div><br /></div><div>1. The observations of the informant, and</div><div>2. That these observations were communicated to the arresting officer, and</div><div>3. The observations will support reasonable, articuable suspicion of criminal activity.. </div><div><br /></div><div>For evidentiary purposes, the court will not allow the trier of fact to draw an inference based solely on conclusary statements of a dispatcher. To do otherwise would permit the trier of fact to draw and inference on an inference which would violate the Rules of Evidence.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-44053794199525618022009-11-04T07:35:00.000-08:002009-11-04T07:49:27.469-08:00Parental Liability<div>A recent Lorain County case discussed a pertinent issue relative to OVI. That issue, in the case of <i>Allstate Ins. Co. v. Jaeger</i>, 2009 Ohio 5756, concerned parental liability for the acts of their child. The case arose from the actions of a 15 year old who became intoxicated and crashed into another’s property damaging a garage and a fence. Allstate insurance paid the claim of its insured and then sued the parents of the minor. The theory of liability was two-fold: (1) O.R.C. 3109.09(B), the parental liability statue and (2) common law negligent supervision.</div><div><br /></div><div><b>O.R.C. 3109.09(B) - Parental Liability Statute</b></div><div> The statute's language is as follows: "[a]ny owner of property . . . may maintain a civil action to recover compensatory damages not exceeding ten thousand dollars and court costs from the parent of a minor if the minor willfully damages property belonging to the owner or commits acts cognizable as a 'theft offense...involving the property of the owner.” Therefore, there are two independent grounds for liability:</div><div><br /></div><div>1. A child’s wilful damage to property, or</div><div>2. A child’s cognizable act of theft involving property of the owner.</div><div><br /></div><div>In order for a parent to be liable in the first instance, it must be shown that the child intentionally caused the damage to the property. The Supreme Court of Ohio distinguished between "wanton negligence" and a "willful tort" that "involves the element of intent or purpose," A parent may not be held liable under the willful acts provision of Section 3109.09 for damage caused by joyriding in a stolen car unless the child also intentionally caused the subsequent damage, <i>Motorists Mut. Ins. Co. v. Bill</i>, 56 Ohio St. 2d 258, 266, 383 N.E.2d 880. Thus, the court distinguished between a negligent act and an intentional one. Based upon that dicta, the court determined the act of the child had to be intentional not merely negligent. Therefore, in order to prevail the plaintiff must prove that the child intended to damage property before parental liability will attach. Since Allstate could not prove that the child intentionally damaged the property, liability did not attach.</div><div><br /></div><div>In the second instance parental liability arises under the 'theft provision' of R.C. 3109.09 when the child has engaged in conduct which is the equivalent of theft and the property thereafter is damaged, regardless of whether the child acted in a willful manner at the time the property was damaged, <i>Conover v. McCutcheon</i>, 9th Dist. No. 1832, 1990 Ohio App. LEXIS 1329, 1990 WL 40163. Therefore, if the act of the child amounts to a “theft” as defined by law, the parent can be held liable in the event of damages caused as a result of that “theft” whether or not the child acted wilfully. </div><div><br /></div><div>While it is not pertinent to this discussion, I point out that the court denied liability under the second ground because although the child did “steal” the car, Allstate was not the owner of the damaged property as required by the statute.</div><div><br /></div><div><b>Negligent Supervision</b></div><div>Although at common law a parent is not ordinarily liable for damages caused by his child's wrongful conduct, "liability can attach when the injury committed by the child is the foreseeable consequence of a parent's negligent act," <i>Huston v. Konieczny</i>, 52 Ohio St. 3d 214, 217, 556 N.E.2d 505 (1990). The Ohio Supreme Court has outlined three ways that parents may incur liability: (1) negligent entrustment; (2) negligent supervision, and (3) consenting to or directing the child's wrongful conduct.</div><div><br /></div><div>The relevant element in any negligence theory is that of foreseeablility. In the case of parental liability, could the parent foresee the actions of their child? In the Allstate case, the court pointed to the fact that “...[the parent] pointed to evidence tending to show that she did not know of any prior instance wherein her son had acted in a similar manner, endangering others or their property by using a car. She also pointed to evidence that she had supervised her son to the extent that she had spoken with him on the evening of the incident and she detected no cause for concern that he might ‘do anything that would be dangerous to himself or to others.’” </div><div><br /></div><div>The court concluded that “...reasonable minds could only conclude that [the parent] did not know, nor should she have known, that injury to another was a probable consequence of her son's behavior. Therefore, the court denied liability under this theory of liability.</div><div><br /></div><div>While the subject matter of this blog is the theory of "Parental Liability," it is important to note the potential consequence to a parent who knowingly allows their child to operate a vehicle knowing or having reason to believe the child is under the influence of alcohol or drugs or both, or might potentially be under the influence (prom, school dance, fraternity/sorority party, etc.).</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-13958044109469841122009-10-29T04:26:00.000-07:002009-10-29T04:27:22.085-07:00Courts Begin to Adopt Findings in State v. Hoover<div>Courts are beginning to adopt the findings in State v. Hoover, 2009 Ohio 4993, permitting lower courts to enhance a person’s sentence for refusing to submit to a chemical test in OVI prosecutions.</div><div><br /></div><div>Historically, it was thought that a defendant had a constitutional right to refuse to submit to a chemical test. While the refusal could result in an administrative suspension under Ohio’s Implied consent Law, O.R.C. 4511.191, it was thought that it was a violation of the defendant’s Fourth Amendment right to enhance a sentence due to the defendant refusal.</div><div><br /></div><div>The Third District Appellate Court (Union County, Ohio) had reiterated this long established thinking in rejecting a lower court’s enhancement of a defendant’s sentence due to the defendant’s refusal to submit to a test. But the Ohio Supreme Court rejected this long held interpretation and overruled the appellate court’s opinion. In its opinion the supreme court stated:</div><div><br /></div><div>"It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person's refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person's previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a).”</div><div><br /></div><div> "Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication...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.”</div><div><br /></div><div>In rejecting an appeal from the Coshocton Municipal Court, The Fifth Appellate District adopted the findings in State v. Hoover. It appears that court, prosecutors and police have an additional hammer to hold over the head of a detainee to demand that they submit to a chemical test.</div><div><br /></div><div>It would be wise that any advocate advising those arrested for OVI rethink their unwavering advise to refuse a test. There may be valid reasons to do so, BUT the possibility of additional sanctions should be part of the decision making process.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-12547604571538034922009-10-26T06:51:00.000-07:002009-10-26T07:01:26.720-07:00Severe Consequences Result from Violating an OVI Suspension<div>If you’ve continued to read this blog, its is clear that one’s driving privileges will be suspended for a period of time as a result of an OVI conviction. Minimum suspensions begin at 6 months for first offenders to two years for multiple offenses. Limited driving privileges can be obtained by motion after a period of suspension. The court has discretion in determining those privileges which normally are for employment, educational, medical or alcohol interdiction programs. The driving privileges are set forth in a court order that the defendant must carry with them while driving. In the event the driver is stopped a reading of the order by the police officer will be determinative of whether the defendant has violated the terms of their restrictive driving privileges. </div><div><br /></div><div>It is important that anyone given privileges during the period of their suspension understand the severe penalties for their violation of those limited driving rights. The additional penalties imposed for driving under an OVI suspension are as follows:</div><div style="text-align: left;"><br /></div><div style="text-align: left;"><b>First Time in 6 Years</b></div><div>3-180 days in jail<span class="Apple-tab-span" style="white-space:pre"> or 30-180 days of house arrest </span></div><div><span class="Apple-tab-span" style="white-space:pre"> with electronic monitoring</span></div><div><span class="Apple-tab-span" style="white-space:pre"></span>$250-$1000 fine<span class="Apple-tab-span" style="white-space:pre"> </span></div><div><span class="Apple-tab-span" style="white-space:pre"></span>Mandatory 30 day immobilzation</div><div>Restricted<span class="Apple-style-span" style="white-space: pre;"> </span>Plates</div><div><br /></div><div style="text-align: left;"><b>Second in 6 Years</b></div><div>10 days to 1 Year<span class="Apple-tab-span" style="white-space:pre"> in jail or 90 days - 1 year of house arrest </span></div><div><span class="Apple-tab-span" style="white-space:pre"> with electronic monitoring</span></div><div><span class="Apple-tab-span" style="white-space:pre"></span>$500-$2500 fine<span class="Apple-tab-span" style="white-space:pre"> </span></div><div><span class="Apple-tab-span" style="white-space:pre"></span>Mandatory 60 day immobilization</div><div>Restricted Plates</div><div><br /></div><div style="text-align: left;"><b>Third of More Times in 6 years</b></div><div>30 days to 1 year<span class="Apple-tab-span" style="white-space:pre"> jail (no house arrest with </span></div><div><span class="Apple-tab-span" style="white-space:pre"> electronic monitoring)</span></div><div>$500-$2500 fine</div><div>Automobile is forfeited</div><div><br /></div><div>As one can see from the chart, if you are caught in violation of the restrictions imposed by the court you can face mandatory jail, large fines and immobilization or forfeiture of your automobile. Therefore, it is vitally important that your attorney be advised of any circumstance that should be reflected in any court order. Among these are child custody issues, unusual work schedules, important family medical issues, attendance at AA or alcohol or drug interdiction programs, or religious requirements. These must be reflected in any order as many courts will strictly construe the restrictions set forth in the court order.</div><div><br /></div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-9639771370424708332009-10-14T10:24:00.000-07:002009-10-14T10:33:51.867-07:00OVI Update Seminar Scheduled for November 20, 2009<div>The Ohio State Bar Association’s annual OVI update seminar is scheduled for November 20, 2009. Historically this seminar is the most comprehensive seminar offered dealing with major issues in the area of OVI. Topics discussed during the seminar deal with pertinent and relevant issues facing the OVI practioner today. Among the topics to be presented are:</div><div><br /></div><div>Case Law and Legislative Updates</div><div>Administrative License Suspension Appeals</div><div>Justification to Detain and Driver for an OVI Stop</div><div>Effect of OVI on Commercial Drivers’ Licenses</div><div>Felony OVI and Prior Convictions</div><div>Use of Field Sobriety Tests at Trial</div><div>Ohio Administrative Code and Department of Health Requirements Relating to Blood and Urine Draws</div><div>The Impact of Destroyed Videos</div><div>Motions to Suppress</div><div><br /></div><div>These topics are being presented by some of the most preeminent OVI practioners in the State of Ohio and should not be missed by any member of the bar - defense counsel, prosecutors or judiciary. 6.75 CLE hours is granted for all those attending requiring continuing education hours by The Ohio Supreme Court.</div><div><br /></div><div>The seminar is being presented live in Columbus and simulcast to locations in Akron, Cleveland, Dayton, Fairfield, Steubenville, Toledo and Youngstown The course is also offered on DVD and Webcast (offer date TBA).</div><div><br /></div><div>Registration information can be found at the<a href="http://ebiz.ohiobar.org/pl.asp"> </a><a href="http://ebiz.ohiobar.org/pl.asp?pcid=14">Ohio Bar Association Web Site</a>. In the keyword search block, enter the term "OVI" and click on "search." Click on the location where you will be attending the seminar and comprehensive information will be provided.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-17690749277449278252009-10-08T05:05:00.000-07:002009-10-08T05:06:31.319-07:00The Argument for “Particularity”<div>Suppression and dismissal motions are a vital resource for any defendant fighting a charge of OVI in Ohio. This blog has written several articles referring to various motions filed by counsel in defense of an OVI charge. Theses discussion, for the most part, were substantive in nature.</div><div><br /></div><div>A recent Ohio court of appeals case addresses the rules governing how a motion is presented. It typifies the long held rule that motions can not be generic. They must be written with particularity. The case, <i>In re Minnick</i>, 2009 Ohio 5274, touches on a subject very relevant to motion practice in Ohio- the issue of “particularity.” In this case, the defendant was stopped and eventually charge for OVI. The defense counsel filed a motion to suppress, among other issues, the results of the breathalyzer. </div><div><br /></div><div>In his motion the defendant stated, “...[he is moving] for a suppression of the evidence obtained by the Van Wert County Sheriff's Department from the warrantless seizure of the Defendant[.]" The motion then proceeds to list five particular items of evidence that the defendant wanted to be suppressed, including the results of the breathalyzer. The defendant also attached a memorandum in support of his motion to suppress. The bulk of this motion discussed the law surrounding the suppression of evidence flowing from an illegal stop, detention, and/or arrest. The motion also alleged that the field sobriety tests were not done in strict compliance with the applicable standards and were inadmissible. In conclusion, the defendant’s motion read: "Based upon the foregoing the Defendant asserts that there was not sufficient evidence to warrant the administration of the field sobriety tests, the portable breath test and the BAC Datamaster test."</div><div><br /></div><div>The lower court denied the defendant’s motion to suppress the results of the breathalyzer. The defendant appealed.</div><div><br /></div><div>In analyzing the merits of the case, the Third Appellate District Court (Van Wert County) centered its attention on the generic nature of the pleading itself. The court quoted Criminal Rule 47 that stated the rule required, “[a] motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with <b>particularity</b> the grounds upon which it is made and shall set forth the relief or order sought." In keeping with this rule, the Ohio Supreme Court has held that "the accused must state the motion's legal and factual bases with <b>sufficient particularity</b> to place the prosecutor and the court on notice of the issues to be decided." <i>State v. Shindler</i> (1994), 70 Ohio St.3d 54, 1994 Ohio 452, 636 N.E.2d 319.</div><div><br /></div><div>The court went on to say, “While courts vary in their determinations as to what constitutes "sufficient particularity," at a minimum, an accused is required to identify some section of the Ohio Administrative Code that is implicated and/or make some sort of assertion that the State failed to follow the proper standards in administering the breath test.” </div><div><br /></div><div>In sustaining the lower court’s decision, the appellate court concluded that, “The motion contained no allegation that the State violated any one of these requirements nor was there any citation to a particular OAC section that was alleged to have been violated. Moreover, [the defendant] never requested in his motion that the results of the BAC Datamaster be suppressed because of non-compliance with the OAC. Rather, [the defendant] simply made a blanket statement of what the law required the State to prove in order to admit the results in evidence and then requested that the BAC Datamaster results be suppressed because there was not sufficient evidence to warrant [the arresting officer] to administer this test.” In summary, the appellate court opined that the defendant’s motion failed to contain sufficient particularity and, for that reason, the lower court was correct in suppressing the motion.</div><div><br /></div><div>This appellate court sustained the long held rule that generic motions will not be tolerated. Therefore, in preparing any motion to suppress, the pleading should contain, at minimum:</div><div><br /></div><div>1. A statement of what the defendant is attempting to suppress,</div><div>2. A cite as to the particular administrative code section or what legal right was violated, and</div><div>3. A factual summary of the actions of the arresting officer or entity that violated that OAC section or right.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-76538713169396097652009-10-06T11:40:00.000-07:002009-10-08T05:07:16.132-07:00Can Your Sentence be Enhanced if You Refuse to Take A Chemical Test?<div>Legal experts have debated for years the issue of restricted freedoms due to actions that might not be criminal by definition. The major debate centers around sentence enhancement due to one’s refusal to submit to chemical testing, i.e. blood draws, DNA tests, etc. Even the US Supreme Court has raised the ire of many legal scholars because of its differing opinions relating to many of these freedoms.</div><div><br /></div><div>If you read this blog, a recent article discussed one appellate court’s opinion regarding the criminalization of a defendant’s right to refuse to submit to a chemical test. While most legal scholars side on a defendant’s right to refuse without the stigma of an enhanced sentence, the Fifth Appellate Court in <i><a href="http://ohioduiblog.blogspot.com/2009/06/court-of-appeals-sustains-lower-courts.html">State of Ohio v. Adam</a></i>, sustained the lower court’s right to enhance the defendant’s sentence for his refusal to submit to a chemical test.</div><div><br /></div><div>Apparently, the Ohio Supreme Court, in its recent decision in <i>State v. Hoover</i>, 2009 Ohio 4993, has put the issue to rest (at least in Ohio) for multiple offenders. In that case, the defendant refused the breathalyzer and his sentence was doubled due to his violation of O.R.C. 4511.19(A)(2). That statute permits the enhancement of an OVI sentence if the defendant refused to submit to a chemical test and has a prior conviction in the last 20 years.</div><div><br /></div><div>The defendant argued that the statute violated his Fourth and Fifth Amendment Rights which protects him from illegal searches and seizures and violations of his due process rights. The court disagreed stating that the right to drive in Ohio is not an inherent constitutional right. It is a privilege that does not have the same constitutional safeguards. </div><div><br /></div><div>The court cited the cases of <i>Westerville v.Cunningham</i>, 15 Ohio St. 2d 121 and <i>Schmerber v. California</i>, 384 U.S. 757 that stated section 4511.191 of the Ohio Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution.</div><div><br /></div><div>The court also cited <i>State v. Gustafson</i>, 76 Ohio St.3d 425 which declared that the administrative license suspension provisions of the 4511.19 was not a violation of the defendant’s Fourth and Fifth Amendment Rights to further rationalize its findings.</div><div><br /></div><div>In conclusion, the court declared the enhancement provision for refusing to submit to a chemical test is constitutional and allows a court to enhance a defendant’s sentence if the following are proven beyond a reasonable doubt: (1) a DUI conviction within 20 years of the current violation, (2) operation of a motor vehicle while under the influence of alcohol or drugs, and (3) a refusal to submit to a chemical test while under arrest for the current DUI.</div><div><br /></div><div>You will note the court did not address the issue of court’s right to enhance the sentence of a first time offender for their refusal to submit to a chemical test. This is still under debate as discussed in a <a href="http://ohioduiblog.blogspot.com/2009/06/court-of-appeals-sustains-lower-courts.html">prior blog</a>.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-13133255003944134252009-09-26T06:45:00.000-07:002009-10-06T07:23:04.564-07:00Can an Insurance Company Deny Coverage if Alcohol is a Contributing Factor in an Accident?<div>Readers of this blog know of the very serious consequences of an <span class="blsp-spelling-error" id="SPELLING_ERROR_0">OVI</span>/DUI conviction. Direct consequences include jail, fines, suspensions, loss of commercial driving privileges, confiscation of the automobile. Indirect consequences include employment issues, insurance premium increases or loss of insurance, and professional ethics issues.</div><div><br /></div><div>A recent federal court case points to another consequence - denial of insurance coverage. The case, <i>Shelby County Health Care Corp. v. Majestic Star Casino, </i><span class="blsp-spelling-error" id="SPELLING_ERROR_1"><i>LLC</i></span><i> Group Health Benefit Plan</i>, 2009 FED App. 0339P (6<span class="blsp-spelling-error" id="SPELLING_ERROR_2">th</span> Cir.) involved a claim by an insured for medical coverage under his policy of insurance. The insured was involved in a traffic accident. At the time the insured was driving without a license and, at the time of their investigation, the officers checked a box on the citation indicating that alcohol consumption might be a contributing factor to the accident. The insured eventually <span class="blsp-spelling-error" id="SPELLING_ERROR_3">pled</span> no contest to the failure to have a valid drivers license but was never charged with a DUI.</div><div><br /></div><div>As with most medical insurance policies, the following covenant was contained in the policy:</div><div><br /></div><div>“This Plan does not cover and no benefits shall be paid for any loss caused by, incurred for or resulting from . . . . [c]<span class="blsp-spelling-error" id="SPELLING_ERROR_4">harges</span> for or in connection with an injury or illness arising out of the participation in, or in consequence of having participated in, a riot, insurrection or civil disturbance or being engaged in an illegal occupation or the commission or attempted commission of an illegal or criminal act.”</div><div><br /></div><div>The company denied coverage claiming the insured’s failure to have a driver’s license and his possible <span class="blsp-spelling-error" id="SPELLING_ERROR_5">OVI</span> were illegal acts and therefore, were not covered. Since the term “illegal act” was not defined in the policy, the court, in a very narrow interpretation, said the “ the Plan's illegal-act provision did not exclude coverage for [the insured’s] injuries because driving without a license and driving without insurance did not "cause" [the insured’s] accident and resulting injuries. Apparently, the court determined that 1) the contributing factor causing the accident had to be an illegal act, AND 2) it had to be a contributing factor to the incident that gave rise to the claim. Therefore, the court ordered the claim paid.</div><div><br /></div><div>It is important to note that the court said since the insured was never charged with DUI it was not required to base its opinion on an act for which the insured was never charged. But, what would the court’s decision have been had the insured been convicted of DUI? Does DUI amount to a “criminal or illegal act?” If convicted, it could certainly be argued it was a contributing factor to the accident. </div><div><br /></div><div>So, what do we conclude from this case? With a little tweaking, an insurance company could write an exclusionary clause that could easily exclude coverage for an accident where DUI is a contributing factor. Or, using the reciprocal argument that can be made in the Shelby case, the insurance company could argue that DUI is an illegal act AND it contributed to the incident that gave rise to the claim, and, therefore, the claim should be denied.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-88463095501382346922009-09-22T10:41:00.000-07:002009-09-22T10:44:21.374-07:00Reasonable Suspicion and Investigatory Detention<div>If you’ve read this blog you’ve heard the terms “Reasonable Suspicion” and “Investigatory Detention” many times. Both terms are used in defining a police officer’s right to stop, investigate and detain an individual for a possible OVI or other criminal matter. As I’ve explained, each court reviews the totality of the evidence presented to determine whether the officer had the right to stop individual and investigate further. The court will further determine when the investigatory stop turns into an investigatory detention for purposes of a giving the individual their Miranda warnings.</div><div><br /></div><div>A recent Ohio court set forth, what I feel, are very good definitions for these terms. The definitions are very descriptive of the criteria needed to justify the stop, investigation and detention. The case is <i>State v. Chadwell</i>, 2009 Ohio 1630, 2009 Ohio App. LEXIS 1344.</div><div><br /></div><div>The case involved a non-OVI arrest for drug possession and trafficking. Although the case does not involve an OVI arrest, it does articulate these terms well. In its synopsis, the court defines the terms as follows:</div><div><br /></div><div>"Reasonable suspicion”justifying an investigatory stop entails some minimal level of objective justification for making a stop -- that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause," <i>State v. Jones</i>, 70 Ohio App.3d 554</div><div><br /></div><div>“An appellate court determines the existence of "reasonable and articulable suspicion" by evaluating the totality of the circumstances, considering those circumstances through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.”</div><div><br /></div><div>“An investigatory detention occurs when, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or was compelled to respond to questions.”</div><div><br /></div><div>Therefore, it is important to note when an officer does stop a driver he need not observe sufficient evidence for probable cause but merely a reasonable suspicion that the individual was driving under the influence, probable cause being a higher level of evidence than reasonable suspicion.</div><div><br /></div><div>But once a reasonable person would believe they are not free to leave or are compelled to respond to questioning, they are now being detained necessitating that the officer outline their constitutional rights against self incrimination.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-23686178428858576212009-09-17T07:35:00.000-07:002009-09-17T07:38:00.161-07:00Reasonable and Articuable Suspicion<div>If you are a reader of this blog, I’m sure you’<span class="blsp-spelling-error" id="SPELLING_ERROR_0">ve</span> read the statement “reasonable and <span class="blsp-spelling-error" id="SPELLING_ERROR_1">articuable</span> suspicion” in the context of an <span class="blsp-spelling-error" id="SPELLING_ERROR_2">OVI</span> stop. As enumerated in many of my blogs, an officer must justify his request that a driver exit their vehicle and submit to field sobriety by having a reasonable and <span class="blsp-spelling-error" id="SPELLING_ERROR_3">articuable</span> suspicion that the individual is driving under the influence. This is done by the introduction of facts that, in summary, would lead the reasonable officer to such a conclusion.</div><div><br /></div><div>In the past, I stated that the smell of alcohol and a <span class="blsp-spelling-error" id="SPELLING_ERROR_4">de</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_5">minimus</span> traffic violation is insufficient (see “<a href="http://ohioduiblog.blogspot.com/2009/08/when-can-i-be-asked-to-take-field.html">When Can I be Asked to Take Field Sobriety Tests?</a>”). The courts have struggled with this question, taking each matter on a case by case basis with the officer testifying to his initial observations. The court then makes the determination, based on the officer’s testimony, whether those observations reach the level of reasonable and <span class="blsp-spelling-error" id="SPELLING_ERROR_6">articuable</span> suspicion.</div><div><br /></div><div>Now one court has identified what factors it will look at in determining this question. In the case of <i>State v. Foster</i>, 2009 Ohio 4764, the Fifth Appellate District (<span class="blsp-spelling-error" id="SPELLING_ERROR_7">Tuscarawas</span> County), has listed the following factors:</div><div><br /></div><div>(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);</div><div><br /></div><div>(2) the location of the stop (whether near establishments selling alcohol); </div><div><br /></div><div>(3) any <span class="blsp-spelling-error" id="SPELLING_ERROR_8">indicia</span> of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); </div><div><br /></div><div>(4) whether there is a cognizable report that the driver may be intoxicated; </div><div><br /></div><div>(5) the condition of the <span class="blsp-spelling-error" id="SPELLING_ERROR_9">suspect's</span> eyes (bloodshot, glassy, glazed, etc.); </div><div><br /></div><div>(6) impairments of the <span class="blsp-spelling-error" id="SPELLING_ERROR_10">suspect's</span> ability to speak (slurred speech, overly deliberate speech, etc.); </div><div><br /></div><div>(7) the odor of alcohol coming from the interior of the car, or, more significantly, on the <span class="blsp-spelling-error" id="SPELLING_ERROR_11">suspect's</span> person or breath; </div><div><br /></div><div>(8) the intensity of that odor, as described by the officer ('very strong,' 'strong,' 'moderate,' 'slight,' etc.); </div><div><br /></div><div>(9) the <span class="blsp-spelling-error" id="SPELLING_ERROR_12">suspect's</span> demeanor (belligerent, uncooperative, etc.); </div><div><br /></div><div>(10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and </div><div><br /></div><div>(11) the <span class="blsp-spelling-error" id="SPELLING_ERROR_13">suspect's</span> admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.</div><div><br /></div><div>The court concludes with the following: “All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. No single factor is determinative."</div><div><br /></div><div>While the determination made by this court of appeals is limited to the jurisdiction of that court, I believe the list of factors used by this court is an excellent list of criteria when determining reasonable and <span class="blsp-spelling-error" id="SPELLING_ERROR_14">articuable</span> suspicion.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-38808438754738263282009-09-16T04:40:00.000-07:002009-09-16T04:46:24.943-07:00Is the 30-Day Time Limit to Appeal an ALS Discretionary?<div>When the <span class="blsp-spelling-error" id="SPELLING_ERROR_0">OVI</span> statutes in Ohio were initially amended many thought the administrative license suspension (<span class="blsp-spelling-error" id="SPELLING_ERROR_1">ALS</span>) appeal was required to be filed at the first appearance. But controversy arose, and thus divergent court opinions, in interpreting the legislature’s intent. This resulted from the act's language that stated, “...the person <b><i>may</i></b> appeal the suspension at the person's initial appearance on the charge.”</div><div><br /></div><div>As a result of the language, many courts held that the requirement that the appeal be made at the defendant’s first appearance was discretionary, see <i>State v. Nichols</i> (Nov. 6, 2001), 5<span class="blsp-spelling-error" id="SPELLING_ERROR_2">th</span> Dist. Nos. 01CA7, 01CA8, and some permitted the filing of the <span class="blsp-spelling-error" id="SPELLING_ERROR_3">ALS</span> appeal after the initial appearance.</div><div><br /></div><div>Subsequently, the legislature amended the statute permitting the filing of an <span class="blsp-spelling-error" id="SPELLING_ERROR_4">ALS</span> appeal within 30 days after the defendant’s first appearance. While the language of the statute still contained the word “may,” one Ohio district court opined this discretion is no longer available.</div><div><br /></div><div>A Seventh Appellate Court case, <i>State v. <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Derov</span></i>, 2009 Ohio 4810, involved a defendant who filed her <span class="blsp-spelling-error" id="SPELLING_ERROR_6">ALS</span> appeal after the 30-day time period. The lower court denied her appeal citing the fact that the appeal was not filed timely. In her appeal the defendant argued that the language still contained the term “may” and, thus, the court had the discretion to hear her appeal outside the statutory period. The appellate court disagreed. In its opinion the court stated:</div><div><br /></div><div>“There is no reason why the time period for this type of appeal would be treated differently from the jurisdictional time periods mandated in other appellate contexts. The use of "may" in the statute does not mean that one can file an <span class="blsp-spelling-error" id="SPELLING_ERROR_7">ALS</span> appeal at the initial appearance or within thirty days of that initial appearance or <i>at any time the person so chooses.</i>”</div><div><br /></div><div>The court went on to say “‘may’ can be construed as mandatory, citing <i>State ex rel. Smith v. <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Barnell</span></i>, 109 Ohio St. 246, 256.</div><div><br /></div><div>Therefore, any defendant or their attorney should be aware that many courts no longer hold that the time limit within which to file an <span class="blsp-spelling-error" id="SPELLING_ERROR_9">ALS</span> appeal is discretionary and their failure to file within the 30-day time limit could jeopardize that appeal.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-23037693929827806472009-09-14T18:57:00.000-07:002009-09-14T19:01:10.967-07:00Implied Consent<div>Many of my colleagues claim if a person is found not guilty of driving under the influence, the violation of the implied consent law (for refusing to take a chemical test) is obviated and their client will not loose their driving privileges. A recent Ohio case, <i>City of Westlake v. Pesta</i>, 2009 Ohio 4713 proves them to be wrong.</div><div><br /></div><div>In this case, the defendant refused to submit to a chemical test. In addition to the OVI charge, his license was suspended, immediately, for his violation of Ohio’s implied consent law. Pesta was eventually found not guilty of OVI and petitioned the court for a reinstatement of his driving privileges. His petition was denied.</div><div><br /></div><div>In Ohio, no person may operate a motor vehicle on the public roads or on any private property used by the public without a valid license, R.C. 4510.123(A)(1). The licensed operation of a motor vehicle in this state is a privilege, not a right. <i>Maumee v. Gabriel</i> (1988), 35 Ohio St.3d 60, 63, 518 N.E.2d 558. </div><div><br /></div><div>One of the conditions attached to the privilege of being licensed to drive is the operator's consent to chemical or other tests of the operator's blood, urine, or breath if a law enforcement officer has reasonable grounds to believe that the operator had been driving while intoxicated or impaired. R.C. 4511.191(A)(2). </div><div><br /></div><div>The operator may refuse to take any requested tests, but does so at the peril of losing driving privileges. If the operator of a motor vehicle refuses to submit to a requested test, the arresting officer must seize the operator's license and immediately administratively suspend the driver's operating privileges. R.C. 4511.192(D)(1). An administrative license suspension goes into effect immediately, and the suspension is not affected by any subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests.</div><div><br /></div><div>What does all this mean? It means that even if one is found not guilty of driving under the influence, their refusal to take a test will result in a suspension. The time for appealing their suspension is within the statutory period for appealing an administrative license suspension, not after the adjudication of the OVI charge.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-57921889887630420302009-09-12T12:06:00.000-07:002009-09-12T12:09:22.805-07:00Due Process and Right to Counsel PRIOR to sentence<div>Many of my readers (in spite of my pleas to the contrary) enter court and attempt to resolve their OVI cases without benefit of counsel. The usual scenario consists of the first time offender pleading to one of the OVI charges, paying a fine, suffering a lengthy license suspension, and attending a 3-day diversion program. </div><div><br /></div><div>But, because any OVI has a possible jail sentence of 6-months or more, the law mandates that any defendant be given their rights prior to the court accepting a plea. Criminal Rule 11(E) provides that "the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty."</div><div><br /></div><div>The provisions of Crim. R. 44(B) and (C) regarding counsel apply to division (E) of this rule. Crim. R. 44(B) governs the appointment of counsel in petty offenses: "Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel." The rule goes on to say that the waiver must also be in writing and filed with the court.</div><div><br /></div><div>A knowing, intelligent, and voluntary waiver of counsel is demonstrated through inquiry by the trial court that is sufficient "to determine whether defendant fully understands and intelligently relinquishes" representation. <i>State v. Gibson</i>, 45 Ohio St.2d 366, 345 N.E.2d 399.</div><div><br /></div><div>Therefore, any defendant charged with an offense wherein a 6-month sentence, or more, can be imposed must be apprised of his constitutional rights, if not represented by counsel, including their right to an attorney, their right to confront witnesses against them, their right to subpoena witnesses on their behalf, the right to be tried by a jury or by the court, and their right to remain silent and requiring the state to prove its case beyond a reasonable doubt. </div><div><br /></div><div>These rights must be outlined in open court on the record. His waiver of these rights must also be in writing and kept on file with the court. In fact, if the court fails to comply with the edicts of Criminal Rule 11(E) and 44(B) and (C), no plea to a subsequent OVI can be enhanced.</div><div><br /></div><div>So, if you insist on representing yourself in court, be sure you are made aware of your constitutional rights, understand them, have them given to you in open court, in writing, and filed with the court.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-62171316495536673662009-09-07T07:54:00.000-07:002009-09-07T07:57:00.195-07:00The Admissibility of Non-Scientific Field Sobriety Tests<div>Anyone reading this blog is acquainted with the three scientifically accepted field sobriety tests by NHSTA - Horizontal Gaze Nystagmus, walk and turn and one legged stand tests. As previously discussed, Ohio Revised Code O.R.C. 4511.19(D)(4)(b) requires officers to substantially comply with the standards required of NHTSA (or other recognized protocol) before they can be used a basis for arresting a person for OVI.</div><div><br /></div><div>But, assuming these standards are not used and the court suppresses the results of these tests can the officers observations be used in the prosecution for OVI. Based upon Ohio jurisprudence, the answer is yes.</div><div><br /></div><div>A recent Eighth Appellate District case demonstrates this issue. In the case, <i>Village of Brooklyn, Heights v. Yee</i>, 2009 Ohio 4552, the driver was stopped after the officer observed her cross the center line three times. After the stop, the officer conducted three tests - the finger to nose test, the alphabet test, and the finger count test. The driver refused to submit to a walk and turn test or a one legged stand test claiming she was injured in a motorcycle test. Based upon the officer’s observations, Yee was arrested and charged with operating a vehicle under the influence.</div><div><br /></div><div>In a pre-trial motion, the Yee argued that Ohio only recognizes three standardized field sobriety tests, namely: the Horizontal Gaze Nystagmus Test (HGN), the One-Leg Stand, and the Walk and Turn. Thus, the tests administered by the officer were inadmissible. (It is important to note that the opinion is not clear whether the defendant was asking to suppress the results only or the observations of the officer. But, we can only assume the defendant was seeking to suppress the results AND the officer’s observations)</div><div><br /></div><div>Nonetheless, the court held that an officer's observations regarding a defendant's performance on nonscientific field sobriety tests is admissible as lay evidence of intoxication. The court quoted <i>State v. Schmitt</i>, 101 Ohio St.3d 79, 2004 Ohio 37, 801 N.E.2d 446 in stating, "[t]he manner in which a defendant performs these tests may easily reveal to the average lay person whether the individual is intoxicated...[w]e see no reason to treat an officer's testimony regarding the defendant's performance on a nonscientific field sobriety test any differently from his testimony addressing other indicia of intoxication, such as slurred speech, bloodshot eyes, and odor of alcohol."</div><div><br /></div><div>Therefore, while the court fails to make clear whether the results were admissible, it is obvious an officer can testify as to his observations. Of course, a well trained attorney fully versed on NHTSA standards and the reasoning behind NHTSA’s rejection of the FST’s as used by the officer in the Yee case will properly cross-examine the officer regarding these disparities.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com0tag:blogger.com,1999:blog-7445985000036424935.post-45016023351506713142009-08-31T06:25:00.000-07:002009-08-31T06:26:01.606-07:00OVI and Its Ramifications on Employment<div>Many of my clients argue the necessity of legal representation during DUI/<span class="blsp-spelling-error" id="SPELLING_ERROR_0" style="background-color: rgb(255, 255, 0); ">OVI</span> prosecution. Other than the obvious penalties, they argue there is little, if any, issues regarding their everyday lives. This may not be true. A prime example of how a DUI conviction can have far reaching affects was just driven home by a recent Ohio Supreme Court case.</div><div><br /></div><div>In the case of <a href="https://www.lexis.com/research/retrieve?_m=8c5ed2f81da1eac587edfcc4cc4e6540&csvc=le&cform=byCitation&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAz&_md5=99d7956f59d2a675d2034993b4975263">In Re: <span class="blsp-spelling-error" id="SPELLING_ERROR_1" style="background-color: rgb(255, 255, 0); ">Corrigan</span></a>, the Supreme Court struck down a young man’s attempt to take the Ohio Bar Examination and thus, practice law. In that case, the bar applicant (<span class="blsp-spelling-error" id="SPELLING_ERROR_2" style="background-color: rgb(255, 255, 0); ">Corrigan</span>) was interviewed by a local bar association as required by the Rules of Admission to the Ohio Bar. During the interview it was revealed that the <span class="blsp-spelling-error" id="SPELLING_ERROR_3" style="background-color: rgb(255, 255, 0); ">Corrigan</span> had been arrested previously for DUI and attempts at rehabilitation were met with indifference and failure by the applicant. It is important to note that the DUI conviction arose from an accident that caused serious physical injuries to others, but that aspect of the conviction was not seriously addressed by the court as much as the applicant’s continued failure to address his alcoholism.</div><div><br /></div><div>As a result, the court sustained the committee’s recommendation that the applicants request to sit for the bar exam be denied but was permitted to apply for a future bar exam but only after he “...first submit[s] to the board a psychiatric evaluation from a psychiatrist or psychologist approved by the board and licensed in the state of Ohio, as well as an assessment from an alcohol counselor certified in the state of Ohio, and demonstrate by clear and convincing evidence that he possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.”</div><div><br /></div><div>While this might be an extreme example, it does demonstrate the ramifications of a DUI conviction. Many professions requiring licensing will review a person’s application and background to determine if they are of “good moral character,” and deny their application if the committee finds issue with the applicant’s fitness.</div><div><br /></div><div>The state has even passed laws restricting employment to those convicted of DUI (see my blog regarding <a href="http://ohioduiblog.blogspot.com/2009_05_01_archive.html">Commercial Driver’s Licenses</a> - May 29, 2009).</div><div><br /></div><div>Therefore, the need for proper representation is paramount when facing a DUI charge. You need the advice of a professional who can advise you of your legal rights as well as the long-term ramifications to you professionally.</div><div class="blogger-post-footer">To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com</div>AVERY H. FROMET, ATTORNEY AT LAWhttp://www.blogger.com/profile/04446254692468042330noreply@blogger.com1