Ohio DUI Attorney Blog

The Futility of Appeal

2010-04-19T10:34:00.000-07:00

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.

The case, O'Neill v. Mayberry, 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.

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.”

Nonetheless, the state re-instituted prosecution of O’Neill on the original charges. 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.

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,” State ex rel. Shimko v. McMonagle (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.”

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.

Searches Incident to Arrest

2010-03-19T11:00:00.000-07:00

The Gant 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 Gant, 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.

A recent Ohio decision used the Gant decision in determining an officer’s right to search even if the subject of the arrest was other than a traffic violation. The case, State v. Gilbert, 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.

The syllabus stated the following:

“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.”

The court’s opinion expanded on this point by stating:

“...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.”

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 Gant decision. The Gilbert case, I believe, further defines the limits of a police office’s right to search a vehicle for ANY reason. It appears Gilbert 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.

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

2010-02-27T08:19:00.000-08:00

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.

The Intoxilyzer 8000 - Your Tax Dollars at Work

2010-02-10T08:29:00.000-08:00

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!

Can Political Subdivisions be Liable When the Actions of Their Police Officers Permit an OVI Offender to Drive?

2010-01-30T14:44:00.000-08:00

A recent Ohio Supreme Court case has opened a Pandora’s box. In the case of Estate of Graves v. City of Circleville, 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.

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.

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.

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.

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.

The Consequences of Refusing a Chemical Test

2010-01-24T07:32:00.000-08:00

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.

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.

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.

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.

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.

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:

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.

So what were the consequences of his refusal?

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).

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.

Knowing the accused’s background is critical in properly advising them. Offering blanket advise against submitting to a test can have dire consequences.

Expansion of an Investigatory Stop Violates Individual’s Right Against Illegal Searches and Seizures

2009-12-23T09:06:00.001-08:00

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.

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.

In the case of State v. Brown, 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.

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.”

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...”

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.

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.

When are Miranda Warnings Required

2009-12-07T08:12:00.000-08:00

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.

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,” Miranda v. Arizona (1966), 384 U.S. 436, 467-468, 86 S.Ct. 1602, 16 L. Ed. 2d 694.

Generally, "motorists temporarily detained pursuant to ordinary traffic stops are not in custody for purposes of Miranda," State v. Leonard, 1st Dist. No. C-060595, 2007 Ohio 3312, P 19, citing Berkemer v. McCarty (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," Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L. Ed. 2d 317.

The case that redefines this assumption is State v. Rice, 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.

The courts reasoning was as follows:

“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.”

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.

Traffic Stops and Probable Cause

2009-11-30T11:57:00.000-08:00

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.

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.

Non-Investigatory Traffic Stop

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.

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, State v. Downs, 2004 Ohio 3003, State v. Moeller, 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.

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, Whren v. United States, 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.

Investigatory Traffic Stop

The second type of traffic stop is an investigatory traffic stop. It has been referred to as “the motorized equivalent of a Terry Stop,” State v. Downs, 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, State v. Slider, 2008 Ohio 2318., State v. Downs, Supra.

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, State v. Moeller, Supra. Reasonable suspicion is a lesser standard than that of reasonable cause required to make an arrest.

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.

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.

What is the Court’s Discretion in Sentencing in OVI Cases?

2009-11-11T07:35:00.000-08:00

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.

A recent case from Clermont County is typical of this trend. The case, State v. Elliott, 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).

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.

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," State v. Foster, 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," State v. Kalish, 120 Ohio St.3d 23, 2008 Ohio 4912, P4, 896 N.E.2d 124.

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.

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.

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.

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.

As a result, in applying this court’s opinion, a court’s sentence will not be overturned if the record on appeal shows:

1. That the court balanced the seriousness and recidivism factors set forth in the statute.

2. Told the defendant of the possibility of post relief control (if applicable), and

3. The record of the defendant justified the sentence being imposed (abuse- of-discretion standard).

The Observations of the Informant Must be Placed on the Record to Justify a Stop

2009-11-11T04:52:00.000-08:00

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.

In this case, State v. Fields, 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:

Q Did you have an opportunity to make a 911 call on November 28th, 2008, around 6 o'clock in the event?

A Yes.

Q And where were you at when you made that call?

A I was heading south on South Sandusky.

Q And is that in the City of Upper Sandusky?

A Yes. Hm-hmm.

Q Wyandot County, Ohio?

A Yeah.

Q Could you describe what you observed?

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.

In its analysis, the court cited State v. Bailey, 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.

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.

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:

1. The observations of the informant, and

2. That these observations were communicated to the arresting officer, and

3. The observations will support reasonable, articuable suspicion of criminal activity..

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.

Parental Liability

2009-11-04T07:35:00.000-08:00

A recent Lorain County case discussed a pertinent issue relative to OVI. That issue, in the case of Allstate Ins. Co. v. Jaeger, 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.

O.R.C. 3109.09(B) - Parental Liability Statute

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:

1. A child’s wilful damage to property, or

2. A child’s cognizable act of theft involving property of the owner.

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, Motorists Mut. Ins. Co. v. Bill, 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.

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, Conover v. McCutcheon, 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.

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.

Negligent Supervision

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," Huston v. Konieczny, 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.

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.’”

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.

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.).

Courts Begin to Adopt Findings in State v. Hoover

2009-10-29T04:26:00.000-07:00

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.

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.

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:

"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).”

"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.”

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.

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.

Severe Consequences Result from Violating an OVI Suspension

2009-10-26T06:51:00.000-07:00

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.

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:

First Time in 6 Years

3-180 days in jail or 30-180 days of house arrest

with electronic monitoring

$250-$1000 fine

Mandatory 30 day immobilzation

Restricted Plates

Second in 6 Years

10 days to 1 Year in jail or 90 days - 1 year of house arrest

with electronic monitoring

$500-$2500 fine

Mandatory 60 day immobilization

Restricted Plates

Third of More Times in 6 years

30 days to 1 year jail (no house arrest with

electronic monitoring)

$500-$2500 fine

Automobile is forfeited

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.

OVI Update Seminar Scheduled for November 20, 2009

2009-10-14T10:24:00.000-07:00

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:

Case Law and Legislative Updates

Administrative License Suspension Appeals

Justification to Detain and Driver for an OVI Stop

Effect of OVI on Commercial Drivers’ Licenses

Felony OVI and Prior Convictions

Use of Field Sobriety Tests at Trial

Ohio Administrative Code and Department of Health Requirements Relating to Blood and Urine Draws

The Impact of Destroyed Videos

Motions to Suppress

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.

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).

Registration information can be found at the Ohio Bar Association Web Site. 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.

The Argument for “Particularity”

2009-10-08T05:05:00.000-07:00

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.

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, In re Minnick, 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.

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."

The lower court denied the defendant’s motion to suppress the results of the breathalyzer. The defendant appealed.

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 particularity 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 sufficient particularity to place the prosecutor and the court on notice of the issues to be decided." State v. Shindler (1994), 70 Ohio St.3d 54, 1994 Ohio 452, 636 N.E.2d 319.

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.”

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.

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:

1. A statement of what the defendant is attempting to suppress,

2. A cite as to the particular administrative code section or what legal right was violated, and

3. A factual summary of the actions of the arresting officer or entity that violated that OAC section or right.

Can Your Sentence be Enhanced if You Refuse to Take A Chemical Test?

2009-10-06T11:40:00.000-07:00

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.

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 State of Ohio v. Adam, sustained the lower court’s right to enhance the defendant’s sentence for his refusal to submit to a chemical test.

Apparently, the Ohio Supreme Court, in its recent decision in State v. Hoover, 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.

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.

The court cited the cases of Westerville v.Cunningham, 15 Ohio St. 2d 121 and Schmerber v. California, 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.

The court also cited State v. Gustafson, 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.

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.

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 prior blog.

Can an Insurance Company Deny Coverage if Alcohol is a Contributing Factor in an Accident?

2009-09-26T06:45:00.000-07:00

Readers of this blog know of the very serious consequences of an OVI/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.

A recent federal court case points to another consequence - denial of insurance coverage. The case, Shelby County Health Care Corp. v. Majestic Star Casino, LLC Group Health Benefit Plan, 2009 FED App. 0339P (6th 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 pled no contest to the failure to have a valid drivers license but was never charged with a DUI.

As with most medical insurance policies, the following covenant was contained in the policy:

“This Plan does not cover and no benefits shall be paid for any loss caused by, incurred for or resulting from . . . . [c]harges 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.”

The company denied coverage claiming the insured’s failure to have a driver’s license and his possible OVI 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.

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.

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.

Reasonable Suspicion and Investigatory Detention

2009-09-22T10:41:00.000-07:00

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.

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 State v. Chadwell, 2009 Ohio 1630, 2009 Ohio App. LEXIS 1344.

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:

"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," State v. Jones, 70 Ohio App.3d 554

“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.”

“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.”

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.

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.

Reasonable and Articuable Suspicion

2009-09-17T07:35:00.000-07:00

If you are a reader of this blog, I’m sure you’ve read the statement “reasonable and articuable suspicion” in the context of an OVI 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 articuable 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.

In the past, I stated that the smell of alcohol and a de minimus traffic violation is insufficient (see “When Can I be Asked to Take Field Sobriety Tests?”). 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 articuable suspicion.

Now one court has identified what factors it will look at in determining this question. In the case of State v. Foster, 2009 Ohio 4764, the Fifth Appellate District (Tuscarawas County), has listed the following factors:

(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);

(2) the location of the stop (whether near establishments selling alcohol);

(3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);

(4) whether there is a cognizable report that the driver may be intoxicated;

(5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.);

(6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.);

(7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath;

(8) the intensity of that odor, as described by the officer ('very strong,' 'strong,' 'moderate,' 'slight,' etc.);

(9) the suspect's demeanor (belligerent, uncooperative, etc.);

(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

(11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

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."

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 articuable suspicion.

Is the 30-Day Time Limit to Appeal an ALS Discretionary?

2009-09-16T04:40:00.000-07:00

When the OVI statutes in Ohio were initially amended many thought the administrative license suspension (ALS) 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 may appeal the suspension at the person's initial appearance on the charge.”

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 State v. Nichols (Nov. 6, 2001), 5th Dist. Nos. 01CA7, 01CA8, and some permitted the filing of the ALS appeal after the initial appearance.

Subsequently, the legislature amended the statute permitting the filing of an ALS 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.

A Seventh Appellate Court case, State v. Derov, 2009 Ohio 4810, involved a defendant who filed her ALS 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:

“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 ALS appeal at the initial appearance or within thirty days of that initial appearance or at any time the person so chooses.”

The court went on to say “‘may’ can be construed as mandatory, citing State ex rel. Smith v. Barnell, 109 Ohio St. 246, 256.

Therefore, any defendant or their attorney should be aware that many courts no longer hold that the time limit within which to file an ALS appeal is discretionary and their failure to file within the 30-day time limit could jeopardize that appeal.

Implied Consent

2009-09-14T18:57:00.000-07:00

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, City of Westlake v. Pesta, 2009 Ohio 4713 proves them to be wrong.

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.

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. Maumee v. Gabriel (1988), 35 Ohio St.3d 60, 63, 518 N.E.2d 558.

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).

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.

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.

Due Process and Right to Counsel PRIOR to sentence

2009-09-12T12:06:00.000-07:00

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.

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."

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.

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. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399.

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.

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.

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.

The Admissibility of Non-Scientific Field Sobriety Tests

2009-09-07T07:54:00.000-07:00

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.

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.

A recent Eighth Appellate District case demonstrates this issue. In the case, Village of Brooklyn, Heights v. Yee, 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.

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)

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 State v. Schmitt, 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."

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.

OVI and Its Ramifications on Employment

2009-08-31T06:25:00.000-07:00

Many of my clients argue the necessity of legal representation during DUI/OVI 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.

In the case of In Re: Corrigan, 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 (Corrigan) 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 Corrigan 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.

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.”

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.

The state has even passed laws restricting employment to those convicted of DUI (see my blog regarding Commercial Driver’s Licenses - May 29, 2009).

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.

Sentencing in DUI Cases

2009-08-29T07:51:00.000-07:00

If you’ve read this blog, I have, on numerous occasions, referred to sentencing guidelines when discussing multiple violations of Ohio’s DUI law. To reiterate, DUI sentences are enhanced if found guilty of additional DUI offenses within a 6 year period (See Judge Jennifer Weiler's DUI Guideline Charts). I’ve also discussed the right of a judge to sentence a defendant to more than the minimum for various reasons (see my blog regarding a defendant’s refusal to submit to a test). Recently, the Mahoning County Court of Appeals sustained a lower court’s decision to sentence a defendant to a maximum 5 years in prison for his second felony DUI

Unfortunately, many, including attorneys, habitually think of DUI sentences in terms of the minimum, i.e., first offense 3 days, second offense 10 days, etc. When preparing for sentencing, most contemplate the minimum sentence without taking into effect the range of sentencing the court is permitted to use. If we look at Judge Weiler's charts, under the column labeled "incarceration," the court can sentence an offender 3 days to 6 months for a first offense, 10 days to 6 months on the second, 30 days to 1 year on the third, and so on. Note further, the chart shows a doubling of these sentences if other factors are present such as a breathalyzer reading of .17 or more or a refusal to take a test.

But, in preparing for sentencing, one should always be cognizant that any judge could sentence a defendant to a greater sentence than the minimum. Ohio’s sentencing laws do give judges some guidelines to use in sentencing and, in fact, does recommend the minimum sentence for a first offender if no other recidivism factors (factors that would tend to point to repeat offenses) are present. But, these guidelines, according to statute, apply to felony sentencing only. Therefore, these guidelines are not applicable until the offender has reached their 4th offense within 6 years.

As a result, in misdemeanor violations such as lower tier DUI’s (3 or less offenses in 6 years), it is in the discretion of the court to determine length of sentence. In my experience, judges will take the following factors into consideration during sentencing:

1. Prior DUI convictions outside the 6 year period.

2. Traffic and criminal record.

3. Refusal to take the test.

4. Lack of cooperation with the police.

5. History of alcohol or drug abuse.

Therefore, it is vitally important that you be aware that a court, in its discretion, can sentence a defendant to more than the minimum and be prepared to address this issue at the time of sentencing.

Should I Refuse to Take the Breathalyzer?

2009-08-19T14:14:00.000-07:00

As long as breath/alcohol devices were invented the great debate was - Should I agree to take the test? Many of my colleagues say under no circumstances should you take the breathalyzer. Some lawyers have even gone so far as to advertise that position. I’ve seen business cards with “What should I do if I’m stopped for DUI?” on the back of attorney’s cards,” advocating that under no circumstances should you agree to take a test. I’ve even seen it in telephone books and other printed media. What is the answer - Should I or should I not take the breathalyzer? The answer is much more complicated than first thought and isn’t so simplistic as to justify the thought that one shouldn’t take the breathalyzer under any circumstances.

The usual scenario is as follows: The accused is leaving a party, bar or a friend’s house having just ingested a quantity of alcohol - beer, wine, cocktails, etc. On their way home they are observed driving erratically - speeding, weaving, taking a side turn, not stopping at a stop sign, etc. A police officer stops the driver and asks for their driver’s license. The driver rolls down their window and while doing so, the officer detects the smell of alcohol. After asking some investigatory questions, the office determines that there is sufficient evidence to warrant further investigation by way of field sobriety tests. The driver performs these tests and the officer determines the driver has displayed sufficient clues to warrant the officer to believe that the driver might be driving under the influence. He places the driver in the police car and transports the driver to the policed station, where additional questions are asked, the driver is read the back of Form 2255 - the consequences for failure to take the test and then asked to take a breathalyzer test.

Now, should the driver take the test? That’s the $64 question and one that warrants a serious thought. The answer is complicated as the answer requires knowledge of the law and other issues that I will call “X” factor.

THE LAW

The DUI /OVI Law

If you have followed my blog and gone to my web site, you should have an understanding of the DUI/OVI law. Basically, if you are found guilty you face enhanced penalties if you have prior convictions in the last six years. The complete list of penalties can be viewed using the outstanding charts prepared by Judge Jennifer Weiler of the Garfield Heights Municipal Court.

If you are first offender, you face 3-days in jail or the DIP school, a minimum 6-month suspension, plus fines and probation. A second offense garners a mandatory minimum of 10-days in jail, and enhanced suspension and penalties. Penalties get larger as the number of offenses increase within a 6-year period. Complicating the issue is the fact the judges are given a parameter. For a first offense, the minimum sentence is 3-days. But a judge can give an offender up to 6-months incarceration. Once again, these parameters are enhanced based upon the number offenses incurred in a 6-year period . So for example, lets assume this is your first offense in the last 6 years. But you had an additional DUI conviction 8 years ago. In reviewing your record, a judge might sentence you to more than the minimum and some judges do just that. While the vast majority of judges sentence first offenders to the minimum, the “X” factor comes into play - what is your driving record in past years?

Further complicating this issue is the automatic enhancement if the reading exceeds .17. Once again, look at Judge Weiler’s charts. You will note that every penalty is doubled if the breathalyzer reading is greater than .17 (just over twice the legal limit).

The Implied Consent Law

Further convoluting the issue is Ohio’s Implied Consent Law. Basically, it mandates that anyone having an Ohio driver’s license agrees to submit to a chemical test when asked by the proper authorities. While the driver can refuse, the law imposes a mandatory one year suspension of driving privileges if the accused refuses to take the test.

The “X” factor in this is the fact that some judges will enhance your sentence if the record indicates a refusal to take the test. If you read my June 3, 2009 blog you will note the Fifth Appellate District Court sustained a judges right to enhance an OVI sentence due to the defendant’s refusal to take a test. In that case the judge added an additional 10-days in jail for refusing to take the test.

OTHER “X FACTORS

There are a number of other issues that come into play in determining whether to take a test. Among these are:

1. Do I have a Commercial Driver’s License? If I do, I face draconian penalties if found guilty -see my May 29, 2009 blog.

2. Was I involved in a car accident that could have a devastating financial effect?

3. What is the judge’s reputation in that jurisdiction for enhancement for refusing to take a test.

4. If I ask to speak to an attorney prior to my taking the test, how much privacy will I have? You certainly don’t want an officer listening to what could be inculpatory statements made by you during your telephone consultation.

5. Legal ethics. Can an attorney give you proper legal advice and be assured you understand everything when you are allegedly under the influence?

6. Honest self-evaluation. How many drinks did you really have? How honest are you being to the police and your attorney, if you speak to one? Are your truly able to think and analyze the situation given the amount of drinks you ingested and the pressure you’re under being in police custody? Basically, are you able to think straight given the totality of the circumstances?

Based upon the above let’s take some examples:

1. Let’s assume this is your first offense. You have no priors. While you did have a glass of wine and one after-dinner drink, you are coherent and able to analyze your situation with confidence. The judge in that jurisdiction while fair, does frown upon those who refuse to take a test. Now lets think about the consequences of a refusal. If you take the test, chances are you will get the minimum - the 3-day DIP school and minimum fines and a 6-month suspension. If you refuse, Ohio law mandates a 1-year suspension of you license and if you are convicted the judge may enhance your sentence due to your refusal. So in this instance you might consider taking the breathalyzer.

2. This is your first offense. You have no priors. While you did have a glass of wine and one after-dinner drink, but you are coherent and able to analyze your situation with confidence. The judge in this jurisdiction does not have a reputation for enhancing your sentence for your refusal to take a test. But, you are a truck driver and have a commercial driver’s license (CDL). If convicted you face a mandatory 1-year suspensions of the your CDL - with no work privileges. In this instance you might want to think about refusing the breathalyzer for obvious reasons.

3. This is your third offense. You were quite inebriated to the extent that you had difficulty standing up and clearly flunked all the field sobriety tests. You are facing a minimum of 60-days in jail, 180 day suspension of your driving privileges and other penalties all of which will be doubled if the reading exceeds .17. In this instance, refusing the breathalyzer might be the right decision.

Now having said all that, the decision to take or not take a test requires a complete analysis of the law and other factors that may or may not be involved in the circumstances surrounding your arrest. Your decision must be based upon a cold and honest evaluation of all these factors. Notwithstanding your state of mind, you must attempt to weight all these factors as best you can before making your decision.

Your decision can not be based upon some blanket advise given on a business card or in an advertisement. The advice set forth in these printed media are not made with a complete understanding of the circumstances surrounding your arrest.

The Use of Employer Mandated Chemical Tests in OVI Prosecutions

2009-08-17T08:37:00.000-07:00

An unusual but important precedent was just announced by the Sixth Appellate District, Lucas County, Ohio regarding the use of employer mandated chemical tests in OVI prosecutions. The case, Ohio v. Groszewski, 2009 Ohio 4062, appears to champion a defendant’s Fourth and Fifth Amendment rights.

The case involved a City of Toledo employee who was ordered by his supervisor to submit to a breathalyzer test per his employment contract. The contract required all employees to submit to a chemical test when asked. The employee went to the hospital to have the test performed. The results of the test indicated a blood alcohol level of 0.093, just above the legal limit (.08).

At the time a Toledo Police Officer was also at the hospital on unrelated business when he saw the Toledo City Director of Public Service speaking on his cell phone with a Toledo Police captain. The officer then got on the cell phone and was informed that the Defendant may have been driving a city vehicle under the influence. The officer reentered the hospital, interviewed the defendant’s supervisor who said he saw the defendant drive a city vehicle. The results of the breathalyzer were then revealed to the officer. He interviewed the defendant who made incriminating statements and asked the defendant to perform field sobriety tests. The defendant was then arrested for OVI and asked to submit to a blood test.

Prior to trial, the defendant filed a motion to suppress asking that all tests and statements be suppressed. These were denied by the lower court and the defendant appealed.

The appellate court stated, "The Fifth amendment protects persons against compelled self-incrimination, and any testimony given under compulsion invokes that constitutional right, Murphy v. Waterfront Commission, 378 US 52. If the state forces a public employee to choose between either answering incriminating questions or forfeiting his job for refusing to answer, the state cannot use the employee's statements against him in a subsequent criminal prosecution if the employee chooses to answer because the statements were not given voluntarily, Garrity v. New Jersey, 385 U.S. 493. Thus, all statements made by the public employee under these conditions become immunized testimony."

Regarding the admissibility of the breathalyzer and blood tests, the court opined that ...”a breath test or a blood test to determine alcohol content for the purpose of proving a criminal offense, is a search and seizure within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757. The Ohio Supreme Court has previously held that the Fourth Amendment prohibits placing a defendant in a position of choosing between allowing a warrantless search or facing criminal penalties, Wilson v. Cincinnati, 46 Ohio St.2d 138.”

The court went on, “In this case, appellant was compelled to submit to the breathalyzer tests and blood tests, or risk forfeiting his employment. In addition, his employment contract limited his consent to the test and release of the results only to the city of Toledo. Nothing in the agreement refers to the possibility of criminal prosecution or release of information to any law enforcement agency. Appellant was not involved in an accident and was not observed by police to be driving in such a way that would indicate that he was under the influence of alcohol. Since appellant did not submit to the test pursuant to a police investigation or court order, both tests would have been warrantless searches in relationship to any potential criminal action.”

“Likewise, any sobriety tests performed were not incident to any initial police investigation. Rather, they were performed only after appellant agreed to present himself for the employer's requested testing. Therefore, no probable cause initially existed for police even to be present at the hospital for any type of investigation. Appellant submitted to testing solely at the request of his employer, at the advice of his union representative, with only the potential penalty of losing his job as a consequence.”

It is important to note that the court did express it condemnation of the defendant’s actions, but “neither [could they] condone the "ambush" tactics that were employed to create a criminal offense from an employee's compliance with his employer's drug/alcohol testing requirement."

As a result, the court overruled the findings of the lower court and suppressed both the tests and statements of the defendant.

Therefore, under these limited set of facts an employee can be assured that tests taken in compliance with their employment agreement can not be used in a subsequent criminal proceeding. But, it is important to note the narrow parameters of these facts. First, the employment agreement had no covenant permitting the city to share the test findings with any other agency. Second, the officer viewed no independant indicia of a traffic violation or other criminal activity that would justify an investigatory stop. Had any of the facts been different from those in this case, the finding might be different.

Can a Driver be Stopped Based upon Information Acquired from an Informant?

2009-08-15T06:13:00.000-07:00

In passed blogs I’ve discussed the term “probable cause” as it relates to an initial stop and ultimate arrest. In both instances these discussions involved information gathered solely by observations of the arresting officers. But, what if the officer does not personally observe the driver? Can a stop be initiated based upon information provided by an informant?

The simple answer is yes. A recent Stark County Court of Appeals opinion contains an excellent discussion of the topic. In the case, State v. Yoder, a citizen observed the defendant urinating in the parking lot of a restaurant and then stagger to the driver’s side of the defendant’s vehicle. The informant called 1-800-GRABDUI, providing his name, contact information, and the current location of driver. The informant gave the dispatcher a description of and the license plate number of the defendant’s vehicle. The caller further stated he observed the defendant having trouble walking to his vehicle and staggering badly, prior to driving the vehicle. The informant followed the defendant’s vehicle to the parking lot of a car wash, and waited for the police to respond. The officers waited for the defendant to exit the car wash and stopped the vehicle as it exited the car wash.

The officer approached the driver’s side of the vehicle and asked for the defendant’s driver’s license. At the time, the officer smelled a strong odor of alcohol and noted the defendant was “thick tongued.” The defendant was asked to exit the vehicle and to perform standard field sobriety tests and was subsequently charged with OVI. Prior to trial, the defendant filed a motion to suppress claiming the officer illegally stopped him having not personally observed indicia of the violations for which he was charged.

In its opinion, the court stated, “An investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion the person stopped is, or is about to be, engaged in criminal activity...Reasonable suspicion can arise from information that is less reliable than that required to show probable cause...But it requires something more than an "inchoate and unparticularized suspicion or 'hunch'...The Fourth Amendment requires at least a minimal level of objective justification for making the stop.”

“Where the information possessed by the police before the stop was solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight to be given the tip and the reliability of the tip. Courts have generally identified three classes of informants: the anonymous informant, the known informant from the criminal world who has provided previous reliable tips, and the identified citizen informant. An identified citizen informant may be highly reliable, and therefore a strong showing as to other indicia of reliability may be unnecessary.

The defendant argued that the officer had no personal knowledge which would lead him to believe that the defendant was violating the law; that the officers failed to personally observe any evidence of a traffic violation that would justify the stop.

The court quoted Adams v. Williams, a US Supreme Court Case in stating, “A tip which standing alone would lack sufficient indicia of reliability may establish reasonable suspicion to make an investigatory stop if it is sufficiently corroborated through independent police work.”

In applying this jurisprudence the court found that the informant’s information was “trustworthy and due significant weight.” Reciting the facts, the court stated the informant had identified himself, making him a known informant subjecting his observations to high reliability that the officers could rely upon.

As such, the appellate court upheld the lower court’s denial of the defendant’s motion to suppress.

Therefore, the answer to the questions is yes. A driver may be the subject of an investigatory stop based upon information provided by an information supplied by an informant provided that information is reliable.

(While this case does articulate this topic well, this writer does question the court’s failure to address the issue of the officer’s failure to see some indicia of evidence of erratic driving or other traffic violation that would justify a stop. The facts set froth in the court’s synopsis of the case fails to indicate whether the informant or the officers observed evidence of any underlying traffic violation. One can only speculate that, perhaps, the defendant failed to set forth this issue in his motion to suppress.)

Are Sobriety Checkpoints Legal?

2009-08-10T12:02:00.000-07:00

Many clients have asked about the legality of sobriety checkpoints - stops where police are permitted to randomly check motorists for OVI. Sobriety checkpoints have long been scrutinized under the Fourth Amendment’s prohibition unreasonable searches. This debate is basically characterized as the right to privacy v. public safety. In other words, is the “limited” intrusion caused by such a checkpoint arise to an invasion of privacy.

The Ohio Supreme Court in State v. Goines adopted a four-part test espoused by the US Supreme Court. The court stated a vehicle may be stopped when all of the following factors are present:

1. A checkpoint or roadblock location is selected for its safety and visibility to oncoming motorists, and

2. The police provide adequate advance warning signs, illuminated at night, timely informing approaching motorists of the nature of the impending intrusion, and

3. There are uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community, and

4. There is a predetermination by policy-making administrative officers of the roadblock location, time and procedures to be employed, pursuant to carefully formulated standards and neutral criteria.

Using this criteria, the majority of states, including Ohio, permit sobriety checkpoints.

The National Highway Transportation and Safety Administration (NHTSA) has produced a booklet entitled “Saturation Patrols & Sobriety Checkpoints Guide” In its guide some of NHTSA’s guidelines include:

1. The use of a minimum 10-12 uniformed police officers. Law enforcement agencies should assign a sworn, uniformed officer to supervise the planning of a sobriety checkpoint. This officer needs to be highly knowledgeable of the state’s sobriety checkpoint rules and regulations.

2. In selecting the location, identify locations with a high incidence of impaired driving related crashes or fatalities. Be sure the public and officer’s safety can be of utmost priority. There must be room for proper ingress and ingress. The location must be highly visible.

3. Warning devices and signals must be located at such a distance as to give motorists adequate time to stop. Warning devices should comply with the Manual of Uniform Traffic Control Devices (MUTCD).

The Ohio Highway Patrol has written a summary of its own procedures. These include:

1. The first and perhaps the most important requirement for the establishment of a sobriety checkpoint is that the site of the check must have a long term history of alcohol-related crashes and/or incidents of impaired driving.

2. About a week before the checkpoint is conducted, public notice is given that the checkpoint will be established. It is only necessary to provide a general date, time, and location for the event.

3. About an hour or two in advance of the establishment of the checkpoint, the officer who will be in charge of the operation conducts a briefing with the police officers who will operate the various elements of the checkpoint. At this briefing, the officer-in-charge will give an overview of the operation of the checkpoint, provide each checkpoint officer a clearly defined set of operational objectives, and emphasize all the procedures needed to make the checkpoint as safe and efficient as possible.

3. Large, highly reflectorized signs are set on the side of the road well in advance of the actual checkpoint. Fully marked police vehicles are situated at these signs on the approach to the checkpoint. A second "Sobriety Checkpoint Ahead Sign" is placed at the beginning of the lane of traffic cones, fusees, and other devices that mark the boundaries of the checkpoint itself. The area is illuminated by portable lights, flares and the emergency lights of several police cars which are situated on the berm to provide additional protection for the zone.

The OSHP guidelines also discuss the necessity of using qualified personnel to conduct field sobriety tests and the use of portable breathalyzer devices. The complete summary can be found at http://statepatrol.ohio.gov/sobcheck.stm.

In summary, both the US Supreme Court and Ohio Supreme Court have authorized the use of sobriety checkpoints as long as stringent rules are followed to safeguard the constitutional rights and safety of citizens. Both NHTSA and the Ohio Highway Patrol have published guidelines to be used by law enforcement agencies wishing to use such checkpoints. Variations from the recommended procedures outlined by NHTSA and the OHP can lead to suppression of any evidence procured during the checkpoint.

When Can I be Asked to Take Field Sobriety Tests?

2009-08-07T07:29:00.000-07:00

When a motorist is stopped and the officer is suspicious of alcohol use, the suspect is normally asked to vacate the vehicle and asked to perform tests to determine physical dexterity and metal awareness. These tests are called field sobriety tests. They normally consist of a horizontal gaze nystagmus test, a “walk-and turn” test, and a “one-legged” test. If the officer observes a certain number of “clues” the officer then may determine there is probable cause to arrest the suspect for OVI.

But many of my clients want to know what level of evidence is necessary for the officer to demand these tests. In other words, when they are stopped for some underlying traffic violation, what needs to be observed and how certain must the officer be before they can demand these tests?

Recently, the Fifth District Court of Appeal, Fairfield County, wrote an excellent opinion on the subject. In the case, State v. Strope, the Defendant was stopped for a headlight violation. While addressing the Defendant, the officer smelled a strong odor of alcohol on the Defendant’s person and observed his eyes were red and glassy. The officer asked the Defendant to vacate the vehicle and perform field sobriety tests. After observing sufficient clues, the officer arrested the Defendant for OVI. Prior to trial the Defendant filed a Motion to Suppress, arguing, in part, that the officer “...lacked reasonable suspicion to conduct field sobriety testing.”

In its opinion, the court stated,

“It is well-established that an officer may not request a motorist to perform field sobriety tests unless that request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated... Reasonable suspicion is something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold.”

The court went on to say:

"Where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists."

The Defendant went on to argue that based upon the above that the officer had insufficient articuable facts to rise to the level of reasonable suspicion. The Defendant cited the case of State v. Spillers. In that case, the court opined:

“...a de minimus traffic violation, slight odor of alcohol and admission to having consumed a couple drinks was insufficient to justify the performance of field sobriety tests.”

The Fifth Appellate District disagreed with the Defendant’s argument stating that in the cited case only a “slight” smell or alcohol was observed while in the present case a “strong” smell was noted.

Based on the above, it appears an officer can ask you to perform field sobriety tests if:

1. The officer first observes a traffic or equipment violation justifying a stop and

2. The officer observes multiple indicators of alcohol use.

Substantial v. Strict Compliance

2009-08-02T12:23:00.000-07:00

Recently, in response to the outcry from law enforcement resulting from the Ohio Supreme Court’s decision in State v. Homan, O.R.C. 4511.19(D)(4)(b) was enacted lowering the standard for the admission of field sobriety tests from strict compliance to substantial compliance. Just as the terms imply, “strict” compliance is a much higher standard that “substantial” compliance.

In the Homan case, the Ohio Supreme Court mandated that Ohio law enforcement officers must strictly comply with the standards set forth by the NHTSA standards for the administration of field sobriety tests (FSTs). Due to lobbying by many law enforcement agencies and other anti-DUI advocates, the legislature passed the above-cited statute lowering the standard to substantial compliance.

But, what is the difference between the two? In State v. McNamara, 124 Ohio App. 3d 706 the Ohio Supreme Court stated the appellate court must ... independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” In other words, the determination of whether the officer “substantially” complied with the NHTSA manual should be determined on a case by case basis. Since the statute is relatively new, the jurisprudence interpreting this standard, thus far, is scarce.

An example of this type of analysis is set forth in the recent case of State v. Davis. The case was the typical case wherein the Defendant was charged with DUI after the arresting officer had administered FSTs in the filed, determined that there was probable cause to arrest the Defendant, and the Defendant was ultimately charged with DUI. The Defendant filed his Motion to Suppress claiming the officer failed to substantially comply with the edicts of the NHTSA manual. The lower court determined the officer substantially complied with the NHTSA manual and overruled the motion.

The appellate court sustained the finding of the lower court after independently analyzing the evidence presented in the lower court. The court, in its analysis, stated that if strict compliance was still the standard, it may have determined the case differently, but, since the standard is the lower standard it determined, in this case only, that the substantial compliance standard was met.

Specificity in Suppression Motions Vitally Important in the Defense of DUI/OVI Cases

2009-07-23T09:15:00.000-07:00

A recent Ohio court of appeals case illustrates the importance of specificity in preparing any motion to suppress. The case, State v. Fink, is an exceptional well written opinion the explains Ohio law regarding the requirement that Defendants must state specifically the facts and law the supports their request to have certain evidence suppressed.

In the case, the Defendant was involved in a one vehicle accident. The offices smelled alcohol on his breath and noticed his speech was “lethargic and kind of slow.” As a result, the officers asked the Defendant to perform certain field sobriety tests. At the conclusion of the tests, the Defendant was charged with driving under the influence along with other charges that are not relevant to this discussion.

The Defendant filed a motion to suppress all field sobriety tests. The state said “...the defendant, in filing a motion to suppress in a criminal proceeding, must "state with particularity the grounds upon which it is made and shall set forth the relief or order sought...This requires the defendant, in order to be entitled to a hearing on his motion to suppress, to state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided...Once the defendant satisfies this initial burden, thereby providing notice of the issues to be determined at the suppression hearing, the burden then shifts to the state to show the requisite level of compliance with the applicable testing standards.”

The issue arises when the Defendant merely states his ground in general terms. To quote the court, “The extent of the state's burden of proof establishing compliance with the applicable standards "only extends to the level with which the defendant takes issue with the legality of the test...As a result, where the defendant's motion to suppress merely raises issues in general terms and is not sufficiently specific, the state's burden to show compliance is slight and it need only "present general testimony that there was compliance."

While the Defendant may set forth the specific issues in cross-examination of the officer, his failure to specifically state the issue nor cross examine the officer on that issue severely lessons the burden on the prosecution.

As the court stated, “...this court has repeatedly been faced with OVI cases where the defendant files a boilerplate motion to suppress that merely contains a laundry list of virtually every fathomable defect that could occur in the collection of evidence...Appellant's motion lists the evidence he seeks to have suppressed, including field sobriety tests and observations of the police officer, and is followed by a number of vague grounds upon which the motion is based, 4 including the general claim that "the tests were not administered in substantial compliance with the testing standards in effect at the time the tests were administered." These stated grounds, although sufficient to place the state and the court on notice that he challenged the administration of the field sobriety tests in general, fail to provide anything more than the same vague language that we have considered insufficient to raise the state's slight burden previously...In addition, appellant's accompanying "Memorandum in Support" is nearly entirely comprised of boilerplate language that does nothing more than relay legal concepts, only some of which were applicable, and provides only one paragraph evidencing the specific facts of the case.

“Further, although the necessary factual basis can be obtained during cross-examination at the motion hearing, appellant failed to do so in this case... After reviewing the record, appellant failed to ask specific questions during his cross-examination to support his claim that the NHTSA standards were not followed. Instead, appellant's cross-examination, which spans a total of four pages, merely consists of generalized questions regarding the road conditions observed and listed on the incident report, the arresting officer's observations during the administration of the field sobriety tests, and whether he was familiar with the NHTSA manual. As a result, we find appellant's questioning also failed to provide any factual basis with sufficient particularity to raise the state's slight burden of proof”

This case is testimony to the fact that a Defendant MUST state in sufficient detail the law and facts that support his motion to suppress, and in examining the police officer MUST produce evidence with particularity regarding the basis of his motion.

What is a “Per Se” Violation?

2009-07-07T11:17:00.000-07:00

Ordinarily the typical DUI/OVI ticket consists of three violations - the underlining cause for the stop, ie., speeding, assured clear distance, weaving, etc., driving under the influence (see my prior post), and a violation of what is called a “per se” violation for failing a chemical test such as a breathalyzer, blood or urine test.

Black’s law dictionary defines “pre se” as “taken alone...unconnected with other matters.” In the context of OVI/DUI law, the term has come to mean without further physical evidence.

In the typical per se violation, the accused is consuming a volume of alcohol above the legal limit. These limits vary depending upon the type of test given - breath, urine or blood. These are considered scientific tests and Ohio’s DUI laws specifically states if you are driving a vehicle (see an explanation of “driving” in my prior blog) with a prohibitive level of alcohol in your breath, blood or urine, then you can be found guilty without producing any physical evidence that is required of an OVI prosecution (again, see my prior blog).

The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the edicts of the Ohio Administrative Code (OAC) and The Ohio Department of Health.

Most breathalyzers and testing procedures are supported by the OAC and, therefore, the burden is upon the arrestee to bring to the court’s attention any anomaly regarding these procedures. Once the anomaly is brought to the court’s attention by way of a Motion to Suppress, the burden then shifts to the prosecution to prove that, in fact, the agency and/or testing organization substantially complied with the OAC and Ohio Department of Health. If the compliance with the procedural standards is less than substantial, the court will suppress the results of the test.

If the court is satisfied that the agency’s procedure was in substantial compliance and if the testing device and procedures are in compliance, then the results of the test are admissible.

Once again, and as I emphasized in prior blogs, the necessity of a trained attorney, who knows the law, to review the agency’s procedures is required if one is to expect their attorney to comply with the due diligence necessary to truly study and find any deviation from proper procedures.

What is “Driving Under the Influence?”

2009-07-02T12:45:00.001-07:00

Many of those reading my blog are non-professionals seeking information about their charges. A number of inquiries ask what do the police need to prove. So, I will attempt to explain, in general terms, what the police need to prove. Note, the following is merely a general overview and should not be sued as a basis for one’s defense without consulting an attorney.

Generally, the law requires that the charging agency to prove, beyond a reasonable doubt, that the Defendant’s intake of alcohol or drugs appreciably affected their mental or physical capabilities while “operating” a vehicle. In other words, the state or city must prove:

1. The Defendant ingested a measure of alcoholic beverages or drugs, and

2. That ingestion caused the defendant’s mental or physical capabilities to be appreciably impaired, and

3. That at the time of their impairment they were “operating” a vehicle.

Ingestion of alcohol or drugs. The state must prove that you consumed some quantity of alcohol or that drugs were present in your system. Proof that you consumed alcohol is evidenced by the smell of alcohol on your breath, any admissions made by you and other extrinsic evidence such as a Horizontal Gaze Nystagmus test. Obviously, drugs are harder to prove as outward appearances may not be so obvious. But, it is important to note that drugs do not only mean illegal drugs but also include the use of prescription drugs.

Appreciable impairment. The prosecutor must prove not only that the defendant ingested alcohol and/or drugs but that consumption caused the defendant’s physical or mental capabilities to be appreciably impaired. This is evidenced by one’s demeanor - glassy eyes, slurred speech, lack of coordination, loss of memory, etc. Specific field sobriety tests such as a “walk and turn” test or a “one-legged” test is also used to examine the Defendant’s physical and mental capabilities.

“Operating” a vehicle. While the statute might state that you must be “operating” a vehicle at the time, the term in a misnomer. The vehicle need not be moving or be operated. As long as the vehicle is subject to movement, its is considered “operating” under the statute.. For example, assume you are on the side of the road, “sleeping it off” with the motor running. The courts have consistently found that this is considered operating a vehicle. And you will notice I did not use the term “motorized” or “automobile.” DUI convictions have been imposed on defendants riding bicycles. Nor does the vehicle need to be on the road. DUI conviction have been predicated upon those riding snowmobiles, boats and all terrain vehicles.

Note, the above is a discussion of DUI prosecution based upon physical evidence only. The police can also charge you alternatively with a “per se” violation if you submit to a breath, blood or urine test and the reading exceeds the minimum levels for that test. These tests, called “chemical” tests, do not require the introduction of physical evidence as they are based upon scientific testing. I will discuss this topic in a future post.

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

2009-06-30T18:40:00.000-07:00

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

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

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

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

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

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

The Decision to Plea

2009-06-24T07:55:00.000-07:00

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

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

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

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

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

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

Avery Fromet Chosen to Organize DUI Update Seminar for Ohio Attorneys

2009-06-23T12:41:00.000-07:00

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

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

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

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

The Issue of Substantial Compliance and Generic Motions

2009-06-22T13:45:00.000-07:00

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

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

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

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

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

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

What Should You Expect from Your Attorney?

2009-06-19T10:36:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

When does Questioning become Interrogation?

2009-06-16T06:26:00.000-07:00

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

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

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

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

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

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

Do I Need an Attorney?

2009-06-15T13:33:00.000-07:00

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

The Legal Issues Are Very Complex

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

Cost of a Conviction

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

Politics

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

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

The Case for Silence - Part II

2009-06-12T07:42:00.000-07:00

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

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

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

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

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

REMAIN SILENT.

The Case for Silence

2009-06-10T12:55:00.000-07:00

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

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

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

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

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

Recent Court Decisions Expand and Detract Defendant’s Rights

2009-06-10T06:50:00.000-07:00

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

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

The court in its decision stated,

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

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

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

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

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

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

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

Refusal to Submit to a Chemical Test - Part II

2009-06-09T07:43:00.000-07:00

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

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

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

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

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

2009-06-03T08:22:00.000-07:00

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

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

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

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

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

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

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

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

Recent Legislative Changes Impact on Commercial Drivers. Employers Beware!

2009-05-29T11:00:00.000-07:00

Companies should be aware of the tightening noose recently placed around the neck of those holding commercial drivers’ licenses in Ohio. If you’ve followed various articles placed in this newsletter, you are aware of the potential liability of owners of companies who hire and retain drivers having poor driving histories, especially those convicted of driving while intoxicated.

By reading those articles, it is apparent Ohio has promulgated one of the nation’s toughest DUI laws. The loosening of pre-test requirements and harsher sentences to offenders have produced a draconian burden on anyone having alcohol in their system while driving. First time offenders are subject to a minimum of three days in jail or a mandatory three-day alcohol intervention program, mandatory license suspension, and large fines. If the offender has additional violations within a six-year period these penalties are enhanced dramatically (See Figure A). In the event an offender has four or more offenses in a six-year period, the offense becomes a Felony - a major crime in Ohio.

DUI Penalty Summary in Ohio (Minimums) - Figure A

No. Jail Time Fine License Car

6 Yrs Suspended Immobilized

1 3 days or DIP* $375 6 Months None

2 10 days $525 1 Year 90 day Immob.

3 30 days $ 850 2 Years Car Forfeiture

4** 60 Days - Local $1350 3 Years Car Forfeiture

5 60 days - Prison $1350 3 Years Car Forfeiture

* Three-day Driver Intervention Program

** Four or more convictions are Felonies

If the offender has a breath-alcohol reading greater than .17, all penalties are doubled! For example, if it is the offender’s second conviction in six years and he had a reading of .17 or greater, he will be incarcerated for twenty days, double the ordinary time.

After a term of actual suspension, when the offender is given no driving privileges (known as “hard time”), an offender may apply to the court for limited driving privileges during the period of the offender’s suspension (See Figure B)

While these penalties appear to be draconian, the consequences to an individual having a Commercial Driver’s License (CDL) are even more severe. Historically, if a commercial driver was intoxicated while driving his commercial vehicle, the offender suffered a CDL suspension of one year - without any privileges. There was no provision for limited driving privileges.

Actual Suspension Provisions for Limited Driving Privileges - Figure B

No. In 6 Years May Apply for Limited Privileges After*

1 15 days

2 45 Days

3 180 Days

4 None

5 None

*Known as “Hard Time,” the offender may not drive for any reason for the period set forth.

Therefore, a CDL offender could not drive any vehicle, car, truck, bus for one year. Basically, he could not be employed as a commercial driver for one year. It is important to note that the offender had to be driving a commercial vehicle at the time of the offense.

Recently, the Ohio legislature amended its commercial drivers license statute relating to DUI offenders. As stated previously, O.R.C. 4506.16 contains a prohibition against those driving under the influence. This provision was expanded by eliminating any referral to a commercial vehicle. Therefore, any violation of DUI, whether in a commercial or private vehicle, requires the Ohio Bureau of Motor Vehicles to revoke the commercial driver’s license of any offender found guilty of operating a vehicle under the influence for one year. This statute provides no relief or provision for limited privileges. The bottom line is any person holding a commercial driver’s license in Ohio is essentially out of work for one year if they make their living driving a commercial truck, cab, bus or other vehicle which requires a CDL. By the way, a second offense disqualifies the offender for life!

Beside the fact that an employer may lose a valuable employee, there are other consequences.

Companies have been held liable for consequential, and in some instances, punitive damages for injuries caused by an employee who the employer knew or should have known was driving under the influence or who allowed the employee to drive without having a CDL. In some cases, insurance companies have denied coverage under these circumstances. In addition to possible third-party liability, there are worker’s compensation issues as well as Federal OSHA standards that may be at issue. Any accident caused by an offending employee could have grave consequences to the employer.

To prevent this, employers must continually conduct insurance audits for any employee or prospective employee that will drive a commercial vehicle or will do any driving on behalf of the company - whether or not a CDL is required. At the time of hire, and on a yearly basis, the employer should make a review of its employees’ driving record making sure all licenses, including CDLs, are current and valid. Companies should obtain waivers from their employees permitting the company or its agent to conduct driving record searches to review employees’ driving records. Companies should require their insurance agent or carrier to make their own evaluation and notify the company in the event any employee is not covered. I remember a client who suffered a $50,000 increase in workers’ compensation premiums due to an employee’s accident and consequential WC claim. Companies must be very diligent in this area.