What is a “Per Se” Violation?

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?”

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.

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

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

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

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

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

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

The Decision to Plea

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

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

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

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

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

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

Avery Fromet Chosen to Organize DUI Update Seminar for Ohio Attorneys

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

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

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

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

The Issue of Substantial Compliance and Generic Motions

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

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

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

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

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

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

What Should You Expect from Your Attorney?

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

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

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

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

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

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

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

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

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

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

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