Implied Consent

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

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

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

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

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?

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

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.