Columbus OVI/DUI Attorney Blog

‘Best in the Midwest’ has become one of the slogans associated with the annual DUI/OVI seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). A speaker from another state poked fun at the slogan by asking, “isn’t this the only DUI seminar in the Midwest?” I’m sure there are plenty of other DUI seminars in the Midwest, but this is the only one I know of which is nationally recognized and approved for credit from the National College for DUI Defense (NCDD) and the national DUI Defense Lawyers Association (DUIDLA). The seminar is two-and-a-half days and draws speakers and attendees from around the country. Whether it’s the best or not, the seminar held last week in Columbus was outstanding.

OACDL 2015 DUI seminar brochure page 1The seminar’s theme this year was ‘trying cases post-Ilg’. State v. Ilg is the breath-testing case decided recently by the Ohio Supreme Court. In that case, the Court reiterated a defendant in an OVI case has the right to challenge the accuracy of the specific breath test result in his or her case. Ilg clarified the holding of State v. Vega, which had been subject to misinterpretation for the last 30 years.

Thursday’s presentations focused on scientific issues in OVI cases. Thomas Workman from Massachusetts discussed breath test data, explaining what data is maintained, what data is not being provided to defendants, and what should be done about it. Pharamacologist/statistician Robert Belloto and attorney Andrew Bucher presented a scientific and statistical assessment of the Drug Recognition Evaluation program. There was also a panel of judges discussing State v. Ilg and breath test challenges at trial. It was interesting to hear the different interpretations of Ilg and various predictions about the future of breath-testing litigation in Ohio OVI cases.

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In September of 2014, CW was driving his motorcycle in northwestern New York and collided with another motorcycle. A police officer responded to the accident scene and reportedly noticed the odor of alcohol on CW. The officer asked CW to take a breath test, and CW refused. The officer ultimately obtained a blood sample from CW and charged him with DWI (known as OVI in Ohio). The officer then sent the blood sample to be tested. The test revealed a blood alcohol content of 0.00. Last week, five months after CW was charged with DWI, the case was finally dismissed, as reported by the Genesee Sun.

Blood draw

If this case occurred in Ohio, it would have likely gone through the same process. When an officer in Ohio suspects a driver is under the influence, the officer requests a breath test, blood test, or urine test. In cases where a blood test or urine test is used, the results of the test are not immediately known to the officer. Despite not having the test results, officers routinely charge people with OVI immediately after the blood or urine sample is obtained. The blood or urine sample is then sent to a laboratory for analysis, and the analysis typically is not completed until weeks or months after the person is charged.

In cases involving blood/urine tests, there are two types of OVI charges which may be filed. First, the suspect is charged with OVI ‘impaired’. The ‘impaired’ charge accuses the suspect of operating a vehicle with driving ability impaired by alcohol and/or drugs. The ‘impaired’ charge is not dependent on the results of a blood/urine/breath test. Second, if the test results show an alcohol or drug level at or above the prohibited concentration (the ‘legal limit’), the suspect is charged with OVI ‘per se’. The ‘per se’ charge accuses the suspect of operating a vehicle with a prohibited alcohol or drug level. The ‘per se’ charge does not depend on whether suspect’s ability to drive was impaired.

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Mothers Against Drunk Driving (MADD) recently released its “2015 Report To The Nation”. The report rates the efforts of each of the 50 states to prevent drunk driving. In the report, MADD uses a five-star system of measures which can be undertaken to prevent drunk driving fatalities. Ohio receives four stars.

1. Ignition Interlock Devices. MADD recommends the use of ignition interlock devices (IID). If a vehicle is equipped with an IID, the driver must blow into the IID before starting the car, and the car will only start if the alcohol concentration in the driver’s breath is below a predetermined limit. The MADD report indicates “Ohio has the opportunity to stop drunk driving. In 2014, Annie’s Law requiring ignition interlocks for all convicted drunk drivers was introduced. The legislation ran out of time and faced opposition from a fringe group of judges.” Although Ohio does not have mandatory ignition interlocks for all convicted drunk drivers, Ohio does use ignition interlock devices in two ways. First, ignition interlock may be required as a condition of limited driving privileges on an Administrative License Suspension, and its use is mandatory on a third or subsequent offense. Second, ignition interlock may be required as part of a defendant’s sentence on a first conviction and is a mandatory part of the sentence on a second or subsequent conviction.

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2. License Revocation. MADD endorses the implementation of the administrative license suspension: “a swift punishment for drunk driving through the immediate confiscation of an offender’s driver’s license by the arresting officer.” Ohio imposes immediate administrative license suspensions whenever an OVI suspect refuses a chemical test or submits to a chemical test and produces a result over .08. Administrative license suspensions for a first offender are 90 days (test over limit) or one year (test refusal). For subsequent administrative license suspensions, the duration of the suspension increases, up to five years.

3. Child Endangerment Laws. MADD suggests legislation crating child endangerment laws and views drunk driving with a child passenger as a form of child abuse. Ohio’s child endangerment law makes it illegal to operate a vehicle under the influence or over the limit with a child under 18 in the vehicle. That Ohio law is punishable by up to six months in jail and a license suspension for up to one year. If violation of that law results in serious physical harm to the child, or if the offender has a prior OVI conviction, violation of the law is a felony.

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Last week, I completed a short course in gas chromatography. Completing the course reminded me of what Stephen Covey used to say: “To know and not to do is really not to know.” He is so right. It’s one thing to know the law of blood and urine testing. It’s a very different thing to know the science of blood and urine testing. To know the science, you have to do the science, and lawyers typically do not have the opportunity to do the science. Now, however, lawyers get to do the science of gas chromatography in a short course presented by the Amercian Chemical Society.

The course, Forensic Chromatography Theory and Practice, is held in Chicago at the Axion Analytical Laboratories & Training Institute. Axion is the training arm for the American Chemical Society. The president of Axion, Lee Polite, Ph.D., is a leading authority in chromatography and serves as the primary instructor for the course.

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The 40-hour course consists of both lectures and labs. The lectures feature analogies which make chemistry understandable to even the least scientific lawyers. During the lectures, participants learn the scientific principles underlying the operation of the gas chromatograph. They also learn the parts of the instrument and the multitude of variables which must be set correctly for the instrument to produce an accurate result.

The labs are hands-on. Class participants run tests with known and unknown substances and learn to interpret the printed chromatograms. Students manipulate testing conditions to understand how those conditions affect results. Class participants also calibrate the instrument, use the associated software to program a calibration curve, and even take apart the injectors and columns.

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If an officer’s testimony about a traffic stop is not corroborated by the officer’s cruiser video, how do judges rule on the justification for a traffic stop? Once a judge makes a ruling, under what circumstances might that ruling be overturned by an appellate court?  A recent case decided by the Tenth District Court of Appeals in Columbus, Ohio illustrates the discretion judges are given regarding evidentiary issues in OVI motion hearings.

The case of State v. Comer was decided in December of 2014. In Comer, the defendant was charged with OVI and filed a motion to suppress evidence. The motion claimed all evidence obtained after the stop of the defendant’s vehicle should be suppressed because the traffic stop was unconstitutional. At the motion hearing, the officer testified she observed the defendant’s vehicle “weaving and crossing the lines” and “almost hit the concrete divider”.

Video camera in cruiser

The video from the officer’s cruiser did not clearly show the defendant’s vehicle crossing the lane line. The defendant argued the video undermined the credibility of the officer, so the judge should find there was no marked lanes violation and therefore no justification for the stop. The prosecution argued the video was inconclusive regarding the marked lanes violation (due to the glare from streetlights and the distance between the cruiser and the defendant’s vehicle), and the officer’s testimony alone was sufficient evidence the defendant crossed the lane line.

 

The trial judge found, based on the officer’s testimony, there was a marked lanes violation justifying the traffic stop. The defendant plead No Contest and appealed the trial court’s decision to the Tenth District Court of Appeals.

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Suppose an officer detains a person for violating a traffic law and it turns out the person really didn’t violate the law: the officer was simply mistaken about what the law says. Until recently, one would expect that any evidence obtained after the mistaken detention would be thrown out. In a recent case, however, the U.S. Supreme Court concluded any evidence obtained after the officer mistakenly detained the person is not excluded from trial, so long as the officer’s mistaken belief about the law was reasonable.

The case is Heien v. North Carolina. A police officer was watching traffic on a road in North Carolina when the officer observed Heien’s Ford Escort pass by. The car was being driven by Maynor Javier Vasquez, and Heien was a passenger. The driver was not driving recklessly, was not speeding, and was not violating the law in any way. The officer followed the car because the driver looked “very stiff and nervous”, then stopped the car for what the officer believed was a brake light violation. The car only had one working brake light, and the officer did not know that North Carolina law only requires one working brake light.

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As the officer was issuing a warning ticket for the broken brake light, the officer became suspicious because the driver and passenger gave inconsistent answers to his questions regarding their destination. The officer asked Heien if the officer could search the vehicle. Heien consented. The officer found cocaine in the vehicle, and Heien was ultimately charged with and convicted of Attempted Drug Trafficking.

Heien’s conviction was reversed by the North Carolina Court of Appeals, but that decision was reversed by the North Carolina Supreme Court. Heien appealed to the United States Supreme Court. The U.S. Supreme Court accepted the case to answer this question: can an officer’s mistake of law give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment?

The U.S. Supreme Court answers that question in the affirmative. In an opinion written by Chief Justice Roberts, the Court concludes that, if an officer stops a vehicle based on the officer’s mistake of law, and if that mistake is reasonable, the stop is justified under the Fourth Amendment. The Court reasons that people, including law enforcement officers, make mistakes, and an officer’s mistaken belief should only result in evidence being excluded if the officer’s mistaken belief was unreasonable. The Court supports this reasoning with citations to cases from the 1800s. Those cases did not involve the scope of the Fourth Amendment, and the Court’s opinion admits the cases are not on-point. The Court also compares officers’ mistakes of law with officers’ mistakes of fact. There are cases holding a detention may be justified even if an officer made a mistake of fact.

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Most states acknowledge urine testing is not an accurate way to measure blood alcohol concentration, and Ohio is one of the few states which still uses urine alcohol testing for DUI/OVI cases. Ohio law makes urine tests admissible in court so long as law enforcement agencies follow state regulations. Some of those regulations address scientific reliability, and some of those regulations address administrative issues. As a result, urine tests are often inadmissible, not because they are scientifically unreliable, but because the government did not follow its own rules.

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Ohio law makes urine tests admissible in DUI/OVI cases. Ohio Revised Code section 4511.19(D) states urine tests may be admitted as evidence if the urine sample is analyzed in accordance with regulations approved by the Ohio Director Of Health. The regulations approved by the Director Of Health (DOH) are found in chapter 3701-53 of the Ohio Administrative Code.

Some Ohio regulations for urine testing promote reliable test results. For example, the regulations establish what testing methods are acceptable (e.g., gas chromatography and immunoassay) and require confirmatory testing by an additional method. The regulations also require that testing methods have documented sensitivity, specificity, accuracy, precision and linearity.

Some Ohio regulations for urine testing are more administrative in nature. For example, the regulations require that urine specimens are collected in a certain type of container with a certain type of lid. The regulations further require that the container have a label which contains certain information. The regulations also contain requirements for record keeping, laboratory accreditation, and laboratory personnel permits.

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If you get a ride from an ARIDE officer, it’s because you’ve been arrested for DUI/OVI. The acronym stands for Advanced Roadside Impaired Driving Enforcement, and ARIDE is a course which some police officers complete to improve at investigating and prosecuting Ohio DUI/OVI cases involving drugs. To better understand what officers are learning at ARIDE, I recently completed the program myself, and I expect it to improve my effectiveness in defending cases involving driving under the influence of drugs.

ARIDE photo with certificateBefore an officer can take the ARIDE course, the officer must first complete the training program for DWI Detection And Standardized Field Sobriety Testing sanctioned by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP). I completed that program in 2005. That program explains the three phases of DUI/OVI investigations and includes hours of hands-on training for administering the three standardized field sobriety tests (SFSTs). The three SFSTs are the Horizontal Gaze Nystagmus test (follow the pen with your eyes), the Walk And Turn test, and the One Leg Stand test.

Field sobriety testing is the focus of the first part of the ARIDE course. Participants undergo updated training for administering the SFSTs and are introduced to two additional tests. The first new test, the Romberg Balance test has requires a subject to tilt his head back, close his eyes, and estimate 30 seconds. The second new test, the Lack of Convergence test, involves moving a stimulus close to the subject’s nose to see if the subject’s eyes cross. Course participants must pass an SFST proficiency test to continue to the second part of the ARIDE course.

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Somewhere between ten percent and twenty percent of Americans have GERD: Gastro Esophageal Reflux Disease. While the advertisements by pharmaceutical companies have made GERD common knowledge, it is no so commonly known that this medical condition can inflate the result of an alcohol breath test. When the defendant in an OVI case has GERD, lawyers and judges find themselves at the intersection of law and science.

Science was not my best academic subject. In high school, I was one of only two people in the chemistry class not invited to the take physics. In college, I was required to take a few science courses, and I studied diligently…to find out which courses were the easiest! As a criminal defense lawyer, I was not thrilled to realize that developing expertise in DUI/OVI defense requires at least some comprehension of anatomy, physiology, chemistry, and pharmacokinetics. Although I am far from being a scientist, I have learned enough about the scientific aspect of DUI/OVI cases that I was recently asked to speak at a seminar on the topic of “Presenting A GERD Defense: Law And Science”.

GERD-ethanol exchange in the lungs

Recognizing how GERD affects alcohol breath tests requires understanding how alcohol reaches human breath. Alcohol is absorbed into the bloodstream, mostly in the intestines and some in the stomach. Blood carries the alcohol to different parts of the body, including the lungs. In the lungs, small blood vessels wrap around the ends of the bronchial trees; the alveolar sacs. At the alveolar sacs, gases from the blood, including alcohol, go into the lungs. Those gases, including alcohol, are then exhaled. If a person is taking a breath test, those gases are exhaled into the mouthpiece of a breath-testing machine.

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In the last couple weeks, two school bus drivers were suspected of being under the influence while driving a bus full of students. Both drivers were arrested for DUI, and both drivers now face serious consequences. These incidents raise the question of what happens if a school bus driver is convicted of DUI/OVI in Ohio.

School bus on roof.jpgThe first incident, reported by the Associated Press, involves a school bus driver in Utah. The suspect was driving elementary school students for a field trip. Two people, one motorist and one parent on the bus, called 911 to report the bus was swerving erratically and nearly hit a car on the highway. An officer stopped the bus and conducted a DUI investigation. The bus driver was arrested for DUI, and prescription muscle relaxers were found in the bus driver’s purse. The students were driven to the field trip by another, presumably sober, bus driver.

The second incident, reported by the Boston Globe, involves a school bus driver in Massachusetts. The suspect was driving a high school cross country team from a meet to their high school. Witnesses reported the bus driver smelled of alcohol, ran a red light, took the wrong exit, failed to use turn signals, hit rumble strips, and drove at fluctuating speeds. Police stopped the bus in the school parking lot and administered field sobriety tests to the driver. The bus driver was arrested for DUI and was held without bail. The bus driver reportedly had two prior DUI convictions.

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