Columbus OVI/DUI Attorney Blog

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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For three decades, lawyers and judges have been misinterpreting the case of State v. Vega. In Vega, the Ohio Supreme Court held defendants in DUI/OVI cases may not attack the general reliability of breath-testing machines. Some lawyers and judges interpret Vega as if it says defendants are not permitted to make any challenge to the breath test result. This misinterpretation of the Vega decision may exist in part because most people have not actually read the decision. It’s like the telephone game where the statement made by the first person in the game is modified drastically by the time the statement is repeated by the last person in the game. A few days ago, the Ohio Supreme Court clarified the holding of Vega in a case which will hopefully end the abuse of defendants’ rights resulting from the misinterpretation of Vega.

Pass-It-On.jpgThe recent case is Cincinnati v. Ilg. In Ilg, the defendant took a breath test on an Intoxilyzer 8000, blew over .080, and was charged with OVI. The defense attorney filed a Demand For Discovery requesting that the prosecution provide records for the specific Intoxilyzer 8000 used for his client’s breath test. When the prosecution did not provide the records, the defense subpoenaed the records from the Ohio Department of Health, the agency responsible for maintaining those records. The program administrator for the Department of Health’s alcohol and drug testing program told the Court the Department of Health did not have the personnel or technology to provide the requested records. The records were not provided.

The trial court excluded the breath test results from evidence, concluding the defendant had the right to challenge the reliability of his breath test and could not do so without the requested records. The prosecution appealed to the First District Court of Appeals, and the appellate court affirmed the decision of the trial court. The prosecution then appealed to the Ohio Supreme Court. The prosecution’s primary argument was this: a defendant cannot compel the State to produce information that is to be used for the purpose of attacking the reliability of the breath-testing instrument because State v. Vega prohibits defendants from making attacks on the reliability of breath-testing instruments.

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I’m afraid of heights. I passed on the opportunity to go on the 450′ observation wheel, and I steered clear of the zip line starting at the 50th floor of the hotel. For me, just getting to the 50th floor was challenging because it required riding up an external glass elevator. While others took in the sights of the city on the way up, I faced the door and repeatedly read the maximum capacity of the elevator (30 people and 4,500 pounds). The ride was worth it: I enjoyed a great meal and an amazing view from the Voodoo Lounge. What a great way to wrap-up my annual trek to Las Vegas for the seminar presented by the National College for DUI Defense (NCDD)

WP_20140914_014.jpg The yearly seminar, “DWI Means Defend With Ingenuity”, always recharges my batteries. Although I truly enjoy my practice, and there is no work I would rather do, everyone needs an occasional break from the routine. The Vegas trip is an opportunity to ‘sharpen the saw‘.

It’s also an opportunity to learn from some of the best DUI lawyers in the country. I teach other Ohio lawyers about DUI/OVI defense, and I always learn something from the other speakers at the statewide seminars. I’ve heard it said, however, if you really want to be one of the best in your area, you need a benchmark of world-class colleagues. The speakers at the NCDD seminars are world-class.

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It won’t win a Pulitzer Prize, it will not be mentioned with the New York Times best sellers, and it will not be at the top of readers’ ‘wish lists’. In fact, most people may not find it very interesting. If you are charged with a DUI/OVI in Ohio, however, this book suddenly becomes a must-read. I’m talking about the new book: I Was Charged With DUI/OVI, Now What?!

I wrote the book to answer the questions most commonly asked by people charged with OVI.Cover image from book.jpg After answering those questions for 17 years, I recently came to the realization there was not a published book designed for individuals charged with OVI in Ohio. I thought it would be helpful to create a book which explains ‘what you need to know before going to court and before hiring an attorney for DUI/OVI in Ohio‘.

The book, published a couple weeks ago, is divided into four parts. The first part reveals what prosecutors need to prove for a person to be found guilty of OVI and outlines the potential consequences of an OVI conviction. The second part addresses the evidence used in OVI cases, including field sobriety tests and blood/breath/urine tests. The third part discusses the court process and its various stages. The fourth part addresses how to find a good OVI lawyer.

The book is available online through Amazon and Barnes & Noble. The suggested retail price of the paperback is $9.95, and the e-book costs about half that. With the percentage I receive in royalties, I may buy a few cups of coffee…. The book is obviously not designed to be a money-maker for me. In fact, I will email a pdf version of the book to anyone who requests it, and I intend to make the paperback available in central Ohio libraries.

The book is designed to help people charged with OVI. People in that position need help, and one way I can help is providing this book. I can’t represent every person who contacts me after being charged with OVI: I typically only accept one new client per week. I certainly can’t field calls from every person who has questions about Ohio OVI laws. I can, however, answer those questions in the form of this low-cost book. I hope the book provides valuable information which is helpful to many people charged with DUI/OVI in Ohio.

This summer, I had the honor of being shadowed by Japanese criminal defense lawyer Yaeko Hashimoto, who recently completed an LL.M. program at the O.S.U. Moritz College of Law. In our conversations, it became clear there are differences between DUI/OVI laws in Ohio and DUI/OVI laws in Japan. Yaeko agreed to be a guest blogger and prepared the remainder of this article.

Drinking In Japan
Generally, Japanese culture is generous to drinking behavior, compared with other countries. In spring, people have a picnic under cherry blossoms with alcoholic beverages, and many adults enjoy beer or Japanese sake in public areas. Also, Japan has alcohol vending machines on streets so anyone can buy alcoholic beverages 24 hours per day without identification.

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Drunk Driving Laws In Japan
Until 2009, if a driver with no prior record was convicted of O.V.I. per se, the person’s driver license was not suspended. However, the law changed after a tragedy caused by a drunk driver in 2006. The drunk driver hit another car head-on on a bridge, and the victim’s car fell into a dark sea. Three young children were killed. In response, the 2007 and 2009 laws made O.V.I. punishments tougher. The legal limit in Japan is .15 mg/l, which is approximately .03%, as compared to the U.S., which has a legal limit of .08%. Changed to Japan’s O.V.I. punishments are summarized in the following table:

Japan OVI punishment table.pdf

Typical Procedure And Consequeces For O.V.I.
If a person is charged with O.V.I. per se for the first time in Japan, the prosecutor will choose a summary trial. With a summary trial, the judge can impose only a fine, not jail, and the defendant does not have the right to court-appointed counsel.

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We are all urged to call the police if we suspect someone is driving under the influence. This message comes to us in radio and television commercials, on billboards, and on cruiser license plates: 1-800-GRAB-DUI. If someone makes the call, when should the police be permitted to stop the driver based on that informant’s tip alone? This question is a hot topic in Ohio DUI/OVI law this year. Two Ohio appellate courts decided ‘informant tip’ cases last month, and the United States Supreme Court decided one earlier this year.

The two recent Ohio cases of State v. WhemLicense plate of trooper cruiser.jpg and State v. Whitacker have many similarities. In both cases, an informant called the police to report a suspected drunk driver. In both cases, the police stopped the suspected drunk driver without observing any additional evidence the driver was under the influence. In both cases, the defendant filed a motion to suppress evidence and argued the informant tip did not justify the traffic stop. In both cases, the trial judge overruled the defendant’s motion to suppress. In both cases, the defendant appealed to the Court of Appeals.

Whem and Whitacker have different outcomes. In Whem, the Court of Appeals agreed with the trial court the initial stop of the defendant was justified. In Whitacker, the Court of Appeals disagreed with the trial court, concluding the stop of the defendant was illegal.

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