Practicing law is an art, not a science, and there are various methods to develop skill at the art of lawyering. One method is to learn the hard way. In a recent Ohio OVI case, the defense lawyer learned the hard way how to appeal an Administrative License Suspension (A.L.S.). Hopefully, others will learn from this example.

In Ohio, an A.L.S. is separate from the underlying charge of O.V.I. An A.L.S. is imposed if a suspect is arrested for O.V.I. and either refuses a chemical test for alcohol/drugs or tests ‘over the limit’. The length of the A.L.S. and the suspect’s eligibility for limited driving privileges depend on whether the suspect has prior O.V.I. convictions and/or prior test refusals.

Woody Allen with quote

The A.L.S. can be appealed. Although the A.L.S. is separate from the O.V.I. case, a defendant may appeal the A.L.S., and/or seek limited driving privileges, in the context of the O.V.I. case. The A.L.S. appeal is filed with the court in which the O.V.I. case is being held, and the A.L.S. appeal is typically heard by the same judge who hears the O.V.I. case.

The A.L.S. was appealed in the case of State v. Schertzer.  In that case, the defendant was arrested for O.V.I., and his breath test result was .303.  As a result, Schertzer was subjected to a 90-day A.L.S.  The defendant was arrested on June 6 and went to his initial court appearance on June 8.  On September 2, 86 days after his initial appearance in court, the defense lawyer filed an appeal of the A.L.S.

Continue Reading

At some point, the exception becomes the rule.  To discourage police from violating individual rights, we developed the exclusionary rule.  If evidence is obtained as a result of an unreasonable search or seizure, or other Constitutional violation, the evidence is excluded from trial.  That’s the general rule.  Courts, however, have created exceptions to this rule.  One exception to the exclusionary rule was the subject of a recent case before the United States Supreme Court.  The outcome of that case could affect DUI/OVI cases in Ohio.

Arrested

The case is Utah v. Strieff.  Edward Strieff walked out of a residence in Salt Lake City and was stopped by a narcotics detective.  The detective had been conducting intermittent surveillance on the residence and suspected the occupants were dealing drugs there.  Strieff was not an occupant.  At the time he stopped Strieff, the detective had not seen Strieff engage in any activity resembling a drug deal, and the detective did not know how long Strieff had been in the residence.  Nevertheless the detective stopped Strieff and obtained his identification.

The detective ran a check on Strieff and learned there was a warrant for Strieff’s arrest for a minor traffic offense.  The detective arrested Strieff and conducted a search of Strieff’s person incident to the arrest.  During the search, the detective found methamphetamine in Strieff’s pocket.  Strieff was charged with drug possession, and he filed a motion to suppress the evidence based on the illegal stop.  The trial court overruled Strieff’s motion, and the case was ultimately appealed through the Utah state courts to the United States Supreme Court.

Continue Reading

Carrie Underwood’s plea, “Jesus, take the wheel” is being replaced with the hands free command, “Siri, take the wheel”. According to a recent forecast by Business Insider, there will be 10 million self-driving vehicles on the road by 2020. With that in mind, I have been asked several times, “Are you concerned driverless cars will hurt your business as a DUI lawyer?”

Driverless car interior with champaign bottles

I’m not. First, I do not expect a large number of completely self-driving cars on the road before my career ends. Second, a drunk in a driverless car can still be charged with DUI/OVI in Ohio. Third, if self-driving cars put an end to drunk driving, I will gladly transition to another career.

I do not expect driverless cars to take over the roads during my lifetime. By “driverless”, I mean cars which are fully autonomous. There is a distinction between semi-autonomous cars and fully autonomous cars. Semi-autonomous cars have auto-pilot-like features to control steering, accelerating, and braking. Fully autonomous cars transport passengers from one point to another with no intervention from the passengers. There are currently no fully autonomous cars for sale in the United States.

Continue Reading

Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws.  A previous article in this blog gives a preview of the cases.  To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests.  Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases.  The Court’s decision will impact Ohio DUI/OVI cases.

US Supreme Court Interior

After considering 13 cases involving criminal refusal laws, the Court chose these three cases:  Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota.  These three cases were apparently chosen because they have three varying scenarios.  Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test.  Bernard challenged his conviction for refusing a breath test.  Birchfield argued his conviction for refusing a blood test was unconstitutional.  The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.

The Birchfield opinion analyzes the Fourth Amendment issues.  The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment.  Fourth Amendment law presumes a warrantless search is unreasonable.  Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.

Continue Reading

The only presumption permitted in an Ohio DUI/OVI trial is the presumption the defendant is not guilty.  In a case alleging drugged driving, the prosecution must prove the defendant ingested a drug, and the prosecution must prove the defendant’s ability to drive was impaired.  Finally, as a recent case illustrates, the prosecution must prove causation:  the impaired driving ability was caused by ingesting the drug.

Old man walking with a cane

The recent case is State v. Hammond.  A law enforcement officer stopped Hammond for speeding and observed Hammond’s pupils were constricted.  Based on his training in Advanced Roadside Impaired Driving Enforcement (ARIDE), the officer suspected Hammond may be under the influence.  The officer administered field sobriety tests, and those tests reportedly revealed “clues” of intoxication.  Hammond was 70 years old and walked with a cane.  The officer arrested Hammond for OVI and had Hammond submit a urine sample.  The officer charged Hammond with OVI, and Hammond entered a plea of Not Guilty.

At Hammond’s trial, the prosecution introduced the results of Hammond’s urine test.  The test showed the presence of N-Desmethyldiazepam, Oxazepam, and Temazepam.  The prosecution did not introduce expert testimony to describe the side effects of those drugs, but the officer testified in a conclusory fashion those drugs impaired Hammond’s ability to operate a vehicle.

Continue Reading

I have recently had the privilege of working on OVI cases with attorney Eric Holloway.  In addition to OVI defense, Eric also represents clients in civil rights cases, including cases involving false arrest.  As a follow-up to the last blog entry, ‘Uncovering False Arrests In DUI/OVI Cases’, I asked Eric to summarize the options of a person falsely arrested for OVI.  Eric agreed to be a guest blogger and prepared the remainder of this article.

Under arrest #2The handcuffs clamp down tight on your wrists; sweat beads up on your forehead.  The police officer just told you, “You’re under arrest.”

You did nothing wrong, yet you face the full gauntlet of the criminal justice system.  And you just know the police officer had no grounds to arrest you.  In time, the criminal justice system agrees with you.  In time, the charges are dropped or the jury finds you not guilty.  Now what?

You might think of taking the police officer to court as the next step.  While that is an option, another step should be considered first.  Instead of civil damages, think about your pre-arrest record.  It was probably clean – maybe a speeding ticket or two.  But, even though you won the DUI/OVI case, the charge(s) will show up on your criminal record for anyone to see.  That includes any future employers and many others.
Continue Reading

Officer Richard Fiorito was a DUI supercop.  He was honored by Mother’s Against Drunk Driving (MADD) for his efforts to combat DUI, and he was named a ‘top cop’ by the Alliance Against Intoxicated Motorists (AAIM).  According to Inthesetimes.com, Fiorito averaged one DUI arrest each day he worked.  He was like a superhero fighting to keep the Chicago streets safe:  it was almost too good to be true.

Actually, it was too good to be true.  It turns out Fiorito falsely arrested dozens of people for DUI.  A typical scenario would look like this:  Fiorito would stop a driver for a minor traffic violation and administer field sobriety tests.  No matter how well the person performed on the tests, the officer would score them as ‘failing’.  He would then arrest them and charge them with DUI.  In court, most people would simply plead guilty at the first court appearance, and others would accept favorable plea bargains rather than go to trial.

Under arrest

There were a couple exceptions:  Steve Lopez and James Dean, Jr.  Steve Lopez was a commercial driver and had just earned his CDL.  To protect his future career, he could not plead guilty.  James Dean, Jr. had good witnesses to contradict Fiorito’s allegations:  other officers.  When Fiorito charged Dean with DUI, Dean had just left the police station where he encountered multiple police officers who did not believe he was under the influence.  Neither Dean nor Lopez was convicted.

Dean and Lopez each filed suit against the city of Chicago for false arrest and malicious prosecution.  They eventually settled with the city for $100,000 each.  The city also agreed to pay legal fees of about $250,000, according to a Chicago Tribune article. *

Continue Reading

Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.

Refusal talk to the hand

The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.

 

Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A][2]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.

Continue Reading

A judge in Columbus, Ohio found a man to be in violation of probation because the man was unable to urinate upon request.  The judge was aware the defendant, Mr. Hand, had medical problems which caused urinary difficulties and was taking medication designed to increase his urination.  Nevertheless, the judge concluded Mr. Hand’s inability to urinate constituted a “refusal” to submit to a urine test.  Individuals placed on probation for DUI/OVI in Ohio do not have this kind of experience, ordinarily.  But this was no ordinary case.

dreamstime_m_7554688

Ordinarily, probation (also called “community control” in Ohio) is imposed by a judge for two reasons.  First, probation is imposed so somebody has the responsibility of monitoring the defendant’s compliance with court orders.  That somebody is the probation officer.  Second, probation is imposed to give the defendant incentive to comply with court orders.  If a probationer does not comply with court orders, judges can impose more restrictive probation conditions, lengthen the duration of probation, and impose jail time.

Before a judge can sentence a person for violating probation, the judge must hold a hearing.  At the hearing, the judge first determines if there is probable cause to believe the defendant violated probation.  The judge then determines whether the defendant did, in fact, violate probation.  If the judge concludes the defendant violated probation, the judge imposes a sentence:  more restrictive conditions, additional probation time, and/or jail time.

In the case of Mr. Hand, the judge ordered pretty common probation conditions:  Mr. Hand was ordered to complete a driver intervention program, complete any follow-up counseling recommended by that program, and complete 80 hours of community service.  He was also required to submit to alcohol/drug screens and not refuse any tests (for alcohol/drugs).

Continue Reading

Last week was the annual DUI/OVI seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL).  One of the slogans now attached to the seminar is ‘The Premiere Ohio DUI Defense Seminar’.  When I hear that slogan, two questions come to mind:
1.  Are there any other Ohio DUI defense seminars?
2.  If so, what makes this one the ‘premiere’ seminar?

Page one from Brochure for OACDL DUI seminar March 10-12 2016

Full disclosure:  I co-chaired the seminar this year, so my opinion is probably not unbiased.

With that said, my answers are:
1.  Yes, there are, in fact, several other seminars focused on Ohio DUI/OVI, and
2.  What makes this one the ‘premiere’ seminar is the topic of this blog entry.

One factor which makes the OACDL seminar impressive is the sheer volume of information.  The seminar lasts for about 20 hours.  During that time, about 35 speakers give presentations on topics relevant to DUI/OVI in Ohio.  No other Ohio DUI/OVI seminar comes close to providing that amount of information.  For some, such a long seminar may sound like a nightmare.  For me, it’s time well spent.

Continue Reading