August 16, 2014

JAPANESE LAWYER COMPARES DUI/OVI IN OHIO AND DUI/OVI IN JAPAN

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.

Vending machine with alcoholic beverages.png
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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July 22, 2014

CAN I BE PULLED OVER BASED ON THE UNCORROBORATED CLAIM OF ANOTHER DRIVER?

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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June 30, 2014

HOLD THE PHONE...BUT DON'T SEARCH IT WITHOUT A WARRANT

If a driver is pulled over and charged with a criminal offense, can the police search through the data on the driver's cell phone? That question was recently addressed by the United States Supreme Court. The case does not directly involve a DUI/OVI, but it's definitely worth reporting in this blog. This is a significant case in the area of search and seizure law, and there are frequently search and seizure issues in DUI/OVI cases.

The case is Riley v. California. Riley was stopped for a traffic violation, and he was ultimately arrested for a weapons charge. After Riley's arrest, an officer searched Riley and seized his cell phone from his pants pocket. Cell phone examination.jpg The officer accessed information on the phone and observed the repeated use of a term associated with a street gang. Later, at the police station, a gang unit detective looked through the digital contents of the phone. The detective found photographs and videos connecting Riley to a gang and implicating Riley in a gang-related shooting.

Riley's motion to suppress the evidence from his cell phone was denied. The cell phone evidence was used to convict Riley and was also used to enhance Riley's sentence based on his gang membership. Riley appealed, and the case made its way to the United States Supreme Court. The Court held that police may not search information on cell phones without a search warrant.

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June 14, 2014

CAN OFFICERS IGNORE EVIDENCE OF SOBRIETY WHEN ARRESTING SOMEONE FOR DUI/OVI IN OHIO?

What does it mean when the law says an officer must have 'probable cause' to arrest a person for a DUI/OVI? Common sense tells us the evidence observed by the officer must lead to the conclusion that the person is probably under the influence. Common sense and case law tell us the officer must consider all of the evidence in making the arrest decision. A recent case in the U.S. Sixth Circuit Court of Appeals addresses this issue and implies that evidence of sobriety has little meaning in the probable cause determination.

The case of Kinlin v. Kline, decided last month, involves a lawsuit by motorist Michael Kinlin against Ohio State Highway Patrol trooper Shawn Kline. Trooper Kline observed Kinlin change lanes and move into a narrow space between two cars in the left lane. Trooper Kline stopped Kinlin, and Kinlin disagreed with Kline's claim that the lane change was unsafe. Trooper Kline noticed the odor of alcohol and asked Kinlin how much alcohol he consumed that evening. Kinlin said he drank two beers.

Scales of justice half.jpgTrooper Kline had Kinlin get out of the car. Kinlin complied and walked with the trooper to the cruiser with no balance problems. Trooper Kline began instructing Kinlin with regard to a field sobriety test. Kinlin said in response, "I'm not doing a test. I just told you I had two beers; I'm not drunk". Trooper Kline told Kinlin he was under arrest. Trooper Kline asked Kinlin two more times if he would take the field sobriety tests, and Kinlin declined. Trooper Kline began doing a pat-down of Kinlin, and Kinlin said he would do the field sobriety tests. Trooper Kline, however, arrested Kinlin and said, "at this point, we're going to go off your test results".

Going off the test results did not work out well for Trooper Kline. It turned out that Kinlin's breath alcohol concentration was .012, well under Ohio's legal limit of .08. Kinlin sued Trooper Kline, claiming Kline violated his Fourth Amendment right to be free from unreasonable searches and seizures. Kline responded by claiming he was immune from being sued: the arrest was reasonable because he had probable cause to believe Kinlin was operating a vehicle under the influence. The U.S. District Court agreed with Trooper Kline, and Kinlin appealed to the U.S. Sixth Circuit Court of Appeals.

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May 24, 2014

OHIO USES DUI/OVI CHECKPOINTS, BUT IT COULD BE WORSE

This is Memorial Day Weekend, the unofficial beginning of summer. A lot of people will be on the road: visiting friends, attending parades, and going to cookouts. Some unlucky people on the road will find themselves stopped at DUI/OVI roadblocks. Although they do nothing wrong, they will have to stop, wait, wait some more, produce identification, and answer questions. They aren't suspected of doing anything illegal, but they are seized.

Sobriety checkpoint ahead.jpgAlthough this situation seems at odds with our right to be free from unreasonable searches and seizures, sobriety checkpoints can be Constitutional if they are done correctly. How to do them correctly is not a mystery. The United States Supreme Court gave clear criteria in Michigan v. Sitz, and the National Highway Traffic Safety Administration (NHTSA) issues a publication with procedures to follow.

Recent cases in New York illustrate what procedures not to follow. In Queens, New York, five cases of drunk driving were thrown out because they originated with illegal checkpoints, according to dnainfo.com. Each of the cases involved the same group of highway patrol officers. The officers routinely went to the same location, a service road connecting two highways, to conduct DUI enforcement. The officers called this type of enforcement "step out" surveillance because they waited for cars to approach their location, then stepped out and signaled for the driver to slow down or stop. The officers then looked for a reason to detain the driver, usually items hanging from a rearview mirror. If the officers observed something illegal, they detained the driver for a DUI investigation, including breath testing and field sobriety testing. It is estimated the officers arrested about 150 people using this method of DUI enforcement.

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May 17, 2014

SHOULD OHIO USE DAILY ALCOHOL TESTING FOR REPEAT DUI/OVI OFFENDERS?

What should we do with repeat DUI/OVI offenders? On one hand, we want them to be rehabilitated, and we want them to be employed, which usually requires driving. On the other hand, we want to punish them and protect the public from the risk of harm they create. In Ohio, to protect the public from the danger posed by repeat offenders, we typically require them to have ignition interlock devices installed so they cannot drive after consuming alcohol. In Florida, the state legislature is considering an alternative to ignition interlock: "24/7 Sobriety". Florida's consideration of this program raises the question: should Ohio use daily alcohol testing for repeat offenders?

Ignition interlock device.jpgAn ignition interlock device is intended to prevent a car from running if the driver has recently consumed alcohol. When the device is installed, the driver must blow into the interlock before starting the vehicle. Unless the breath sample is essentially alcohol-free, the vehicle will not start. The interlock can also be programmed to require a 'rolling retest' periodically as the vehicle is driven. The vehicle will stop running if the breath sample contains alcohol or if no breath sample is given. Ohio law requires the use of ignition interlock on a person's second (or more) offense.

The program being considered by Florida is an alternative to ignition interlock. Under the "24/7 Sobriety" program, a defendant must either submit to a breath or urine test twice daily or wear a SCRAM device (Secure Remote Alcohol Monitoring). Participation in the program is required as a condition of driving privileges. If the defendant tests positive for alcohol or drugs, consequences like jail time are immediately imposed. As part of the program, defendants may also be ordered to participate in drug/alcohol counseling. The program, naturally, is opposed by vendors of ignition interlock devices.

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April 30, 2014

RIGHT TO SPEEDY TRIAL IN OHIO DUI/OVI CASE VIOLATED BY COURT'S DELAYED RULING ON MOTION TO SUPPRESS

In Ohio DUI/OVI cases, calculating speedy trial time can be complex. As a general rule, the trial must be held within 90 days of the arrest or summons. There are, however, many exceptions to this general rule. When one of the exceptions occurs, time is "tolled" (that time does not count toward the 90-day limit). One exception occurs when the defendant files a motion for discovery, and another exception occurs when the defendant files a motion to suppress evidence. A recent decision by an Ohio Court of Appeals addresses the application of speedy trial laws to Ohio DUI/OVI cases.

State v Hollaeander page 1.jpgState v. Hollaender was decided a few days ago. On May 19, 2012, Hollaender was charged with OVI in the Wayne County Municipal Court. At the same time, he was subjected to a 90-day Administrative License Suspension because his breath test result was over .080. On June 29, 2012, Hollaender filed a petition for limited driving privileges. On July 2, 2012, the court denied the petition, and Holleander appealed that denial to the court of appeals. Meanwhile, Holleander had filed a motion to suppress evidence on June 19, 2012. The court scheduled a hearing on the motion to suppress for July 23, 2012, and the motion hearing was continued (at Holleander's request) to July 30, 2012.

When the time for the motion hearing arrived, the trial court declined to hold the hearing, claiming it did not have jurisdiction to hold the hearing because Holleander appealed the denial of driving privileges. In December of 2012, the appeals court dismissed the appeal regarding driving privileges. On January 23, 2013, the trial court held a hearing on the motion to suppress, as well as Holleander's recently-filed motion to dismiss the case on speedy trial grounds. On January 24, 2013, the court overruled the motion to suppress and the speedy trial motion. On January 30, 2013, Holleander plead No Contest and appealed to the Ninth District Court of Appeals.

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April 19, 2014

SUPREME COURT CLARIFIES REQUIREMENTS FOR MOTIONS TO SUPPRESS IN OHIO DUI/OV CASES

Two days ago, the Ohio Supreme Court issued a decision clarifying how specific a motion to suppress must be for the defendant to receive an evidentiary hearing on the motion. In State v. Codeluppi (2014), the Court concluded: "[A] highly detailed pleading of the facts and law is not required to satisfy the Shindler notice requirements and to trigger the right to a hearing on the motion to suppress." This conclusion affirmed the Court's decision from a decade ago in State v. Shindler (1994). The Codeluppi decision hopefully will end uncertainty about the specificity required for motions to suppress in Ohio DUI/OVI cases.

Ohio has a system for drug/alcohol testing and field sobriety testing in DUI/OVI cases. First, government agencies develop methods for alcohol/drug testing and field sobriety testing. Second, those government agencies issue regulations and manuals to ensure the tests produce reliable results. Third, law enforcement is trained to implement the testing methods according to the regulations and manuals.State v Codeluppi page one.jpg

Ohio law has a framework for uniformly litigating issues regarding the admissibility of evidence in DUI/OVI cases. Rather than addressing the science behind alcohol/drug testing and field sobriety testing in every individual DUI/OVI case, the litigation addresses whether law enforcement complied with the regulations, the manuals, and the Constitution. The prosecution must prove drug/alcohol tests and field sobriety tests were administered in substantial compliance with the regulations and manuals, and the prosecution must also prove the detention and arrest of the defendant were lawful. If the prosecution does not prove these things, evidence is excluded from trial.

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March 28, 2014

Drive High - Get A DUI

In January, Colorado became the first state to legalize recreational marijuana. In March, Colorado became the first state to televise entertaining public service announcements about the danger of driving under the influence of marijuana. The commercials are part of the Colorado Department of Transportation's new campaign: "Drive High, Get A DUI". Although Colorado is one of only two states to legalize recreational marijuana, it is not the only state to criminalize operation of a vehicle under the influence of marijuana. Contrasting Colorado's handling of DUI marijuana with that of Ohio illustrates the deficiencies in Ohio's approach.

In both states, the law makes it illegal to drive a vehicle under the influence of marijuana. Both states have a 'limit' of five nanograms of marijuana metabolite per milliliter of blood. Sounds the same, right? Not exactly. Ohio's laws are different in at least three ways.

First, the states are measuring different stuff. Colorado measures active THC, the constituent of the cannabis plant that has psychoactive side effects. Ohio allows for measurement of any metabolite, and crime labs regularly measure an inactive metabolite which has no psychoactive effects.

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March 9, 2014

WHAT YOU NEED TO KNOW IF YOU HANDLE DUI/OVI CASES

Last week was the annual DUI/OVI seminar hosted by the Ohio Association of Criminal Defense Lawyers (OACDL). The three-day seminar, held at the Westin in downtown Columbus, has become nationally recognized and is one of the few state seminars approved for credit from the National College for DUI Defense (NCDD). The theme of this year's seminar was 'what you need to know if you handle DUI/OVI cases'. There is a lot a lawyer needs to know, so the conference did not deal with substantive law: cases, statutes, and regulations. Instead, outstanding lawyers and experts from across the country taught about science, litigation, and presentation.

Thumbnail image for Thumbnail image for 2014 OACDL DUI Seminar brochure page 3.jpgOn Thursday, the seminar focused on the science involved in DUI/OVI cases. Jim Nesci (AZ) outlined what lawyers and judges need to know about breath testing. His presentation was followed by Al Staubus (OH) discussing the Intoxilyzer 8000 breath-testing machine and Chuck Rathburn (IN) discussing the Datamaster breath-testing machine. Cleve Johnson (OH) gave a thought-provoking lecture about the science behind decision-making. There were also presentations about blood testing (Justin McShane, PA) and forensic laboratories (Ron Moore, CA), as well as field sobriety testing and drug recognition evaluations (Tony Corroto, GA). For the first time, the conference on Thursday included a Q&A session between a panel of judges and the presenters/experts.

On Friday, the seminar focused on litigation in DUI/OVI cases. John Saia (OH) gave a presentation about the legal framework for DUI/OVI trials, and Tim Huey (OH) presented on trials with breath tests. I spoke about the Lancaster case in Marietta: the case in which the judge excluded the Intoxilyzer 8000 because we proved it is unreliable. The Intoxilzer 8000 and the Lancaster case have been the subject of previous posts in this blog (does that make me a one-trick pony?). Joe St. Louis (AZ) and Kim Frye (GA) demonstrated first-person opening statements, and Jay Ruane (CT) discussed timing and graphics in closing arguments. Justin McShane (PA) showed how he cross-examines expert witnesses, and Deandra Grant (TX) did jury selection with 'team innocent'. Jury selection was also the topic for Joe Low (CA), which transitioned to the next day's Trial Skills Academy.

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February 22, 2014

COURT CONCLUDES TRAFFIC STOP WAS NOT JUSTIFIED BY VISUAL SPEED MEASUREMENT IN OHIO DUI/OVI CASE


In most Ohio DUI/OVI cases, the evidence includes police officer testimony and police cruiser video. Officer testimony is sometimes not corroborated by the recording from the cruiser video. In such a situation, a judge or jury has to decide if they believe the officer or their own eyes. Such a situation arose in the recent case of State v. Jarosz, and the judges believed their eyes.

In Jarosz, the discrepancy between officer testimony and cruiser video involved the officer's use of 'pacing' to determine the defendant's speed. To measure a vehicle's speed by pacing, an officer must follow the other vehicle at the same distance for a period of time. By doing so, and by knowing the speed of the cruiser, the officer can conclude the other vehicle is going the same speed as the cruiser. Speed limit sign.jpg

During a hearing on Mr. Jarosz's motion to suppress evidence, the officer testified about pacing the defendant's vehicle. The officer said he first did a visual estimate of the defendant's speed, without pacing, and concluded the defendant was exceeding the 45 mph speed limit. As the vehicles entered a 40 mph zone, the officer paced the defendant's vehicle and maintained the same distance for 12 seconds.

In his testimony, the officer acknowledged the importance of maintaining the same distance between the defendant's vehicle and the cruiser. He also acknowledged that going faster than the defendant would make it impossible to get a good speed measurement. The officer testified he was "a hundred percent positive that [he] had a good speed pace on him and logged a speed pace of 48 miles per hour in a 40 zone".

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February 8, 2014

WHEN CAN OFFICERS STOP DRIVERS BASED ON AN ANONYMOUS TIP?

The caller was anonymous, and there was little evidence corroborating the caller's claim. He or she called 9-1-1 and reported she was driving southbound on Highway 1 and was just run off the road. The caller described a silver Ford F150 truck with a California license plate. It did not take long before officers spotted a silver F150 and pull it over based on the anonymous caller's report. After stopping the truck, the officers ended up finding and seizing marijuana. The question is whether this stop was lawful.

Bill of rights.jpgThe question is being answered in Navarette v. California. The case actually involves two defendants, and the defendants are brothers. The brothers were both in the truck when the marijuana was seized, so both of them were charged with marijuana offenses. The Navarette case started in a California state court and made its way to the United States Supreme Court. The Supreme Court recently held oral arguments.

Longstanding precedent holds officers are able to make an investigative traffic stop if they have a reasonable suspicion that the vehicle's occupants committed a crime. There is also precedent regarding when an anonymous tip can justify detaining a suspect. Generally, the tip must have 'sufficient indicia of reliability', which usually means it must be corroborated by independent observations by the officers. The leading Ohio decision on this topic is Maumee v. Weisner. In that case, the Ohio Supreme Court addressed whether the stop for a D.U.I./O.V.I. investigation was proper.

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January 20, 2014

SHOULD WE USE INTERLOCK INSTEAD OF LICENSE SUSPENSIONS FOR OHIO DUI/OVI SENTENCES?

An Ohio DUI / OVI sentence has several parts. There is mandatory jail time (or a driver intervention program for a first offense), a mandatory fine, and a mandatory license suspension. For a first offense, the license suspension is a minimum of six months and a maximum of three years, and the judge has discretion to grant or deny limited driving privileges. There are also optional sanctions for a first offense, and one of those sanctions is the use of an ignition interlock device. Proposed legislation in New Jersey would replace mandatory license suspensions with mandatory use of an ignition interlock. Should Ohio consider this change?

Ignition interlock device.jpgAn ignition interlock device (IID) is a mechanism installed in a vehicle that measures the alcohol present on someone's breath. After the IID is installed, the driver will have to blow into the IID before he or she is able to start the engine. The vehicle will not start if the alcohol concentration on that person's breath exceeds a predetermined limit.

In New Jersey, there is opposition to the proposed move from license suspensions to ignition interlock devices. The main argument against the change is that removing the license suspension would remove 'the strongest deterrence to drunken driving'. The deterrent effect of a license suspension is questionable, as thousands of people drive drunk in Ohio every year despite the existing license suspension and despite frequent anti-DUI PR campaigns. In addition, the reality is that losing one's license does not prevent someone from getting into a car and driving again. It is illegal to drive on a suspended license, but that doesn't actually stop a person from driving under suspension.

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January 11, 2014

MODERN SCARLET LETTER: OHIO'S DUI / OVI HABITUAL OFFENDER REGISTRY

Someone who has multiple conviction for DUI (called OVI in Ohio) faces increasingly severe consequences with each conviction. For example, while a first OVI typically results in three days in a hotel at a driver intervention program, a third offense with a high test or test refusal is a mandatory minimum of 60 days in jail. Ohio's OVI sentencing law recognizes that a first offense may be an isolated incident, but a third offense is something more. If a person gets to the point of having five OVI convictions, that person is supposed to be listed in a registry of habitual OVI offenders.

Scarlet letter.jpgOhio's habitual OVI offender registry is maintained by the Ohio Department of Public Safety (ODPS). It is mandatory for courts to send the Department of Public Safety information about DUI / OVI offenders including the number of times these individuals have been convicted of these specific crimes in the last two decades. If someone is convicted of OVI, Physical Control Under The Influence, Boating Under The Influence, or a similar offense five times in 20 years, that person is to be placed in the registry of habitual offenders. This searchable internet database includes a lot of personal information about the individual, including the offender's name, birth date, number of convictions within 20 years, and the person's physical address.

The Ohio Department of Public Safety recently announced that a recent update to the registry added significantly more people to the registry. The total number of people on the registry now stands at 5,331; a stark contrast to fewer than 400 before the recent update. According to those responsible, they managed to improve the system by compiling information from computerized court records instead of waiting on the submission of paper forms. Franklin County now has 389 repeat offenders listed in the registry, a huge increase from the 15 people on the list just two months ago.

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January 4, 2014

SHOULD DUI / OVI LAWS APPLY TO GOLF CARTS?

It's January in central Ohio, and the temperature is slightly above zero. It's not exactly golfing weather, and at this time of year, I begin to wonder if we will ever see golfing weather again. It's not the time of year we think about using golf carts, and most of us are not pondering whether people should be convicted of DUI/OVI for driving a golf cart under the influence. I am, because I recently resolved a case where my client was charged with a golf cart OVI in Columbus, Ohio.

My client was not golfing. She was doing work at the Ohio State Fair. Her work required her to stay at the fairgrounds in a camper. After her work day ended, she retired to the camper and had a few drinks. Late in the night, she was alerted by a 'neighbor' about an emergency with their work. They got in the golf cart, and my client drove toward the worksite. As they drove, the 'neighbor' was yelling at somebody, and this caught the attention of a law enforcement officer. The officer stopped them and observed that my client smelled like alcohol and had bloodshot eyes. There was a beer can in the cup holder, and my client acknowledged she had been drinking, so the officer administered field sobriety tests and a breath test. The breath test result was twice the legal limit, so the officer charged my client with OVI.

Golf cart inside driver view.jpgUnder Ohio law, a person can be convicted of OVI on a golf cart. OVI stands for Operating a Vehicle under the Influence, and the definition of vehicle includes a golf cart. This application of the law has been challenged a couple times. In both State v. Tramonte and State v. Sanchez, the court of appeals said the OVI law does apply to golf carts.

Even if the law technically applies to golf carts, the question is whether we want to go after people that drive golf carts under the influence. There are uncountable instances that laws are broken and those responsible are not prosecuted. Both police officers and prosecuting attorneys are given discretion in enforcing the law. An officer can choose not to write a ticket, and a prosecutor can choose to dismiss or reduce charges.

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