Columbus OVI/DUI Attorney Blog

DUI/OVI cases are litigated within a framework of rules. Some of those rules regulate the exchange of evidence between the prosecution and the defense. That exchange of evidence is the ‘discovery’ process. The rules for discovery are found in state and federal law, and the intricacies of the rules are fleshed-out in court decisions interpreting the rules. A prosecutorial violation of the discovery rules may significantly impact a DUI/OVI case.

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An example of a prosecutorial discovery violation comes from a New Jersey police officer’s drunk driving case. In that case, the off-duty officer was charged with driving under the influence after crashing through the wall of a store, according to NJ.com. His attorney requested discovery from the prosecutor, including a copy of the manual for the blood-testing procedure and audio recordings of police communications related to the case.

Seven months after the discovery request was made, the prosecution had not provided the manual or the audio recordings. The defense attorney filed a motion to dismiss the case, and the judge gave the prosecution one month to provide the requested materials. Three months later, the prosecution had not given the materials to the defense attorney, and the judge dismissed the case. Although the case occurred in New Jersey, I would expect a similar result in Ohio.

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I thought they were all drunk: they were driving on the wrong side of the road. But they weren’t drunk, they were just driving in Scotland. And so was I. I drove on the left, sat on the right, and shifted with my left on the endless roundabouts and turns. I navigated all the sheep, stone walls, and cliffs as I drove from the English countryside to the Scottish highlands, so I consider my recent holiday a driving success. The trip prompted me to compare the drunk driving laws of Ohio to the ‘drink driving’ laws of Scotland.

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My rental car, brilliantly parked outside our B&B in Portree on the Scottish Isle Of Skye.

Scotland has a lower ‘per se’ alcohol limit than Ohio. In Ohio, it is illegal to drive at or above an alcohol level of .08%. In Scotland, where the drinking age is 18, the prohibited alcohol level changed in December of 2014 to .05%. That limit is lower than the rest of the United Kingdom, which remains at .08%, but higher than some countries, like Sweden which is .02%. A comparison of the drunk driving laws of several nations is available on the website of the National Highway Traffic Safety Administration.

There are differences in sentencing between Ohio and Scotland. For a first OVI offense in Ohio, the license suspension is a minimum of six months. For a first offense of driving whilst above the legal limit in Scotland, the license disqualification is a minimum of 12 months, and that disqualification period may be reduced by completing a 16-hour ‘drink driver’s rehabilitation course’. The fine in Ohio is a maximum of $1,000, but the fine in Scotland is a maximum of 5,000 pounds: about $7,600 with the current exchange rate. Both Ohio and Scotland have a maximum jail sentence of six months, but Ohio has a minimum of three days while Scotland has no minimum jail term. Both Ohio and Scotland increase penalties for subsequent offenses: Ohio has a six-year lookback period, and Scotland’s is ten years.

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When authorities found Donna Wardell in her Chevrolet Impala, the car was upside-down, held in the air by part of the utility pole she just hit (see the story at app.com).  Medics pulled her out of the car through the windshield and rushed her to the hospital.  The medical team determined the crash was the result of a seizure caused by a brain tumor.  Wardell did not know about the tumor:  she learned of it in the hospital.  She later learned something else:  she was being charged with DWI because, when the medics removed Wardell from her car, they observed the odor of alcohol.

Ambulance at accident scene

The odor of alcohol.  Based on that evidence alone, a police officer charged Wardell with DWI (called OVI in Ohio).  It was the only evidence suggesting Wardell might be under the influence of alcohol.  Upon closer examination, however, the odor of alcohol really is not evidence she was under the influence.  At most, it’s evidence she consumed alcohol.  There is no way to tell from the odor how much alcohol she consumed and whether that alcohol was affecting her ability to drive.

Her ability to drive was not affected by alcohol, as there was essentially no alcohol in her blood.  A toxicology report showed her blood alcohol concentration was .001.  At that level, the alcohol did not cause the crash.  Another hospital record concluded the crash was the result of a medical accident:  a seizure caused by the tumor.

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It’s Independence Day. We’re celebrating our freedom, and we’re celebrating everything which makes the U.S.A. a great nation. One thing which makes this nation great is it’s ultimately governed by laws, not people. The framework for our laws is the Constitution, and the part of the Constitution which guarantees much of the freedom we’re celebrating today is the Bill Of Rights. The founders of this nation put their lives on the line for that freedom. Soldiers in our military protect the country and preserve our freedom from foreign oppression. But who is protecting our freedom from domestic oppression and preserving the liberties promised by the Bill Of Rights?

Flag of United States

We enjoy our individual rights. We don’t want law enforcement breaking into our homes and seizing our possessions without a warrant: we want the freedom from unreasonable searches and seizures. We don’t want officers beating suspects until they confess: we want the freedom from self-incrimination. We don’t want the government summarily convicting people of crimes in a one-sided secret proceeding: we want a public trial by jury in which the process is fair.

 

To deter the government from violating Constitutional rights, we use the exclusionary rule. If officers break into a defendant’s house and seize the murder weapon without a warrant, testimony regarding that murder weapon is excluded from trial. If an officer beats a suspect until he confesses, that confession is excluded from trial. The immediate result may be the defendant whose rights were violated is acquitted of a crime he committed. The long-term result is law enforcement is generally deterred from violating citizens’ individual rights.

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Suppose you are driving around Columbus on I-270 and an officer pulls you over for speeding. The officer gets out of his cruiser and walks up to your car. When the officer reaches your window, you see on his uniform he is from the Cincinnati Police Department. ‘That’s odd’, you think, ‘why is an officer from Cincinnati making a traffic stop in Columbus?’ Good question. A better question is this: does that traffic stop violate your Constitutional rights?

Officer holding cell phoneAn officer from the Cincinnati Police Department does not have statutory authority to make a traffic stop for a minor misdemeanor in Columbus. According to Ohio statutory law, an officer only has such authority within the geographic boundaries of the political subdivision employing the officer. Therefore, the Cincinnati officer’s stop for a minor traffic offense in Columbus violates Ohio law. The question still remains whether the officer’s violation of the law is also a violation of the driver’s Constitutional rights.

The answer is ‘yes’, according to the Ohio Supreme Court. In a decision released a few days ago, the Court held a traffic stop for a minor misdemeanor offense made without statutory authority to do so violates Article I, Section 14 of the Ohio Constitution. While the stop may not violate the United States Constitution, it violates the Ohio Constitution.

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How frustrating would it be if your car won’t start because you recently used mouthwash, put on cologne, or ate a cinnamon roll? That frustration could be real if the federal government ultimately requires alcohol sensors in cars. According to the Columbus Dispatch, federal officials recently announced plans to implement a technological advancement in alcohol-detecting sensors for vehicles. The government anticipates the new alcohol sensors could significantly reduce drunk driving. The sensors may also increase headaches for non-drinking drivers.

Ignition interlock device

 

There are two ways alcohol sensors could be used in vehicles. First, a vehicle could be equipped with passive breath sensors to detect alcohol in the air inside the car. If the concentration of alcohol in the vehicle’s interior air exceeds a predetermined limit, the vehicle would not start.

Passive breath sensors may suffer from the same problem associated with ignition interlock devices. Those devices require the driver to blow into a tube with alcohol-free breath before the vehicle will start. The problem with interlock devices is false positives: the device prevents the vehicle from starting when the driver consumed no alcohol. Causes of false positives include mouthwash, toothpaste, bread, pastries, spicy foods, and high-protein diets.

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Imagine you are driving home on a central Ohio freeway after a late dinner and you are pulled over by a police officer. The officer says you were stopped for failing to use your turn signal when you changed lanes. The officer announces he smells the odor of alcohol and asks if you have been drinking. You did have a glass of wine with dinner. The officer then asks you to get out of the car for some field sobriety tests to “make sure you’re okay to drive”. Under what circumstances is the officer justified in doing this?

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This entry is a follow-up to the last entry in this blog, which discussed the case of Rodriguez v. United States.  Rodriguez involved a motorist stopped for a minor traffic violation and detained for a drug dog to arrive. The United States Supreme Court concluded the duration of the stop must not exceed the time necessary to address the traffic violation. The rule clarified in the Rodriguez case is this: any further detention is unlawful unless the officer has a reasonable suspicion the motorist is violating the law.

The rule clarified in Rodriguez is followed in Ohio DUI/OVI cases. If an officer stops a driver for a traffic violation, further detention of the driver for field sobriety testing is unlawful unless the officer has a reasonable suspicion the driver is under the influence. The issue often litigated is what constitutes a “reasonable suspicion”.

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If a police officer stops you for a minor traffic violation, how long should the officer be permitted to detain you? Suppose the officer issues you a ticket or a warning for the minor traffic violation and then says he wants you to wait while he has a drug dog sniff your car? What do you say? If you say no, can the officer do it anyway?

These are the questions answered by the United States Supreme Court in the recent case of Rodriguez v. United States. Rodriguez was driving on a Nebraska road when he was stopped by Officer Struble for drifting onto the shoulder of the road for a couple seconds. Officer Struble checked the driver’s license of Rodriguez, then checked the driver’s license of his passenger, then issued a warning for the minor traffic offense. After issuing the warning, Officer Struble asked Rodriguez for permission to walk the police dog around the vehicle. Rodriguez declined.

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This is no police drug dog, it’s my dog Rex. He could be a police dog…if he weren’t so spoiled.

Officer Struble further detained Rodriguez until a backup officer arrived. Struble then walked his K-9 around the vehicle of Rodriquez, and the dog alerted the presence of drugs in the vehicle. This occurred approximately seven or eight minutes after the officer issued the warning for the traffic violation. The officers searched the vehicle and found methamphetamine. Rodriguez’ motion to suppress that evidence was overruled by the trial court, and the trial court’s decision was upheld by the Eighth Circuit Court of Appeals. Rodriguez appealed to the United States Supreme Court.

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Steven Anderson was drunk when he passed out on a rural highway. He was wearing dark clothing and went to sleep on the dark road around 1:00 am. There were no street lights in the area, and he was lying where there is a bend in the road. Darryl Saunders was drunk when he came driving around that bend. When he finally saw Anderson lying in the road, Saunders swerved to avoid him, but it was too late. He ran over Anderson, and Anderson died. Saunders’ blood alcohol concentration was tested at .150. Is Saunders criminally responsible for killing Anderson?

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No, according to the judge who heard this case in Manitoba, Canada. The prosecutor argued Saunders could have avoided the collision if he were sober, so his intoxication was a significant cause of Anderson’s death. In addition, the prosecutor claimed, police testified it was not uncommon for intoxicated people to pass out on the street, so Saunders should have been on guard for drunks sleeping on the road.

The judge disagreed. He said, “On the contrary, one can easily imagine a scenario where just such an accident may occur in these circumstances without any impairment of the driver.” The Judge went on to say, “Ultimately, while I believe Mr Saunders’ impairment…likely or probably was a contributing cause to the accident, I cannot conclude beyond a reasonable doubt that it in fact was a contributing cause, let alone a significant cause.” The judge found Saunders not guilty of causing Anderson’s death but convicted Saunders of drunk driving. A report of the case is on the website for the Winnipeg Sun.

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Sometimes rules are not made to be broken. When it comes to cases of alleged driving under the influence, there are rules for drivers, and there are rules for the government. When a driver breaks the rules, there are consequences. There are also consequences when the government breaks the rules. When the broken rules relate to blood tests, the blood tests cannot be used as evidence.

The rules for DUI/OVI blood testing are found in the Ohio Revised Code and the Ohio Administrative Code. Section 4511.19 of the Ohio Revised Code states blood tests must be analyzed in accordance with methods approved by the Department of Health. The methods approved by the Department of Health, the ‘rules’, are regulations in chapter 3701-53 of the Ohio Administrative Code. For a blood test to be admissible, law enforcement must substantially comply with the Department of Health regulations. Two recent appellate cases illustrate law enforcement’s failure to comply with the regulations.

http://www.dreamstime.com/royalty-free-stock-photo-blood-test-hand-latex-glove-holding-sample-vial-front-form-image37079485The first case is State v. McCall. The regulation at issue in McCall requires blood specimens to be collected in a container which contains a solid anticoagulant. The arresting officer checked a box on a checklist indicating the container had a solid anticoagulant. When questioned, however, the officer admitted he did not know if there was anything in the container. In addition, the phlebotomist who performed the blood draw testified she did not observe anything in the container and just assumed there was an anticoagulant in it. The trial court suppressed the blood test, and the court’s decision was upheld by the Court of Appeals because the prosecution failed to prove substantial compliance with the regulation requiring a solid anticoagulant.

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