Columbus OVI/DUI Attorney Blog

Interpreting Ohio’s DUI/OVI sentencing law can be complicated. The sentencing statutes take up many pages in the Ohio Revised Code (O.R.C.), and appellate courts have issued many decisions interpreting those statutes. One issue which has led to confusion is how a court is supposed to sentence a defendant convicted of felony OVI and a ‘repeat offender specification’. This issue is complicated enough that different appellate courts in different districts of Ohio have reached different conclusions. The Ohio Supreme Court recently acknowledged the conflict among the appellate courts and issued a decision which resolves the conflict and establishes one rule for the entire state.

Judge confused or angry

In State v. South, the defendant was convicted of third-degree felony OVI and was also convicted of the repeat offender specification. The trial court sentenced the defendant to five years in prison for the felony OVI and three years in prison for the repeat offender specification. The trial court considered both prison terms ‘mandatory’ and ordered that the prison terms run consecutively, for a total of eight years. The trial court’s decision was appealed to the Ninth District and ultimately the Ohio Supreme Court. The issues decided by the Ohio Supreme Court were: (1) in this situation, what is the maximum prison term for a third-degree felony OVI; and (2) whether the prison term for the felony OVI is mandatory.

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Issue 3 went up in smoke last week, so it’s still illegal to use marijuana in Ohio.  It’s also illegal to operate a vehicle under the influence of marijuana or with a prohibited level of marijuana metabolite in one’s urine.  The last article in this blog addressed the duration of marijuana’s effects and the duration of marijuana’s detectability.  The conclusion was marijuana effects last for two hours to five hours, but marijuana metabolites are detectable in urine for up to five weeks.  With that backdrop, this article discusses whether Ohio’s DUI/OVI marijuana laws are Constitutional.

Marijuana and gavel

The part of Ohio’s OVI law with the most significant Constitutional problem is the part which prohibits driving with marijuana metabolites in one’s urine.  Ohio Revised Code section 4511.19(A)(1)(j)(viii)(II) says no person shall operate a vehicle with a concentration of at least thirty-five nanograms of marihuana metabolite per milliliter of the person’s urine.  A person may be punished for violating this law even though the person’s ability to drive is not at all impaired.

One principle of Constitutional Law is a law should not punish a person based on the person’s status.  A case illustrating this principle is Robinson v. California.  In that case, the defendant was convicted of a California law which made it a crime to be addicted to a narcotic.  The United States Supreme Court held the law was Unconstitutional:  it violated the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’.  The court made two relevant observations.  First, the status of ‘narcotic addiction’ could subject a defendant to repeated arrests.  Second, a defendant could be punished for being an addict in the state of California even though he did not possess or consume a narcotic in that state.

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Next week, Ohioans will vote on Issue 3:  a state constitutional amendment to legalize marijuana for medicinal and personal use*.  If marijuana use is legalized in Ohio, more drivers will face charges of operating a vehicle under the influence of marijuana.  Ohio’s OVI-marijuana laws raise many questions:  How long does a marijuana high last?  Does marijuana impair driving ability?  Do blood and urine test results correlate with impaired driving ability?  Are Ohio’s OVI-marijuana laws Constitutional?  This article addresses the first question by discussing the duration of marijuana effects.

Urine test positive for THC

The psychoactive ingredient in marijuana is THC (tetrahydrocannabinol).  THC is what makes a person ‘high’.  Whether smoked or eaten, when THC enters the body, it is broken down (metabolized) quickly, either in lungs or stomach.  When this metabolism occurs, metabolites are produced.  A metabolite is any substance produced during metabolism:  what remains after a drug is ‘broken down’.

As marijuana is metabolized when it enters the body, it is laughable that Ohio law prohibits operating a vehicle with a prohibited concentration of “marihuana”.  There will never be Ohio OVI cases with blood or urine tests showing a concentration of “marihuana” because blood and urine tests do not identify or measure “marihuana”.  Instead, they identify and measure THC metabolites.

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Even someone with a poker face gives a lot of information to others through facial features. I learned this in Vegas, but not at a poker table: I learned it at the 2015 Las Vegas DUI seminar presented by the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL).

The annual seminar is titled “DWI Means Defend With Ingenuity”, and this year’s magic-show theme was “Secrets Revealed: Overcoming The Illusion Of Guilt”. The presentations included “Techniques For Making Judicial Bias Vanish”, “Magical Techniques And Strategies To Win”, and “Pulling Back The Curtain: Overcoming Biased Prosecutorial Practices”. The seminar featured some of the best DUI lawyers and experts in the country and took place at one of the best hotels in the country: Bellagio Las Vegas.

WP_20151001_010The most novel part of the seminar was Mac Fulfer’s presentation on face reading. Fulfer practiced law for 22 years but now runs face reading workshops. According to Fulfer, examination of a person’s face can reveal information about personal history, personality, and preferences. Fulfer is not talking about interpreting facial gestures. Instead, he is reaching conclusions from facial features such as the shape of the nose, the slant of the forehead, and the curvature of the mouth.

When I saw the topic, I thought face reading sounds like quackery on par with fortune telling.  Fulfer, however, explained the science behind face reading, based primarily in genetics.  Genes work in concert with other genes and share multiple functions.  The genes responsible for personality, preferences, and processing information are also involved in shaping the features of our faces.  Facial features change with time, so our faces are a combination of genetics and life experiences  (now I understand how teen-agers cause parents’ faces to wrinkle).

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I’m traveling to another state for a seminar next week. It just so happens the state is Nevada, and the seminar is in Las Vegas. For me, there is no risk of being convicted of DUI in Nevada because the trip is all about education! Sometimes, however, an Ohio driver comes home with the unwanted souvenir of an out-of-state DUI conviction. When it comes to DUI, what happens in Vegas does not stay in Vegas: there are consequences in Ohio for a DUI conviction in another state.


The consequence in Ohio for an out-of-state DUI conviction is suspension of the person’s Ohio driver license. Another state cannot suspend an Ohio driver’s license. Instead, if that state is part of the Interstate Driver License Compact, that state transmits to the Ohio Bureau of Motor Vehicles (BMV) information that the Ohio driver was convicted of DUI in the other state. The Ohio BMV then takes action against the person’s Ohio driver’s license according to Ohio law.

Ohio law instructs the Ohio BMV to impose a license suspension on any person who is convicted of DUI in another state. Ohio Revised Code 4510.17 states the suspension shall be a ‘Class D’ suspension, which means the suspension is six months. When the BMV receives the report from the other state, the BMV sends a notice to the driver indicating his or her driver license will be suspended beginning 21 days after the day the notice was issued.

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One of the most frequently asked questions for criminal defense attorneys is about the impact of Miranda warnings. A previous article in this blog explained the holding of the Miranda case. After the publication of that article, the United States Supreme Court decided a Miranda-related case which affects investigations in Ohio DUI/OVI cases.


The case of Salinas v. Texas came in a bit under the radar. This Supreme Court decision regarding the protection against self-incrimination did not receive much media attention, and I did not hear it discussed much among lawyers at the courthouses. Although it was not widely publicized, Salinas could have an impact in Ohio DUI/OVI cases.

To understand the significance of Salinas, one must first understand Miranda v. Arizona. The holding of the Miranda case seems to be one of the most misunderstood aspects of American criminal justice. As explained in this blog’s 2012 article (“But The Officer Never Read Me My Rights”), the holding of the Miranda case is this: if a suspect is questioned while in custody, the suspect’s statements are not admissible in court unless the officer gives Miranda warnings. Another result of Miranda is this: if a suspect chooses to remain silent, the prosecution cannot comment on the defendant’s silence at trial.

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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.

Lawyers speaking with judge

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 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.


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  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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