Yes, I saw Carlos Santana perform at the House of Blues.  It’s true, I rented a convertible Mustang.  I admit I hiked a breath-taking trail in Red Rock Canyon.  I also acknowledge I enjoyed the luxury of Bellagio and saw amazing views from the High Roller.  However:  the primary purpose of my trip to Vegas was to learn more about DUI/OVI defense.

Photo of NCDD seminar name tag at Bellagio

I recently attended the annual ‘DWI Means Defend With Integrity’ seminar.  The seminar is co-sponsored by the National College for DUI Defense and the National Association of Criminal Defense Lawyers.  It’s held in Las Vegas each year at the end of September or beginning of October; not a bad time to be in Vegas.  The location has historically been Caesar’s Palace, but for the last two years, the seminar has been held at Bellagio.  This year marks the 20th anniversary for the seminar, and I have attended for about 15 years.


This is a great seminar.  The speakers are some of the best DUI lawyers and experts from around the nation.  I have been practicing since 1997, and I have been focusing on DUI/OVI defense since 2002.  I feel like I have developed a bit of expertise in this area.  When I attend this seminar, however, I always learn more.  Hearing from the seminar faculty helps me avoid the limiting comparisons of my local market and allows me to benchmark against world class attorneys.  It also adds to my box of tools for winning.

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Until a few days ago, the scope of driving privileges for Ohio DUI/OVI suspensions was very limited.  A parent on limited driving privileges was not permitted to drive children for extra-curricular activities.  A person on limited driving privileges was not allowed to drive to care for elderly parents.  A person on limited driving privileges could not drive to AA or counseling unless it was court-ordered.  That changed last week, when the state legislature revised Ohio law for limited driving privileges.

Statehouse with Ohio flag

The revised law is Ohio Revised Code section 4510.021.  That section authorizes courts to grant limited driving privileges for driver license suspensions, including DUI/OVI suspensions.  The last time the statute changed was 2004.  Before 2004, the law only provided for occupational driving privileges.  In 2004, the statute was revised to expand driving privileges, authorizing privileges for the following purposes:

•    Occupational, educational, vocational, or medical purposes;
•    Taking the driver’s or commercial driver’s license examination;
•    Attending court-ordered treatment.

The most recent change to the law, in September of 2016, further expands the permissible scope of limited driving privileges.  The statute still lists the purposes above and now adds the catch-all phrase, “Any other purpose the court determines appropriate”.

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The last entry in this blog discussed lesson number one for appealing an Ohio Administrative License Suspension (A.L.S.).  The lesson came from a recent appellate case.  That lesson was for defense lawyers, and it was simple:  file the appeal on time.  This entry discusses lesson number two, which also comes from a recent appellate case.  This lesson is for courts, and it is also simple:  follow the law.

Scales of justice half

The government cannot take property without due process of law.  Due process of law includes an opportunity to be heard (a hearing) at a meaningful time and in a meaningful manner.  With an A.L.S., the executive branch of government takes property from an individual by suspending the individual’s driver’s license.  Therefore, the individual is entitled to a meaningful hearing at meaningful time.  The most meaningful time for the hearing would be before the license suspension is imposed.  However, the Ohio Supreme Court held the A.L.S., with a post-suspension hearing, is not unconstitutional.

What keeps the A.L.S. from being unconstitutional is mainly the procedures found in Ohio Revised Code (O.R.C.) section 4511.192.  That statute includes the following requirements:

•    The officer must advise the individual of the consequences of taking or refusing a chemical test, using a form (BMV form 2255).
•    The officer’s advice must be witnessed, and the witness must sign the form.
•    The officer must write on the form the officer’s reasonable grounds to believe the individual was under the influence.
•    The officer must notify the individual of the suspension and the individual’s right to appeal the suspension.
•    The officer must sign the form, and the form must be sworn.
•    The officer must give a sworn copy of the form to the individual.
•    The officer must send copies of the form to the court and the BMV within 48 hours of the individual’s arrest.

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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 lesson number one for appealing 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.

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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.


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.

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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.

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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.

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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.

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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.
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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, 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. *

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