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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December 28, 2013

DRIVING WITH A HANGOVER: AS DANGEROUS AS DRIVING DRUNK?

Everyone knows that driving under the influence of alcohol is dangerous. It impairs our vision, increases our reaction time, and makes it challenging to estimate the distance between us and other drivers or objects on the road. Few people, however, consider the danger of driving under the influence of a hangover the day after a night of heavy drinking. Most people think, 'the alcohol level in my blood is lower than the legal limit, so it is safe to drive'. Think again. Two recent studies have shown that driving with a hangover is nearly as dangerous as driving under the influence of alcohol.

Hangover man after party.jpgTwo separate research teams, one at the University of the West of England, and one at the Utrecht University (Netherlands), conducted studies to determine how operating a vehicle with a hangover affects our driving skills.

For the English study, participants drank to excess the night before, then drive on a closed course for 20 minutes. Researchers made sure that the course had both rural and urban settings and the road simulation test included a number of common driving hazards. The goal of these driving obstacles was to simulate the environment that drivers may encounter during their morning commute.

According to the researchers, hung over drivers displayed significant increases in shifting driving positions, driver errors, slowed reaction times, and speed variations. The study concluded that, while the alcohol may have cleared out of the driver's system, the driver is still prone to making some of the same mistakes that someone would make under the influence of alcohol.

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December 7, 2013

IS OHIO'S IMPLIED CONSENT LAW FOR DUI/OVI UNCONSTITUTIONAL?

A recent vehicular homicide case in Wisconsin triggers the question of whether Ohio's implied consent law is constitutional. In that case, a former Lutheran bishop is accused of what Ohio calls Aggravated Vehicular Homicide; causing the death of another person by operating a vehicle under the influence. The bishop was told that he would lose his license if he did not consent to a blood test, so he submitted to the test. His attorney argued that the threat of a license suspension amounts to coercion, and that makes the implied consent law unconstitutional. In Ohio, this issue has been decided.

Blood draw.jpgOhio's implied consent law says that anyone who operates a vehicle in the state of Ohio implicitly consents to take a blood/breath/urine test for alcohol and/or drugs if the driver is arrested for DUI / OVI. The arresting officer is required to advise the driver of the consequences of taking or refusing the chemical test. Like Wisconsin, one consequence of refusing the test in Ohio is suspension of the person's driver's license (called an 'Administrative License Suspension' - 'A.L.S.'). For a first refusal, the license suspension is one year. For repeated refusals, the license suspension increases, up to five years.

The constitutional issue involved is the driver's right to due process of law. The fifth and fourteenth amendments to the Constitution say no person shall be "deprived of life, liberty, or property without due process of law". People have a property interest in their driver's licenses, so a license cannot be suspended without due process. Due process in this context means the driver must be given notice of the suspension and must also be given a hearing on the suspension at a meaningful time and in a meaningful manner.

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November 23, 2013

DRIVER'S LICENSE SUSPENDED FOR INABILITY TO URINATE ON CUE

Imagine that you are arrested for DUI (called OVI in Ohio), and the officer takes you to a police station to take a urine test. You want to comply, because you're sure the test will prove you are under the legal limit, but you don't need to go. In fact, you can't go. You drink a bunch of water and wait a while, but you still can't go. The officer then says you refused the urine test, so your driver's license is suspended for one year.

Urination handstand.jpgThat's what happened in State v. Brown, a case decided last week in an Ohio Court of Appeals. In that case, Brown first took a breath test, and the result was 0.00. The officer likely suspected that Brown was under the influence of a drug other than alcohol, so the officer asked Brown to submit a urine sample. Brown agreed, drank several glasses of water, and attempted to provide a urine specimen four or five times but was unable. The officer seized Brown's license and placed him under a one-year driver's license suspension for 'refusing' the urine test.

Officers are authorized to suspend a driver's license, on behalf of the Ohio Bureau of Motor Vehicles, if a driver is arrested for DUI/OVI and refuses to submit to a breath/blood/urine test. A driver's license can also be suspended if a driver submits to the test and the result is over the legal limit. These suspensions are called 'Administrative License Suspensions' (A.L.S.) and are separate from the sentence that is imposed if the driver is found guilty of DUI/OVI. The A.L.S. can be appealed, and the trial court has the authority to terminate the A.L.S.

Brown did appeal his A.L.S., and the trial court held a hearing on his appeal. For this type of hearing, the burden is on the defendant to prove he did not refuse the test. At the hearing, the arresting officer acknowledged that Brown apparently "was not refusing the urine specimen", and "it was very apparent to me that he was trying but just could not produce." Nevertheless, the trial court concluded that Brown failed to prove he did not refuse the test, so the one-year suspension remained.

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November 9, 2013

DUI / OVI IN OHIO JUVENILE COURTS

I recently represented a client for a DUI / OVI in a juvenile court near Columbus, Ohio. The case went to trial, and I was sharing my experience with a colleague. The colleague happened to be coordinating a DUI / OVI seminar for the Columbus Bar Association, and he asked me to speak at the seminar on the topic of handling DUI / OVI cases in juvenile court. The topic is a good one because most attorneys do not regularly represent clients for DUI / OVI in juvenile court, and there are some differences between juvenile cases and adult cases.

Juvenile DUI.gifOne issue that comes up in juvenile DUI / OVI cases that does not really come up in adult DUI / OVI cases is venue: where the case will be heard. There seems to be some misunderstanding about the juvenile's ability to transfer the venue. Ohio law says the complaint (the traffic ticket) may be filed either in the county of the juvenile's residence or the county where the offense occurred. If the ticket is filed in the county where the offense occurred, it can only be transferred to the county of the juvenile's residence if the judge authorizes it. Even then, either judge can order that the trial be held in the county where the offense occurred. There is a little-used paragraph of Juvenile Rule 11 that says the case must be transferred if the juvenile has a pending case in the county of the juvenile's residence. So, if you want the case to be heard in the county of the juvenile's residence, simply have the juvenile get charged with a minor offense like littering in his home county!

Another issue that is unique for juveniles and drivers under age 21 is the level of proof required to arrest the driver for DUI / OVI. As the 'legal limit' for drivers under 21 (.02) is lower than the limit for drivers over 21 (.08), the question becomes whether officers need less evidence of intoxication to justify arresting a driver under 21. The answer depends on where the case is being heard. Ohio has 12 appellate districts. Some of those appeals courts say less evidence is required, some of them say the same level of evidence is required, and some of them have not addressed the issue.

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October 19, 2013

MARGIN OF ERROR IN OHIO DUI/OVI ALCOHOL TESTS

From your bathroom scale to a police officer's laser gun, every measurement device has a margin of error. For a device to be considered reliable, the margin of error must be known (and should be small!). In a recent Ohio DUI / OVI case, the court decided the admissibility of test results from a device with an unknown margin of error.

The case is State v. Butler. Gas chromatograph.jpgA police officer arrested Butler for DUI / OVI, and Butler provided a urine sample for an alcohol test. The urine sample was tested on a gas chromatograph (pictured) at the county crime lab, and the result was .113. For the defendant to be found guilty of DUI / OVI 'per se' in Ohio, the prosecutor has to prove the defendant's urine alcohol concentration was at or over .110. That means Butler's alcohol level was four one-thousandths of one gram too high, so the accuracy of the test result is critical.


Butler's attorney filed a motion to suppress the urine test based on its lack of scientific reliability, and the attorney asked the crime lab analyst a good question: What is the scientific accuracy of the urine test? The lab analyst said, "There is no method in place to calculate any type of uncertainty of the results." The analyst went on to testify that it is possible to determine the "degree of uncertainty" in the urine test results, but the crime lab just doesn't do it.

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October 11, 2013

THE RECIPE FOR SUCCESS IN DUI/OVI TRIALS

Last week, I attend the annual DUI seminar presented by the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL). I attend the seminar nearly every year, mostly because it's a great seminar, and partly because it's held in Las Vegas. Before this year's seminar, I decided I would do something different. Although it violates the rule about what happens in Vegas, I'm sharing it here.

Red Rock Canyon.jpgBefore the seminar, I decided I would spend a little less time in the casinos and a little more time in nature. I rented a car, researched hiking opportunities, downloaded hiking trails, and planned a day trip at the Red Rock Canyon National Conservation Area. Then, the federal government shut-down began one day before my trip to Red Rock. It was like the movie Vacation when the Griswold family arrived at Wally World to find out it was closed. There were park rangers at the park entrances turning people away because there were no funds to pay the park rangers. The irony, of course, was that the rangers were working to tell people the park was closed. So, I found a nearby state park and was able to hike in Red Rock Canyon after all. The scenery was great, and the hike was memorable.

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September 28, 2013

OHIO TRAFFIC CASES AND SEALING/EXPUNGEMENT OF RECORDS

As a DUI/OVI attorney, I am frequently asked if a person can seal/expunge records for DUI/OVI offenses and other traffic offenses. The answer is "no": Ohio Revised Code section 2953.36 says the records for DUI/OVI convictions and other traffic offense convictions cannot be sealed. Therefore, a conviction for DUI/OVI or other traffic offenses is a permanent record.

Strange but true: a person convicted of a felony drug offense can have the record sealed, but a person convicted of a misdemeanor DUI/OVI offense cannot. In addition, a DUI/OVI conviction counts as a 'prior conviction' when determining if a person is eligible to have a criminal conviction sealed.

The issue of traffic offenses and a person's eligibility for having records sealed was the subject of last week's Ohio Supreme Court decision in State v. Pariag.

In that case, the defendant was pulled over for a traffic offense, and the officer found marijuana and drug paraphernalia in the car. Pariag was charged with Driving Under Suspension, Marijuana Possession, and Drug Paraphernalia Possession in the Franklin County Municipal Court. The defendant pled guilty to Driving Under Suspension, and the drug charges were dismissed. Over the prosecutor's objection, the defendant had the records sealed for the dismissed drug charges. The prosecutor appealed to the Tenth District Court of Appeals, and the Court of Appeals affirmed the trial court's decision to seal the records. The prosecutor appealed to the Ohio Supreme Court.

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September 21, 2013

DEFICIENT FIELD SOBRIETY TESTS ARE INADMISSIBLE IN OHIO DUI/OVI CASES

Standardized field sobriety tests (SFSTs) are administered in nearly every DUI/OVI case in Columbus and central Ohio. A previous post in this blog analyzed the standard for admitting the tests as evidence in court: the SFSTS must be administered in substantial compliance with the officers' training manual for the tests to be admissible. A recent case in an Ohio appellate court applied that standard and concluded the tests were not admissible in Middleburg Heights v. Gettings.

Walk and turn photo.jpgIn the Gettings case, a trooper stopped the defendant for weaving and observed the "usual trilogy" of signs that the defendant was under the influence: the odor of alcohol, slurred speech, and bloodshot/glassy eyes. The trooper administered a 'condensed' horizontal gaze nystagmus (follow the pen with your eyes) test, then had Gettings get out of the car. The trooper then administered all three standardized field sobriety tests, despite the defendant's knee problems. The trooper arrested the defendant, and the defendant blew over the high-test limit on a breath test. In court, the defendant filed a motion to suppress the field sobriety tests and also argued that the trooper did not have justification to arrest him. The judge overruled both motions.

The appellate court saw things differently. By filing the motion, the defendant put the burden on the prosecution to prove the field sobriety tests were administered in substantial compliance with the SFST manual issued by the National Highway Traffic Safety Administration (NHTSA). At the hearing on the defendant's motion, the prosecutor did not elicit any testimony from the trooper regarding the trooper's training in SFSTs, did not introduce the NHTSA manual as evidence, and did not even ask the trooper any details about how the tests were administered. The prosecutor simply asked the trooper if the tests were performed in compliance with the NHTSA manual, and the trooper said they were.

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