Columbus OVI/DUI Attorney Blog

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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Ohio has several variations of what is commonly known as vehicular homicide. Generally, vehicular homicide is causing the death of another person while operating a vehicle. In the Ohio Revised Code, there are actually three separate offenses: (1) Aggravated Vehicular Homicide; (2) Vehicular Homicide; and (3) Vehicular Manslaughter. The offenses defined in the Ohio Revised Code are distinguished by the driver’s conduct (actus reus) and the driver’s state of mind (mens rea). The particular offense with which a defendant is convicted makes a substantial difference in the sentence imposed by the court.

Defending DUI Vehicular Homicide Cases book cover

Aggravated Vehicular Homicide can be committed in one of three ways. The first way is causing the death of another person as a result of operating a vehicle under the influence of alcohol or drugs. The second way is causing the death of another person as a result of operating a vehicle recklessly. The third way is causing the death of another person as a result of committing a Reckless Operation offense in a construction zone.

The sentence for Aggravated Vehicular Homicide in Ohio depends on how the offense is committed. If a person is under the influence of alcohol or drugs, the offense is a second degree felony carrying a mandatory prison sentence of up to eight years and a mandatory lifetime driver’s license suspension. If a person is reckless or commits a Reckless Operation offense in a construction zone, the offense is a third degree felony carrying up to five years in prison and a driver’s license suspension from three years to life. If certain factors exist, the offense level and potential sentence are increased.

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‘Best in the Midwest’ has become one of the slogans associated with the annual DUI/OVI seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). A speaker from another state poked fun at the slogan by asking, “isn’t this the only DUI seminar in the Midwest?” I’m sure there are plenty of other DUI seminars in the Midwest, but this is the only one I know of which is nationally recognized and approved for credit from the National College for DUI Defense (NCDD) and the national DUI Defense Lawyers Association (DUIDLA). The seminar is two-and-a-half days and draws speakers and attendees from around the country. Whether it’s the best or not, the seminar held last week in Columbus was outstanding.

OACDL 2015 DUI seminar brochure page 1The seminar’s theme this year was ‘trying cases post-Ilg’. State v. Ilg is the breath-testing case decided recently by the Ohio Supreme Court. In that case, the Court reiterated a defendant in an OVI case has the right to challenge the accuracy of the specific breath test result in his or her case. Ilg clarified the holding of State v. Vega, which had been subject to misinterpretation for the last 30 years.

Thursday’s presentations focused on scientific issues in OVI cases. Thomas Workman from Massachusetts discussed breath test data, explaining what data is maintained, what data is not being provided to defendants, and what should be done about it. Pharamacologist/statistician Robert Belloto and attorney Andrew Bucher presented a scientific and statistical assessment of the Drug Recognition Evaluation program. There was also a panel of judges discussing State v. Ilg and breath test challenges at trial. It was interesting to hear the different interpretations of Ilg and various predictions about the future of breath-testing litigation in Ohio OVI cases.

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In September of 2014, CW was driving his motorcycle in northwestern New York and collided with another motorcycle. A police officer responded to the accident scene and reportedly noticed the odor of alcohol on CW. The officer asked CW to take a breath test, and CW refused. The officer ultimately obtained a blood sample from CW and charged him with DWI (known as OVI in Ohio). The officer then sent the blood sample to be tested. The test revealed a blood alcohol content of 0.00. Last week, five months after CW was charged with DWI, the case was finally dismissed, as reported by the Genesee Sun.

Blood draw

If this case occurred in Ohio, it would have likely gone through the same process. When an officer in Ohio suspects a driver is under the influence, the officer requests a breath test, blood test, or urine test. In cases where a blood test or urine test is used, the results of the test are not immediately known to the officer. Despite not having the test results, officers routinely charge people with OVI immediately after the blood or urine sample is obtained. The blood or urine sample is then sent to a laboratory for analysis, and the analysis typically is not completed until weeks or months after the person is charged.

In cases involving blood/urine tests, there are two types of OVI charges which may be filed. First, the suspect is charged with OVI ‘impaired’. The ‘impaired’ charge accuses the suspect of operating a vehicle with driving ability impaired by alcohol and/or drugs. The ‘impaired’ charge is not dependent on the results of a blood/urine/breath test. Second, if the test results show an alcohol or drug level at or above the prohibited concentration (the ‘legal limit’), the suspect is charged with OVI ‘per se’. The ‘per se’ charge accuses the suspect of operating a vehicle with a prohibited alcohol or drug level. The ‘per se’ charge does not depend on whether suspect’s ability to drive was impaired.

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