Columbus OVI/DUI Attorney Blog

Articles Posted in DUI/OVI Constitutional issues

Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.

Refusal talk to the hand

The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.

 

Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A][2]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.

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Ohio takes drivers’ licenses before a person is found guilty of DUI/OVI.  If a person is arrested for DUI/OVI and tests over the limit, or refuses to test, that person’s license is suspended immediately.  No judge reviews the circumstances beforehand to determine if the suspension should be imposed.  Instead, the executive branch of the government takes the driver’s license automatically.

It’s called an Administrative License Suspension (ALS).  The suspension is considered a ‘civil’ (not criminal) action, and it is imposed independent of the traffic ticket charging the person with OVI.  Ohio’s administrative license suspension is similar to other states’, including Florida.

Handing driver license to officer
Florida’s administrative license suspension is currently the subject of a class action lawsuit which alleges the ALS is unconstitutional.  The plaintiff seeks damages exceeding $50 million from the Florida Department of Highway Safety and Motor Vehicles, according to this report from Click Orlando.  The plaintiff claims the failure to have a judicial officer review the propriety of the license suspension violates the Due Process clause of the 14th Amendment.

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Four months after Brittany was arrested and charged with OVI, the government charged her with a second count of OVI. In November, Brittany was arrested for OVI. On the day of her arrest, she submitted a urine sample, and she was charged with OVI. Three weeks later, the urine sample was analyzed, and the result was provided to the police department. In March, four months after the arrest, the police department charged Brittany with a second count of OVI based on the result of the urine test. Isn’t that a violation of her right to a speedy trial?

Alarm clock

That question was answered last week in State Of Ohio v. Brittany Wieland. This issue has been addressed by different Ohio courts of appeals but has never been directly addressed by the Ohio Supreme Court. The Ohio appellate courts have reached different conclusions because the issue is not simple. The situation involves two OVI charges and two types of speedy trial rights.

The two different OVI charges involved in this case are OVI ‘impaired’ and OVI ‘per se’. For the charge of OVI ‘impaired’, the government must prove the defendant’s ability to drive was impaired by alcohol. For the charge of OVI ‘per se’, the government must prove the concentration of alcohol in the defendant’s urine exceeded .109 (the equivalent of .08 in blood).

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The Miranda warnings are well-known:  “you have the right to remain silent….”  What is not so well-known is when the Miranda warnings are required.  According to Miranda v. Arizona, the warnings must be given when a suspect is questioned while ‘in custody’.  If a suspect is in custody and the warnings are not given, statements made by the suspect cannot be used in the suspect’s trial.

Suspect and officer outside cruiser

In an OVI case, a suspect may tell an officer, “I had 13 beers, and I know I shouldn’t be driving”.  If the suspect was in custody at the time of making that statement, the statement is never heard by the jury if the Miranda warnings are not given.  For Ohio OVI cases, the question often is this:  when is a person ‘in custody’ for purposes of Miranda?

This question was first addressed by the United States Supreme Court in Berkemer v. McCarty.  In Berkemer, the defendant was stopped for a traffic violation and investigated for DUI.  During the investigation, but before the arrest, the defendant made incriminating statements.  The court held Miranda warnings are required for misdemeanor offenses if a suspect is questioned in custody.  The court concluded a person is not in custody during a routine traffic stop, but treatment by the officer after the stop may render a person in custody.

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An appellate case decided earlier this month illustrates how not to attack the constitutionality of a law.  In the case of State v. Topolosky, the Tenth District Court of Appeals upheld Ohio’s DUI/OVI marijuana law.  Coincidentally, just before the case was published, I wrote about this topic in this blog, and I spoke about this topic at two seminars.  The defendant in Topolosky did essentially the opposite of what I suggested in the blog and presentations.  The defendant used an argument destined to fail…with bad timing…without an expert witness.

Pizza half baked

The argument destined to fail was the argument that the law violates the defendant’s rights to due process and equal protection.  This argument was destined to fail because, unless a suspect classification or fundamental right is involved, the law is judged using the ‘rational basis test’.  With this test, the law will only be considered unconstitutional if the law has no rational relationship to a legitimate government interest.

 

When courts apply the rational basis test, it is incredibly rare for a law to be held unconstitutional.  Using the rational basis test, another Ohio appellate court had already upheld the OVI marijuana ‘per se’ law in State v. Schulz.  It is no surprise the Court of Appeals in Topolosky upheld the same law using the same rationale.

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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 marijuana 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 “marijuana”.  There will never be Ohio OVI cases with blood or urine tests showing a concentration of “marijuana” because blood and urine tests do not identify or measure “marijuana”.  Instead, they identify and measure THC metabolites.

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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.

Interrogation

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 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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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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