Articles Posted in DUI/OVI enforcement

Joe was arrested for DUI / OVI, and the officer had Joe take a breath test and a urine test.  The breath test showed an alcohol level under Ohio’s limit, and the urine test showed an alcohol level over Ohio’s limit.  Based on the urine test result, Joe was prosecuted for operating a vehicle with a prohibited concentration of alcohol in his system.  Should Joe be found guilty of OVI?

Test-results-300x220This scenario is not hypothetical:  “Joe” was my client.

Joe came to the attention of the officer because one of Joe’s headlights was out.  The officer turned around to follow Joe and reportedly observed Joe’s tire go over the lane line one time.  The ‘marked lanes’ violation was not recorded on video, although the remainder of the incident was.

The officer stopped Joe and noticed the odor of alcohol.  When asked, Joe explained he went to a wings restaurant and had a few beers with dinner.  The officer administered field sobriety tests, and Joe’s performance on the tests was good but not great.  The officer arrested Joe and took him to the police station.

A Tale Of Two Tests
At the police station, the officer asked Joe to submit to a breath alcohol test.  Joe gave a sample of his breath, and the breath-testing-machine produced a result of .069 (grams per 210 liters of breath);  under Ohio’s limit of .080.  The officer had Joe provide a urine sample because the officer had a hunch Joe smoked marijuana.

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Hangover-man-after-party-300x210‘Tis the season for holiday parties. ’Tis also the season for DUI/OVI arrests (in Ohio, it’s called OVI). From Thanksgiving Eve (‘blackout Wednesday’) to New Year’s Day, officers are particularly ambitious about enforcing Ohio’s drunk driving laws this time of year.

But OVI convictions can be avoided. The first five recommendations below may help you avoid getting arrested and charged with OVI. If you get arrested anyway, the second five recommendations may help you avoid getting convicted of OVI and having that OVI conviction on your permanent record.

If You Want To Avoid Getting Arrested
10. Make a plan and stick to it. I can’t tell you how many times a client has told me they were not planning on driving that night, but circumstances changed, and they ended-up driving home. If you know you are going to drink alcohol, plan to wait to drive until the alcohol won’t affect your driving, or arrange alternate transportation. If circumstances change, don’t ‘end-up driving home’: call a cab or use a ride-sharing program like Uber or Lyft.
Bonus tip: ‘I was the most sober one of the group’ is not a valid defense!

9. Avoid driving during ‘drunk time’. In the minds of many police officers, the only people driving between 1:00 am and 3:00 am are police officers and drunks. If you are not driving a cruiser, some officers are going to presume you’ve been drinking and look for a reason to pull you over.

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Over 20,000 DWI cases in New Jersey are being called into question due to problems with the recalibration of breath-testing machines.  According to New Jersey 101.5, Sgt. Marc Dennis skipped a critical step each time he recalibrated the machines.  Plaintiffs in a class-action lawsuit now seek to vacate thousands of convictions in which evidence was produced by those breath-testing machines.  Although this debacle occurred in New Jersey, it illustrates the importance of properly maintaining breath-testing machines in Ohio DUI/OVI cases.

Simulator

In Ohio DUI/OVI cases, there is a distinction between a calibration and a calibration check.  When breath-testing machines are built, the machines must be ‘taught’ to identify and quantify alcohol (ethanol).  That ‘teaching’ process is a calibration.  As a machine is being used by a law enforcement agency, the agency periodically runs a test to confirm the machine produces accurate results.  The test is done using a simulator like the one pictured here.  That periodic test is a calibration check.

Calibration checks, also referred to as ‘instrument checks’, are done at least once per week in Ohio.  The weekly instrument checks are conducted by the law enforcement agency which owns and/or operates the breath-testing machine.  Some agencies assign the responsibility to one officer, and, in other agencies, multiple officer share the responsibility of conducting weekly instrument checks.

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Today’s report regarding the conduct of a forensic scientist employed by the state of Ohio demonstrates the danger of the government enforcing laws without effective checks and balances.  Forensic scientist G. Michele Yezzo worked for over 30 years as a laboratory technician for the Ohio Bureau of Criminal Investigation (BCI).  During that time, she analyzed evidence in criminal cases and testified in court regarding those analyses.  The feature story in The Columbus Dispatch says she now, “stands accused of slanting evidence to help cops and prosecutors build their cases.”

http://www.dreamstime.com/royalty-free-stock-photo-blood-test-hand-latex-glove-holding-sample-vial-front-form-image37079485According to the newspaper report, the BCI employee stretched the truth in her analyses to satisfy law enforcement.  She even reportedly went so far as asking police officers “What do you need the evidence to say?”  Her work as a government scientist led to hundreds of criminal convictions, including serious cases involving murder and rape.  This forensic scientist’s lack of credibility calls many of those convictions into question.  It also brings attention to the issue of forensic testing in Ohio DUI/OVI cases.

In Ohio OVI cases, forensic testing at crime labs is used to detect and measure alcohol and drugs in blood and urine samples.  If a driver is arrested and the officer suspects the driver is under the influence of alcohol and/or drugs of abuse, the officer asks the driver to submit a sample of breath, blood or urine.  Breath samples are analyzed on-the-spot by a breath-testing machine.  Blood and urine samples are sent to a crime lab for analysis.

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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 Inthesetimes.com, 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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At the last minute, without warning, the government convicted Demetrius of a more serious offense than with which he was originally charged. Demetrius received a ticket for OVI. The ticket informed him he was charged with a low-tier ‘per se’ OVI, which carries a minimum of three days in jail and does not involve mandatory restricted (yellow) license plates. Just before his case was finished, the court permitted the prosecution to change the charge to a high-tier ‘per se’ OVI, which carries a minimum of six days in jail and mandatory yellow license plates. Can the government to that?

Uniform traffic ticket

That question was answered in the recent case of State of Ohio v. Demetrius Rosemond, and the answer is not obvious. It involves interpreting Rule 7 of the Ohio Rules of Criminal Procedure. That Rule addresses amendment of complaints, and a traffic ticket is a type of complaint. The Rule says a complaint may be amended, “provided no change is made in the name or identity of the crime charged.” The question in the Rosemond case is whether amending the ticket from a low-tier OVI to a high-tier OVI changes the name or identity of the crime charged.

The Ohio Supreme Court ruled on a similar issue in State v. Campbell. In Campbell, the defendant was charged with violating Ohio Revised Code section 4511.19(A)(5). With that particular sub-section (the [5] at the end), the government alleged the defendant had a blood alcohol concentration over .08. The trial court permitted the prosecution to amend the ticket to 4511.19(A)(6). With that amended subsection (the [6] at the end), the government alleged the defendant had breath alcohol concentration over .08.

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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.

DSC04472

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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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.

WP_20150726_010-300x169

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 look-back 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 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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