Recently in DUI/OVI enforcement Category

May 24, 2014

OHIO USES DUI/OVI CHECKPOINTS, BUT IT COULD BE WORSE

This is Memorial Day Weekend, the unofficial beginning of summer. A lot of people will be on the road: visiting friends, attending parades, and going to cookouts. Some unlucky people on the road will find themselves stopped at DUI/OVI roadblocks. Although they do nothing wrong, they will have to stop, wait, wait some more, produce identification, and answer questions. They aren't suspected of doing anything illegal, but they are seized.

Sobriety checkpoint ahead.jpgAlthough this situation seems at odds with our right to be free from unreasonable searches and seizures, sobriety checkpoints can be Constitutional if they are done correctly. How to do them correctly is not a mystery. The United States Supreme Court gave clear criteria in Michigan v. Sitz, and the National Highway Traffic Safety Administration (NHTSA) issues a publication with procedures to follow.

Recent cases in New York illustrate what procedures not to follow. In Queens, New York, five cases of drunk driving were thrown out because they originated with illegal checkpoints, according to dnainfo.com. Each of the cases involved the same group of highway patrol officers. The officers routinely went to the same location, a service road connecting two highways, to conduct DUI enforcement. The officers called this type of enforcement "step out" surveillance because they waited for cars to approach their location, then stepped out and signaled for the driver to slow down or stop. The officers then looked for a reason to detain the driver, usually items hanging from a rearview mirror. If the officers observed something illegal, they detained the driver for a DUI investigation, including breath testing and field sobriety testing. It is estimated the officers arrested about 150 people using this method of DUI enforcement.

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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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July 6, 2013

FRANKLIN COUNTY, OHIO D.U.I. TASK FORCE

It's July 4th weekend. With Independence Day falling on a Thursday, it's an extra-long weekend. That means more cookouts, and it also means more police officers patrolling the roads of central Ohio on the lookout for drunk drivers. In central Ohio, the roads are patrolled by several different police departments. Some officers from those police departments are part of a special unit that enforces D.U.I./O.V.I. laws: the Franklin County DUI Task Force.

Over the limit Under Arrest.jpgThe Franklin County DUI Task Force was formed in 1993 and was the first county-wide DUI task force in Ohio. It was created to assess the drunk driving problem in Franklin County, Ohio and to develop an action plan to address the problem. The Franklin County DUI Task Force is comprised of officers from 31 law enforcement agencies. The officers participating in the Task Force are typically those officers with advanced training in D.U.I./O.V.I. enforcement beyond the basic D.U.I./O.V.I. course officers complete as part of their peace officer training.

The Task Force's action plan to address the drunk driving problem incorporates both enforcement and education. The educational activities include mock crashes and checkpoints, awareness campaigns like "Over The Limit, Under Arrest", and the Red Ribbon campaign. The enforcement activities include D.U.I. checkpoints and D.U.I. saturation patrols. According to the Task Force's website, the number of D.U.I./O.V.I. arrests in Franklin County increased from about 6,700 in 2008 to about 7,300 in 2009 (the most recent years available). That website says the Task Force has received awards from MADD and the National Association of Chiefs of Police, and the success of the task force is largely due to the cooperation among the members of the Task Force.

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June 15, 2013

ERIN BROCKOVICH CASE ILLUSTRATES TOUGH SENTENCES FOR BOATING UNDER THE INFLUENCE IN OHIO

What happens in Vegas stays in Vegas, but what happens near Vegas gets broadcast for the world to see. That's what Erin Brockovich found out a few days ago when she was charged with Boating Under the Influence on Lake Mead, just outside Las Vegas, Nevada.

Map showing Las Vegas and Lake Mead.jpg After reading the news coverage of her case, I compared the B.U.I. laws of Ohio and Nevada and concluded Ohio has relatively tough sentences for boating under the influence.

According to the 'Boating Crime Report' from the Nevada Department of Wildlife, Brockovich and her husband attracted the attention of an officer at marina near Hoover Dam. They were arguing on their docked boat, she threw a cell phone into the water, and she appeared to slap him. Her husband apparently got off the boat, and she began to back the boat away from the dock when the officer stopped her. The officer observed beer on the boat and also observed that Brockovich was slurring her words when she spoke. The officer administered field sobriety tests and two portable breath tests. The officer arrested Brockovich and took her to a ranger station where she took two additional breath tests. The results of the tests were .160 and .163.

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May 26, 2013

OHIO APPELLATE COURT AFFIRMS CONVICTION IN D.U.I./O.V.I. CASE INVOLVING PRESCRIPTION DRUGS

William Strebler was lucky and unlucky. When he drove his car between two parked trucks, nobody was killed or injured. That's pretty lucky. After he was found guilty of driving under the influence of his prescribed pain medicine, his conviction was affirmed by the court of appeals, and he had to serve two years in prison. That's not-so-lucky. His case illustrates the importance of trial strategy in Ohio D.U.I./O.V.I. defense and also demonstrates the difficulty of enforcing D.U.I./O.V.I. laws when the substance in question is a prescription medication.

Pills with blue background.jpgThe case of State v. Strebler was decided earlier this month by the Court of Appeals for the Ninth District of Ohio. After the accident, police arrived and had Strebler write a statement about what happened. He wrote a statement that was "largely incomprehensible and ended with the word 'bowflex'". Field sobriety tests showed "several indicators of impairment", so the police arrested him and took him to a police station. His breath test showed no alcohol in his breath, so he was given a blood test. That test showed oxycodone and tramadol in his blood. He told the police he was taking both pain relievers pursuant to a prescription. Strebler was charged with O.V.I.

At his bench trial, Strebler testified that he appeared to be under the influence of drugs because he hit his head in the accident and lacked sleep. The prosecution elicited expert testimony from a toxicologist about how the two prescription medications would affect driving ability. The toxicologist testified that it depends on the individual: one person with that level of those drugs in their blood may be completely normal, and another person may be passed out. The Court concluded that Strebler's explanation the circumstances was not credible and found him guilty of O.V.I.

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December 22, 2012

HOLIDAY GREETING: DRIVE SOBER OR GET PULLED OVER

The holiday season is at its climax. Some of us who would not ordinarily step foot in a mall battle huge crowds to buy last-minute gifts. Most of us attend more parties in two weeks than they we do the rest of the year. All of us are being told "drive sober or get pulled over".

"Drive sober or get pulled over" is a campaign by the National Highway Traffic Safety Administration (NHTSA) aimed at raising awareness about drunk driving (called O.V.I. in Ohio). The campaign includes television commercials, radio advertising, and online videos. Although the campaign began earlier this year, efforts to implement the campaign and detect drunk drivers is being ramped-up for the holidays.

The holiday D.U.I./O.V.I. crackdown was the subject of a meeting earlier this month supported by NHTSA, MADD and the Governors Highway Safety Association. At that meeting, NHTSA released state by state drunk driving statistics for 2011 and reinforced the message that D.U.I. / O.V.I. enforcement will be increased significantly through New Year's Day. U.S. Secretary of Transportation Ray LaHood was quoted as saying, "The holiday season can be an especially dangerous time on our nation's roadways due to drunk drivers - that's why law enforcement officers will be out in full force".

We know the officers are going to be out in full force during the holidays, so don't go out and drink full force. With the money you save by not having to hire a good D.U.I./O.V.I. lawyer, you could buy a lot of last-minute gifts at the mall. Better yet, you could stay off the road entirely, order those gifts online, and give some of that saved money to charity!

October 6, 2012

DRUNK DRIVING DECLINES FOR THOSE NOT PERMITTED TO DRINK

According to the Columbus Dispatch, drunk driving fell 54 percent in the past two decades...among teens. This conclusion was reached in a recent report by the Centers for Disease Control and Prevention (CDC). The primary reasons for the decline of teen drunk driving are reported to be increased gas prices, decreased underage drinking, and tougher laws for underage alcohol consumption.

It's good to hear there have been decreases in both underage drunk driving and underage alcoholconsumption. It's noteworthy, however, that the C.D.C. report was based on self reporting by the teens and apparently did not include college students.

In Ohio, drunk driving by teens can result in several different offenses. First, if the teen's driving ability is impaired, he can be prosecuted for a standard Ohio O.V.I. (D.U.I.). Second, if the driver's blood alcohol concentration is over .08, she can be prosecuted for Ohio O.V.I. (D.U.I.) per se. Third, if a driver under 21 has a blood alcohol concentration over .02 (but under .08), the driver may be prosecuted for O.V.U.A.C. (Operating a Vehicle after Underage Consumption).

You may be thinking "teens aren't supposed to be drinking alcohol anyway...shouldn't there be a separate punishment for that?" There is. In addition to the offenses mentioned above, a person under 21 who is caught driving drunk will likely be charged with Underage Alcohol Consumption as well.

June 16, 2012

LIFESAVERS AND LIBERTIES

This weekend is the annual 'Lifesavers' National Conference on Highway Safety Priorities. Lifesavers is a yearly seminar that addresses traffic safety issues like seatbelt enforcement, pedestrian safety, distracted driving, and driving under the influence. This year is the 30th anniversary of the conference, and the keynote address was given by Jan Withers, the National President of Mother's Against Drunk Driving (M.A.D.D.)

In her speech, Jan Withers indicated that M.A.D.D. has helped pass laws and establish practices that have saved thousands of lives. Among those are laws making 21 the minimum drinking age, laws setting .08 as the limit for blood alcohol concentration, laws prohibiting driving with certain concentrations of marijuana in a driver's urine, drug recognition evaluations, and sobriety checkpoints. While the goal of M.A.D.D. to eliminate drunk driving is admirable, these laws and enforcement techniques are controversial.

Perhaps more controversial than some other M.A.D.D. campaigns is the current campaign supporting the Driver Alcohol Detection System for Safety (DADSS). This system would ultimately place an alcohol-testing machine in all cars. Before the car will start, the driver will have to provide a biological sample (maybe breath?...maybe sweat?). If the system detects too much alcohol in the sample, the car will not start.

Portable breath-testing machines are notoriously unreliable and are not even admissible as evidence in Ohio O.V.I. cases due to their lack of accuracy. S.C.R.A.M. devices that measure alcohol at the surface of the skin have their own reliability issues. How will you like it if your car won't start because it confuses your mouthwash or perfume with alcohol consumption? If DADSS is similar to portable breath-testing machines or S.C.R.A.M. devices, the intrusion on individual liberties outweighs the public interest in traffic safety.

September 11, 2011

O.S.U. GAME DAY CASES

Plea bargaining is part of the criminal justice system. If there weren't plea bargains in large jurisdictions with high volumes of cases, the system would quickly be overwhelmed and log-jammed. In certain types of cases, however, there are no plea bargains. One of those case types is a "game day case".

A "game day case" in Columbus, Ohio is a court case in which the alleged criminal conduct occurred on the day of an O.S.U. football game. The misdemeanor game day offenses are prosecuted by the Columbus City Prosecutor's Office. A few years ago, the prosecutor's office adopted a policy that game day offenses would not be plea bargained. The policy was part of a more comprehensive effort by campus and city officials to modify game day behavior.

Game day cases include offenses such as Open Container, Underage Alcohol Consumption, Disorderly Conduct, and O.V.I. The policy against plea bargaining game days cases applies to college students and non-students alike.

Game days can be a lot of fun, but if you are celebrating an O.S.U. football game, use your head. Being arrested for a game day offense is a sure way for the fun to be ruined.

August 27, 2011

AUTUMNAL OHIO D.U.I. CRACKDOWN

It's hard to believe that time of year is here already. Kids are going back to school, the leaves will soon be changing colors, and law enforcement is cracking down on D.U.I./O.V.I. in the Columbus, Ohio area.

This weekend in central Ohio, officers are operating four D.U.I. checkpoints. One checkpoint will be on Sawmill Road north of 270, and another will be on Refugee Road west of Hamilton Road. The other two roadblocks will be in Washington Courthouse and Logan. In addition to the sobriety checkpoints, officers will be conducting 'saturation patrols' in areas with the highest occurrence of alcohol-related crashes.

If a driver is stopped at a D.U.I. roadblock, officers may ask the driver to take field sobriety tests and a breath test. The officers may charge the driver with O.V.I. and may also immediately impose an Administrative LicenseSuspension.

The most recent checkpoint in central Ohio was on August 21, 2011 on West Broad Street. That evening, 157 vehicles were checked, and five drivers were arrested for O.V.I. That means about three percent of the drivers were suspected of being under the influence, and the other 97% were just hassled. However, according to NBC4i, a corporal with the Franklin County D.U.I. Task Force says the increased checkpoints have been 'very successful'.

Successful or not, we can anticipate the annual increase in D.U.I. checkpoints will continue, as next weekend is Labor Day. Drive safely.

April 16, 2011

SHOULD THE GOVERNMENT BAN APPS FOR DUI EVASION?

There is an ever-increasing number of apps for Iphones, Droids, and BlackBerrys. In addition to finding local restaurants and launching angry animals, smartphone users can now download apps designed to help the users avoid DUI charges. United States senators recently moved smartphone manufacturers to discontinue these apps, which raises the question: should the government ban apps for DUI evasion?

Apps such as Fuzzalert, Phantom Alert, and Trapster give users real-time information regarding topics such as speed traps, traffic cameras, and DUI checkpoints. United States senators recently sent letters to Google (Droid), Apple (Iphone), and Research In Motion (BlackBerry) requesting the manufacturers to remove these apps from their app stores. According to Digitaltrends.com, Research In Motion agreed to pull the apps, Google declined, and Apple has taken no action.

The involvement of U.S. senators in this issue may foreshadow a government move to legislatively ban these apps. Such legislation would be similar to state laws that ban radar/laser detectors. While drivers shouldn't need a DUI evasion app because they shouldn't be driving drunk, this doesn't seem like a critical issue requiring national legislation.

March 19, 2011

AND THE RESULTS ARE IN...FROM THE DUI CHECKPOINTS IN COLUMBUS, OHIO

St. Patrick's day is one of the biggest days of the year for drinkers. In central Ohio, it's second only to Independence Day. It is no surprise, then, that the Franklin County DUI Task Force announced two DUI checkpoints for St. Patrick's Day, 2011. What may come as a surprise is that, after stopping 727 cars, only seven people were charged with D.U.I. (O.V.I.).

At DUI checkpoints, also called roadblocks, officers stop every vehicle (or subset of vehicles) that comes through the checkpoint location to question drivers about driving under the influence. The United States Supreme Court upheld the validity of sobriety checkpoints in Michigan v. Sitz. The Court found the inconvenience of drivers being stopped is outweighed by the government's legitimate interest in reducing drunk driving. The National Highway Traffic Safety Administration (NHTSA) established recommended procedures for the locations of checkpoints, the operation of checkpoints, the publicity of checkpoints, and the extent of officer discretion involved in checkpoints.

If a driver is stopped at a checkpoint and suspected of being under the influence, the driver is further detained and subjected to field sobriety testing and breath testing. If the officer has probable cause to believe the driver is under the influence, the officer arrests the driver and charges the driver with Operating a Vehicle under the Influence (O.V.I.).

The goals for sobriety checkpoints are to deter drunk driving, detect drunk driving, and punish drunk drivers. While these are worthy goals, checkpoints really are not an effective method for enforcing D.U.I. laws. In the Sitz case, 1.6% of the drivers stopped were found to be under the influence. In the recent Franklin County checkpoint, that number was fewer than one percent (seven out of 727). While few drunk drivers are detected or punished using D.U.I. checkpoints, hundreds of drivers are inconvenienced in the process.

October 31, 2010

SHOULD OHIO ADD A NEW DUI/OVI CHARGE?

The police chief in Austin, Texas recently proposed that the State add a new charge of "Driving While Ability Impaired". Currently in Texas, a driver with a BAC of .08 or higher is considered to be under the influence. The proposed law would punish those drivers whose blood alcohol concentration (BAC) is between .05 and .07, according to a report by Fox News. The proposal in Texas raises the question of whether Ohio should consider adding a new charge for drivers with a BAC between .05 and .07.

Ohio's current laws already punish drivers who "drive with ability impaired". R.C. 4511.19(a)(1)(a) makes it illegal to operate a vehicle "under the influence" of alcohol. A driver is considered to be "under the influence" in Ohio if the consumed alcohol adversely affects and noticeably impairs a driver's ability to operate a vehicle. Under this "impaired" law, it does not matter how much alcohol is consumed; if it is proven that the alcohol is adversely affecting the driver's ability to drive, the driver is guilty, regardless of how much or how little alcohol was consumed.

Ohio's current laws also punish drivers who drive with a prohibited concentration of alcohol in their system. R.C. 4511.19(a)(1)(b) to (a)(1)(k) make it illegal to operate a vehicle with prohibited concentrations of alcohol in one's blood, breath, or urine. This law doesn't merely presume a driver is under the influence, it flatly makes it illegal to drive with prohibited amounts of alcohol in your system. Under these "per se" laws, if a driver is caught driving with an alcohol concentration above the legal limit, the driver is guilty of O.V.I. even if the alcohol is not adversely affecting the ability to drive.

As Ohio's current laws already address "driving while ability impaired" and also address driving with a prohibited concentration of alcohol, adding a new charge like the one proposed in Texas would be redundant and would only serve to add confusion to the already convoluted O.V.I. laws with severe O.V.I. penalties.

September 25, 2010

SHOULD WE GET TOUGH ON BICYCLE DUI/OVI IN OHIO?

A guy rode his bike to the ATM because he thought he was too drunk to drive (he probably needed the cash for Taco Bell or White Castle). To his surprise, a police officer arrested him for O.V.I. (D.U.I.) as he rode through a shopping center parking lot. As part of a plea agreement, the O.V.I. charge was amended, and the bicyclist pled guilty to a charge of Reckless Operation. In response, the city council of Upper Arlington, Ohio is considering toughening the city's laws regarding riding a bicycle under the influence.

The law in Ohio regarding O.V.I. on a bicycle has developed over decades. When the Ohio Revised Code was adopted in 1953, bicycles were considered "vehicles", but one couldn't be charged with D.U.I. on a bicycle. That changed in 1983, when there was a major revision of Ohio D.U.I. law. Currently, Ohio traffic laws (including O.V.I.) apply to bicyclists when they operate "upon any highway or upon any path set aside for the exclusive use of bicycles" (R.C. 4501.01). That is Ohio law; Upper Arlington wants to make its own law so the O.V.I. prohibitions apply to bicyclists on private property open to the public (like the shopping center parking lot).

Should people be subjected to O.V.I. penalties for riding a bicycle under the influence? The relative risk of harm created by riding a bicycle drunk does not compare to the risk of harm caused by driving a car drunk. Nevertheless, a person who rides a bicycle drunk in Ohio is facing a mandatory jail sentence of three days to six months, a mandatory license suspension of six months to three years, and the possibility of having yellow license plates on his car. The license suspension really doesn't make sense; the guy wasn't using his driver's license to ride the bike! It's worse than charging someone with Boating Under The Influence (B.U.I.) for being on water skis under the influence (yes, this is also illegal).

Should the city change the law to make it easier to charge someone for O.V.I. on a bicycle? If the law is changed as proposed, the guy would be guilty for riding drunk in the parking lot, but not on the sidewalk. Does this make sense? Perhaps the city will next stiffen penalties for being under the influence on skateboards and roller blades.