Columbus OVI/DUI Attorney Blog

In a previous post, this blog questioned whether police should be able to draw blood against your will without a search warrant. At that time, oral arguments had recently been held in the case of Missouri v. McNeely. A few days ago, the United States Supreme Court issued a decision in the McNeely case. Based on that decision, the Constitutionality of the law for forced blood tests in Ohio O.V.I. cases is questionable.

In McNeely, the defendant was arrested for D.U.I. and taken to a hospital. When McNeely declined to give a blood sample, his blood was drawn without his consent and without a warrant. The trial judge suppressed the blood test, and the case was appealed through the Missouri state courts to the United States Supreme Court. The Court framed the issue as follows: "The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases."

The Supreme Court analyzed the search and seizure issue. A blood draw is invasion of the suspect's bodily integrity that implicates the most personal expectations of privacy. A warrantless search of a person's body is only reasonable if conducted pursuant to a warrant or a recognized exception to warrant requirement. One recognized exception to the warrant requirement is 'exigent circumstances', times when "there is a compelling need for official action and no time to secure a warrant". One situation involving exigent circumstances is preventing imminent destruction of evidence. In drunk driving cases, the evidence is being destroyed because blood alcohol concentration decreases by .015% to .02% per hour once the alcohol is fully absorbed. The question is, therefore, whether that dissipation of evidence creates 'exigent circumstances'.

Continue reading "U.S. SUPREME COURT DECISION RAISES QUESTIONS ABOUT BLOOD TESTS IN OHIO D.U.I./O.V.I. CASES" »

How are sanctions to be imposed for violations of Ohio's discovery rules? That question was the subject of a recent decision by the Ohio Supreme Court. In a previous post, this blog described the changes to the rules for discovery (exchanging evidence) in Ohio criminal and D.U.I./O.V.I. cases. In a case decided a couple weeks ago, the Ohio Supreme Court interpreted the new discovery rules for the first time.

The case is State v. Darmond. Darmond and his codefendant were charged with drug trafficking and drug possession after allegedly receiving shipped packages containing marijuana. Before the trial, the prosecution and defense engaged in reciprocal discovery. During the trial, an investigator testified, and it became clear the prosecution had not given the defense all the evidence that should have been provided. The agent had written seven reports, because there were seven packages delivered, but only two reports were provided to the defense. The other reports may or may not have contained information helpful to the defense. After hearing arguments from the prosecution and defense, the trial judge dismissed the case with prejudice (the case could not be re-filed). The Eighth District Court of Appeals affirmed the trial court's decision, concluding that the trial court did not abuse its discretion.

Continue reading "SANCTIONS FOR DISCOVERY VIOLATIONS IN OHIO CRIMINAL AND D.U.I./O.V.I. CASES" »

For the first time, an appellate court in Central Ohio addressed whether evidence from an Intoxilyzer 8000 is admissible in an O.V.I./D.U.I. trial. The court of appeals ultimately decided that the defendant is prohibited from challenging the general reliability of the Intoxilyzer 8000, so the results of that machine's breath tests are admissible. The court's opinion, however, contained language questioning whether that prohibition should continue to be the law in Ohio O.V.I. cases.

The case is State v. Reid. A previous post in this blog (June 11, 2011) discussed the ruling of the trial court. The trial judge concluded that breath test results from the Intoxilyzer 8000 are not reliable enough to be admitted as evidence. The trial judge wrote, "Having heard the testimony presented in the above cases, the court finds that the Intoxilyzer 8000 has not been demonstrated by expert testimony by the Ohio Department of Health to be an accurate and reliable instrument for breath testing in O.V.I. cases." Because the breath test result was not reliable, the judge excluded breath test evidence from the defendant's trial. Without the breath test evidence, the defendant took the case to trial and was found not guilty. The prosecution appealed the trial judge's decision to the Fourth District Court of Appeals.

Continue reading "APPELLATE COURT RULES ON INTOXILYZER 8000 ADMISSIBILITY IN CENTRAL OHIO OVI CASES" »

There are rules for blood testing, and they aren't new. If the prosecution wants to admit a blood test as evidence in an Ohio O.V.I./D.U.I. case, the prosecution has to prove certain procedures were followed for the blood test. A few days ago, an Ohio court of appeals held that the procedures weren't followed, so the blood test should have been thrown out in Statev. Ragle.

The procedures that must be followed for an Ohio O.V.I./D.U.I. blood test are listed in chapter 3701‑53 of the Ohio Administrative Code. Section 3701-53-05 says "Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant...." In the Ragle case, there was no testimony about whether the needle was sterile and dry, and when the nurse was asked if there was an anticoagulant in the container where the blood was stored, she said: "You know, I don't have any idea what's in there."

The Ohio 9th District Court of Appeals concluded that the prosecution did not prove compliance with the rules in Section 3701-53-05. As a result, the court of appeals reversed the defendant's O.V.I. conviction. This result is not surprising. What's surprising is that the trial court concluded the blood test was admissible with testimony that "I don't have any idea" whether the rules were followed.

The Ragle case is a good example of an Ohio D.U.I./O.V.I. case that may seem hopeless for the defendant at the beginning (a blood test result over the limit) but turns out to be problematic for the prosecution. It's a good reminder that an Ohio D.U.I./O.V.I. lawyer needs to fully investigate cases, file motions to suppress evidence, and litigate those motions to effectively represent clients in Ohio D.U.I./O.V.I. cases.

Those 160 characters could cost you 150 dollars. If you are under 18, driving and texting could also cost you your license. Ohio's statewide ban on texting while driving became effective yesterday.

Ohio revised code section 4511.204, effective August 31, 2012, prohibits driving a motor vehicle 'while using a handheld electronic communications device to write, send, or read a text-based communication'. There are exceptions to the law, including an exception for texting from your vehicle when you are stationary and not in a lane of travel. For adults, violating this law is punishable by a fine of up to $150.

For juveniles, the law is a little different. Ohio revised code section 4511.205 prohibits driving a motor vehicle and using any electronic communications device in any manner. This means juveniles cannot text or email and also cannot talk on the phone or use GPS navigation. A violation of this law can lead to a fine of $150 and a license suspension for 90 days. A second conviction for this offense results in a $300 fine and a license suspension for one year.

The statewide texting ban is a good policy, as texting while driving is arguably more dangerous than drunk driving, as reported by CNBC. There will be some difficulty in enforcing the new law. Passing the law, however, makes a public declaration that we don't approve of the conduct and will likely be a deterrent even if enforcement is limited.

Ordinarily, this blog discusses issues related to Ohio D.U.I./O.V.I. law, but today I want to tell you about Jason. Jason had good grades, and he expected to get a good job when he graduated from The Ohio State University. His expectations changed when he was arrested at an O.S.U. football game for Underage Alcohol Consumption and False Identification. He found out that the diversion programs offered to some defendants for the underage alcohol charge are not offered to those caught with a fake i.d. Now, he has the offenses on his record as he looks for his first real job in a tight economy.

Diversion programs, if successfully completed, result in cases being dismissed. Local law enforcement agencies and the Columbus City Attorney's office have a policy that no diversion programs are offered to a defendant when a fake i.d. is involved. This policy is consistent with the 'no plea bargaining' policy for O.S.U. 'game day offenses'.

O.S.U. president Gordon Gee and many other college presidents have proposed reconsidering the drinking age law. If the Ohio drinking age is ever changed to 18, underage consumption and fake i.d. offenses for Ohio college students will be a non-issue. For now, however, Ohio law says you have to be 21 to drink, and you can't use or possess a fake i.d. Diversion programs and case dismissals recognize we are often a land of second chances, but there are no second chances in Columbus when you're caught with a fake i.d.

Kerry Kennedy recently ran her vehicle into a truck and continued driving. She was soon found slumped over the steering wheel, and she was unable to remember what happened, as reported by ABC News. Kennedy said it was possible she accidentally took Ambien that morning rather than a thyroid pill. She also said an examination by her doctors revealed she had a seizure. Kennedy was charged with driving under the influence of drugs and has pled not guilty. Her crash raises questions regarding driving under the influence of Ambien.

Ambien, the brand name for Zolpidem, is a sedative-hypnotic drug used to treat insomnia by slowing activity in the brain to allow sleep. It is intended to be taken just before sleeping, as "you will probably become very sleepy soon after you take zolpidem and will remain sleepy for some time after you take the medication", according to the U.S. National Library of Medicine. As cautioned by the F.D.A., "After taking Zolpidem Tartate Tablets, you may get up out of bed while not being fully awake and do an activity that you do not know you are doing. The next morning, you may not remember that you did anything during the night."

In Ohio D.U.I.(O.V.I.) cases, Ohio Revised Code section 4511.19 says no person shall operate a vehicle if the person is under the influence of alcohol, a drug of abuse, or a combination of them. Ambien is considered a drug of abuse, so a person could be found guilty of O.V.I. in Ohio for driving under the influence of Ambien.

On the other hand, a driver's use of Ambien may present an Ohio D.U.I. lawyer with a defense to an O.V.I. charge. Ohio Revised Code section 2901.21 says that a person is not guilty of an offense unless the person's conduct was a voluntary act. That section also says "reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's volition, are involuntary acts." It is questionable whether a person affected by Ambien is acting voluntarily when they may "do an activity that you do not know you are doing."

Kerry Kennedy's accident raises questions about the danger of driving under the influence of Ambien. One question is, from a policy perspective, what do we do about it? Is driving while affected by Ambien an offense, or is it a defense to an offense? It will be interesting to see how the Kerry Kennedy case plays out.

The Confrontation Clause of the United States Constitution has been the subject of a series of modern cases decided by the United States Supreme Court. Last month, the Court issued its latest interpretation of a defendant's right to confront the witnesses against him. The new case, Williams v. Illinois, leads to Confrontation Clause confusion.

There were three cases that led up to Williams. The Crawford v. Washington case in 2004 concluded that "testimonial" statements are not admissible in a trial unless the defendant was able to cross-examine the person that made the statements. In Melendez-Diaz v. Massachusetts (2009), the Court held that a lab report identifying a substance as a drug is not admissible at trial without live testimony. The 2011 case of Bullcoming v. New Mexico clarified that the analyst who actually performed the test must testify at the trial, unless the analyst is unavailable and was previously cross-examined.

In last month's case, Williams v. Illinois, DNA evidence was found on the victim and sent to a private laboratory for analysis. DNA was also taken from the defendant and sent to a police laboratory for analysis. At trial, the forensic specialist from the police laboratory testified the DNA profile from the defendant matched the DNA profile produced by the private laboratory (the DNA found on the victim). The analyst who performed the test at the private laboratory did not testify. The trial court admitted this testimony over the objection of the defendant, and the defendant was found guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding there was no Confrontation Clause violation. The case was appealed to the United States Supreme Court.

The United States Supreme Court affirmed the conviction but issued multiple opinions. Although five justices voted to affirm the conviction, not all five agreed as to why the testimony did not violate the Confrontation Clause. Five justices, including one that voted to affirm the conviction, disagreed with the reasoning given in the plurality opinion. Given this unusual result, it is difficult to distinguish a rule of law from the case.

The impact of the Williams decision on Ohio O.V.I. cases is unclear. In O.V.I. cases, prosecutors will sometimes introduce evidence regarding blood/breath/urine tests through witnesses that are not the person that performed all parts of the test. D.U.I. defense lawyers will object on Confrontation Clause grounds, and the outcome will be uncertain. As Justice Kagan said in the Williams case, "What comes out of four Justices' desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice's one-justice view of those holdings is-to be frank-who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority".

After three weeks of trial and nine days of deliberation, the jury found John Edwards Not Guilty on one charge and could not reach a unanimous verdict on the other five charges involving campaign finance fraud. Similar to the O.J. Simpson trial, the verdict and the jurors have been the subject of controversy and criticism. What the critics should grasp, and don't seem to, is this: "not guilty" means "not proven"; it doesn't mean "innocent".

A cornerstone of our legal system is the idea that "it is better that ten guilty persons escape than that one innocent suffer" (known as "Blackstone's formulation"). The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution say no person shall "be deprived of life, liberty, or property, without due process of law". Due process of law, in criminal cases, means the government must prove allegations beyond a reasonable doubt. As Justice Brennan said in In Re Winship:

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.

The requirement of proof beyond a reasonable doubt applies to D.U.I./O.V.I. cases. If a person is facing significant consequences and stigma upon conviction for an O.V.I., then the government must prove to the jurors beyond a reasonable doubt the person operated a vehicle under the influence. An arresting officer may charge a defendant with O.V.I. based on observations and evidence like field sobriety tests and chemical tests. To charge the defendant with O.V.I., the arresting officer only needs "probable cause" to believe the defendant was under the influence. It is then up to the jury to decide whether the evidence proves beyond a reasonable doubt the defendant was under the influence. If there is doubt, and the doubt is reasonable, then the verdict should be Not Guilty.

In the Edwards case, the jurors had doubt about whether Edwards committed the alleged crimes. Although their comments indicate they think he was guilty, the evidence did not convince them he committed a crime. While the jurors have been criticized for not finding Edwards guilty, the critics did not hear all of the evidence, and the jurors did. They did not find him "innocent" (as there is no "innocent" verdict), they found him "not guilty", and "not guilty" simply means "not proven".

Like so many times before, officers responded to a call about a suspected drunk driver. The officers approached the driver and noticed the driver had the usual indications of intoxication: slurred speech and the odor of alcohol. Like most D.U.I. cases, the driver failed field sobriety tests and a breath test. Unlike most cases, however, the incident occurred on the driver's front yard. Yes, Dennis Jones was arrested for driving under the influence in his front yard in Paisley, Florida. Could this happen in Columbus, Ohio?

The answer to this question has changed during my career. Ohio O.V.I. law has changed so many times it's hard to keep track. Beginning with the enactment of the "modern" D.U.I./O.V.I. law in 1982, Ohio Revised Code section 4511.19 has been amended nearly 20 times, and that's only one statute! There are many other statutes affecting O.V.I./D.U.I. defense that have also undergone multiple amendments during this time. As the law stands now, a person in Ohio can, in fact, be charged with O.V.I. on private property. For many traffic offenses, Ohio law prohibits certain conduct on a public road or highway. For O.V.I., however, O.R.C. section 4511.19 prohibits operating a vehicle under the influence anywhere "within this state".

There is an exception in Ohio law for bicycles. According to O.R.C. section 4511.52, a person can only be charged with an O.V.I. on a bicycle if the person operates the bicycle "upon a highway or upon any path set aside for the exclusive use of bicycles". So if you're going to drive drunk on private property, do it on a bike and stay off the bike paths!

Every television-watching American knows about Miranda v. Arizona, and most have the following misunderstanding about criminal law (including O.V.I./D.U.I. law): "The officer never issued Miranda warnings; doesn't that mean they have to dismiss my case?"
No. That's not what it means.

Here is what Miranda says:
To summarize, we hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

Here is what Miranda means: if you were questioned while in custody, and if the officer did not give Miranda warnings, statements you made cannot be used against you at trial. The officer's failure to give Miranda warnings, however, does not automatically make the entire case invalid (if only it were that easy...).

Although the rule in Miranda seems pretty clear, applying the rule has proven to be a little more complicated. Applying the rule in the context of O.V.I. (D.U.I.) stops will be the subject of a post when I have more time. Right now, I need to watch Grey's Anatomy so I can understand medical procedures.

In July of 2011, state Representative Jarrod Martin was driving his children in his pickup truck in Jackson County, Ohio. He was pulled over by a state trooper for a marked lanes violation after his truck drifted left of center. The trooper asked Martin to perform field sobriety tests, and Martin declined. Martin also declined a breath test, which resulted in a one-year license suspension. Martin was charged with O.V.I. and Child Endangering in the Jackson County Municipal Court. He hired an attorney and pled Not Guilty. Six months later, the charges of O.V.I. and Child Endangering are being dismissed, and Martin is pleading guilty to the Marked Lanes violation, according to the Dayton Daily News.

In Martin's case, the trooper added the charge of Child Endangering to the charge of O.V.I., which is common for officers to do when a driver is charged with O.V.I. and has a child in the car. Ohio's Child Endangering statute specifically prohibits operating a vehicle under the influence (or over the limit) with one or more children in the vehicle. A driver who operates a vehicle under the influence (or over the limit) and has a child in the car necessarily commits the offense of Child Endangering simultaneously with the offense of O.V.I.

Although the two offenses are committed simultaneously, the Ohio Child Endangering statute say a person can be convicted of both O.V.I. and Child Endangering out of the same incident. The sentence for an O.V.I. includes a jail term, a license suspension, a fine, and probation, as well as possible yellow license plates and ignition interlock. For this type of Child Endangering conviction, the sentence includes a possible jail term, license suspension, fine, and probation.

Although the Child Endangering statute says a person can be convicted off both O.V.I. and Child Endangering out of the same act, it is questionable whether sentencing a defendant for both offenses would be upheld in court. The case of State v. Johson held that, if the two offenses are committed by the same conduct, the offenses merge for sentencing.

In Representative Martin's case, sentence merger is not an issue because both charges are being dismissed. He does, however, still have an Administrative License Suspension (with limited driving privileges) for refusing the breath test.

William Kral's inability to hear made it very difficult for him to communicate with his attorney when he was charged with D.U.I. in the state of Washington. At his arraignment, he was assisted by an unqualified sign language interpreter that led him to believe the document he was signing was a continuance. The document was really a waiver of his right to a speedy trial. Six years later, Kral's conviction was finally overturned, as reported by The News Tribune.

When a defendant is charged with D.U.I. (called O.V.I. in Ohio), one of the rights the defendant has in the court process is the right to a speedy trial. The right to a speedy trial can only be waived if the waiver is made knowingly and intelligently. Kral argued on appeal that the waiver of his speedy trial rights was not made knowingly and intelligently because he didn't know he was waiving his rights.

Kral's ordeal lasted for six years. During that time, he served a nine-month sentence, including three months in an alcohol treatment program. He also lost his job and paid $4,600 in fines. Kral reported that his court-appointed attorneys ignored or mishandled his case. Kral's appeal was ultimately successful: the appellate court overturned the conviction and ordered the case back to the district court to be dismissed.

This case illustrates the significance of Constitutional rights. It also illustrates the importance of having a good D.U.I. lawyer to ensure those rights are protected. The reversal of Kral's conviction is a victory for the deaf and a victory for Constitutional rights.

"Shawn, it's Joe Smith. You're not going to believe this, but...." I believe it, because I've received this call more than once. My client has a D.U.I. (O.V.I.) pending, we're scheduled to go back to court soon, and the client is charged with a second D.U.I. This recently happened in a Florida case, with a twist.

The case in Florida involved a young woman named Jennifer. After receiving a report about Jennifer driving recklessly, an officer observed Jennifer stumbling out of a store with a can of beer. When the officer pulled her over, Jennifer had two empty bottles of Vodka in her car. She refused field sobriety tests, was arrested, and was charged with a D.U.I. The twist: she was on her way to court for a previous D.U.I charge.

For O.V.I. offenses in Ohio, the penalties increase significantly for a second offense within six years. While a first offense carries a minimum jail sentence of three days, a second offense carries a minimum jail sentence of ten days. That minimum sentence is doubled if the suspect refuses the breath test or tests at or over .170. A second offense also carries a longer license suspension and mandatory yellow license plates.

Ohio O.V.I. law has a twist of its own. Ohio Revised Code section 4511.19(G) says it's a "second offense" if "an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to one" O.V.I. If the defendant pleads guilty to O.V.I. #1, then is charged with O.V.I. #2 and pleads guilty to O.V.I. #2, the second one will be a "second offense" for sentencing.

However, if the defendant is charged with O.V.I. #1 and is charged with O.V.I. #2 before being found guilty of O.V.I. #1, both will be "first offenses" with regard to the minimum mandatory sentence. This is due to the phrase "within six years of the offense, previously has been convicted...." At the time of offense #2, the defendant had not been previously convicted of an O.V.I.

There are lessons to be learned from the twist in Ohio law and the twist in the Florida case. First, if you get charged with O.V.I. and you think you may get charged with a second O.V.I. in the near future, don't plead guilty until after you are charged with the second one! Second, don't drive drunk to your O.V.I. court appearance!!

The Sixth Amendment to the United States Constitution says a defendant in a criminal prosecution shall enjoy the right to be confronted with the witnesses against him. The extent of that right has undergone significant changes by courts interpreting the Constitution. A recent example is the case of Bullcoming v. New Mexico, in which the United States Supreme Court addressed the right of a defendant in a D.U.I. (O.V.I.) case to confront the analyst that determined the concentration of alcohol in the defendant's blood.

The Bullcoming decision is actually the third case in a series of three modern U.S. Supreme Court cases discussing the confrontation clause. In Crawford v. Washington (2004), the Court held that any "testimonial" statements cannot be admitted in a trial unless the defendant has an opportunity to cross-examine the person that made the statements. In Melendez-Diaz v. Massachusetts (2009), the Court concluded that an analyst's report identifying a drug is "testimonial", so it cannot be admitted at trial without live testimony. That case left open the question of whether the witness testifying has to be the analyst that actually performed the analysis.

That question was answered in Bullcoming. In this case, the defendant caused a two-car accident, failed field sobriety tests, and refused a breath test. He was given a blood test, and the result was .21. At the trial, the prosecution called an analyst to testify regarding the blood test. It was not, however, the analyst that actually performed the blood test. Bullcoming was convicted, and his case ultimately went to the U.S. Supreme Court. The Court concluded that the analyst who actually performed the test must testify at the trial unless the witness is unavailable and was previously subjected to cross-examination. Admitting the testimony of the other analyst violated Bullcoming's right to confront the witnesses against him, so the conviction was reversed.

Bullcoming is an important decision for protecting defendants' confrontation rights in O.V.I. cases and in criminal cases generally. An added bonus is that it's also an easy case name for attorneys to remember.