Columbus OVI/DUI Attorney Blog

There is little tolerance for drunk driving in Mumbai, India. Like Ohio, the penalty for a first D.U.I. offense in India is up to six months in jail. Unlike Ohio, the legal limit for blood alcohol content in India is .03 (Ohio's is .08), and there is no plea bargaining. In the month of March, Mumbai traffic police charged 3,727 people with D.U.I. The traffic police recently requested the creation of mobile courts, according to an article in The Times Of India. If the request is granted, magistrates will hear D.U.I. cases at those mobile courts, and the trial will take place immediately.

Police like the idea of having trials immediately after the offense allegedly occurs. One officer said, "If the proposal gets a green signal, the magistrate can hear out the prosecutor as well as the offender on the spot and the verdict will come out much sooner. The current system, where the offender has to appear before court the next day, will end." The officer went on to say, "The offender can put forth his grouses, such as having consumed alcohol within permissible limits, without any delay. The disposal of cases would be speedier."

The disposal of cases would, in fact, be 'speedier', but would it fair? In the United States, the mobile courts and immediate trials would not fit with our system of justice. Although the defendant in a mobile court case would be afforded a trial, the defendant would be denied many of the rights that make a trial fair. The defendant would not have a trial by a jury of his peers and would instead have a trial by magistrate for a 'speedier' verdict. In addition, the defendant would not have the opportunity to subpoena witnesses to testify at the trial.

Continue reading "SHOULD OHIO HAVE IMMEDIATE TRIALS FOR O.V.I./D.U.I?" »

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".

On December 3, 2011, Randy Babbitt was the head of the United States Federal Aviation Administration (F.A.A.). Three days later, Babbitt was the former head of the F.A.A. In those three days, Babbitt was charged with a D.U.I. that led to his resignation.

According to the Washington Post, a Fairfax police officer stopped Babbitt for allegedly driving on the wrong side of the road. The officer administered a breath test with a result of .07, under the legal limit of .08. Babbitt was arrested and taken to a detention center where he took a second breath test with a result reportedly over .08. He was charged with D.U.I. (called O.V.I. in Ohio) and released. At Babbitt's trial, the judge reviewed the cruiser video and concluded that the officer did not have justification for making a traffic stop. As a result, the case was dismissed.

Randy Babbitt's case is a good example of why it is often helpful to contest D.U.I./O.V.I. charges. Cases that appear on the surface to be strong for the prosecution sometimes turn out to be not-so-strong when the D.U.I.defense attorney investigates the factual and legal issues involved in the case. For example, problems with administration of field sobriety tests or breath/blood/urine tests may weaken the prosecution's case. There may also be mistakes made in the stop and arrest process that lead to evidence being excluded, as in Babbitt's case.

In Babbitt's situation, the case was dismissed because the evidence showed he shouldn't have been stopped to begin with. Unfortunately for Babbitt, however, the dismissal of the case did not happened until long after the case was made public and Babbitt had already resigned. So much for the presumption of innocence.

During a D.U.I. /O.V.I. trial, jurors are instructed to limit their deliberations to the evidence presented in court. In fact, they are specifically instructed not to investigate or conduct their own experiments. In the recent high-profile trial of John Goodman, a juror ignored that instruction and conducted an experiment regarding the effects of drinking vodka.

In February of 2010, John Goodman was driving his Bentley when he rear-ended a Hyundai driven by Scott Wilson. Wilson's car went into a canal, and Wilson drowned. Goodman, the multi-millionaire founder of the International Polo Club Palm Beach, left the scene without calling 911. He was charged with D.U.I. Manslaughter and Vehicular Homicide.

During Goodman's trial, the judge instructed the jurors not to conduct any experiments or outside research, and to limit their deliberations to evidence presented in the courtroom. One juror, however, conducted an experiment to understand the effects of drinking three vodka and tonics. The next day, the jury concluded deliberations, and Goodman was found guilty of both charges.

The experimenting juror quickly wrote a book about his experience. In his book, the juror wrote, "The question in my mind the night before was answered to me. Even if a person is not drunk, 3 or 4 drinks would make it impossible to operate a vehicle", according to the South Florida Sun Sentinel. Goodman's D.U.I. attorney learned of the experiment and asked the judge to declare a mistrial.

In Ohio D.U.I. /O.V.I. and Vehicular Homicide cases, jurors are given the following instruction when jurors are permitted to go home at night: "During your absence remember that you are a member of a deliberating body. You may not investigate or attempt to obtain additional facts about this case. It would be improper if any of you attempted to do so." Jurors are also instructed regarding reaching conclusions about the case before deliberations: "Do not form or express any opinion on this case until it is finally submitted to you."

The juror in the Goodman case violated the jury instructions: he "investigated or attempted to obtain additional facts about the case". In the juror's words, according to the Sun Sentinel, "It was bothering me that if there was proof that if Mr. Goodman only had 3 or 4 drinks, how drunk would he be? How drunk would I be? I decided to see." The juror also formed an opinion before the jury deliberations were concluded. In his book, he wrote that the jurors concluded Goodman was "not fit to drive" and added (with underlining), "I surely decided that the night before".

At Goodman's sentence hearing, the judge first held a hearing on defense counsel's motion for a new trial. The judge concluded that the juror's experiment did not adulterate the jury deliberation process, so the guilty verdicts were not invalidated. The judge sentenced Goodman to 16 years in prison. Goodman is also being sued for wrongful death by Scott Wilson's family. Goodman adopted his 42-year-old girlfriend, according to the Palm Beach Post, possibly as a way to shield his assets from being awarded in the civil suit.

As an O.V.I./D.U.I. attorney, the Constitutional issues I regularly deal with involve the Fourth Amendment (search and seizure), the Fifth Amendment (double jeopardy, self-incrimination, due process), and the Sixth Amendment (trial rights). O.V.I. cases, and this blog, typically do not include First Amendment topics. However, an Ohio court's ruling has peaked my interest.

A magistrate in a Hamilton County court ordered Mark Byron to post an apology to his wife on Facebook every day for 30 days. Byron and his wife were going through a divorce, and his wife accused him of verbally abusing her and threatening her. Although Byron was exonerated of criminal charges, a court issued a civil protection order that prohibited him from doing anything that would cause his wife to "suffer physical and/or mental abuse, harassment, annoyance, or bodily injury."

Byron was unhappy with what happened, so he posted the following on Facebook:

"...if you are an evil, vindictive woman who wants to ruin your husband's life and take your son's father away from him completely--all you need to do is say that you're scared of your husband or domestic partner...."

Although Byron had blocked his wife from viewing his Facebook page, she learned of the post. The post came to the attention of the magistrate, and the magistrate found Byron to be in contempt of court. The magistrate ordered Byron to serve 60 days in jail or post an apology (written by the magistrate) on Facebook every day for 30 days. The story, and the apology, are on the website for USA Today.

The magistrate's contempt finding raises some interesting issues. Byron made the comments to his "friends" on Facebook, knowing that his wife was not a "friend" and therefore could not see his posts. Do people not have the right to vent to friends?

The magistrate's apology order also raises questions. Does the freedom of speech guaranteed by the First Amendment also include the freedom not to speak? Can a Court order a person to speak (or post) against his will?

Ironically, the magistrate also ordered Mr. Byron to be friends with his wife (on Facebook). I suspect they will not be 'friends with benefits'.

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.

In Miami, there's nothing strange or tragic about a police officer riding down the beach on an ATV. What makes this incident strange is the on-duty officer is taking a female passenger on a joyride while he's on duty. What makes this incident tragic is the officer plows into two pedestrians and severely injures both.

According to the Miami Herald, the officer and his partner went, on-duty, to a bachelorette party. After drinking and dancing with the women at the party, the officer gave the bachelorette a ride on his ATV and struck the two pedestrians. One suffered a broken leg, and the other was treated for a broken leg and a damaged spleen. Five hours after the accident, the officer's blood alcohol concentration was .088. The officer now faces charges of D.U.I. with serious bodily injury and Reckless Driving with serious bodily injury. He posted bond of $30,000 and is scheduled to appear in court on August 24, 2011.

In Ohio, the officer would be charged with two counts of Aggravated Vehicular Assault. A person is guilty of Aggravated Vehicular Assault if it is proven that his operation of the vehicle under the influence (or over the legal limit) caused serious physical harm to another person. The penalties include a prison sentence of one year to five years (on each count) and a license suspension of up to ten years (on each count).

It is curious that it took five hours to take a blood sample from the officer. The blood sample was drawn by Miami Fire & Rescue personnel. In Ohio, a blood test is admissible if the sample is drawn within two hours of operating the vehicle (R.C. 4511.19). After two hours, the blood test is admissible only with expert testimony.

The officer has already been fired from the Miami Beach Police Department. According to the Miami Newtimes Blogs, he has a less-than-stellar record with the police department. Strange and tragic indeed.

"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 Chicago Tribune reported that the driver of a tour bus in Chicago struck and killed a pedestrian, and a blood test following the accident was positive for cocaine. The bus driver is now being held without bail and likely facing charges of D.U.I. and Aggravated Vehicular Homicide. This tragic incident highlights the issues of driving under the influence of drugs, vehicular homicide, and commercial drivers.

When we hear a bus driver was charged with D.U.I., most people think of driving under the influence of alcohol. Under Ohio Law, an O.V.I. (same as D.U.I.), can be committed with drugs in two ways: (1) operate a vehicle under the influence of a drug of abuse; and (2) operate a vehicle with a prohibited concentration of a drug in one's blood or urine (for cocaine, the prohibited concentration is 150 nanograms). The penalties for O.V.I.-drugs are the same as the penalties for O.V.I.-alcohol.

The bus driver will also likely be charged with the Illinois equivalent of Ohio's Aggravated Vehicular Homicide law. A person is guilty of this offense if the person causes the death of another person by driving recklessly or operating a vehicle under the influence. The penalties for Aggravated Vehicular Homicide include a prison sentence up to eight years and a lifetime driver's license suspension.

The bus accident also involves consequences for the driver's commercial driver's license (CDL). In Ohio, a commercial driver found operating with a prohibited concentration of alcohol or drugs will have an immediate license suspension with no driving privileges for commercial vehicles. If the commercial driver is convicted of an O.V.I., there is a one-year CDL disqualification.

It turns out the bus driver involved in this tragic accident had prior traffic violations, had served time in prison for sexual assault, and had additional sexual assault charges filed after the accident. It makes one wonder what kind of background check was done before he was hired to drive a tour bus and be responsible for the well-being of so many people.

After crashing his SUV into another car at the gated entrance to his Florida neighborhood, a man crashes through the entrance gate and comes to a stop. He then runs, naked, carrying his dog, into his home. An officer goes to the man's home and finds him lying in bed with blood on his body and the bed sheets. As medical personnel treat him, the man becomes combative and kicks the officer, which leads to the man being tased. He is eventually charged with D.U.I. (second offense), leaving the scene of an accident, criminal mischief, resisting arrest, and battery on an officer. The incident was reported by the Panama City News Herald.

The state attorney's office has not yet received the man's medical records, which will include the result of his blood alcohol test. It would be interesting to know the results of that test. Apparently, no field sobriety tests were performed by the naked man. No word on the condition of his dog.

The defendant has not yet been convicted or sentenced in Florida. If this were a second offense D.U.I. (O.V.I.) in Ohio, the penalties would include a mandatory jail sentence of ten days to six months, a mandatory license suspension of one year to five years, a mandatory fine, mandatory alcohol treatment, mandatory yellow license plates, and a mandatory ignition interlock device on his car. These penalties are in addition to whatever sentence he may receive for the other offenses.

Not all D.U.I. cases are the same. What could have ended up as charges of D.U.I. and Failure To Control turned into a much more complicated situation. Given the long list of charges, it's surprising the man was not also charged with Public Indecency and Cruelty to Animals.

Earlier this month, a 19-year-old was pulled over for driving erratically in Lincoln, Nebraska. When police searched his vehicle, they found beer and a bottle of vodka. Following field sobriety tests, he was arrested for D.U.I. and had a breath alcohol concentration more than twice the legal limit (see article on The Smoking Gun). Most interesting is the Halloween costume the suspect was wearing when he was arrested: a breath-testing machine.

According to an older Smoking Gun article, history repeats itself. In November of 2009, another man was arrested for D.U.I. (O.V.I.) in Ohio while wearing a breathalyzer costume. In that incident, the 18-year-old blew slightly below twice the legal limit. Almost as ironic as his costume was his name: Miller.

Both of the costumed arrestees were under 21. In Ohio, there are slightly different penalties for adults and juveniles convicted of drunk driving. While the O.V.I. penalties for people 21 and over can be slightly more severe, the O.V.U.A.C. penalties for people under 21 include a longer waiting period for driving privileges (60 days rather than 15 days) and a requirement that the defendant re-take the driver's license test.

It doesn't take a D.U.I. lawyer to give sound Halloween advice:
(1) Don't drive drunk
(2) Don't drink underage
(3) Don't violate rules (1) and (2) when dressed as a breath-testing machine.

A man in Casper, Wyoming was charged with D.U.I. twice in the same night. It was not the first such occurrence in this Wyoming town. The incident raises the issue of increased penalties for repeat D.U.I. offenses, additional charges for Driving Under Suspension, and the policy of releasing arrestees after they post bond.

The 67-year old retired physician was charged with D.U.I. after he blew a .087 on a portable breath test. He was taken to jail, where he posted bail and was released. About 25 minutes later, he was arrested and charged with a second D.U.I. as he drove away from the jail. According to the Casper Star-Tribune, he told the second arresting officer that he had been in jail and had not been drinking there. He pled not guilty to both charges, and his case is pending.

If this incident were to occur in Ohio, the potential sentences for the D.U.I.s (called O.V.I. in Ohio) would be increasingly severe. While the first offense would carry a mandatory three days in jail that may be satisfied by a three-day driver intervention program, the second offense would carry a mandatory minimum sentence of ten days in jai. For the second offense, there would also be a higher fine, a longer license suspension, and the defendant would be required to have yellow license plates.

The other complication in Ohio would be that the defendant would be charged with driving under suspension. When a person is arrested for O.V.I., they are asked to take a breath test, blood test, or urine test. If the result is at or over the limit (.08), or if the person refuses the test, the person is subjected to an Administrative License Suspension. If the retired doctor was driving away from the jail in Ohio, he would be driving under the administrative suspension, which would be a separate offense carrying a minimum of three additional days in jail.

This incident raises a question about the jail's policy of releasing D.U.I. arrestees after they post bond. The Star-Tribune article indicated that each county in Wyoming has its own policy on this issue. This county, however, had a previous incident in 2007 in which the arrestee was released and hit a pedestrian as he drove home. Maybe they should require that the person be picked up at the jail rather than allowing the person to drive away.

Police in Minnesota arrested three people for DUI in one incident. Police received a call that a car went off the road and crashed into a shed. When they arrived, they found the driver and passenger in the car. The driver was a 12-year-old girl, and she was ultimately charged with DWI. The passenger, a 19-year-old man, attempted to move the vehicle, and he too was charged with DWI. Another 19-year-old man drove a moped to the scene to pick up the passenger, and the moped driver was also charged with DWI. The story was published online in the Crimesider page of the CBS News website.

In Ohio, if a 12-year-old were suspected of drunk driving, the juvenile may face multiple charges. First, the juvenile may be charged with O.V.I. (D.U.I.) for operating a vehicle under the influence of alcohol and subjected to O.V.I. penalties. Second, the juvenile may be charged with O.V.U.A.C. for operating a vehicle after underage consumption and be sentenced for underage O.V.I. Third, the juvenile may be charged with Underage Alcohol Consumption which carries additional sanctions.

The Minnesota deputies must have been surprised to find a 12-year-old behind the wheel of the wrecked car and even more surprised to arrest three people for DUI out of the same incident.

Breath-testing machines have been used for O.V.I. (D.U.I.) in Ohio for decades. Until recently, the breath-testing instruments approved by the Ohio Department of Health (ODH) were the BAC Datamaster and the Intoxilyzer 5000. In 2009, the Ohio Department of Health approved the use of the Intoxilyzer 8000. In addition, the ODH purchased 700 Intoxilyzer 8000s, at a cost of $6.4 million, to be used throughout the state.

The state's purchase of the Intoxilyzer 8000s was controversial, as reported in the Columbus Dispatch and the Cleveland Plain Dealer. At the time of the purchase, the 8000 had already been the subject of legal challenges in other states, including Arizona, Florida and Minnesota. Some of those challenges continue. The state of Florida has ordered the manufacturer of the 8000, CMI, Inc., to pay monetary penalties for not divulging the source code for the machine's software. The state of Tennessee considered the 8000 for use in that state and ultimately rejected the 8000. Despite these challenges, the 8000 was chosen over an Ohio-made Datamaster.

In addition to the legal challenges, the ODH decision to purchase Intoxilyzer 8000s was controversial due to the relationship between an ODH employee and CMI. Dean Ward, then head of the ODH Bureau of Alcohol and Drug Testing, wrote the specifications that led to adopting the 8000 and was a friend of CMI president Toby Hall. Now retired from ODH, Ward is rumored to be employed in some capacity by CMI.

Use of the Intoxilyzer 8000 has been implemented in a few counties throughout Ohio. In central Ohio O.V.I. (D.U.I.) cases, the 8000 is now being used in Marion County and Union County. I was recently retained for my first case involving an 8000 in Marion County. In a few weeks, I have a hearing on a motion to suppress the breath test in that case. Should be interesting...I'll post the outcome.