Recently in DUI/OVI sentencing/penalties Category

August 16, 2014

JAPANESE LAWYER COMPARES DUI/OVI IN OHIO AND DUI/OVI IN JAPAN

This summer, I had the honor of being shadowed by Japanese criminal defense lawyer Yaeko Hashimoto, who recently completed an LL.M. program at the O.S.U. Moritz College of Law. In our conversations, it became clear there are differences between DUI/OVI laws in Ohio and DUI/OVI laws in Japan. Yaeko agreed to be a guest blogger and prepared the remainder of this article.

Drinking In Japan
Generally, Japanese culture is generous to drinking behavior, compared with other countries. In spring, people have a picnic under cherry blossoms with alcoholic beverages, and many adults enjoy beer or Japanese sake in public areas. Also, Japan has alcohol vending machines on streets so anyone can buy alcoholic beverages 24 hours per day without identification.

Vending machine with alcoholic beverages.png
Drunk Driving Laws In Japan
Until 2009, if a driver with no prior record was convicted of O.V.I. per se, the person's driver license was not suspended. However, the law changed after a tragedy caused by a drunk driver in 2006. The drunk driver hit another car head-on on a bridge, and the victim's car fell into a dark sea. Three young children were killed. In response, the 2007 and 2009 laws made O.V.I. punishments tougher. The legal limit in Japan is .15 mg/l, which is approximately .03%, as compared to the U.S., which has a legal limit of .08%. Changed to Japan's O.V.I. punishments are summarized in the following table:


Japan OVI punishment table.pdf


Typical Procedure And Consequeces For O.V.I.
If a person is charged with O.V.I. per se for the first time in Japan, the prosecutor will choose a summary trial. With a summary trial, the judge can impose only a fine, not jail, and the defendant does not have the right to court-appointed counsel.

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May 17, 2014

SHOULD OHIO USE DAILY ALCOHOL TESTING FOR REPEAT DUI/OVI OFFENDERS?

What should we do with repeat DUI/OVI offenders? On one hand, we want them to be rehabilitated, and we want them to be employed, which usually requires driving. On the other hand, we want to punish them and protect the public from the risk of harm they create. In Ohio, to protect the public from the danger posed by repeat offenders, we typically require them to have ignition interlock devices installed so they cannot drive after consuming alcohol. In Florida, the state legislature is considering an alternative to ignition interlock: "24/7 Sobriety". Florida's consideration of this program raises the question: should Ohio use daily alcohol testing for repeat offenders?

Ignition interlock device.jpgAn ignition interlock device is intended to prevent a car from running if the driver has recently consumed alcohol. When the device is installed, the driver must blow into the interlock before starting the vehicle. Unless the breath sample is essentially alcohol-free, the vehicle will not start. The interlock can also be programmed to require a 'rolling retest' periodically as the vehicle is driven. The vehicle will stop running if the breath sample contains alcohol or if no breath sample is given. Ohio law requires the use of ignition interlock on a person's second (or more) offense.

The program being considered by Florida is an alternative to ignition interlock. Under the "24/7 Sobriety" program, a defendant must either submit to a breath or urine test twice daily or wear a SCRAM device (Secure Remote Alcohol Monitoring). Participation in the program is required as a condition of driving privileges. If the defendant tests positive for alcohol or drugs, consequences like jail time are immediately imposed. As part of the program, defendants may also be ordered to participate in drug/alcohol counseling. The program, naturally, is opposed by vendors of ignition interlock devices.

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January 20, 2014

SHOULD WE USE INTERLOCK INSTEAD OF LICENSE SUSPENSIONS FOR OHIO DUI/OVI SENTENCES?

An Ohio DUI / OVI sentence has several parts. There is mandatory jail time (or a driver intervention program for a first offense), a mandatory fine, and a mandatory license suspension. For a first offense, the license suspension is a minimum of six months and a maximum of three years, and the judge has discretion to grant or deny limited driving privileges. There are also optional sanctions for a first offense, and one of those sanctions is the use of an ignition interlock device. Proposed legislation in New Jersey would replace mandatory license suspensions with mandatory use of an ignition interlock. Should Ohio consider this change?

Ignition interlock device.jpgAn ignition interlock device (IID) is a mechanism installed in a vehicle that measures the alcohol present on someone's breath. After the IID is installed, the driver will have to blow into the IID before he or she is able to start the engine. The vehicle will not start if the alcohol concentration on that person's breath exceeds a predetermined limit.

In New Jersey, there is opposition to the proposed move from license suspensions to ignition interlock devices. The main argument against the change is that removing the license suspension would remove 'the strongest deterrence to drunken driving'. The deterrent effect of a license suspension is questionable, as thousands of people drive drunk in Ohio every year despite the existing license suspension and despite frequent anti-DUI PR campaigns. In addition, the reality is that losing one's license does not prevent someone from getting into a car and driving again. It is illegal to drive on a suspended license, but that doesn't actually stop a person from driving under suspension.

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November 9, 2013

DUI / OVI IN OHIO JUVENILE COURTS

I recently represented a client for a DUI / OVI in a juvenile court near Columbus, Ohio. The case went to trial, and I was sharing my experience with a colleague. The colleague happened to be coordinating a DUI / OVI seminar for the Columbus Bar Association, and he asked me to speak at the seminar on the topic of handling DUI / OVI cases in juvenile court. The topic is a good one because most attorneys do not regularly represent clients for DUI / OVI in juvenile court, and there are some differences between juvenile cases and adult cases.

Juvenile DUI.gifOne issue that comes up in juvenile DUI / OVI cases that does not really come up in adult DUI / OVI cases is venue: where the case will be heard. There seems to be some misunderstanding about the juvenile's ability to transfer the venue. Ohio law says the complaint (the traffic ticket) may be filed either in the county of the juvenile's residence or the county where the offense occurred. If the ticket is filed in the county where the offense occurred, it can only be transferred to the county of the juvenile's residence if the judge authorizes it. Even then, either judge can order that the trial be held in the county where the offense occurred. There is a little-used paragraph of Juvenile Rule 11 that says the case must be transferred if the juvenile has a pending case in the county of the juvenile's residence. So, if you want the case to be heard in the county of the juvenile's residence, simply have the juvenile get charged with a minor offense like littering in his home county!

Another issue that is unique for juveniles and drivers under age 21 is the level of proof required to arrest the driver for DUI / OVI. As the 'legal limit' for drivers under 21 (.02) is lower than the limit for drivers over 21 (.08), the question becomes whether officers need less evidence of intoxication to justify arresting a driver under 21. The answer depends on where the case is being heard. Ohio has 12 appellate districts. Some of those appeals courts say less evidence is required, some of them say the same level of evidence is required, and some of them have not addressed the issue.

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April 21, 2012

INSIGHT ON OHIO D.U.I./O.V.I. FROM RACE CAR DRIVER'S D.U.I.

Race car driver Al Unser, Jr., two-time winner of the Indianapolis 500, recently pled guilty to his second DUI, as well as Racing on a Freeway, according to the Albuquerque Journal. The judge in Albuquerque, New Mexico sentenced Unser to 90 days in jail, but one day was credited for time already served, and the remaining 89 days were suspended on the condition that Unser complete one year of probation. He was previously convicted of DUI in 2007. Unser's plea and sentencing raises some questions: Would his sentence for a second O.V.I. offense in Ohio be harsher? Why was his sentence lenient even by New Mexico standards?

Would Unser's sentence for a second O.V.I. be harsher in Ohio?
Oh yes. Drunk driving penalties in Ohio are apparently tougher than those in New Mexico. For a second offense in six years, Ohio has a mandatory minimum jail sentence of ten days. That minimum jail sentence is doubled if the breath test/blood test result is at or over .170, or if there was a refusal of the test. In New Mexico, a second offense carries a minimum jail sentence of four days.

Why was Unser's sentence so lenient, even by New Mexico standards?
Was Unser's sentence lenient? I don't practice in New Mexico, so I'm not sure exactly how things go there, but the sentence seems lenient for at least two reasons: (1) there were aggravating circumstances: he was racing another car and driving over 100 mph; and (2) despite the aggravating circumstances, his sentence of one day in jail is less than the "mandatory minimum" jail sentence for a second offense.

Readers leaving comments on a Huffington Post story seem to think the sentence was too lenient. Here are a couple of the comments.

  • The length of the sentence is determined by name and income. Any other schmoe would just now be getting out of jail from the furst offense.
  • Anyone else would be spending time in Crowbar College, where he should be.

Unser's sentence may have been lenient due to the uncertain strength of the prosecutor's case and mitigation by Unser while the case was pending. By the time the trial was to begin, the arresting officer no longer worked for the police department and had a pending "personnel action". With this situation, the prosecutor may have recommended a more lenient sentence than would have been recommended if there were not a witness problem. Also, while the case was pending, Unser completed an inpatient alcohol abuse treatment program.

Unser's D.U.I. case gives valuable insight on D.U.I. defense. First, different states have different sentencing schemes for D.U.I. offenses. Second, contesting the charge may positively impact the case in unexpected ways. Finally, mitigation while the case is pending may also improve the outcome of the case.

January 16, 2012

OHIO O.V.I. AND CHILD ENDANGERING

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.

July 29, 2011

SECOND OHIO D.U.I. CHARGE WITH A TWIST

"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!!

November 28, 2010

NAKED MAN CHARGED WITH D.U.I. AND OTHER OFFENSES

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.

November 14, 2010

HALLOWEEN COSTUME LEADS TO ANOTHER D.U.I. ARREST

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.

September 12, 2010

Driver Arrested For DUI Twice In One Night

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.