The consequences of an OVI/DUI conviction can go well beyond the fines, jail time, and license suspensions imposed by a Judge. Collateral effects like higher insurance premiums and lost employment opportunities can follow someone well after their case has been resolved in court. Some states, even notoriously tough-on-crime states like Texas, allow first-time OVI/DUI offenders to avoid the long term consequences of a conviction by completing a pretrial diversion program.

Get-out-of-jail-and-uncle-sam-300x224What is Diversion?
The general idea of diversion is that first offenders should be given an opportunity to learn from their mistakes and correct the underlying causes of their criminal offense without the stigma of a conviction. If an applicant meets the entry requirements, typically meaning the person has no prior criminal history and is charged with a qualifying offense, the applicant can be accepted into a diversion program. These programs typically require the participant to complete counseling and/or educational courses, perform community service, attend regular meetings with a probation/diversion officer, and maintain a clean criminal record for the duration of the program.

Many jurisdictions have diversion programs, covering a variety of offenses. The specifics of the programs vary depending on the jurisdiction and the offense. For example, the Texas program allows first-time DUI offenders with otherwise clean records to complete a year of probation supervision which includes monthly meetings, community service, drug/alcohol counseling, and the installation of an ignition interlock device on their vehicles. Successful completion of this year-long program results in the DUI charges being dismissed, which means they are able to move forward without a conviction on their record.

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The ever-growing number of states which have legalized either medical marijuana or recreational marijuana has created a number of issues for law enforcement and the justice system. Chief among those issues is the challenge of enforcing laws against operating a vehicle under the influence of marijuana. In an effort to overcome this challenge, the Norwegian company Drauger developed the DrugTest 5000. This system uses a mouth swab, taken roadside, to help determine if a driver is under the influence of marijuana or other drugs. The DrugTest 5000 has been in use in Norway since 2015 and has seen growing use in the United States. This test, however, is probably not the solution for law enforcement’s problems.

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Specific Problems With The Roadside Marijauana Test
While many hope the DrugTest 5000 will be to drugged driving what a breath test is to drunk driving, there are reasons to be skeptical. The first is the DrugTest 5000 can only detect the presence of drugs in a sample, not the amount. This means the DrugTest 5000 operates like a breath testing machine that can’t differentiate between a driver who had one beer and a driver who had 12.

The second reason to be skeptical is found in a 2018 joint study between the Oslo University Hospital and the Norwegian Mobile Police Service. The researchers found the DrugTest 5000 isn’t able to accurately identify drugs in a driver’s saliva. Over the course of the study, the DrugTest 5000 was found to have a false positive result for THC 14.5% of the time and a false negative result 13.4% of the time.

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If you think about the consequences of getting a DUI (called OVI in Ohio), the first thing which comes to mind is probably the sentence from the court. There is good reason for that: the sentence includes a mandatory jail term, license suspension, and fine as well as possible yellow plates, ignition interlock, and probation. In addition to the sentence imposed by the judge, however, there are collateral consequences for DUI/OVI convictions. One of those consequences is skyrocketing auto insurance premiums.

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How Are Insurance Premiums Calculated?
Auto insurance premiums are determined by what an insurance company expects to be the amount of risk associated with a particular driver and car. There are many factors which affect the cost of auto insurance. Those factors include the type and age of the car, how far and frequently the vehicle is driven, and the state in which the vehicle is used. Other factors are the driver’s age, gender, marital status, credit history, and driving history.

 

Why Does A DUI/OVI Affect Premiums?
With regard to driving history, one of the most expensive entries in a driving record is a conviction for DUI/OVI. Studies show that DUI/OVI is a risky driving behavior which leads to more crashes than practically any other driving behavior. In addition, insurance companies conclude that a person who engaged in that risky behavior is likely to repeat it in the future.

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Some people can’t resist. After having drinks, they get a craving, and they have to satisfy it. For some, it’s tacos or wings. For others, it’s burgers and fries. It’s typically not broccoli and kale. And then they go to a drive-thru when perhaps they shouldn’t be driving, and they end-up arrested for DUI/OVI. Two recent news-making DUI arrests demonstrate the danger of caving to cravings and driving-thru instead of staying home.

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It Happens At The Drive-Thru
In the first case, former NFL running back Darren McFadden was reportedly found asleep in the drive-thru of a Whataburger in Texas. Police were called to the scene, and McFadden allegedly resisted their attempts to apprehend him. Strangely, after being uncooperative, he consented to a chemical test, and the result showed a blood alcohol concentration of .15 or greater. He now faces charges of DUI and resisting arrest, which means a possible sentence of two years in jail.

In the second case, Pennsylvania state representative John Galloway allegedly was involved in a two-car accident in a McDonald’s drive-thru. Swartara Township police officers investigated the accident and found Galloway was at fault. They also found he appeared to be under the influence, so they gave him a BAC test. The result of the test was a blood alcohol concentration of .13 (the ‘legal limit’ is .08).

It Happens Fairly Frequently
At the Dominy Law Firm, we have represented numerous clients who were arrested at drive-thrus or had recently left a drive-thru. Some of those clients were on their way home, but many were at home and decided to leave for a fast food fix. A few have been during the day, but the vast majority are late at night.

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As discussed previously in this space, we have been eagerly awaiting the Supreme Court’s decision in Mitchell v. Wisconsin. The Court set out to determine whether Wisconsin’s Implied Consent statute requires police to obtain a search warrant before getting a blood sample from an unconscious DUI suspect. The state of Wisconsin argued that Mitchell, through the state’s Implied Consent statute, had already consented to the blood draw, thereby removing the requirement for a warrant. Alternatively, they argued this should simply be viewed as an exercise of the State’s power to imposes conditions on a person’s privilege to operate a vehicle on Wisconsin’s roads.

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In a 5-4 plurality decision, the Supreme Court disregarded both of these arguments and held the warrantless blood draw from an unconscious DUI suspect typically falls within the ‘exigent circumstances’ exception to the Fourth Amendment’s warrant requirement, so a search warrant is typically not required.

The Court’s Plurality Decision
Justice Alito wrote the opinion for himself, Chief Justice Roberts, Justice Breyer and Justice Kavanaugh. The opinion first acknowledges that the Court held in the past the dissipation of alcohol in blood does not, in and of itself, trigger the exigent circumstances exception, so a search warrant is typically necessary for a blood test. However, the opinion then states the presence of other factors could put additional time constraints on the police. Based on this logic, Justice Alito created a new two-prong test to determine if a blood draw from a DUI suspect would fall within the exigency exception:

1) The alcohol in the suspect’s blood is dissipating; and
2) Some other factors create pressing health, safety, or law enforcement needs that take priority over a search warrant application.

The court also determined that, if a defendant shows their blood would not have been drawn but for the police collecting BAC evidence, the exigent circumstances exception would no longer apply, so a search warrant would be required. Because Mitchell was never able to make such a showing, the Court remanded the case back to Wisconsin state court to apply this new two-part test.

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After having an office on Polaris Parkway for several years, the Dominy Law Firm has relocated. Our new office is off Route 315 just north of 270: near Hills Market and the bike trail. The new location is perfect for serving clients with OVI / DUI cases in Columbus, Delaware and courts throughout central Ohio. Our new address is:

7716 Rivers Edge Drive, Suite B  Columbus, OH 43235

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Ohio and Pennsylvania are two states which still prosecute drivers for DUI / OVI marijuana, even if the marijuana metabolites in the driver’s system are not affecting the person’s ability to drive. The Philadelphia District Attorney’s office recently announced it will not prosecute cannabis DUIs unless the driver has amounts of psychoactive THC which affect driving. Ohio prosecutors should consider implementing this policy.

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Two Types Of DUI/OVI Laws In Ohio
Ohio’s two general types of OVI are OVI ‘impaired’ and OVI ‘per se’. For a charge of OVI ‘impaired’, the prosecution must prove that, at the time of operating the vehicle, the driver was ‘under the influence’ of alcohol and/or drugs. ‘Under the influence’ means the alcohol and/or drugs “affected the nervous system, brain or muscles of the defendant so as to impair, to a noticeable degree, his ability to operate the vehicle”.

For a charge of OVI ‘per se’ the prosecution must prove that, at the time of operating the vehicle, the driver had a prohibited concentration of alcohol or drugs in his breath, blood or urine. The prohibited concentration of alcohol is .08%. The prohibited concentration of marijuana metabolite is 35 nanograms per milliliter of urine or 50 nanograms per milliliter of blood.

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It turns out the criminal defense lawyers were not the only group gathering in Myrtle Beach. It was bike week. Harley Davidson bike week to be precise. Thousands of bikers rolled in to cruise the strip, and a small percentage participated in drag racing, drunk driving and disorderly conduct. While some people were in the tourist town breaking the law, others were there learning about the law. I was in the latter group.

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I was there for the Sunshine Seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). This is an annual continuing education seminar and retreat for OACDL members. The seminar portion of the event is held in the mornings on Thursday and Friday (in a meeting room overlooking the beach), and the remainder of the time is the ‘retreat’.

 

Cyber Security And Client Competency
The seminar included an interesting presentation on cyber security. I, like many others, believed small business owners need not be especially concerned about being the victim of cyber crimes. However, the speaker explained small businesses, including law firms, are, in fact, targeted by hackers. He also discussed some relatively simple ways to avoid being a victim. A wildebeest does not have the be the fastest in the herd; just not the slowest. Similarly, a small law firm does not need to be super cyber secure; it just needs to not be the low-hanging fruit for cyber criminals.

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The United States Supreme Court recently heard oral arguments in the case of Mitchell v. Wisconsin. As this blog discussed previously, this the third case in a series of cases dealing with whether the police can take a DUI/OVI suspect’s blood without a search warrant. The questions and statements from the bench during the oral argument may telegraph how each justice views the issue. However, in our experience, it is difficult to predict the outcome of a case based on the oral arguments.

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The Trilogy of Cases Involving Warrantless Blood Draws
In Missouri v. McNeely, the Court concluded the dissipation of alcohol in blood does not necessarily create an exigent circumstance, meaning a warrant is generally required to obtain a blood sample from a DUI/OVI suspect. They followed that decision with Birchfield v. North Dakota, concluding a warrantless breath test can be administered as a ‘search incident to arrest’, but a blood test still generally requires a warrant.

That brings us to the third piece of the puzzle, Mitchell v. Wisconsin. In that case, the defendant passed out before the police were able to administer a breath test. Relying on Wisconsin’s Implied Consent statute, the police took the defendant to the hospital and had his blood drawn without a warrant. Mitchell was convicted of the DUI charge; and appealed his conviction on the ground the blood draw was an unconstitutional violation of his 4th Amendment right against unreasonable searches and seizures.

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Texting is arguably more dangerous than drunk driving. According to a study conducted by Car And Driver, a driver’s reaction time is worse while texting than while intoxicated. With nearly all drivers in possession of a cell phone, it seems likely many more people are driving while texting than driving while under the influence of alcohol or drugs. For decades, law enforcement has developed methods to detect drunk driving. Officers now need a way to detect texting while driving without violating individuals’ right to privacy. Is the new “Textalyzer” the answer?

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Texting Laws And The Textalyzer
Nearly all states, including Ohio, now have laws prohibiting texting while driving. The state-wide ban in Ohio Revised Code section 4511.204 prohibits operating a motor vehicle ‘while using a handheld electronic communications device to write, send, or read a text-based communication’. Another Ohio law, Revised Code section 4511.991, enhances the sentence of a traffic violation if distracted driving is a contributing factor to the commission of the offense. The problem is not prohibiting the conduct with a law: the problem is enforcing the law which prohibits the conduct. To address the difficulty of enforcing these laws, several states are considering laws which permit the use of a device like the Textalyzer.

The manufacturer of the Textalyzer, Cellebrite, says the device will help law enforcement officers prove whether a driver was using a mobile phone while driving. Officers would plug the device into the driver’s cell phone and scan the phone for recent activity. The device would tell officers when the phone was used for activities such as texting, Facebook messaging, and web browsing. Because the device can reportedly time-stamp the cell phone activity, officers would be able to determine whether the cell phone use was a factor in an accident or traffic violation.

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