It makes the roads safer, except when it makes the roads more dangerous. It’s a fair consequence for a person convicted of DUI/OVI, except when it’s unfair. The ignition interlock device has been used increasingly by Ohio and most other states to prevent drunk driving. As illustrated by a recent article in The New York Times, the device intended to encourage safe roads and fair punishment has actually caused accidents and unjust punishments. What should Ohio do?
In an Ohio appellate case decided this month, the prosecutor assumed defense counsel’s motion was insufficient, and it did not end well for the prosecutor. Defense lawyers often file motions to suppress evidence in Ohio OVI cases. Occasionally, a prosecutor will claim the motion is not particular enough: it’s a ‘shotgun’ motion attacking all the evidence, or it’s a ‘boilerplate’ motion not sufficiently tailored to the defendant’s specific case. The recent case illustrates a prosecutor making that claim should still be prepared to meet their burden of proof.
The Judge Agreed With The Prosecutor
The recent case is State v. Williams. David Williams was arrested for OVI, and his attorney filed a motion to suppress evidence. At the motion hearing, the lawyers for the State and the defendant narrowed the issue to whether the arret was justified by probable cause to believe the defendant committed a crime. Both lawyers elected to introduce no evidence. The judge concluded the defendant had the burden of going forward on his motion to suppress. Because the defendant did not introduce any evidence, the judge overruled the motion to suppress.
The Court Of Appeals Analyzed It differently
The appellate court clarified the responsibilities of the parties. A defendant who desires for evidence to be excluded from trial must file a motion to suppress the evidence. As the Ohio Supreme Court previously stated in State v. Schindler, “[I]n order to require a hearing on a motion to suppress evidence, the defendant must state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and court on notice of the issues to be decided.”
Raymond Wells walked out of court thinking he knew his sentence and was probably surprised when he later learned it included more than what the judge told him in the courtroom. There is a common saying in the law that “the court speaks through its entries”. What happens if the judge says one thing in open court but another in the sentence entry? A recent case from the Sixth District Court of Appeals gives us an answer.
The case is State v. Wells. Wells was originally charged with OVI ‘per se’, OVI ‘impaired’, and Marked Lanes. His lawyer negotiated with the prosecutor and reached a plea agreement. According to the plea agreement, the prosecutor would dismiss the charge of Marked Lanes, dismiss one charge of OVI, and amend the other charge of OVI to a charge of Physical Control Under the Influence.
The Judge Told The Defendant The Sentence
Wells appeared before the judge for a plea hearing. The prosecutor did not appear but did provide the judge with a written motion containing the plea agreement. Wells pled guilty to Physical Control, and the judge verbally announced the sentence. The announced sentence was: (1) 33 days in jail with three to be served in a driver intervention program and 30 suspended; and (2) a fine of $375 plus court costs. The judge also made reference to granting driving privileges and imposing a license suspension if the fine weren’t paid.
I recently had the pleasure of being interviewed by Grant Eagle on his podcast “5 Minute Legal Insights”. It actually lasted for ten minutes, and I was just getting warmed up! We discussed common misconceptions about DUI/OVI stops, arrests, and court cases. You can listen to the podcast here, and you can also find it on Apple Podcasts, Google Podcasts, Spotify and Stitcher.
Defense attorneys and forensic experts have claimed for years breath-testing machines are unreliable. Those claims tend to fall on deaf ears due to the inherent bias of the source: defense attorneys are advocates for clients accused of crimes based on the results of the machines. Recently, however, more objective sources investigated the reliability of alcohol breath testers and concluded they are often unreliable.
The Investigative Report
The objective sources are Stacy Cowley and Jessica Silver Greenberg. They are newspaper reporters who investigated breath-testing for an article in the New York Times. They interviewed more than 100 people for the investigation, including scientists, police officers, lawyers and executives. They also reviewed tens of thousands of pages of documents, such as court records, corporate filings and contracts.
The investigation revealed some interesting facts. For example, in the past 12 months, more than 30,000 breath tests were thrown out. The investigation cited many defects with breath testing, including programming mistakes in software, improper calibration, and human error. What I found especially interesting was the investigation uncovered problems with portable breath-testers, evidential breath-testing devices, and one particular device which has created controversy in Ohio.
DORA may be coming to a city near you. Not Dora the Explorer with her singing map and backpack. DORA the law which allows cities to have Designated Outdoor Refreshment Areas. In a DORA, people can walk around with open containers of alcohol purchased from local establishments. The idea behind DORAs is to spur economic development, and cities across Ohio are now implementing DORAs. Here are some facts about DORAs you may be interested to know before visiting one.
What Is The DORA Law?
Ohio Revised Code section 4301.82 authorizes municipal corporations and townships to establish Outdoor Refreshment Areas (DORAs). The executive officer or fiscal officer must submit an application to the legislative branch of the city or township. If the legislature approves, the DORA is created. The city or township then obtains a permit from the Ohio Division of Liquor Control. Establishments then obtain ‘Outdoor Refreshment Area’ designations on their liquor permits. The law was passed in 2017, and many cities in central Ohio are now implementing DORAs, so expect to see them near you in 2020.
There are some limitations to the DORA law. Bigger cities (over 50,000 people), may create only two DORAs, and smaller cities and townships (35,000 to 50,000 people) are limited to one DORA. The maximum DORA size for those cities and townships is 320 contiguous acres or ½ square mile. Cities and townships under 35,000 residents may also create a DORA, but only if the area includes at least four establishments which are ‘qualified permit holders’, and the maximum size is 150 contiguous acres.
What Is Permitted and Prohibited In A DORA?
In a DORA, you are permitted to carry open containers of alcohol if the alcohol was purchased from an establishment with an ‘Outdoor Refreshment Area’ designation. The Ohio law essentially says that, while in a DORA, you are exempt from the Open Container law. To be exempt, however, you must follow the rules.
You may be more of a target than you think. When you think about people arrested for drunk driving, do you picture a car driving erratically all over the road? That’s a common misconception. Most stops resulting in DUI/OVI charges are for minor offenses: failing to signal, driving a little over the speed limit, crossing a lane line one time. Some are even for non-moving violations: burned-out headlight, no license plate light, expired registration. A case decided last week by the Ohio Supreme Court illustrates how a minor violation can lead to more serious charges.
Is That Vehicle Black Or White?
The case is State v. Hawkins. Hawkins drove past a police officer, and the officer ran the vehicle’s plate. It was registered to a white 2001 GMC SUV, but it was on a black 2001 GMC SUV. The officer stopped Hawkins and asked for identification. Hawkins did not have identification but provided his name, date of birth, and social security number. In the meantime, the officer verified the vehicle’s identification number matched the number registered with the Ohio B.M.V.
The officer learned there was an active arrest warrant for Hawkins and informed Hawkins of this. Hawkins sped away, crashed the vehicle, and fled on foot. The officer apprehended Hawkins and charged him with Failing to Comply with the Order or Signal of a Police Officer. Hawkins was found guilty of the charge and appealed his conviction to the 12th District Court of Appeals. The 12th District affirmed the conviction, and Hawkins appealed to the Ohio Supreme Court.
How to improve litigation skills which lead to more acquittals (not guilty verdicts) in DUI/OVI cases can be a mystery. That’s why there are organizations like the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL). Those organizations co-host an annual DUI defense seminar in Las Vegas, and the theme of this year’s seminar was “Solving The Mystery of DUI Acquittals”. I attended the seminar, as I have for over 15 years, and took away valuable insights.
Day One: Retrograde Extrapolation & Cross Examination
On the first day of the seminar, there were two presentations which stood out to me. The first was Joseph St. Louis’ discussion of retrograde extrapolation. St. Louis is a DUI lawyer in Tuscon and a regent for the NCDD. After teaching how alcohol is absorbed, distributed and eliminated, he explained retrograde extrapolation. Retrograde extrapolation is the act of calculating a person’s blood alcohol concentration (BAC) at a previous time based on the BAC at a later time. St. Louis highlighted articles from scientific journals concluding retrograde extrapolation is a dubious practice due to all of the possible variables in the calculation, most of which are unknown to the person completing the calculation.
Retrograde extrapolation is important in Ohio because our OVI law prohibits operating a vehicle if, at the time of operation, the driver is under the influence or ‘over the limit’. In an OVI trial, the prosecution introduces the result of a blood/breath/urine test, and that test may be done up to three hours after operation of the vehicle. That test result is circumstantial evidence of the BAC at the time the defendant operated the vehicle. However, an expert witness can testify the BAC at the time of operation cannot be calculated with certainty: there is, in fact, a wide range of possible BACs, including BACs ‘under the limit’.
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.
What 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.
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.
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.