Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.
Ohio takes drivers’ licenses before a person is found guilty of DUI/OVI. If a person is arrested for DUI/OVI and tests over the limit, or refuses to test, that person’s license is suspended immediately. No judge reviews the circumstances beforehand to determine if the suspension should be imposed. Instead, the executive branch of the government takes the driver’s license automatically.
Four months after Brittany was arrested and charged with OVI, the government charged her with a second count of OVI. In November, Brittany was arrested for OVI. On the day of her arrest, she submitted a urine sample, and she was charged with OVI. Three weeks later, the urine sample was analyzed, and the result was provided to the police department. In March, four months after the arrest, the police department charged Brittany with a second count of OVI based on the result of the urine test. Isn’t that a violation of her right to a speedy trial?
The Miranda warnings are well-known: “you have the right to remain silent….” What is not so well-known is when the Miranda warnings are required. According to Miranda v. Arizona, the warnings must be given when a suspect is questioned while ‘in custody’. If a suspect is in custody and the warnings are not given, statements made by the suspect cannot be used in the suspect’s trial.
An appellate case decided earlier this month illustrates how not to attack the constitutionality of a law. In the case of State v. Topolosky, the Tenth District Court of Appeals upheld Ohio’s DUI/OVI marijuana law. Coincidentally, just before the case was published, I wrote about this topic in this blog, and I spoke about this topic at two seminars. The defendant in Topolosky did essentially the opposite of what I suggested in the blog and presentations. The defendant used an argument destined to fail…with bad timing…without an expert witness.
Issue 3 went up in smoke last week, so it’s still illegal to use marijuana in Ohio. It’s also illegal to operate a vehicle under the influence of marijuana or with a prohibited level of marijuana metabolite in one’s urine. The last article in this blog addressed the duration of marijuana’s effects and the duration of marijuana’s detectability. The conclusion was marijuana effects last for two hours to five hours, but marijuana metabolites are detectable in urine for up to five weeks. With that backdrop, this article discusses whether Ohio’s DUI/OVI marijuana laws are Constitutional.
Next week, Ohioans will vote on Issue 3: a state constitutional amendment to legalize marijuana for medicinal and personal use*. If marijuana use is legalized in Ohio, more drivers will face charges of operating a vehicle under the influence of marijuana. Ohio’s OVI-marijuana laws raise many questions: How long does a marijuana high last? Does marijuana impair driving ability? Do blood and urine test results correlate with impaired driving ability? Are Ohio’s OVI-marijuana laws Constitutional? This article addresses the first question by discussing the duration of marijuana effects.
One of the most frequently asked questions for criminal defense attorneys is about the impact of Miranda warnings. A previous article in this blog explained the holding of the Miranda case. After the publication of that article, the United States Supreme Court decided a Miranda-related case which affects investigations in Ohio DUI/OVI cases.
DUI/OVI cases are litigated within a framework of rules. Some of those rules regulate the exchange of evidence between the prosecution and the defense. That exchange of evidence is the ‘discovery’ process. The rules for discovery are found in state and federal law, and the intricacies of the rules are fleshed-out in court decisions interpreting the rules. A prosecutorial violation of the discovery rules may significantly impact a DUI/OVI case.
When authorities found Donna Wardell in her Chevrolet Impala, the car was upside-down, held in the air by part of the utility pole she just hit (see the story at app.com). Medics pulled her out of the car through the windshield and rushed her to the hospital. The medical team determined the crash was the result of a seizure caused by a brain tumor. Wardell did not know about the tumor: she learned of it in the hospital. She later learned something else: she was being charged with DWI because, when the medics removed Wardell from her car, they observed the odor of alcohol.