Articles Posted in DUI/OVI enforcement

During a recent OVI jury trial, the judge and I disagreed about the function of standardized field sobriety tests (SFSTs). During a sidebar, I argued the tests do not measure driving impairment; they predict blood alcohol concentration (BAC). The judge’s opinion was SFSTs measure impairment of driving ability. The judge’s opinion prevailed, despite being wrong, because the judge’s opinion always prevails in the judge’s courtroom (unless and until an appellate court says otherwise). This particular judge is intelligent, well-intentioned, and better educated on DUI/OVI issues than most judges and lawyers. If this judge misunderstands the purpose of SFSTs, it’s a topic worth addressing.

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A Very Brief History Of Standardized Field Sobriety Testing
Before the introduction of SFSTs, law enforcement officers used a variety of non-standardized tests to help them decide whether to arrest a person for drunk driving. Beginning in 1975, the National Highway Traffic Safety Administration (NHTSA), sponsored research which resulted in the development of standardized field sobriety tests. That research also led to the NHTSA manual: “DWI Detection And Standardized Field Sobriety Testing”.

Subsequent to the original publication of the manual, NHTSA conducted multiple validation studies. Those studies have evaluated the SFSTs in various environments and have examined multiple factors affecting the tests. The reports from the studies are clear: what’s being evaluated is the effectiveness of the SFSTs to predict BAC, not driving impairment.

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This is the week of July 4th.  For some, that means celebrating our nation’s independence with burgers, beer and boats.  As alcohol is often mixed with boating, people are prosecuted and punished for boating under the influence (BUI).  But how do law enforcement officers determine if a person’s ability to operate a boat is impaired by alcohol?

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Standardized Sobriety Tests And Sea Legs
Law enforcement officers have historically investigated BUI using the same Standardized Field Sobriety Tests (SFSTs) as those used for DUI / OVI cases on land.  Those tests include the Horizontal Gaze Nystagmus (HGN), the Walk And Turn (WAT) and the One Leg Stand (OLS) tests.

 

In 1990, the U.S. Coast Guard, in conjunction with the International Association of Chiefs of Police (IACP), conducted a study regarding the utility of the SFSTs in the marine environment.  The report from the study concludes the use of the SFSTs is effective for making the correct arrest decision, and the accuracy of the tests is not degraded in the marine environment.  The report was later criticized because it ignored the effect of ‘sea legs’ on test performance.

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The last entry in this blog discussed the movement to decrease distracted driving in the United States.  Using cell phones while driving appears to be increasingly problematic.  In response, states are criminalizing the behavior, and groups like the Partnership For Distraction-Free Driving and the Distracted Driving Project are mounting campaigns which encourage drivers to not multi-task while driving.  Another idea to combat distracted driving is use of the ‘Textalyzer’.

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What Is A Textalyzer?
The Textalyzer is computer program developed by Cellebrite.  Cellebrite sells software which enables investigators to unlock digital evidence from cell phones and other devices.  The Textalyzer is a relatively lean application which analyzes cells phone and provides reports regarding how and when the phones were used.

The Textalyzer could be used in various traffic law enforcement scenarios.  For example, it may be used if an officer is dispatched to an accident scene, makes a traffic stop, or responds to a report of a reckless driver.  In any of those situations, the officer could obtain the cell phone(s) of the driver(s) involved.  The officer would then run a cable from the driver’s phone to the officer’s laptop.  The Textalyzer program on the officer’s laptop would then examine the cell phone on-the-spot and report the findings to the officer.

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How many times have you seen someone obviously texting while driving?  I recently drove by a guy who was operating his phone with both hands while he steered his car with his knees.  I’m sensitive to the danger posed by distracted driving, both as a lawyer who represents clients charged with traffic offenses and as a father of a child approaching driving age.  The more we learn about the danger of distracted driving, the more we understand it may be as hazardous as drunk driving.  Consequently, driving while texting may someday carry penalties like those for DUI (known as OVI in Ohio).

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Matt Richtel‘s recent article in the New York Times presents a good discussion of this issue.  According to the article, the problem of driving while distracted by a cell phone is getting worse.  Surveys show Americans not only continue to text but also take selfies, use Snapchat and post on Facebook while driving.  According to the National Highway Traffic Safety Association (NHTSA), 3,477 people in the United States were killed by distracted driving in 2015, and another 391,000 were injured.  NHSTA chief Mark Rosekind says it’s increasing, and “radical change requires radical ideas”.

The Movement To Decrease Distracted Driving
One idea for change comes from Candace Lightner, founder of Mother’s Against Drunk Driving.  Lightner has formed a new group:  Partnership For Distraction-Free Driving.  That group is gathering signatures on a petition for social media companies like Twitter and Facebook to discourage drivers from multi-tasking.

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There are few instances when the government can take our property without first holding a hearing.  An Ohio Administrative License Suspension (A.L.S.) is one of those instances.  If a driver refuses a chemical test or tests ‘over the limit’, an officer takes the driver’s license on-the-spot.  Accordingly, to protect drivers’ rights to due process of law, Ohio has rules which must be followed for an A.L.S to be imposed.  A recent A.L.S. case in an Ohio Court of Appeals demonstrates what happens when the rules are not followed.

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There Are Rules For Imposing License Suspensions
The case is Toledo v. Ferguson.  Ferguson was stopped and given field sobriety tests.  The police officer charged Ferguson with OVI and imposed an A.L.S.  For the A.L.S., the officer completed a BMV 2255 report and sent a copy to the court.  However, the report was sent to the court six days after the arrest, and Ohio Revised Code section 4511.192(E) requires that the report be sent “as soon as possible, but not later than 48 hours after the arrest.”  Ferguson’s lawyer filed an appeal of the A.L.S. on the ground the BMV 2255 report was not timely filed.  The trial court refused to terminate the A.L.S., so Ferguson appealed to the Sixth District Court of Appeals.

Government Claims There Is No Remedy For Violating Rules
The prosecution argued the officer’s violation of the 48-hour requirement is not a ground for terminating the A.L.S.  Ohio Revised Code section 4511.197 establishes the parameters for A.L.S. appeals.  That section establishes four bases for appealing the A.L.S.  In Ferguson, the prosecution argued that, because the 48-hour rule is not one of those four bases, violation of the 48-hour rule cannot result in termination of the A.L.S.  The trial court agreed with the prosecution.

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A few days ago, the state of Ohio began imposing increased penalties for DUI (known in Ohio as OVI). The increased penalties are part of House Bill 388, commonly known as “Annie’s Law”*. The legislation is not really one law but a revision of nearly 20 statutes and creation of one new one. Effective April 6, 2017, “Annie’s Law” provides for longer driver license suspensions, encourages increased use of ignition interlock devices, and results in more defendants being punished as ‘repeat offenders’.

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Ohio DUI / OVI Driver License Suspensions Just Got Longer
If a person pleads guilty to OVI or is found guilty of OVI, the court must impose a driver license suspension. The length of the license suspension is chosen by the judge from a range mandated by legislation. The range mandated by legislation increased with Annie’s Law. The following table summarizes license suspension lengths for Ohio OVI convictions:

Offense in ten years Old license suspension New license suspension
First 6 months to 3 years 1 year to 3 years
Second 1 year to 5 years 1 year to 7 years
Third 2 years to 10 years 2 years to 12 years
Fourth or Fifth 3 years to life 3 years to life

 

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Joe was arrested for DUI / OVI, and the officer had Joe take a breath test and a urine test.  The breath test showed an alcohol level under Ohio’s limit, and the urine test showed an alcohol level over Ohio’s limit.  Based on the urine test result, Joe was prosecuted for operating a vehicle with a prohibited concentration of alcohol in his system.  Should Joe be found guilty of OVI?

Test-results-300x220This scenario is not hypothetical:  “Joe” was my client.

Joe came to the attention of the officer because one of Joe’s headlights was out.  The officer turned around to follow Joe and reportedly observed Joe’s tire go over the lane line one time.  The ‘marked lanes’ violation was not recorded on video, although the remainder of the incident was.

The officer stopped Joe and noticed the odor of alcohol.  When asked, Joe explained he went to a wings restaurant and had a few beers with dinner.  The officer administered field sobriety tests, and Joe’s performance on the tests was good but not great.  The officer arrested Joe and took him to the police station.

A Tale Of Two Tests
At the police station, the officer asked Joe to submit to a breath alcohol test.  Joe gave a sample of his breath, and the breath-testing-machine produced a result of .069 (grams per 210 liters of breath);  under Ohio’s limit of .080.  The officer had Joe provide a urine sample because the officer had a hunch Joe smoked marijuana.

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Hangover-man-after-party-300x210‘Tis the season for holiday parties. ’Tis also the season for DUI/OVI arrests (in Ohio, it’s called OVI). From Thanksgiving Eve (‘blackout Wednesday’) to New Year’s Day, officers are particularly ambitious about enforcing Ohio’s drunk driving laws this time of year.

But OVI convictions can be avoided. The first five recommendations below may help you avoid getting arrested and charged with OVI. If you get arrested anyway, the second five recommendations may help you avoid getting convicted of OVI and having that OVI conviction on your permanent record.

If You Want To Avoid Getting Arrested
10. Make a plan and stick to it. I can’t tell you how many times a client has told me they were not planning on driving that night, but circumstances changed, and they ended-up driving home. If you know you are going to drink alcohol, plan to wait to drive until the alcohol won’t affect your driving, or arrange alternate transportation. If circumstances change, don’t ‘end-up driving home’: call a cab or use a ride-sharing program like Uber or Lyft.
Bonus tip: ‘I was the most sober one of the group’ is not a valid defense!

9. Avoid driving during ‘drunk time’. In the minds of many police officers, the only people driving between 1:00 am and 3:00 am are police officers and drunks. If you are not driving a cruiser, some officers are going to presume you’ve been drinking and look for a reason to pull you over.

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Over 20,000 DWI cases in New Jersey are being called into question due to problems with the recalibration of breath-testing machines.  According to New Jersey 101.5, Sgt. Marc Dennis skipped a critical step each time he recalibrated the machines.  Plaintiffs in a class-action lawsuit now seek to vacate thousands of convictions in which evidence was produced by those breath-testing machines.  Although this debacle occurred in New Jersey, it illustrates the importance of properly maintaining breath-testing machines in Ohio DUI/OVI cases.

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In Ohio DUI/OVI cases, there is a distinction between a calibration and a calibration check.  When breath-testing machines are built, the machines must be ‘taught’ to identify and quantify alcohol (ethanol).  That ‘teaching’ process is a calibration.  As a machine is being used by a law enforcement agency, the agency periodically runs a test to confirm the machine produces accurate results.  The test is done using a simulator like the one pictured here.  That periodic test is a calibration check.

Calibration checks, also referred to as ‘instrument checks’, are done at least once per week in Ohio.  The weekly instrument checks are conducted by the law enforcement agency which owns and/or operates the breath-testing machine.  Some agencies assign the responsibility to one officer, and, in other agencies, multiple officer share the responsibility of conducting weekly instrument checks.

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Today’s report regarding the conduct of a forensic scientist employed by the state of Ohio demonstrates the danger of the government enforcing laws without effective checks and balances.  Forensic scientist G. Michele Yezzo worked for over 30 years as a laboratory technician for the Ohio Bureau of Criminal Investigation (BCI).  During that time, she analyzed evidence in criminal cases and testified in court regarding those analyses.  The feature story in The Columbus Dispatch says she now, “stands accused of slanting evidence to help cops and prosecutors build their cases.”

http://www.dreamstime.com/royalty-free-stock-photo-blood-test-hand-latex-glove-holding-sample-vial-front-form-image37079485According to the newspaper report, the BCI employee stretched the truth in her analyses to satisfy law enforcement.  She even reportedly went so far as asking police officers “What do you need the evidence to say?”  Her work as a government scientist led to hundreds of criminal convictions, including serious cases involving murder and rape.  This forensic scientist’s lack of credibility calls many of those convictions into question.  It also brings attention to the issue of forensic testing in Ohio DUI/OVI cases.

In Ohio OVI cases, forensic testing at crime labs is used to detect and measure alcohol and drugs in blood and urine samples.  If a driver is arrested and the officer suspects the driver is under the influence of alcohol and/or drugs of abuse, the officer asks the driver to submit a sample of breath, blood or urine.  Breath samples are analyzed on-the-spot by a breath-testing machine.  Blood and urine samples are sent to a crime lab for analysis.

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