Articles Posted in DUI/OVI enforcement

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.

Simulator

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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I have recently had the privilege of working on OVI cases with attorney Eric Holloway.  In addition to OVI defense, Eric also represents clients in civil rights cases, including cases involving false arrest.  As a follow-up to the last blog entry, ‘Uncovering False Arrests In DUI/OVI Cases’, I asked Eric to summarize the options of a person falsely arrested for OVI.  Eric agreed to be a guest blogger and prepared the remainder of this article.

Under arrest #2The handcuffs clamp down tight on your wrists; sweat beads up on your forehead.  The police officer just told you, “You’re under arrest.”

You did nothing wrong, yet you face the full gauntlet of the criminal justice system.  And you just know the police officer had no grounds to arrest you.  In time, the criminal justice system agrees with you.  In time, the charges are dropped or the jury finds you not guilty.  Now what?

You might think of taking the police officer to court as the next step.  While that is an option, another step should be considered first.  Instead of civil damages, think about your pre-arrest record.  It was probably clean – maybe a speeding ticket or two.  But, even though you won the DUI/OVI case, the charge(s) will show up on your criminal record for anyone to see.  That includes any future employers and many others.
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Officer Richard Fiorito was a DUI supercop.  He was honored by Mother’s Against Drunk Driving (MADD) for his efforts to combat DUI, and he was named a ‘top cop’ by the Alliance Against Intoxicated Motorists (AAIM).  According to Inthesetimes.com, Fiorito averaged one DUI arrest each day he worked.  He was like a superhero fighting to keep the Chicago streets safe:  it was almost too good to be true.

Actually, it was too good to be true.  It turns out Fiorito falsely arrested dozens of people for DUI.  A typical scenario would look like this:  Fiorito would stop a driver for a minor traffic violation and administer field sobriety tests.  No matter how well the person performed on the tests, the officer would score them as ‘failing’.  He would then arrest them and charge them with DUI.  In court, most people would simply plead guilty at the first court appearance, and others would accept favorable plea bargains rather than go to trial.

Under arrest

There were a couple exceptions:  Steve Lopez and James Dean, Jr.  Steve Lopez was a commercial driver and had just earned his CDL.  To protect his future career, he could not plead guilty.  James Dean, Jr. had good witnesses to contradict Fiorito’s allegations:  other officers.  When Fiorito charged Dean with DUI, Dean had just left the police station where he encountered multiple police officers who did not believe he was under the influence.  Neither Dean nor Lopez was convicted.

Dean and Lopez each filed suit against the city of Chicago for false arrest and malicious prosecution.  They eventually settled with the city for $100,000 each.  The city also agreed to pay legal fees of about $250,000, according to a Chicago Tribune article. *

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At the last minute, without warning, the government convicted Demetrius of a more serious offense than with which he was originally charged. Demetrius received a ticket for OVI. The ticket informed him he was charged with a low-tier ‘per se’ OVI, which carries a minimum of three days in jail and does not involve mandatory restricted (yellow) license plates. Just before his case was finished, the court permitted the prosecution to change the charge to a high-tier ‘per se’ OVI, which carries a minimum of six days in jail and mandatory yellow license plates. Can the government to that?

Uniform traffic ticket

That question was answered in the recent case of State of Ohio v. Demetrius Rosemond, and the answer is not obvious. It involves interpreting Rule 7 of the Ohio Rules of Criminal Procedure. That Rule addresses amendment of complaints, and a traffic ticket is a type of complaint. The Rule says a complaint may be amended, “provided no change is made in the name or identity of the crime charged.” The question in the Rosemond case is whether amending the ticket from a low-tier OVI to a high-tier OVI changes the name or identity of the crime charged.

The Ohio Supreme Court ruled on a similar issue in State v. Campbell. In Campbell, the defendant was charged with violating Ohio Revised Code section 4511.19(A)(5). With that particular sub-section (the [5] at the end), the government alleged the defendant had a blood alcohol concentration over .08. The trial court permitted the prosecution to amend the ticket to 4511.19(A)(6). With that amended subsection (the [6] at the end), the government alleged the defendant had breath alcohol concentration over .08.

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