Articles Posted in DUI/OVI enforcement

The credibility of a law enforcement officer makes a difference in court. Judges seem to presume officers are credible. Officers, however, can ruin their credibility with unprofessional conduct, uncorroborated claims, and unconfirmed clues. The trooper in a recent Franklin County case did just that, and it resulted in the court of appeals concluding the trooper’s arrest of the defendant was unlawful.

The case is State v. Simmons. The trooper clocked Simmons driving 57 mph in a 35 mph zone. The trooper did a U-turn, accelerated hard, and approached Simmons rapidly, without activating the cruiser lights or siren. In response, Simmons accelerated. The trooper chased Simmons at speeds exceeding 90 mph in a hilly area, and both crossed the center line or veered into the turn lane several times. The pursuit continued for over 30 seconds before the trooper activated the cruiser lights and siren.

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No problem with Lack Of Convergence (LOC)

Simmons pulled over safely in a school driveway and stopped. The trooper had Simmons sit in the cruiser. The trooper observed that Simmons’ movements and speech were normal, but the trooper questioned Simmons about using alcohol and drugs.   Simmons denied using alcohol but admitted he smoked marijuana a couple days before the incident.

The trooper administered several field sobriety tests. On the Horizontal Gaze Nystagmus test (involuntary jerking of eyes), which troopers always say is the best because “the eyes don’t lie”, there were no clues. However, the trooper observed Simmons’ eyes didn’t cross on the Lack of Convergence test (failure of eyes to cross).

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The New York Police Department recently demanded that Google remove a function from the Waze app which permits users to report DUI checkpoint locations. In its ‘cease and desist’ letter, the NYPD stated posting checkpoint locations is irresponsible and possibly criminal. The agency insisted that Google take every necessary precaution to ensure GPS data of DUI checkpoints is not posted on Waze, Google Maps, or associated platforms under its control. If the police in New York City can place such demands on Google, then law enforcement in Ohio can do the same. This raises the question: should the government prohibit Waze (and other apps) from reporting DUI / OVI checkpoints in Ohio?

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Waze is a navigation and traffic app which allows drivers to share real-time traffic information. The app was purchased by Google in 2013 (for a mere $966 million). App users can see information from other drivers on their route, such as average speeds, traffic congestion, potholes, accidents, and police presence. Police presence is indicated by an icon of a police officer. The icon does not indicate the nature of the police presence, but users can add notes to the icon, including the presence of a DUI checkpoint. It’s the DUI checkpoint information which is the subject of the strenuous objection by the NYPD.

The NYPD has good intentions. In the letter to Google, the agency states it is “endeavoring to eliminate traffic fatalities”, and “paramount to the success of this initiative is the New York City Police Department’s (NYPD) enforcement of the Driving While Impaired (DWI) Laws”. Nobody can argue with that.

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I thought it was dead. In the jurisdictions where I handle OVI cases, I had not seen the Intoxilyzer 8000 used for years. To my surprise, I recently received discovery materials which showed my client’s breath test was done on an I-8000. Given the challenges faced by this machine when it was first brought to life in Ohio, I thought the State may let it rest in peace.

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The Life And Death Of The Intoxilyzer 8000 In Ohio
In 2009, Ohio spent about $6.5 million to purchase hundreds of Intoxilyzer 8000 machines. The purchase of the machines was controversial, as the State chose to purchase those machines rather than the BAC Datamaster, which was manufactured in Ohio. Adding to the controversy was the fact that the head of the Bureau of Alcohol and Drug Testing (Dean Ward) was close friends with the manufacturer of the Intoxilyzer 8000: CMI. In fact, Dean Ward later retired and went to work for CMI.

As the new machines were rolled out in counties across Ohio, defense lawyers challenged their reliability. In the 2011 case of State v. Gerome, several expert witnesses testified for and against the I-8000. The judge ultimately decided the results of the tests on the I-8000 could be used as evidence, but that evidence could be challenged in various ways. In the wake of Gerome, the attacks on the reliability of the I-8000 continued throughout the state.

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Scooter-DUI-131x300Electric scooters are a thing. In cities across the country, people are riding them, and leaving them, everywhere. During my recent trip to Santa Monica, I decided I would rent one and ride it on the bike path along the beach (“The Strand”). It turns out e-scooters were banned on The Strand, so I rented a bike. Some people rode electric scooters on The Strand anyway, apparently unconcerned about breaking the law. One Santa Monica scooter rider was prosecuted for breaking the law in a different way: driving drunk on an e-scooter. Could someone in Ohio be prosecuted for DUI/OVI on an e-scooter?

Is An Electric Scooter A “Vehicle” Or A “Motor Vehicle”?
Ohio Revised Code section 4511.19 prohibits operating a vehicle under the influence of alcohol or drugs. The question is whether an electric scooter is a “vehicle” subject to the OVI law. The relevant definitions have changed over time, as chapter 4511 of the Ohio Revised Code is amended frequently. In fact, section 4511.19 has been amended about 20 times since 1982.

Currently, a vehicle is defined by ORC section 4511.01(A) as follows: Continue Reading

Our firm has historically advised the best way to avoid getting arrested for OVI/DUI is to have a plan in place and to stick to that plan once you’ve started drinking. For many people, that plan involves having someone else behind the wheel for your trip home, most likely in the form of an UBER, Lyft, or a taxi (remember those?). As more and more people turn to these ride sharing apps, not only for transportation, but as a source of extra money, an important question arises: What happens when the people we rely on to help avoid an OVI/DUI charge get charged with one themselves?

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UBER DRIVERS & OVI
UBER runs background checks on all potential drivers, but they are somewhat vague about what could disqualify an applicant. They say “major driving violations” as well as a “recent history of minor driving violations” may disqualify a potential driver. It seems obvious an OVI/DUI would be considered a “major traffic violation”. Therefore, as long as an OVI/DUI is on your record, you may be disqualified for driving for UBER. Under Ohio law, OVI/DUI is not expungable, which means it stays on your record forever, permanently disqualifying you from driving for UBER.

What happens if a current UBER driver is charged with OVI/DUI? UBER states pending violations disqualify drivers “unless and until such charges are resolved in a driver’[s]… favor.” In most cases, people charged with OVI would consider it a victory to have the charge reduced. For UBER drivers, however, having an OVI reduced to Physical Control or Reckless Operation may still be considered a “major traffic violation”, leading to disqualification. For UBER drivers, OVIs may be an all-or-nothing proposition.

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When a trooper’s DUI charge is dismissed, it may appear the trooper is getting special treatment. In the case of N.C. trooper Dennis Tafoya, the DUI charge was dismissed because the evidence didn’t prove he committed a crime. Although he may have been very intoxicated while sitting in his car, the car was not running. In North Carolina, that is not an offense. In Ohio, the law is different.

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According to the news report about the trooper’s case, officers found him passed out in the driver’s seat of his vehicle, parked near the courthouse. The officers ordered him out of the vehicle and asked him if the vehicle was on. He said yes. The officers determined the trooper was intoxicated, arrested him, and charged him with DUI (called “OVI” in Ohio).

Footage from the officers’ body cameras showed the trooper’s vehicle was not running. One of the officers went to move the car and learned the keys were not in the ignition. It turned out the keys were in the trooper’s pants pocket the entire time: they were not in the ignition when the officers arrived. Once the officer got the ignition key from the arrested trooper, the officer found the trooper’s vehicle was in gear. The vehicle was apparently a stick shift, so, if it was in gear, it could not have been running.

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Although Ohio courtrooms may not seem as dramatic and intriguing as those on C.S.I., crime laboratory tests are regularly a part of Ohio criminal cases. In Ohio DUI / OVI cases, and in drug-related cases, crime lab technicians use scientific tests to identify drugs. The lab techs write reports about the analyses and sometimes testify at trial about the tests. A recent case in an Ohio appellate court discusses the detailed procedure for using crime lab reports in Ohio DUI / OVI and criminal trials.

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The case is Kettering v. Maston. Maston was pulled over for a questionable marked lanes violation after leaving a known drug house. As one officer was writing a traffic ticket, another officer ran a drug dog around Maston’s vehicle. The drug dog alerted, and the officers searched Maston’s passenger compartment. The officers seized a container of pills which they suspected were controlled substances and charged Maston with Possessing Controlled Substances.

The officers sent the pills to the crime laboratory at the Ohio Bureau of Criminal Investigations (BCI). A laboratory technician analyzed the pills and wrote a report. The report identified the pills as Alprazolam (Xanax). The report was delivered to the prosecuting attorney.

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I recently went on a whale-watching trip in Mexico. Wherever I went, there was no shortage of tequila and cervezas. There was also no shortage of people driving cars. That prompted me to wonder how the drunk driving laws in Mexico compare to those in Ohio. It appears there are some similarities and some differences.

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‘Legal Limit’ For Blood Alcohol Concentration
One similarity between the laws in Mexico and Ohio is the ‘legal limit’: the blood alcohol concentration at which driving is ‘per se’ illegal. The national limit in Mexico is .08:  the same as Ohio.

Many states in Mexico have created their own limits, and most of them are lower than .08. For example, the states of Chiapas, Hidalgo and Veracruz all have limits of .04. We stayed in the state of Baja California Sur, which has a ‘per se’ limit of .08. Interestingly, I asked a few different locals about drunk driving, and none of them knew the ‘limite legal’.

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The abominable snowman was arrested for drunk driving. The ‘arrest’ of the snowman was part of a campaign by the St. Helens Police Department to crackdown on drunk driving during the holidays. Although the arrest was fake, the message was real: DUI/OVI enforcement is increased during the holiday season.

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The holidays bring an increased volume of driving. According to AAA, holiday travel has increased consistently over the last nine years, and this year looks to be record-setting. In Ohio, nearly 4.5 million people are traveling for the holidays, and 90% of those are driving.

The holidays also bring an increase in accidents related to operating under the influence. The National Highway Traffic Safety Administration (NHTSA) reports that, over the last five years, an average of 300 people died in drunk driving crashes during the week between Christmas and New Year’s Day. In Ohio last year, ten OVI-related crashes resulted in 13 deaths during the Christmas holiday, according to the Ohio State Highway Patrol.

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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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