Articles Posted in DUI/OVI enforcement

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.

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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.

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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.

Get-out-of-jail-and-uncle-sam-300x224What 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.

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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.

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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.

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If you think about the consequences of getting a DUI (called OVI in Ohio), the first thing which comes to mind is probably the sentence from the court. There is good reason for that: the sentence includes a mandatory jail term, license suspension, and fine as well as possible yellow plates, ignition interlock, and probation. In addition to the sentence imposed by the judge, however, there are collateral consequences for DUI/OVI convictions. One of those consequences is skyrocketing auto insurance premiums.

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How Are Insurance Premiums Calculated?
Auto insurance premiums are determined by what an insurance company expects to be the amount of risk associated with a particular driver and car. There are many factors which affect the cost of auto insurance. Those factors include the type and age of the car, how far and frequently the vehicle is driven, and the state in which the vehicle is used. Other factors are the driver’s age, gender, marital status, credit history, and driving history.

 

Why Does A DUI/OVI Affect Premiums?
With regard to driving history, one of the most expensive entries in a driving record is a conviction for DUI/OVI. Studies show that DUI/OVI is a risky driving behavior which leads to more crashes than practically any other driving behavior. In addition, insurance companies conclude that a person who engaged in that risky behavior is likely to repeat it in the future.

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Some people can’t resist. After having drinks, they get a craving, and they have to satisfy it. For some, it’s tacos or wings. For others, it’s burgers and fries. It’s typically not broccoli and kale. And then they go to a drive-thru when perhaps they shouldn’t be driving, and they end-up arrested for DUI/OVI. Two recent news-making DUI arrests demonstrate the danger of caving to cravings and driving-thru instead of staying home.

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It Happens At The Drive-Thru
In the first case, former NFL running back Darren McFadden was reportedly found asleep in the drive-thru of a Whataburger in Texas. Police were called to the scene, and McFadden allegedly resisted their attempts to apprehend him. Strangely, after being uncooperative, he consented to a chemical test, and the result showed a blood alcohol concentration of .15 or greater. He now faces charges of DUI and resisting arrest, which means a possible sentence of two years in jail.

In the second case, Pennsylvania state representative John Galloway allegedly was involved in a two-car accident in a McDonald’s drive-thru. Swartara Township police officers investigated the accident and found Galloway was at fault. They also found he appeared to be under the influence, so they gave him a BAC test. The result of the test was a blood alcohol concentration of .13 (the ‘legal limit’ is .08).

It Happens Fairly Frequently
At the Dominy Law Firm, we have represented numerous clients who were arrested at drive-thrus or had recently left a drive-thru. Some of those clients were on their way home, but many were at home and decided to leave for a fast food fix. A few have been during the day, but the vast majority are late at night.

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Texting is arguably more dangerous than drunk driving. According to a study conducted by Car And Driver, a driver’s reaction time is worse while texting than while intoxicated. With nearly all drivers in possession of a cell phone, it seems likely many more people are driving while texting than driving while under the influence of alcohol or drugs. For decades, law enforcement has developed methods to detect drunk driving. Officers now need a way to detect texting while driving without violating individuals’ right to privacy. Is the new “Textalyzer” the answer?

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Texting Laws And The Textalyzer
Nearly all states, including Ohio, now have laws prohibiting texting while driving. The state-wide ban in Ohio Revised Code section 4511.204 prohibits operating a motor vehicle ‘while using a handheld electronic communications device to write, send, or read a text-based communication’. Another Ohio law, Revised Code section 4511.991, enhances the sentence of a traffic violation if distracted driving is a contributing factor to the commission of the offense. The problem is not prohibiting the conduct with a law: the problem is enforcing the law which prohibits the conduct. To address the difficulty of enforcing these laws, several states are considering laws which permit the use of a device like the Textalyzer.

The manufacturer of the Textalyzer, Cellebrite, says the device will help law enforcement officers prove whether a driver was using a mobile phone while driving. Officers would plug the device into the driver’s cell phone and scan the phone for recent activity. The device would tell officers when the phone was used for activities such as texting, Facebook messaging, and web browsing. Because the device can reportedly time-stamp the cell phone activity, officers would be able to determine whether the cell phone use was a factor in an accident or traffic violation.

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Brynn Campbell was involved in a head on-crash which killed the 83-year-old woman driving the other car. Campbell was taken to the hospital, and hospital staff performed a urine test. Although Campbell showed no obvious signs of impairment, a police officer went to the hospital and asked the nurse for the urine test results. The results showed Campbell’s alcohol level was well over the limit, according to the Global News. The officer then obtained a search warrant to obtain Campbell’s urine samples and have them tested. Campbell was charged with vehicular homicide. She was acquitted by the trial court, and the prosecution appealed.

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The issue for the appeal was whether the defendant’s rights were violated if the urine test results were introduced as evidence at the trial. The Court of Appeal ruled this was a breach of Campbell’s constitutional rights. The Court commented that the police conduct was serious and stated, “The police intentionally obtained information from hospital staff in breach of medical confidentiality and relied on that information to obtain a warrant that otherwise could not have been issued.” The Court of Appeal upheld Campbell’s acquittal.

What Would Ohio Do?
In Ohio, we have a pair of laws which address the issue of law enforcement officers obtaining alcohol/drug test results from health care providers. Ohio Revised Code section 2317.022 states an officer who wishes to obtain such records can make a written request to the health care facility. Ohio Revised Code section 2317.02 states that, if an officer makes such a request, the health care facility shall supply to requested records. That statute has an exception for situations in which providing the records is specifically prohibited by any Ohio or federal law.

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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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