Articles Posted in DUI/OVI in the news

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’.

Ignition-interlock-device

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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A smartphone app for breath-alcohol-testing was so promising that all five investors on Shark Tank collaborated on a deal for the first time.  In 2013, Charles Yim went on the show and pitched his app to the Sharks.  The Sharks collectively invested $1 million in Yim’s company Breathometer, Inc. for 30% of the company’s equity.  Three years later, the company was the subject of an FTC complaint, and the complaint was recently settled.

Breath-test-portable-300x199

The History-Making Shark Tank Pitch
The pitch to the Sharks sounded great.  People regularly drink alcohol and then drive, and nobody knows when they are over .08.  By downloading the app and plugging in a small piece of hardware to a smartphone audio jack, consumers could blow into the hardware and know their blood alcohol concentration in seconds.  In addition, the app would tell them how much time it would take to sober up, and it could even call a cab with one push of a button.

The Sharks were intrigued.  Yim was asking for one Shark to invest $250,000 for ten percent of the company’s equity.  Mark Cuban quickly offered to invest $500,000 for 20% equity.  Yim then invited the other Sharks to join, and they did:  all five of them.  Ultimately, Cuban put up $500,000 for 15%, and the other four Sharks together put up $500,000 for another 15%.

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Bad Facts Make Bad Law
If a police officer says a driver was under the influence of a drug, there is no need for testimony from an expert regarding whether the drug actually impairs driving. That is, essentially, the conclusion of the Ohio Supreme Court’s decision in State v. Richardson. There is a saying among lawyers: “bad facts make bad law”. The precedent created by this case may qualify as ‘bad law’, and the circumstances of the case definitely qualifiy as ‘bad facts’.

Paving-road-300x195

These are the facts. The defendant rear-ended another car and had a child with him in his truck. He then nudged the other car repeatedly because he left his truck in gear. His speech was slurred, he slid out of the truck, he dropped all his cards on the ground, he singed his hair trying to light a cigarette, he ‘failed’ all the field sobriety tests, and he refused a blood test. The defendant told the officer he was on pain medication and took hydrocodone (at some undetermined time).

The defendant was charged with Child Endangering and felony OVI. This was his second felony OVI. That means, before this incident, he already had four OVI convictions in the last six years or six OVI convictions in the last 20 years. The defendant was convicted, and the case ultimately was heard by the Ohio Supreme Court.

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When a celebrity is accused of DUI/OVI in Ohio, the celebrity’s cruiser video is often on the local news the next day. News outlets obtain cruiser videos by making public records requests with the arresting law enforcement agency. Those public records requests are routinely processed quickly. Sometimes, however, law enforcement agencies decline or delay release of the public records. A recent case decided by the Ohio Supreme Court addresses the details of releasing cruiser videos as public records.

Inside cruiser 1

The case is State ex rel Cincinnati Enquirer v. Ohio Department of Public Safety. In that case, two cruisers from the Ohio State Highway Patrol were involved in a pursuit. The pursuit ended with the suspect crashing into a guardrail and being arrested. The suspect was charged with multiple felony offenses, including Fleeing And Eluding and Carrying a Concealed Weapon.

The Cincinnati Enquirer made a public records request for the ‘dash cam’ video from the two cruisers. The Ohio State Highway Patrol declined to provide the videos, claiming the videos were not subject to public records requests because the videos were confidential law enforcement investigatory records. The Enquirer filed a lawsuit with the Ohio Supreme Court asking the Court to issue a writ of mandamus ordering the Highway Patrol to provide the cruiser videos.

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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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Carrie Underwood’s plea, “Jesus, take the wheel” is being replaced with the hands free command, “Siri, take the wheel”. According to a recent forecast by Business Insider, there will be 10 million self-driving vehicles on the road by 2020. With that in mind, I have been asked several times, “Are you concerned driverless cars will hurt your business as a DUI lawyer?”

Driverless car interior with champaign bottles

I’m not. First, I do not expect a large number of completely self-driving cars on the road before my career ends. Second, a drunk in a driverless car can still be charged with DUI/OVI in Ohio. Third, if self-driving cars put an end to drunk driving, I will gladly transition to another career.

I do not expect driverless cars to take over the roads during my lifetime. By “driverless”, I mean cars which are fully autonomous. There is a distinction between semi-autonomous cars and fully autonomous cars. Semi-autonomous cars have auto-pilot-like features to control steering, accelerating, and braking. Fully autonomous cars transport passengers from one point to another with no intervention from the passengers. There are currently no fully autonomous cars for sale in the United States.

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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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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.

Refusal talk to the hand

The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.

 

Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A][2]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.

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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.

Ambulance at accident scene

The odor of alcohol.  Based on that evidence alone, a police officer charged Wardell with DWI (called OVI in Ohio).  It was the only evidence suggesting Wardell might be under the influence of alcohol.  Upon closer examination, however, the odor of alcohol really is not evidence she was under the influence.  At most, it’s evidence she consumed alcohol.  There is no way to tell from the odor how much alcohol she consumed and whether that alcohol was affecting her ability to drive.

Her ability to drive was not affected by alcohol, as there was essentially no alcohol in her blood.  A toxicology report showed her blood alcohol concentration was .001.  At that level, the alcohol did not cause the crash.  Another hospital record concluded the crash was the result of a medical accident:  a seizure caused by the tumor.

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