Articles Posted in DUI/OVI in the news

After Tiger Woods’ recent DUI arrest, he issued a statement in which he said, “I want the public to know alcohol was not involved.  What happened was an unexpected reaction to prescribed medications.”  Prescription medications, as well as non-prescribed drugs, account for an increasing number of DUI/OVI cases in Ohio and throughout the United States.  Tiger’s situation very publicly spotlights the complicated problem of drugged driving.

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The Effects Of An Unexpected Reaction

At about 3:00 am on Memorial Day, a police officer found Tiger asleep at the wheel of his Mercedes.  The car was parked, partially on the road, and the engine was running.  The officer approached Tiger and woke him.  The officer noticed Tiger was sluggish and observed Tiger’s speech was slow and slurred.  When asked where he was going, Tiger said he was coming from L.A. and going to Orange County.  He was actually in Jupiter, Florida.

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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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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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.

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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’.

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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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