Articles Posted in DUI/OVI laws and cases

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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In Ohio, and throughout the United States, we have a Constitutional right to be free from unreasonable searches and seizures.  In Ohio OVI cases, that means an officer can only arrest a suspect if the officer has probable cause to believe the suspect operated a vehicle under the influence of alcohol and/or drugs.  In the recent case of State v. Bracken, the Court of Appeals concluded the arrest was not justified.

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The Officer Reportedly Observed Signs Of Intoxication
In the early morning hours, a police officer stopped Cody Bracken for driving 61 mph in a 45 mph zone.  The officer noticed a moderate odor of alcohol coming from Cody’s vehicle.  The officer also noticed Cody’s eyes were bloodshot and glassy, and his face was flushed.  The officer asked Cody about drinking alcohol, and Cody said he drank two beers.

Based on the officer’s observations, he administered field sobriety tests.  On the Horizontal Gaze Nystagmus (HGN) test, the officer reportedly observed six clues out of six possible clues.  On the Walk And Turn (WAT) test, the officer allegedly observed five out of eight possible clues.  On the One Leg Stand (OLS) test, the officer purportedly observed three of four possible clues.  On the partial alphabet test, Cody skipped a letter.  The officer arrested Cody and charged him with OVI ‘impaired’ in the Franklin County Municipal Court.

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It Seems Like A Good Defense On Television
Television and movies would have us believe ‘circumstantial evidence’ is a viable defense in court.  You can picture the dramatic scene in which a defense lawyer tells a prosecutor the prosecutor’s case is ‘merely circumstantial’.  In a real courtroom, however, there is no defense of ‘circumstantial evidence’.  In fact, Ohio OVI convictions are almost always based on circumstantial evidence, as demonstrated by a recent Ohio appellate case.

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The recent case is State v. Foos.  Foos crashed his car into a concreate barrier wall.  Police officers responded to the accident scene observed that Foos seemed very intoxicated.  The officers smelled the strong odor of alcohol coming from Foos, heard Foos talking with slurred speech, and saw Foos was wearing a wrist band which appeared to be from a bar.  Foos had difficulty balancing, refused to perform field sobriety tests, and declined to take a breath test.

Foos’s friends testified that Foos only had one beer while they played pool at the bar, and Foos did not drink any alcohol while they were at the strip club.  A jury found Foos guilty of OVI, and Foos appealed to the Ninth District Court of Appeals.

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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.

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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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In Ohio DUI / OVI cases, mandatory minimum penalties are increased based on prior OVI convictions.  One issue faced by Ohio courts is whether a person’s OVI adjudication (‘conviction’) as a juvenile can be used to enhance a subsequent OVI sentence as an adult.  The Ohio Supreme Court recently issued an opinion which settles the issue.

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The case of State v. Hand did not involve an OVI, but the decision will apply to OVI convictions.  Hand was convicted of Aggravated Burglary, Aggravated Robbery, Kidnapping and Felonious Assault.  Those offenses are categorized as first degree felonies and second degree felonies.  Ohio Revised Code section 2929.13(F)(6) says the judge must impose a mandatory prison term for first and second degree felonies if the defendant has a prior conviction for a first or second degree felony.  Ohio Revised Code section 2901.08(A) says a juvenile adjudication for a criminal offense or traffic offense is a ‘conviction’ for purposes of determining the sentence in a later conviction.  Relying on those two Ohio Revised Code sections, the judge imposed a mandatory prison term.

Hand appealed the judge’s sentence, and the case was ultimately heard by the Ohio Supreme Court.  The Court noted the juvenile justice system is different than the adult criminal justice system.  Juvenile case dispositions are intended to be “civil and rehabilitative”, while adult sentencing is “criminal and punitive”.  The court also noted that, while juveniles are afforded most of the same Constitutional rights as adults, there is one right not required in juvenile court proceedings:  trial by jury.

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Until a few days ago, the scope of driving privileges for Ohio DUI/OVI suspensions was very limited.  A parent on limited driving privileges was not permitted to drive children for extra-curricular activities.  A person on limited driving privileges was not allowed to drive to care for elderly parents.  A person on limited driving privileges could not drive to AA or counseling unless it was court-ordered.  That changed last week, when the state legislature revised Ohio law for limited driving privileges.

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The revised law is Ohio Revised Code section 4510.021.  That section authorizes courts to grant limited driving privileges for driver license suspensions, including DUI/OVI suspensions.  The last time the statute changed was 2004.  Before 2004, the law only provided for occupational driving privileges.  In 2004, the statute was revised to expand driving privileges, authorizing privileges for the following purposes:

•    Occupational, educational, vocational, or medical purposes;
•    Taking the driver’s or commercial driver’s license examination;
•    Attending court-ordered treatment.

The most recent change to the law, in September of 2016, further expands the permissible scope of limited driving privileges.  The statute still lists the purposes above and now adds the catch-all phrase, “Any other purpose the court determines appropriate”.

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The last entry in this blog discussed lesson number one for appealing an Ohio Administrative License Suspension (A.L.S.).  The lesson came from a recent appellate case.  That lesson was for defense lawyers, and it was simple:  file the appeal on time.  This entry discusses lesson number two, which also comes from a recent appellate case.  This lesson is for courts, and it is also simple:  follow the law.

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The government cannot take property without due process of law.  Due process of law includes an opportunity to be heard (a hearing) at a meaningful time and in a meaningful manner.  With an A.L.S., the executive branch of government takes property from an individual by suspending the individual’s driver’s license.  Therefore, the individual is entitled to a meaningful hearing at meaningful time.  The most meaningful time for the hearing would be before the license suspension is imposed.  However, the Ohio Supreme Court held the A.L.S., with a post-suspension hearing, is not unconstitutional.

What keeps the A.L.S. from being unconstitutional is mainly the procedures found in Ohio Revised Code (O.R.C.) section 4511.192.  That statute includes the following requirements:

•    The officer must advise the individual of the consequences of taking or refusing a chemical test, using a form (BMV form 2255).
•    The officer’s advice must be witnessed, and the witness must sign the form.
•    The officer must write on the form the officer’s reasonable grounds to believe the individual was under the influence.
•    The officer must notify the individual of the suspension and the individual’s right to appeal the suspension.
•    The officer must sign the form, and the form must be sworn.
•    The officer must give a sworn copy of the form to the individual.
•    The officer must send copies of the form to the court and the BMV within 48 hours of the individual’s arrest.

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