Articles Posted in DUI/OVI lawyering

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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Last week was the annual DUI/OVI seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL).  One of the slogans now attached to the seminar is ‘The Premiere Ohio DUI Defense Seminar’.  When I hear that slogan, two questions come to mind:
1.  Are there any other Ohio DUI defense seminars?
2.  If so, what makes this one the ‘premiere’ seminar?

Page one from Brochure for OACDL DUI seminar March 10-12 2016

Full disclosure:  I co-chaired the seminar this year, so my opinion is probably not unbiased.

With that said, my answers are:
1.  Yes, there are, in fact, several other seminars focused on Ohio DUI/OVI, and
2.  What makes this one the ‘premiere’ seminar is the topic of this blog entry.

One factor which makes the OACDL seminar impressive is the sheer volume of information.  The seminar lasts for about 20 hours.  During that time, about 35 speakers give presentations on topics relevant to DUI/OVI in Ohio.  No other Ohio DUI/OVI seminar comes close to providing that amount of information.  For some, such a long seminar may sound like a nightmare.  For me, it’s time well spent.

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Four months after Brittany was arrested and charged with OVI, the government charged her with a second count of OVI. In November, Brittany was arrested for OVI. On the day of her arrest, she submitted a urine sample, and she was charged with OVI. Three weeks later, the urine sample was analyzed, and the result was provided to the police department. In March, four months after the arrest, the police department charged Brittany with a second count of OVI based on the result of the urine test. Isn’t that a violation of her right to a speedy trial?

Alarm clock

That question was answered last week in State Of Ohio v. Brittany Wieland. This issue has been addressed by different Ohio courts of appeals but has never been directly addressed by the Ohio Supreme Court. The Ohio appellate courts have reached different conclusions because the issue is not simple. The situation involves two OVI charges and two types of speedy trial rights.

The two different OVI charges involved in this case are OVI ‘impaired’ and OVI ‘per se’. For the charge of OVI ‘impaired’, the government must prove the defendant’s ability to drive was impaired by alcohol. For the charge of OVI ‘per se’, the government must prove the concentration of alcohol in the defendant’s urine exceeded .109 (the equivalent of .08 in blood).

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At the last minute, without warning, the government convicted Demetrius of a more serious offense than with which he was originally charged. Demetrius received a ticket for OVI. The ticket informed him he was charged with a low-tier ‘per se’ OVI, which carries a minimum of three days in jail and does not involve mandatory restricted (yellow) license plates. Just before his case was finished, the court permitted the prosecution to change the charge to a high-tier ‘per se’ OVI, which carries a minimum of six days in jail and mandatory yellow license plates. Can the government to that?

Uniform traffic ticket

That question was answered in the recent case of State of Ohio v. Demetrius Rosemond, and the answer is not obvious. It involves interpreting Rule 7 of the Ohio Rules of Criminal Procedure. That Rule addresses amendment of complaints, and a traffic ticket is a type of complaint. The Rule says a complaint may be amended, “provided no change is made in the name or identity of the crime charged.” The question in the Rosemond case is whether amending the ticket from a low-tier OVI to a high-tier OVI changes the name or identity of the crime charged.

The Ohio Supreme Court ruled on a similar issue in State v. Campbell. In Campbell, the defendant was charged with violating Ohio Revised Code section 4511.19(A)(5). With that particular sub-section (the [5] at the end), the government alleged the defendant had a blood alcohol concentration over .08. The trial court permitted the prosecution to amend the ticket to 4511.19(A)(6). With that amended subsection (the [6] at the end), the government alleged the defendant had breath alcohol concentration over .08.

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An appellate case decided earlier this month illustrates how not to attack the constitutionality of a law.  In the case of State v. Topolosky, the Tenth District Court of Appeals upheld Ohio’s DUI/OVI marijuana law.  Coincidentally, just before the case was published, I wrote about this topic in this blog, and I spoke about this topic at two seminars.  The defendant in Topolosky did essentially the opposite of what I suggested in the blog and presentations.  The defendant used an argument destined to fail…with bad timing…without an expert witness.

Pizza half baked

The argument destined to fail was the argument that the law violates the defendant’s rights to due process and equal protection.  This argument was destined to fail because, unless a suspect classification or fundamental right is involved, the law is judged using the ‘rational basis test’.  With this test, the law will only be considered unconstitutional if the law has no rational relationship to a legitimate government interest.

 

When courts apply the rational basis test, it is incredibly rare for a law to be held unconstitutional.  Using the rational basis test, another Ohio appellate court had already upheld the OVI marijuana ‘per se’ law in State v. Schulz.  It is no surprise the Court of Appeals in Topolosky upheld the same law using the same rationale.

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Even someone with a poker face gives a lot of information to others through facial features. I learned this in Vegas, but not at a poker table: I learned it at the 2015 Las Vegas DUI seminar presented by the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL).

The annual seminar is titled “DWI Means Defend With Ingenuity”, and this year’s magic-show theme was “Secrets Revealed: Overcoming The Illusion Of Guilt”. The presentations included “Techniques For Making Judicial Bias Vanish”, “Magical Techniques And Strategies To Win”, and “Pulling Back The Curtain: Overcoming Biased Prosecutorial Practices”. The seminar featured some of the best DUI lawyers and experts in the country and took place at one of the best hotels in the country: Bellagio Las Vegas.

WP_20151001_010The most novel part of the seminar was Mac Fulfer’s presentation on face reading. Fulfer practiced law for 22 years but now runs face reading workshops. According to Fulfer, examination of a person’s face can reveal information about personal history, personality, and preferences. Fulfer is not talking about interpreting facial gestures. Instead, he is reaching conclusions from facial features such as the shape of the nose, the slant of the forehead, and the curvature of the mouth.

When I saw the topic, I thought face reading sounds like quackery on par with fortune telling.  Fulfer, however, explained the science behind face reading, based primarily in genetics.  Genes work in concert with other genes and share multiple functions.  The genes responsible for personality, preferences, and processing information are also involved in shaping the features of our faces.  Facial features change with time, so our faces are a combination of genetics and life experiences  (now I understand how teenagers cause parents’ faces to wrinkle).

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DUI/OVI cases are litigated within a framework of rules. Some of those rules regulate the exchange of evidence between the prosecution and the defense. That exchange of evidence is the ‘discovery’ process. The rules for discovery are found in state and federal law, and the intricacies of the rules are fleshed-out in court decisions interpreting the rules. A prosecutorial violation of the discovery rules may significantly impact a DUI/OVI case.

Lawyers speaking with judge

An example of a prosecutorial discovery violation comes from a New Jersey police officer’s drunk driving case. In that case, the off-duty officer was charged with driving under the influence after crashing through the wall of a store, according to NJ.com. His attorney requested discovery from the prosecutor, including a copy of the manual for the blood-testing procedure and audio recordings of police communications related to the case.

Seven months after the discovery request was made, the prosecution had not provided the manual or the audio recordings. The defense attorney filed a motion to dismiss the case, and the judge gave the prosecution one month to provide the requested materials. Three months later, the prosecution had not given the materials to the defense attorney, and the judge dismissed the case. Although the case occurred in New Jersey, I would expect a similar result in Ohio.

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It’s Independence Day. We’re celebrating our freedom, and we’re celebrating everything which makes the U.S.A. a great nation. One thing which makes this nation great is it’s ultimately governed by laws, not people. The framework for our laws is the Constitution, and the part of the Constitution which guarantees much of the freedom we’re celebrating today is the Bill Of Rights. The founders of this nation put their lives on the line for that freedom. Soldiers in our military protect the country and preserve our freedom from foreign oppression. But who is protecting our freedom from domestic oppression and preserving the liberties promised by the Bill Of Rights?

Flag of United States

We enjoy our individual rights. We don’t want law enforcement breaking into our homes and seizing our possessions without a warrant: we want the freedom from unreasonable searches and seizures. We don’t want officers beating suspects until they confess: we want the freedom from self-incrimination. We don’t want the government summarily convicting people of crimes in a one-sided secret proceeding: we want a public trial by jury in which the process is fair.

 

To deter the government from violating Constitutional rights, we use the exclusionary rule. If officers break into a defendant’s house and seize the murder weapon without a warrant, testimony regarding that murder weapon is excluded from trial. If an officer beats a suspect until he confesses, that confession is excluded from trial. The immediate result may be the defendant whose rights were violated is acquitted of a crime he committed. The long-term result is law enforcement is generally deterred from violating citizens’ individual rights.

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Last week, I completed a short course in gas chromatography. Completing the course reminded me of what Stephen Covey used to say: “To know and not to do is really not to know.” He is so right. It’s one thing to know the law of blood and urine testing. It’s a very different thing to know the science of blood and urine testing. To know the science, you have to do the science, and lawyers typically do not have the opportunity to do the science. Now, however, lawyers get to do the science of gas chromatography in a short course presented by the American Chemical Society.

The course, Forensic Chromatography Theory and Practice, is held in Chicago at the Axion Analytical Laboratories & Training Institute. Axion is the training arm for the American Chemical Society. The president of Axion, Lee Polite, Ph.D., is a leading authority in chromatography and serves as the primary instructor for the course.

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The 40-hour course consists of both lectures and labs. The lectures feature analogies which make chemistry understandable to even the least scientific lawyers. During the lectures, participants learn the scientific principles underlying the operation of the gas chromatograph. They also learn the parts of the instrument and the multitude of variables which must be set correctly for the instrument to produce an accurate result.

The labs are hands-on. Class participants run tests with known and unknown substances and learn to interpret the printed chromatograms. Students manipulate testing conditions to understand how those conditions affect results. Class participants also calibrate the instrument, use the associated software to program a calibration curve, and even take apart the injectors and columns.

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Most states acknowledge urine testing is not an accurate way to measure blood alcohol concentration, and Ohio is one of the few states which still uses urine alcohol testing for DUI/OVI cases. Ohio law makes urine tests admissible in court so long as law enforcement agencies follow state regulations. Some of those regulations address scientific reliability, and some of those regulations address administrative issues. As a result, urine tests are often inadmissible, not because they are scientifically unreliable, but because the government did not follow its own rules.

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Ohio law makes urine tests admissible in DUI/OVI cases. Ohio Revised Code section 4511.19(D) states urine tests may be admitted as evidence if the urine sample is analyzed in accordance with regulations approved by the Ohio Director Of Health. The regulations approved by the Director Of Health (DOH) are found in chapter 3701-53 of the Ohio Administrative Code.

Some Ohio regulations for urine testing promote reliable test results. For example, the regulations establish what testing methods are acceptable (e.g., gas chromatography and immunoassay) and require confirmatory testing by an additional method. The regulations also require that testing methods have documented sensitivity, specificity, accuracy, precision and linearity.

Some Ohio regulations for urine testing are more administrative in nature. For example, the regulations require that urine specimens are collected in a certain type of container with a certain type of lid. The regulations further require that the container have a label which contains certain information. The regulations also contain requirements for record keeping, laboratory accreditation, and laboratory personnel permits.

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