Articles Posted in DUI/OVI sentencing/penalties

In the last couple weeks, two school bus drivers were suspected of being under the influence while driving a bus full of students. Both drivers were arrested for DUI, and both drivers now face serious consequences. These incidents raise the question of what happens if a school bus driver is convicted of DUI/OVI in Ohio.

School bus on roof.jpgThe first incident, reported by the Associated Press, involves a school bus driver in Utah. The suspect was driving elementary school students for a field trip. Two people, one motorist and one parent on the bus, called 911 to report the bus was swerving erratically and nearly hit a car on the highway. An officer stopped the bus and conducted a DUI investigation. The bus driver was arrested for DUI, and prescription muscle relaxers were found in the bus driver’s purse. The students were driven to the field trip by another, presumably sober, bus driver.

The second incident, reported by the Boston Globe, involves a school bus driver in Massachusetts. The suspect was driving a high school cross country team from a meet to their high school. Witnesses reported the bus driver smelled of alcohol, ran a red light, took the wrong exit, failed to use turn signals, hit rumble strips, and drove at fluctuating speeds. Police stopped the bus in the school parking lot and administered field sobriety tests to the driver. The bus driver was arrested for DUI and was held without bail. The bus driver reportedly had two prior DUI convictions.

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It won’t win a Pulitzer Prize, it will not be mentioned with the New York Times best sellers, and it will not be at the top of readers’ ‘wish lists’. In fact, most people may not find it very interesting. If you are charged with a DUI/OVI in Ohio, however, this book suddenly becomes a must-read. I’m talking about the new book: I Was Charged With DUI/OVI, Now What?!

I wrote the book to answer the questions most commonly asked by people charged with OVI.Cover image from book.jpg After answering those questions for 17 years, I recently came to the realization there was not a published book designed for individuals charged with OVI in Ohio. I thought it would be helpful to create a book which explains ‘what you need to know before going to court and before hiring an attorney for DUI/OVI in Ohio‘.

The book, published a couple weeks ago, is divided into four parts. The first part reveals what prosecutors need to prove for a person to be found guilty of OVI and outlines the potential consequences of an OVI conviction. The second part addresses the evidence used in OVI cases, including field sobriety tests and blood/breath/urine tests. The third part discusses the court process and its various stages. The fourth part addresses how to find a good OVI lawyer.

This summer, I had the honor of being shadowed by Japanese criminal defense lawyer Yaeko Hashimoto, who recently completed an LL.M. program at the O.S.U. Moritz College of Law. In our conversations, it became clear there are differences between DUI/OVI laws in Ohio and DUI/OVI laws in Japan. Yaeko agreed to be a guest blogger and prepared the remainder of this article.

Drinking In Japan
Generally, Japanese culture is generous to drinking behavior, compared with other countries. In spring, people have a picnic under cherry blossoms with alcoholic beverages, and many adults enjoy beer or Japanese sake in public areas. Also, Japan has alcohol vending machines on streets so anyone can buy alcoholic beverages 24 hours per day without identification.

Vending machine with alcoholic beverages.png
Drunk Driving Laws In Japan
Until 2009, if a driver with no prior record was convicted of O.V.I. per se, the person’s driver license was not suspended. However, the law changed after a tragedy caused by a drunk driver in 2006. The drunk driver hit another car head-on on a bridge, and the victim’s car fell into a dark sea. Three young children were killed. In response, the 2007 and 2009 laws made O.V.I. punishments tougher. The legal limit in Japan is .15 mg/l, which is approximately .03%, as compared to the U.S., which has a legal limit of .08%. Changed to Japan’s O.V.I. punishments are summarized in the following table:

Japan OVI punishment table.pdf

Typical Procedure And Consequeces For O.V.I.
If a person is charged with O.V.I. per se for the first time in Japan, the prosecutor will choose a summary trial. With a summary trial, the judge can impose only a fine, not jail, and the defendant does not have the right to court-appointed counsel.

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What should we do with repeat DUI/OVI offenders? On one hand, we want them to be rehabilitated, and we want them to be employed, which usually requires driving. On the other hand, we want to punish them and protect the public from the risk of harm they create. In Ohio, to protect the public from the danger posed by repeat offenders, we typically require them to have ignition interlock devices installed so they cannot drive after consuming alcohol. In Florida, the state legislature is considering an alternative to ignition interlock: “24/7 Sobriety”. Florida’s consideration of this program raises the question: should Ohio use daily alcohol testing for repeat offenders?

Ignition interlock device.jpgAn ignition interlock device is intended to prevent a car from running if the driver has recently consumed alcohol. When the device is installed, the driver must blow into the interlock before starting the vehicle. Unless the breath sample is essentially alcohol-free, the vehicle will not start. The interlock can also be programmed to require a ‘rolling retest’ periodically as the vehicle is driven. The vehicle will stop running if the breath sample contains alcohol or if no breath sample is given. Ohio law requires the use of ignition interlock on a person’s second (or more) offense within six years.*

The program being considered by Florida is an alternative to ignition interlock. Under the “24/7 Sobriety” program, a defendant must either submit to a breath or urine test twice daily or wear a SCRAM device (Secure Remote Alcohol Monitoring). Participation in the program is required as a condition of driving privileges. If the defendant tests positive for alcohol or drugs, consequences like jail time are immediately imposed. As part of the program, defendants may also be ordered to participate in drug/alcohol counseling. The program, naturally, is opposed by vendors of ignition interlock devices.

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An Ohio DUI / OVI sentence has several parts. There is mandatory jail time (or a driver intervention program for a first offense), a mandatory fine, and a mandatory license suspension. For a first offense, the license suspension is a minimum of six months and a maximum of three years, and the judge has discretion to grant or deny limited driving privileges. There are also optional sanctions for a first offense, and one of those sanctions is the use of an ignition interlock device. Proposed legislation in New Jersey would replace mandatory license suspensions with mandatory use of an ignition interlock. Should Ohio consider this change?

Ignition interlock device.jpgAn ignition interlock device (IID) is a mechanism installed in a vehicle that measures the alcohol present on someone’s breath. After the IID is installed, the driver will have to blow into the IID before he or she is able to start the engine. The vehicle will not start if the alcohol concentration on that person’s breath exceeds a predetermined limit.

In New Jersey, there is opposition to the proposed move from license suspensions to ignition interlock devices. The main argument against the change is that removing the license suspension would remove ‘the strongest deterrence to drunken driving’. The deterrent effect of a license suspension is questionable, as thousands of people drive drunk in Ohio every year despite the existing license suspension and despite frequent anti-DUI PR campaigns. In addition, the reality is that losing one’s license does not prevent someone from getting into a car and driving again. It is illegal to drive on a suspended license, but that doesn’t actually stop a person from driving under suspension.

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I recently represented a client for a DUI / OVI in a juvenile court near Columbus, Ohio. The case went to trial, and I was sharing my experience with a colleague. The colleague happened to be coordinating a DUI / OVI seminar for the Columbus Bar Association, and he asked me to speak at the seminar on the topic of handling DUI / OVI cases in juvenile court. The topic is a good one because most attorneys do not regularly represent clients for DUI / OVI in juvenile court, and there are some differences between juvenile cases and adult cases.

Juvenile DUI.gifOne issue that comes up in juvenile DUI / OVI cases that does not really come up in adult DUI / OVI cases is venue: where the case will be heard. There seems to be some misunderstanding about the juvenile’s ability to transfer the venue. Ohio law says the complaint (the traffic ticket) may be filed either in the county of the juvenile’s residence or the county where the offense occurred. If the ticket is filed in the county where the offense occurred, it can only be transferred to the county of the juvenile’s residence if the judge authorizes it. Even then, either judge can order that the trial be held in the county where the offense occurred. There is a little-used paragraph of Juvenile Rule 11 that says the case must be transferred if the juvenile has a pending case in the county of the juvenile’s residence. So, if you want the case to be heard in the county of the juvenile’s residence, simply have the juvenile get charged with a minor offense like littering in his home county!

Another issue that is unique for juveniles and drivers under age 21 is the level of proof required to arrest the driver for DUI / OVI. As the ‘legal limit’ for drivers under 21 (.02) is lower than the limit for drivers over 21 (.08), the question becomes whether officers need less evidence of intoxication to justify arresting a driver under 21. The answer depends on where the case is being heard. Ohio has 12 appellate districts. Some of those appeals courts say less evidence is required, some of them say the same level of evidence is required, and some of them have not addressed the issue.

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Race car driver Al Unser, Jr., two-time winner of the Indianapolis 500, recently pled guilty to his second DUI, as well as Racing on a Freeway, according to the Albuquerque Journal. The judge in Albuquerque, New Mexico sentenced Unser to 90 days in jail, but one day was credited for time already served, and the remaining 89 days were suspended on the condition that Unser complete one year of probation. He was previously convicted of DUI in 2007. Unser’s plea and sentencing raises some questions: Would his sentence for a second O.V.I. offense in Ohio be harsher? Why was his sentence lenient even by New Mexico standards?

Would Unser’s sentence for a second O.V.I. be harsher in Ohio?

Oh yes. Drunk driving penalties in Ohio are apparently tougher than those in New Mexico. For a second offense in six years, Ohio has a mandatory minimum jail sentence of ten days. That minimum jail sentence is doubled if the breath test/blood test result is at or over .170, or if there was a refusal of the test. In New Mexico, a second offense carries a minimum jail sentence of four days.

In July of 2011, state Representative Jarrod Martin was driving his children in his pickup truck in Jackson County, Ohio. He was pulled over by a state trooper for a marked lanes violation after his truck drifted left of center. The trooper asked Martin to perform field sobriety tests, and Martin declined. Martin also declined a breath test, which resulted in a one-year license suspension. Martin was charged with O.V.I. and Child Endangering in the Jackson County Municipal Court. He hired an attorney and pled Not Guilty. Six months later, the charges of O.V.I. and Child Endangering are being dismissed, and Martin is pleading guilty to the Marked Lanes violation, according to the Dayton Daily News.

In Martin’s case, the trooper added the charge of Child Endangering to the charge of O.V.I., which is common for officers to do when a driver is charged with O.V.I. and has a child in the car. Ohio’s Child Endangering statute specifically prohibits operating a vehicle under the influence (or over the limit) with one or more children in the vehicle. A driver who operates a vehicle under the influence (or over the limit) and has a child in the car necessarily commits the offense of Child Endangering simultaneously with the offense of O.V.I.

Although the two offenses are committed simultaneously, the Ohio Child Endangering statute say a person can be convicted of both O.V.I. and Child Endangering out of the same incident. The sentence for an O.V.I. includes a jail term, a license suspension, a fine, and probation, as well as possible yellow license plates and ignition interlock. For this type of Child Endangering conviction, the sentence includes a possible jail term, license suspension, fine, and probation.

“Shawn, it’s Joe Smith. You’re not going to believe this, but….” I believe it, because I’ve received this call more than once. My client has a D.U.I. (O.V.I.) pending, we’re scheduled to go back to court soon, and the client is charged with a second D.U.I. This recently happened in a Florida case, with a twist.

The case in Florida involved a young woman named Jennifer. After receiving a report about Jennifer driving recklessly, an officer observed Jennifer stumbling out of a store with a can of beer. When the officer pulled her over, Jennifer had two empty bottles of Vodka in her car. She refused field sobriety tests, was arrested, and was charged with a D.U.I. The twist: she was on her way to court for a previous D.U.I charge.

For O.V.I. offenses in Ohio, the penalties increase significantly for a second offense within six years*. While a first offense carries a minimum jail sentence of three days, a second offense carries a minimum jail sentence of ten days. That minimum sentence is doubled if the suspect refuses the breath test or tests at or over .170. A second offense also carries a longer license suspension and mandatory yellow license plates.

After crashing his SUV into another car at the gated entrance to his Florida neighborhood, a man crashes through the entrance gate and comes to a stop. He then runs, naked, carrying his dog, into his home. An officer goes to the man’s home and finds him lying in bed with blood on his body and the bed sheets. As medical personnel treat him, the man becomes combative and kicks the officer, which leads to the man being tased. He is eventually charged with D.U.I. (second offense), leaving the scene of an accident, criminal mischief, resisting arrest, and battery on an officer. The incident was reported by the Panama City News Herald.

The state attorney’s office has not yet received the man’s medical records, which will include the result of his blood alcohol test. It would be interesting to know the results of that test. Apparently, no field sobriety tests were performed by the naked man. No word on the condition of his dog.

The defendant has not yet been convicted or sentenced in Florida. If this were a second offense D.U.I. (O.V.I.) in Ohio, the penalties would include a mandatory jail sentence of ten days to six months, a mandatory license suspension of one year to five years, a mandatory fine, mandatory alcohol treatment, mandatory yellow license plates, and a mandatory ignition interlock device on his car. These penalties are in addition to whatever sentence he may receive for the other offenses.