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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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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.

Juvenile arrested

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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Yes, I saw Carlos Santana perform at the House of Blues.  It’s true, I rented a convertible Mustang.  I admit I hiked a breath-taking trail in Red Rock Canyon.  I also acknowledge I enjoyed the luxury of Bellagio and saw amazing views from the High Roller.  However:  the primary purpose of my trip to Vegas was to learn more about DUI/OVI defense.

Photo of NCDD seminar name tag at Bellagio

I recently attended the annual ‘DWI Means Defend With Integrity’ seminar.  The seminar is co-sponsored by the National College for DUI Defense and the National Association of Criminal Defense Lawyers.  It’s held in Las Vegas each year at the end of September or beginning of October; not a bad time to be in Vegas.  The location has historically been Caesar’s Palace, but for the last two years, the seminar has been held at Bellagio.  This year marks the 20th anniversary for the seminar, and I have attended for about 15 years.

 

This is a great seminar.  The speakers are some of the best DUI lawyers and experts from around the nation.  I have been practicing since 1997, and I have been focusing on DUI/OVI defense since 2002.  I feel like I have developed a bit of expertise in this area.  When I attend this seminar, however, I always learn more.  Hearing from the seminar faculty helps me avoid the limiting comparisons of my local market and allows me to benchmark against world class attorneys.  It also adds to my box of tools for winning.

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