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I thought it was dead. In the jurisdictions where I handle OVI cases, I had not seen the Intoxilyzer 8000 used for years. To my surprise, I recently received discovery materials which showed my client’s breath test was done on an I-8000. Given the challenges faced by this machine when it was first brought to life in Ohio, I thought the State may let it rest in peace.

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The Life And Death Of The Intoxilyzer 8000 In Ohio
In 2009, Ohio spent about $6.5 million to purchase hundreds of Intoxilyzer 8000 machines. The purchase of the machines was controversial, as the State chose to purchase those machines rather than the BAC Datamaster, which was manufactured in Ohio. Adding to the controversy was the fact that the head of the Bureau of Alcohol and Drug Testing (Dean Ward) was close friends with the manufacturer of the Intoxilyzer 8000: CMI. In fact, Dean Ward later retired and went to work for CMI.

As the new machines were rolled out in counties across Ohio, defense lawyers challenged their reliability. In the 2011 case of State v. Gerome, several expert witnesses testified for and against the I-8000. The judge ultimately decided the results of the tests on the I-8000 could be used as evidence, but that evidence could be challenged in various ways. In the wake of Gerome, the attacks on the reliability of the I-8000 continued throughout the state.

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In this space, we typically discuss issues related to OVI/DUI law. Today, however, we’re going to take a brief detour and discuss a growing issue: distracted driving. With the near ubiquity of cell phones, instances of fatal car accidents caused by distracted drivers have approached 3,500 nationally in recent years. This year, the State of Ohio passed a new law in an effort to combat this problem.

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The new law is not the first Ohio statute to combat distracted driving. Ohio has had a law against texting while driving on the books since 2012. The Ohio General Assembly now addresses the reality that smart phones present numerous distractions beyond simply texting. Effective October 29, 2018, ORC 4511.991 gives police and prosecutors the ability to enhance the sentence for a traffic offense committed while distracted if the distracting activity is a contributing factor to the commission of the offense. If this enhancement is proven, courts can assess up to an additional $100 in fines on top of any fines levied for the underlying traffic offense. Defendants can then choose to either pay the additional fines or take an online distracted driving safety course.

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I have attended this DUI seminar in Vegas annually for about 15 years. One might think it would grow stale. It doesn’t. While the co-sponsors of the seminar are the same each year, the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL), there are always different speakers and themes. This year’s theme was ‘Grand Slam Defenses’.

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The lead-off batter was Bill Kirk with ‘Cross-Examination: The Lawyer’s Opportunity To Testify’. Kirk was spot-on when he urged attendees to improve cross-examination by doing three things: (1) adopt methods which have worked for others; (2) use your own style; and (3) practice and ask for constructive criticism. Throughout my career, I have studied trial techniques in books and borrowed successful trial tactics from other lawyers. As Kirk recommends, I have incorporated the techniques which are effective and consistent with my style. I have given the same advice to many attendees as an instructor at the OACDL trial skills workshops.

Another major league presentation was Deja Vishny’s ‘What Online Dating Taught Me About Jury De-Selection’. Vishny gave the traditional advice of gearing the voir dire toward one’s theory of the case. However, she recommended asking questions to de-select jurors rather than seeking information to help select jurors. Vishny also provided examples of methods for meaningful dialogue with prospective jurors. Her presentation included specific phrases for questions, using sliding-scale questions, and using questions which frame a challenge for cause.

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Scooter-DUI-131x300Electric scooters are a thing. In cities across the country, people are riding them, and leaving them, everywhere. During my recent trip to Santa Monica, I decided I would rent one and ride it on the bike path along the beach (“The Strand”). It turns out e-scooters were banned on The Strand, so I rented a bike. Some people rode electric scooters on The Strand anyway, apparently unconcerned about breaking the law. One Santa Monica scooter rider was prosecuted for breaking the law in a different way: driving drunk on an e-scooter. Could someone in Ohio be prosecuted for DUI/OVI on an e-scooter?

Is An Electric Scooter A “Vehicle” Or A “Motor Vehicle”?
Ohio Revised Code section 4511.19 prohibits operating a vehicle under the influence of alcohol or drugs. The question is whether an electric scooter is a “vehicle” subject to the OVI law. The relevant definitions have changed over time, as chapter 4511 of the Ohio Revised Code is amended frequently. In fact, section 4511.19 has been amended about 20 times since 1982.

Currently, a vehicle is defined by ORC section 4511.01(A) as follows: Continue Reading

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Our firm has historically advised the best way to avoid getting arrested for OVI/DUI is to have a plan in place and to stick to that plan once you’ve started drinking. For many people, that plan involves having someone else behind the wheel for your trip home, most likely in the form of an UBER, Lyft, or a taxi (remember those?). As more and more people turn to these ride sharing apps, not only for transportation, but as a source of extra money, an important question arises: What happens when the people we rely on to help avoid an OVI/DUI charge get charged with one themselves?

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UBER DRIVERS & OVI
UBER runs background checks on all potential drivers, but they are somewhat vague about what could disqualify an applicant. They say “major driving violations” as well as a “recent history of minor driving violations” may disqualify a potential driver. It seems obvious an OVI/DUI would be considered a “major traffic violation”. Therefore, as long as an OVI/DUI is on your record, you may be disqualified for driving for UBER. Under Ohio law, OVI/DUI is not expungable, which means it stays on your record forever, permanently disqualifying you from driving for UBER.

What happens if a current UBER driver is charged with OVI/DUI? UBER states pending violations disqualify drivers “unless and until such charges are resolved in a driver’[s]… favor.” In most cases, people charged with OVI would consider it a victory to have the charge reduced. For UBER drivers, however, having an OVI reduced to Physical Control or Reckless Operation may still be considered a “major traffic violation”, leading to disqualification. For UBER drivers, OVIs may be an all-or-nothing proposition.

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We all remember learning in school the Fourth Amendment is the one which requires police to get a warrant to search your house or arrest you. That bullet point is great for helping kids learn the basics of their Constitutional rights; but, in practice, Fourth Amendment law is far more complex and far less certain. The complexity and uncertainty is illustrated by two recent Ohio DUI / OVI cases in which the same court looks at two very similar cases and comes to completely opposite conclusions.

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Before we get to the cases, we need to lay some ground work. Ohio courts have long held that a driver is seized for Fourth Amendment purposes when an officer asks the driver to perform Field Sobriety Tests (FSTs). Normally, an officer must have probable cause to seize a person in the form of an arrest. However, detaining a driver for FSTs is a lesser type of seizure and therefore is subject to a lesser standard than probable cause: reasonable suspicion. To detain a driver for FSTs, an officer must have a reasonable suspicion the driver is under the influence.

This raises an interesting question: When does a police officer have the required reasonable suspicion to order you out of your vehicle and request that you complete FSTs? This is precisely the question the Fifth District Court of Appeals answered when deciding two recent cases.

 

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When a trooper’s DUI charge is dismissed, it may appear the trooper is getting special treatment. In the case of N.C. trooper Dennis Tafoya, the DUI charge was dismissed because the evidence didn’t prove he committed a crime. Although he may have been very intoxicated while sitting in his car, the car was not running. In North Carolina, that is not an offense. In Ohio, the law is different.

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According to the news report about the trooper’s case, officers found him passed out in the driver’s seat of his vehicle, parked near the courthouse. The officers ordered him out of the vehicle and asked him if the vehicle was on. He said yes. The officers determined the trooper was intoxicated, arrested him, and charged him with DUI (called “OVI” in Ohio).

Footage from the officers’ body cameras showed the trooper’s vehicle was not running. One of the officers went to move the car and learned the keys were not in the ignition. It turned out the keys were in the trooper’s pants pocket the entire time: they were not in the ignition when the officers arrived. Once the officer got the ignition key from the arrested trooper, the officer found the trooper’s vehicle was in gear. The vehicle was apparently a stick shift, so, if it was in gear, it could not have been running.

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The last post in this blog described how crime lab reports are used in Ohio DUI / OVI cases. In a nutshell: a lab technician issues a report identifying the quantity of alcohol or drugs in a person’s blood or urine, and that report is given to the prosecutor. Ohio legislation requires the prosecutor to provide the report to the defense attorney. Ohio legislation, however, is not the only law impacting the use of these reports. The Constitutions of Ohio and the United States also provide limitations on the use of crime lab reports in Ohio DUI / OVI cases.

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Defendants’ Confrontation Rights
In a criminal prosecution, defendants have the right to confront the witnesses against them. This right is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Confrontation rights clearly apply to statements a witness makes during a trial:  the defendant cross-examines that witness at the trial. But what about statements made by a witness before the trial?

The United States Supreme Court addressed this question in Crawford v. Washington (2004). In this case, the Court held confrontation rights apply to out-of-court statements which are “testimonial” in nature. A statement is “testimonial” if an objective person would reasonably believe the statement would be available for use at a later trial. For example, if a person makes a report to the police, that person’s statements to the police would be considered “testimonial”. According to Crawford, testimonial statements cannot be used in a criminal trial unless the accused has the opportunity to cross-examine the person who made the testimonial statement.

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Although Ohio courtrooms may not seem as dramatic and intriguing as those on C.S.I., crime laboratory tests are regularly a part of Ohio criminal cases. In Ohio DUI / OVI cases, and in drug-related cases, crime lab technicians use scientific tests to identify drugs. The lab techs write reports about the analyses and sometimes testify at trial about the tests. A recent case in an Ohio appellate court discusses the detailed procedure for using crime lab reports in Ohio DUI / OVI and criminal trials.

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The case is Kettering v. Maston. Maston was pulled over for a questionable marked lanes violation after leaving a known drug house. As one officer was writing a traffic ticket, another officer ran a drug dog around Maston’s vehicle. The drug dog alerted, and the officers searched Maston’s passenger compartment. The officers seized a container of pills which they suspected were controlled substances and charged Maston with Possessing Controlled Substances.

The officers sent the pills to the crime laboratory at the Ohio Bureau of Criminal Investigations (BCI). A laboratory technician analyzed the pills and wrote a report. The report identified the pills as Alprazolam (Xanax). The report was delivered to the prosecuting attorney.

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Myrtle Beach, for the second year in-a-row, was the site for a seminar and retreat for the Ohio Association of Criminal Defense Lawyers (OACDL). I intended to go last year, but the timing didn’t work with my schedule. When it came up again this year, I made the event a priority on my calendar. I’m so glad I did. The unique seminar format, the interesting topics and the camaraderie made for a great experience.

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The continuing education part of the retreat was unique. Rather than having the room arranged like a classroom, the tables were set up in a rectangle, like a meeting.  It also didn’t hurt to have the beach as a backdrop.  The speakers, rather than giving a monologue presentation, facilitated lively discussions.

 

Medical Marijuana And Ohio Law
One topic we discussed was marijuana. The Ohio legislature passed a law two years ago permitting the use of marijuana for medical purposes under certain circumstances, but the regulations for the details of medical marijuana have not been finalized. Nevertheless, some Ohio doctors are already ‘prescribing’ marijuana to patients who are Ohio residents.

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