Articles Tagged with Ohio DUI/OVI

Lawyers disagree on what part of a trial is the most important. Some lawyers say the closing argument is the most important part because that’s when we tie everything together and persuade. Others say the closing doesn’t matter much: trials are lost or won during jury selection. Still others say the most critical phase of a trial is cross-examination.

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Cross-examination was the subject of a recent workshop in Charleston, South Carolina (a couple days after Hurricane Irma hit!), and I was part of the faculty for the workshop. The workshop was part of a three-day seminar presented by the DUI Defense Lawyers Association (DUIDLA), and first two days of the seminar were lectures on various DUI/OVI topics. The third day was a trial skills workshop focused on improving the attendees’ cross examination skills.

 

In DUI/OVI cases, cross examination is very important. In all OVI trials, the defense attorney cross-examines the prosecution witnesses. In many OVI trials, there are no defense witnesses testifying, so all of the testimony comes from the prosecution witnesses. Therefore, it is critical for those prosecution witnesses to be effectively cross-examined.

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In his book Good To Great, Jim Collins discusses ‘the hedgehog concept’. The concept is essentially this: although the fox is a cunning predator, the hedgehog always defeats the fox because the hedgehog focuses on doing one thing well – it rolls into a ball of spiky quills the fox cannot penetrate. The hedgehog concept applies to practicing law: focusing on one narrow area of law and doing it well leads to expertise and effectiveness. In the narrow area of DUI/OVI defense, one great way to learn is attending advanced level seminars like the summer session of the National College for DUI Defense (NCDD).

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I recently attended the NCDD summer session at Harvard Law School. Over the course of three days, some of the best DUI lawyers in the country discussed advanced topics in DUI defense. The seminar included lectures, demonstrations, and workshops. Additional learning took place informally each night as the lawyers exchanged ideas, tactics, and best practices.

While all the presentations were informative, there were two presentations which stood out to me: one about metrology, and one about pharmacology. The metrology presentation discussed the uncertainty involved in measurements and explained common failures in the measurement of blood alcohol concentration. The pharmacology presentation compared the work of law enforcement Drug Recognition Experts to that of pharmacologists in DUI/OVI cases involving drugs other than alcohol.

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This is the week of July 4th.  For some, that means celebrating our nation’s independence with burgers, beer and boats.  As alcohol is often mixed with boating, people are prosecuted and punished for boating under the influence (BUI).  But how do law enforcement officers determine if a person’s ability to operate a boat is impaired by alcohol?

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Standardized Sobriety Tests And Sea Legs
Law enforcement officers have historically investigated BUI using the same Standardized Field Sobriety Tests (SFSTs) as those used for DUI / OVI cases on land.  Those tests include the Horizontal Gaze Nystagmus (HGN), the Walk And Turn (WAT) and the One Leg Stand (OLS) tests.

 

In 1990, the U.S. Coast Guard, in conjunction with the International Association of Chiefs of Police (IACP), conducted a study regarding the utility of the SFSTs in the marine environment.  The report from the study concludes the use of the SFSTs is effective for making the correct arrest decision, and the accuracy of the tests is not degraded in the marine environment.  The report was later criticized because it ignored the effect of ‘sea legs’ on test performance.

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After Tiger Woods’ recent DUI arrest, he issued a statement in which he said, “I want the public to know alcohol was not involved.  What happened was an unexpected reaction to prescribed medications.”  Prescription medications, as well as non-prescribed drugs, account for an increasing number of DUI/OVI cases in Ohio and throughout the United States.  Tiger’s situation very publicly spotlights the complicated problem of drugged driving.

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The Effects Of An Unexpected Reaction

At about 3:00 am on Memorial Day, a police officer found Tiger asleep at the wheel of his Mercedes.  The car was parked, partially on the road, and the engine was running.  The officer approached Tiger and woke him.  The officer noticed Tiger was sluggish and observed Tiger’s speech was slow and slurred.  When asked where he was going, Tiger said he was coming from L.A. and going to Orange County.  He was actually in Jupiter, Florida.

The last entry in this blog discussed the movement to decrease distracted driving in the United States.  Using cell phones while driving appears to be increasingly problematic.  In response, states are criminalizing the behavior, and groups like the Partnership For Distraction-Free Driving and the Distracted Driving Project are mounting campaigns which encourage drivers to not multi-task while driving.  Another idea to combat distracted driving is use of the ‘Textalyzer’.

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What Is A Textalyzer?
The Textalyzer is computer program developed by Cellebrite.  Cellebrite sells software which enables investigators to unlock digital evidence from cell phones and other devices.  The Textalyzer is a relatively lean application which analyzes cells phone and provides reports regarding how and when the phones were used.

The Textalyzer could be used in various traffic law enforcement scenarios.  For example, it may be used if an officer is dispatched to an accident scene, makes a traffic stop, or responds to a report of a reckless driver.  In any of those situations, the officer could obtain the cell phone(s) of the driver(s) involved.  The officer would then run a cable from the driver’s phone to the officer’s laptop.  The Textalyzer program on the officer’s laptop would then examine the cell phone on-the-spot and report the findings to the officer.

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How many times have you seen someone obviously texting while driving?  I recently drove by a guy who was operating his phone with both hands while he steered his car with his knees.  I’m sensitive to the danger posed by distracted driving, both as a lawyer who represents clients charged with traffic offenses and as a father of a child approaching driving age.  The more we learn about the danger of distracted driving, the more we understand it may be as hazardous as drunk driving.  Consequently, driving while texting may someday carry penalties like those for DUI (known as OVI in Ohio).

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Matt Richtel‘s recent article in the New York Times presents a good discussion of this issue.  According to the article, the problem of driving while distracted by a cell phone is getting worse.  Surveys show Americans not only continue to text but also take selfies, use Snapchat and post on Facebook while driving.  According to the National Highway Traffic Safety Association (NHTSA), 3,477 people in the United States were killed by distracted driving in 2015, and another 391,000 were injured.  NHSTA chief Mark Rosekind says it’s increasing, and “radical change requires radical ideas”.

The Movement To Decrease Distracted Driving
One idea for change comes from Candace Lightner, founder of Mother’s Against Drunk Driving.  Lightner has formed a new group:  Partnership For Distraction-Free Driving.  That group is gathering signatures on a petition for social media companies like Twitter and Facebook to discourage drivers from multi-tasking.

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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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Lawyers sometimes learn through trial and error;  literally.  Education at the school of hard knocks can be valuable, but learning from the experience of others has its own value.  One way attorneys can shorten the learning curve is by attending high quality continuing education seminars.  One outstanding annual seminar for DUI/OVI lawyers is ‘The Premiere Ohio DUI Defense Seminar’ sponsored by the Ohio Association of Criminal Defense Lawyers (OACDL).

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The focus of this year’s seminar, held last week, was drugged driving.  Ohio has seen an increase in the number of drivers charged with OVI for being under the influence of drugs.  With medical marijuana on the horizon, it’s likely the numbers of drugged driving cases will continue to increase.  With that in mind, the presentations addressed the science, the law and the litigation involved in drugged driving cases.

The Science Of Drugged Driving
Pharmacologist James O’Donnel taught the basics of pharmacokinetics.  He described, in terms understandable by non-scientists, the absorption, distribution and elimination of drugs in the human body.  Interestingly, he explained why retrograde extrapolation cannot accurately calculate the concentration of a drug in a person’s system at a particular point in the past;  like when the person was operating the vehicle.

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Joe was arrested for DUI / OVI, and the officer had Joe take a breath test and a urine test.  The breath test showed an alcohol level under Ohio’s limit, and the urine test showed an alcohol level over Ohio’s limit.  Based on the urine test result, Joe was prosecuted for operating a vehicle with a prohibited concentration of alcohol in his system.  Should Joe be found guilty of OVI?

Test-results-300x220This scenario is not hypothetical:  “Joe” was my client.

Joe came to the attention of the officer because one of Joe’s headlights was out.  The officer turned around to follow Joe and reportedly observed Joe’s tire go over the lane line one time.  The ‘marked lanes’ violation was not recorded on video, although the remainder of the incident was.

The officer stopped Joe and noticed the odor of alcohol.  When asked, Joe explained he went to a wings restaurant and had a few beers with dinner.  The officer administered field sobriety tests, and Joe’s performance on the tests was good but not great.  The officer arrested Joe and took him to the police station.

A Tale Of Two Tests
At the police station, the officer asked Joe to submit to a breath alcohol test.  Joe gave a sample of his breath, and the breath-testing-machine produced a result of .069 (grams per 210 liters of breath);  under Ohio’s limit of .080.  The officer had Joe provide a urine sample because the officer had a hunch Joe smoked marijuana.

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