Articles Tagged with Ohio DUI/OVI

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’.

Ignition-interlock-device

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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A smartphone app for breath-alcohol-testing was so promising that all five investors on Shark Tank collaborated on a deal for the first time.  In 2013, Charles Yim went on the show and pitched his app to the Sharks.  The Sharks collectively invested $1 million in Yim’s company Breathometer, Inc. for 30% of the company’s equity.  Three years later, the company was the subject of an FTC complaint, and the complaint was recently settled.

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The History-Making Shark Tank Pitch
The pitch to the Sharks sounded great.  People regularly drink alcohol and then drive, and nobody knows when they are over .08.  By downloading the app and plugging in a small piece of hardware to a smartphone audio jack, consumers could blow into the hardware and know their blood alcohol concentration in seconds.  In addition, the app would tell them how much time it would take to sober up, and it could even call a cab with one push of a button.

The Sharks were intrigued.  Yim was asking for one Shark to invest $250,000 for ten percent of the company’s equity.  Mark Cuban quickly offered to invest $500,000 for 20% equity.  Yim then invited the other Sharks to join, and they did:  all five of them.  Ultimately, Cuban put up $500,000 for 15%, and the other four Sharks together put up $500,000 for another 15%.

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Hangover-man-after-party-300x210‘Tis the season for holiday parties. ’Tis also the season for DUI/OVI arrests (in Ohio, it’s called OVI). From Thanksgiving Eve (‘blackout Wednesday’) to New Year’s Day, officers are particularly ambitious about enforcing Ohio’s drunk driving laws this time of year.

But OVI convictions can be avoided. The first five recommendations below may help you avoid getting arrested and charged with OVI. If you get arrested anyway, the second five recommendations may help you avoid getting convicted of OVI and having that OVI conviction on your permanent record.

If You Want To Avoid Getting Arrested
10. Make a plan and stick to it. I can’t tell you how many times a client has told me they were not planning on driving that night, but circumstances changed, and they ended-up driving home. If you know you are going to drink alcohol, plan to wait to drive until the alcohol won’t affect your driving, or arrange alternate transportation. If circumstances change, don’t ‘end-up driving home’: call a cab or use a ride-sharing program like Uber or Lyft.
Bonus tip: ‘I was the most sober one of the group’ is not a valid defense!

9. Avoid driving during ‘drunk time’. In the minds of many police officers, the only people driving between 1:00 am and 3:00 am are police officers and drunks. If you are not driving a cruiser, some officers are going to presume you’ve been drinking and look for a reason to pull you over.

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When a celebrity is accused of DUI/OVI in Ohio, the celebrity’s cruiser video is often on the local news the next day. News outlets obtain cruiser videos by making public records requests with the arresting law enforcement agency. Those public records requests are routinely processed quickly. Sometimes, however, law enforcement agencies decline or delay release of the public records. A recent case decided by the Ohio Supreme Court addresses the details of releasing cruiser videos as public records.

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The case is State ex rel Cincinnati Enquirer v. Ohio Department of Public Safety. In that case, two cruisers from the Ohio State Highway Patrol were involved in a pursuit. The pursuit ended with the suspect crashing into a guardrail and being arrested. The suspect was charged with multiple felony offenses, including Fleeing And Eluding and Carrying a Concealed Weapon.

The Cincinnati Enquirer made a public records request for the ‘dash cam’ video from the two cruisers. The Ohio State Highway Patrol declined to provide the videos, claiming the videos were not subject to public records requests because the videos were confidential law enforcement investigatory records. The Enquirer filed a lawsuit with the Ohio Supreme Court asking the Court to issue a writ of mandamus ordering the Highway Patrol to provide the cruiser videos.

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Over 20,000 DWI cases in New Jersey are being called into question due to problems with the recalibration of breath-testing machines.  According to New Jersey 101.5, Sgt. Marc Dennis skipped a critical step each time he recalibrated the machines.  Plaintiffs in a class-action lawsuit now seek to vacate thousands of convictions in which evidence was produced by those breath-testing machines.  Although this debacle occurred in New Jersey, it illustrates the importance of properly maintaining breath-testing machines in Ohio DUI/OVI cases.

Simulator

In Ohio DUI/OVI cases, there is a distinction between a calibration and a calibration check.  When breath-testing machines are built, the machines must be ‘taught’ to identify and quantify alcohol (ethanol).  That ‘teaching’ process is a calibration.  As a machine is being used by a law enforcement agency, the agency periodically runs a test to confirm the machine produces accurate results.  The test is done using a simulator like the one pictured here.  That periodic test is a calibration check.

Calibration checks, also referred to as ‘instrument checks’, are done at least once per week in Ohio.  The weekly instrument checks are conducted by the law enforcement agency which owns and/or operates the breath-testing machine.  Some agencies assign the responsibility to one officer, and, in other agencies, multiple officer share the responsibility of conducting weekly instrument checks.

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Today’s report regarding the conduct of a forensic scientist employed by the state of Ohio demonstrates the danger of the government enforcing laws without effective checks and balances.  Forensic scientist G. Michele Yezzo worked for over 30 years as a laboratory technician for the Ohio Bureau of Criminal Investigation (BCI).  During that time, she analyzed evidence in criminal cases and testified in court regarding those analyses.  The feature story in The Columbus Dispatch says she now, “stands accused of slanting evidence to help cops and prosecutors build their cases.”

http://www.dreamstime.com/royalty-free-stock-photo-blood-test-hand-latex-glove-holding-sample-vial-front-form-image37079485According to the newspaper report, the BCI employee stretched the truth in her analyses to satisfy law enforcement.  She even reportedly went so far as asking police officers “What do you need the evidence to say?”  Her work as a government scientist led to hundreds of criminal convictions, including serious cases involving murder and rape.  This forensic scientist’s lack of credibility calls many of those convictions into question.  It also brings attention to the issue of forensic testing in Ohio DUI/OVI cases.

In Ohio OVI cases, forensic testing at crime labs is used to detect and measure alcohol and drugs in blood and urine samples.  If a driver is arrested and the officer suspects the driver is under the influence of alcohol and/or drugs of abuse, the officer asks the driver to submit a sample of breath, blood or urine.  Breath samples are analyzed on-the-spot by a breath-testing machine.  Blood and urine samples are sent to a crime lab for analysis.

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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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Until a few days ago, the scope of driving privileges for Ohio DUI/OVI suspensions was very limited.  A parent on limited driving privileges was not permitted to drive children for extra-curricular activities.  A person on limited driving privileges was not allowed to drive to care for elderly parents.  A person on limited driving privileges could not drive to AA or counseling unless it was court-ordered.  That changed last week, when the state legislature revised Ohio law for limited driving privileges.

Statehouse with Ohio flag

The revised law is Ohio Revised Code section 4510.021.  That section authorizes courts to grant limited driving privileges for driver license suspensions, including DUI/OVI suspensions.  The last time the statute changed was 2004.  Before 2004, the law only provided for occupational driving privileges.  In 2004, the statute was revised to expand driving privileges, authorizing privileges for the following purposes:

•    Occupational, educational, vocational, or medical purposes;
•    Taking the driver’s or commercial driver’s license examination;
•    Attending court-ordered treatment.

The most recent change to the law, in September of 2016, further expands the permissible scope of limited driving privileges.  The statute still lists the purposes above and now adds the catch-all phrase, “Any other purpose the court determines appropriate”.

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