Articles Tagged with Ohio DUI/OVI

The modern version of the OACDL annual DUI/OVI seminar began in 2002. That means this year we celebrate the 18th birthday of the seminar. I have attended every year, I have participated for many years, and I have been the co-chair for the past few years. Just like parents say about their children, I can’t believe it has been 18 years. Like a proud parent, I think this seminar has matured to be one of the best DUI seminars in the country. This year’s agenda featured too many speakers to name and too many presentations to summarize, but this article covers some of the highlights.

Learning From Non-Lawyers
We reintroduced a tee shirt this year with the slogan, “In God we trust…all others will be cross-examined”. Despite the warning on the throwback tee, we invited many non-lawyer speakers and did not cross examine any of them.

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Joshua Ott (Atlanta) is a former police officer with vast experience and credentials in DUI investigations. He discussed what to look for when reviewing law enforcement videos from cruisers and body cams. His presentation highlighted issues which may arise during all phases of the DUI investigation, including the field sobriety tests.

Dr. Lee Polite (Chicago) is the president of Axion Labs, where he provides chromatography training for scientists from around the world. Dr. Polite taught the basics of gas chromatography, the method used to test blood and urine in Ohio DUI / OVI cases. I attended his three-day gas chromatography course in Chicago, and it was outstanding. Somehow, he did an amazing summary of that material in one hour.

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The New York Police Department recently demanded that Google remove a function from the Waze app which permits users to report DUI checkpoint locations. In its ‘cease and desist’ letter, the NYPD stated posting checkpoint locations is irresponsible and possibly criminal. The agency insisted that Google take every necessary precaution to ensure GPS data of DUI checkpoints is not posted on Waze, Google Maps, or associated platforms under its control. If the police in New York City can place such demands on Google, then law enforcement in Ohio can do the same. This raises the question: should the government prohibit Waze (and other apps) from reporting DUI / OVI checkpoints in Ohio?

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Waze is a navigation and traffic app which allows drivers to share real-time traffic information. The app was purchased by Google in 2013 (for a mere $966 million). App users can see information from other drivers on their route, such as average speeds, traffic congestion, potholes, accidents, and police presence. Police presence is indicated by an icon of a police officer. The icon does not indicate the nature of the police presence, but users can add notes to the icon, including the presence of a DUI checkpoint. It’s the DUI checkpoint information which is the subject of the strenuous objection by the NYPD.

The NYPD has good intentions. In the letter to Google, the agency states it is “endeavoring to eliminate traffic fatalities”, and “paramount to the success of this initiative is the New York City Police Department’s (NYPD) enforcement of the Driving While Impaired (DWI) Laws”. Nobody can argue with that.

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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

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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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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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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I have been attending this DUI / OVI seminar since its modern inception in 2002. For five years before that, I practiced all varieties of criminal defense, with a focus on serious felonies. I didn’t think OVI defense was as complex as cases like murder, robbery and burglary. The seminar in 2002 showed me I was wrong. Shortly after that seminar, I decided to make OVI the focus of my practice. Fast forward 16 years, and I co-chaired this year’s two-day seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). I was primarily responsible for the first day, which means my job was to introduce the speakers without drooling or stuttering.

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The seminar got off to a great start with a presentation by Mimi Coffey from Texas. Mimi is board certified in DUI Defense, has twice completed the Borkenstein course at Indiana University, and is a regent with the National College for DUI Defense (NCDD). She discussed how to win an OVI case involving a breath test. Her discussion included favorable case law, important scientific principles and helpful litigation strategies.

The next speaker was Lauren Stuckert from Wisconsin. Lauren is the nation’s youngest lawyer to become board certified in DUI Defense. She discussed the analysis of blood and urine. The first part of her lecture focused on the analysis of alcohol, and the second part focused on the analysis of other drugs. Lauren included a spotlight on marijuana, as there is a growing number of Ohio OVI cases involving marijuana which will only increase with the legalization of medical marijuana.

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