Articles Tagged with Ohio DUI/OVI

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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I recently went on a whale-watching trip in Mexico. Wherever I went, there was no shortage of tequila and cervezas. There was also no shortage of people driving cars. That prompted me to wonder how the drunk driving laws in Mexico compare to those in Ohio. It appears there are some similarities and some differences.

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‘Legal Limit’ For Blood Alcohol Concentration
One similarity between the laws in Mexico and Ohio is the ‘legal limit’: the blood alcohol concentration at which driving is ‘per se’ illegal. The national limit in Mexico is .08:  the same as Ohio.

Many states in Mexico have created their own limits, and most of them are lower than .08. For example, the states of Chiapas, Hidalgo and Veracruz all have limits of .04. We stayed in the state of Baja California Sur, which has a ‘per se’ limit of .08. Interestingly, I asked a few different locals about drunk driving, and none of them knew the ‘limite legal’.

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Clean hands is an obsession for some people.  In addition to frequent hand-washing, many people also use alcohol-based hand sanitizers. Aside from the potential issues with dry skin and weakened immune system (not to mention OCD!), use of hand sanitizers can also affect the results of a breath alcohol test.

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The impact of hand sanitizers on breath testing was the subject of a recent article in the Journal Of Forensic Sciences. A previous study concluded the absorption of alcohol from hand sanitizers has virtually no effect on blood alcohol concentration. The current study answered a different question: what if the hand sanitizer is on the hands of the breath test operator?

To answer the question, the researchers had breath test operators apply hand sanitizer, rub their hands until dry, and then administer breath tests to subjects who had consumed no alcohol. Part of administering the breath test is removing the disposable mouthpiece from its package and inserting it in the breath tube for the test.

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The abominable snowman was arrested for drunk driving. The ‘arrest’ of the snowman was part of a campaign by the St. Helens Police Department to crackdown on drunk driving during the holidays. Although the arrest was fake, the message was real: DUI/OVI enforcement is increased during the holiday season.

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The holidays bring an increased volume of driving. According to AAA, holiday travel has increased consistently over the last nine years, and this year looks to be record-setting. In Ohio, nearly 4.5 million people are traveling for the holidays, and 90% of those are driving.

The holidays also bring an increase in accidents related to operating under the influence. The National Highway Traffic Safety Administration (NHTSA) reports that, over the last five years, an average of 300 people died in drunk driving crashes during the week between Christmas and New Year’s Day. In Ohio last year, ten OVI-related crashes resulted in 13 deaths during the Christmas holiday, according to the Ohio State Highway Patrol.

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