I recently had the pleasure of being interviewed by Grant Eagle on his podcast “5 Minute Legal Insights”. It actually lasted for ten minutes, and I was just getting warmed up! We discussed common misconceptions about DUI/OVI stops, arrests, and court cases. You can listen to the podcast here, and you can also find it on Apple Podcasts, Google Podcasts, Spotify and Stitcher.
DORA may be coming to a city near you. Not Dora the Explorer with her singing map and backpack. DORA the law which allows cities to have Designated Outdoor Refreshment Areas. In a DORA, people can walk around with open containers of alcohol purchased from local establishments. The idea behind DORAs is to spur economic development, and cities across Ohio are now implementing DORAs. Here are some facts about DORAs you may be interested to know before visiting one.
What Is The DORA Law?
Ohio Revised Code section 4301.82 authorizes municipal corporations and townships to establish Outdoor Refreshment Areas (DORAs). The executive officer or fiscal officer must submit an application to the legislative branch of the city or township. If the legislature approves, the DORA is created. The city or township then obtains a permit from the Ohio Division of Liquor Control. Establishments then obtain ‘Outdoor Refreshment Area’ designations on their liquor permits. The law was passed in 2017, and many cities in central Ohio are now implementing DORAs, so expect to see them near you in 2020.
There are some limitations to the DORA law. Bigger cities (over 50,000 people), may create only two DORAs, and smaller cities and townships (35,000 to 50,000 people) are limited to one DORA. The maximum DORA size for those cities and townships is 320 contiguous acres or ½ square mile. Cities and townships under 35,000 residents may also create a DORA, but only if the area includes at least four establishments which are ‘qualified permit holders’, and the maximum size is 150 contiguous acres.
What Is Permitted and Prohibited In A DORA?
In a DORA, you are permitted to carry open containers of alcohol if the alcohol was purchased from an establishment with an ‘Outdoor Refreshment Area’ designation. The Ohio law essentially says that, while in a DORA, you are exempt from the Open Container law. To be exempt, however, you must follow the rules.
The consequences of an OVI/DUI conviction can go well beyond the fines, jail time, and license suspensions imposed by a Judge. Collateral effects like higher insurance premiums and lost employment opportunities can follow someone well after their case has been resolved in court. Some states, even notoriously tough-on-crime states like Texas, allow first-time OVI/DUI offenders to avoid the long term consequences of a conviction by completing a pretrial diversion program.
What is Diversion?
The general idea of diversion is that first offenders should be given an opportunity to learn from their mistakes and correct the underlying causes of their criminal offense without the stigma of a conviction. If an applicant meets the entry requirements, typically meaning the person has no prior criminal history and is charged with a qualifying offense, the applicant can be accepted into a diversion program. These programs typically require the participant to complete counseling and/or educational courses, perform community service, attend regular meetings with a probation/diversion officer, and maintain a clean criminal record for the duration of the program.
Many jurisdictions have diversion programs, covering a variety of offenses. The specifics of the programs vary depending on the jurisdiction and the offense. For example, the Texas program allows first-time DUI offenders with otherwise clean records to complete a year of probation supervision which includes monthly meetings, community service, drug/alcohol counseling, and the installation of an ignition interlock device on their vehicles. Successful completion of this year-long program results in the DUI charges being dismissed, which means they are able to move forward without a conviction on their record.
The ever-growing number of states which have legalized either medical marijuana or recreational marijuana has created a number of issues for law enforcement and the justice system. Chief among those issues is the challenge of enforcing laws against operating a vehicle under the influence of marijuana. In an effort to overcome this challenge, the Norwegian company Drauger developed the DrugTest 5000. This system uses a mouth swab, taken roadside, to help determine if a driver is under the influence of marijuana or other drugs. The DrugTest 5000 has been in use in Norway since 2015 and has seen growing use in the United States. This test, however, is probably not the solution for law enforcement’s problems.
Specific Problems With The Roadside Marijauana Test
While many hope the DrugTest 5000 will be to drugged driving what a breath test is to drunk driving, there are reasons to be skeptical. The first is the DrugTest 5000 can only detect the presence of drugs in a sample, not the amount. This means the DrugTest 5000 operates like a breath testing machine that can’t differentiate between a driver who had one beer and a driver who had 12.
The second reason to be skeptical is found in a 2018 joint study between the Oslo University Hospital and the Norwegian Mobile Police Service. The researchers found the DrugTest 5000 isn’t able to accurately identify drugs in a driver’s saliva. Over the course of the study, the DrugTest 5000 was found to have a false positive result for THC 14.5% of the time and a false negative result 13.4% of the time.
If you think about the consequences of getting a DUI (called OVI in Ohio), the first thing which comes to mind is probably the sentence from the court. There is good reason for that: the sentence includes a mandatory jail term, license suspension, and fine as well as possible yellow plates, ignition interlock, and probation. In addition to the sentence imposed by the judge, however, there are collateral consequences for DUI/OVI convictions. One of those consequences is skyrocketing auto insurance premiums.
How Are Insurance Premiums Calculated?
Auto insurance premiums are determined by what an insurance company expects to be the amount of risk associated with a particular driver and car. There are many factors which affect the cost of auto insurance. Those factors include the type and age of the car, how far and frequently the vehicle is driven, and the state in which the vehicle is used. Other factors are the driver’s age, gender, marital status, credit history, and driving history.
Why Does A DUI/OVI Affect Premiums?
With regard to driving history, one of the most expensive entries in a driving record is a conviction for DUI/OVI. Studies show that DUI/OVI is a risky driving behavior which leads to more crashes than practically any other driving behavior. In addition, insurance companies conclude that a person who engaged in that risky behavior is likely to repeat it in the future.
Ohio and Pennsylvania are two states which still prosecute drivers for DUI / OVI marijuana, even if the marijuana metabolites in the driver’s system are not affecting the person’s ability to drive. The Philadelphia District Attorney’s office recently announced it will not prosecute cannabis DUIs unless the driver has amounts of psychoactive THC which affect driving. Ohio prosecutors should consider implementing this policy.
Two Types Of DUI/OVI Laws In Ohio
Ohio’s two general types of OVI are OVI ‘impaired’ and OVI ‘per se’. For a charge of OVI ‘impaired’, the prosecution must prove that, at the time of operating the vehicle, the driver was ‘under the influence’ of alcohol and/or drugs. ‘Under the influence’ means the alcohol and/or drugs “affected the nervous system, brain or muscles of the defendant so as to impair, to a noticeable degree, his ability to operate the vehicle”.
For a charge of OVI ‘per se’ the prosecution must prove that, at the time of operating the vehicle, the driver had a prohibited concentration of alcohol or drugs in his breath, blood or urine. The prohibited concentration of alcohol is .08%. The prohibited concentration of marijuana metabolite is 35 nanograms per milliliter of urine or 50 nanograms per milliliter of blood.
It turns out the criminal defense lawyers were not the only group gathering in Myrtle Beach. It was bike week. Harley Davidson bike week to be precise. Thousands of bikers rolled in to cruise the strip, and a small percentage participated in drag racing, drunk driving and disorderly conduct. While some people were in the tourist town breaking the law, others were there learning about the law. I was in the latter group.
I was there for the Sunshine Seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). This is an annual continuing education seminar and retreat for OACDL members. The seminar portion of the event is held in the mornings on Thursday and Friday (in a meeting room overlooking the beach), and the remainder of the time is the ‘retreat’.
Cyber Security And Client Competency
The seminar included an interesting presentation on cyber security. I, like many others, believed small business owners need not be especially concerned about being the victim of cyber crimes. However, the speaker explained small businesses, including law firms, are, in fact, targeted by hackers. He also discussed some relatively simple ways to avoid being a victim. A wildebeest does not have the be the fastest in the herd; just not the slowest. Similarly, a small law firm does not need to be super cyber secure; it just needs to not be the low-hanging fruit for cyber criminals.
The United States Supreme Court recently heard oral arguments in the case of Mitchell v. Wisconsin. As this blog discussed previously, this the third case in a series of cases dealing with whether the police can take a DUI/OVI suspect’s blood without a search warrant. The questions and statements from the bench during the oral argument may telegraph how each justice views the issue. However, in our experience, it is difficult to predict the outcome of a case based on the oral arguments.
The Trilogy of Cases Involving Warrantless Blood Draws
In Missouri v. McNeely, the Court concluded the dissipation of alcohol in blood does not necessarily create an exigent circumstance, meaning a warrant is generally required to obtain a blood sample from a DUI/OVI suspect. They followed that decision with Birchfield v. North Dakota, concluding a warrantless breath test can be administered as a ‘search incident to arrest’, but a blood test still generally requires a warrant.
That brings us to the third piece of the puzzle, Mitchell v. Wisconsin. In that case, the defendant passed out before the police were able to administer a breath test. Relying on Wisconsin’s Implied Consent statute, the police took the defendant to the hospital and had his blood drawn without a warrant. Mitchell was convicted of the DUI charge; and appealed his conviction on the ground the blood draw was an unconstitutional violation of his 4th Amendment right against unreasonable searches and seizures.
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.
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.
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?
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.