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Driving Under An OVI Suspension

February 28th, 2012

“I had to get to work.  If I missed another day they were going to fire me, so I drove and got a ticket.  What is going to happen?”

Driving under an OVI suspension is a violation of Ohio Revised Code 4510.14.  It is a separate offense from a DUI/OVI charge and carries harsh mandatory penalties.  Most of these charges originate when a person is desperate to live up to their obligations to their work and/or their family.  Often, the automatic license suspension is the worst part of the DUI experience.  It is the position of this author that taking a person’s license prior to being found guilty of an offense is an unconstitutional governmental taking, a violation of the First Amendment’s guarantee of the right of assembly and a violation of Due Process in that a person is to be presumed innocent until proven guilty.  Thus far, these arguments have not carried the day.  Here are the punishments for the various levels of the offense.

FIRST OFFENSE.  A first offense violation of R.C. 4510.14 is a first degree misdemeanor (punishable by a maximum fine of six months in jail and a $1,000.00 fine).  The offense carries a mandatory three day jail sentence and a mandatory Class 7 license suspension of up to one year.  The judge has the discretion to allow the jail time to be served by a minimum of 30 days on Electronic Home Detention (house arrest).  In addition, if the car used in the offense belongs to the offender, a 30 day immobilization of the car and impoundment of plates is required.  Some courts will not consider granting limited driving privileges following this charge because they see the offense as a direct violation of “their” order.  If a court does grant privileges it must be with the restricted yellow plates.  The judge may, but does not have to, require an ignition interlock device.  

SECOND OFFENSE. A second offense violation of R.C. 4510.14 is a first degree misdemeanor (punishable by a maximum sentence of one year  in jail and a $2,500.00 fine).  The offense carries a mandatory ten day jail sentence and a mandatory Class 7 license suspension of up to one year.  The judge has the discretion to allow the jail time to be served by a minimum of 90 days on Electronic Home Detention (house arrest).  In addition, if the car used in the offense belongs to the offender, a 60 day immobilization of the car and impoundment of plates is required.  Most courts will not consider granting limited driving privileges following this charge because they see the offense as a direct violation of “their” order.  If a court does grant privileges it must be with the restricted yellow plates.  The judge may, but does not have to, require an ignition interlock device.  Be aware, a second violation can result in a very big bond being placed and may result in your being in jail until the case can be heard.

THIRD OFFENSE. A third driving under OVI suspension is an unclassified misdemeanor punishable by a maximum sentence of one year  in jail and a $2,500.00 fine.  The charge carries a mandatory minimum of 30 days in jail.  Unlike a first or second violation, Electronic Home Detention (house arrest) is not an option.  Forfeiture of the vehicle is required on a third offense, but the granting of driving privileges is still possible with restricted plates.

INTERESTING NOTES: Ohio has recently reformed its criminal sentencing statutes with the passage of H.B. 163.  H.B. 163 allows use of house arrest with continuous alcohol monitoring in OVI cases, but did not change the Driving Under OVI Suspension statute.  This may have been an oversight as it seems the legislature is attempting to help people keep their job following a DUI/OVI arrest.  Another interesting legal argument relates to the Class 7 (up to one year suspensions).  Since the language of the statute says “up to” does that mean that a judge could order a one day sentence? One hour?  Note that for multiple OVI offenders under suspension, the court may also impound the plates of any other vehicle owned by the offender.  Also note that a permanent loss of vehicle shall be ordered by the court, if, within five years you commit a first offense of driving a vehicle that is immobilized and plates impounded.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”

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Posted in Driving Under Suspension, DUI & ALS Suspensions, DUI & Driving Privileges

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Ohio DUI Law: The Hematocrit Defense

February 27th, 2012
English: Two drops of blood are shown with a b...

How bloody is your blood?  The hematocrit is the number expressing the cell volume of blood (the size and number of red blood cells in proportion to the rest of the blood).  As humans, we all have a natural variation in our hematocrit.  Healthy men have a natural variance from 40.7% to 50% and healthy women have a natural variance from 36.1% to 44.3%.  The hematocrit level is a moving target.  Illness, hydration and stress can cause variations in the hematocrit level.

The hematocrit level affects all breath tests by governing how much alcohol may be contained in the blood and, in turn, how much will pass into the breath. See Nesci, How to Beat a DUI, 2008 ed., p. 57.  Under the best of conditions, normal hematocrit ratios will lead to a +/-5% difference in a breath test result.  Let’s pause for a moment to contemplate this fact.  Would you accept this degree of error from your bank? “We know you asked for $10,000.00, but giving you $9,500 is within our margin of error.”

Breath testing machines do not have built in mechanisms for detecting and stabilizing hematocrit levels.  The machine is forced to use an assumed hematocrit level of 45% (averaging the male average of 47% and the female average of 42%).  As we have seen above, this builds in a bias against the average female test subject who has a lower hematocrit average and may, in fact have a wildly lower hematocrit level than that assumed by the machine.  So what does this mean for women?  A person with a lower hematocrit level will have a falsely high BAC reading. See Alcohol Problems and Solutions, David J. Hanson, PhD., Breath Analyzer Accuracy.  As one writer observed,

Breath testing, as currently used, is a very inaccurate method for measuring BAC. Even if the breath testing instrument is working perfectly, physiological variables prevent early reasonable accuracy….Breath testing for alcohol using a single test instrument, should not be used for scientific, medical or legal purposes where accuracy is important. Hlastula, M. Physiological errors associated with alcohol breath tests . The Champion, 1985, 9(6). Quoted in Taylor, L. Drunk Driving Defense. New York: Aspen Law and Business, 5th edition, 2000.

Another area that is affected by the machines built-in assumptions are tests done on people suffering from anemia.  Anemia is a condition in which your blood has a lower than normal number of red blood cells.  If you have anemia, your body doesn’t get enough oxygen-rich blood.  The body compensates by putting replacing the red blood cells with blood plasma.  Alcohol has more of an affinity for the plasma because it is liquid (as opposed to the solid red blood cells).  It follows that the higher the ratio of liquid to solids in the blood (called the hematocrit), the higher the amount of alcohol in the blood — and the higher will be the reading on the breathalyzer. Id. See also HERE.

 Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton,Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood,Beavercreek, Centerville and throughout Ohio.  He is counsel to Miami Valley NORML and a speaker for LEAP (Law Enforcement Against Prohibition).  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebookand on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at:CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

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Yellow Springs Mayor’s Court

February 27th, 2012

Twice a month David Foubert, Mayor of Yellow Springs, holds court.

The Yellow Springs Mayor’s Court hears misdemeanor offenses that occur in the jurisdiction of the Yellow Springs Police Department.  The Yellow Springs Mayor’s Court is held in the Byron Community Center, located at 100 Dayton Street just adjacent to downtown Yellow Springs.  The Byron Community Center also houses the Yellow Springs Police Department, which can be reached at: Non-Emergency: (937) 767-7206 or at dispatch@yso.com. For inquiries regarding court appearances, fine and costs amounts, court procedures and other court matters, you may call the Clerk of Court’s office at (937) 767-3400.  If you wish, you may remove your case from the Yellow Springs Mayor’s Court to the jurisdiction of the Xenia Municipal Court located at 101 N. Detroit St., Xenia, Ohio.  Removal is a decision that should be made only after a complete consultation with an attorney familiar with the Yellow Springs Mayor’s Court and the Xenia Municipal Court.

If you find yourself arrested for a DUI (drunk driving) offense in the jurisdiction of the Yellow Springs Mayor’s Court, contact Yellow Springs DUI attorney Charles M. Rowland II at (937) 318-1384.  Charles Rowland served as the acting city Prosecutor in Xenia and has appeared regularly in the Yellow Springs Mayor’s court for over fifteen years.  If you are arrested on a criminal offense, contact Yellow Springs criminal attorney Mark Babb at (937) 879-9542.  Mr. Babb is a resident of Yellow Springs and a passionate advocate for his clients.

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Reckless Operation in Ohio: What is the Law?

February 24th, 2012
Black's law Dictionary, photo by user:alex756

RECKLESS OPERATION: What is the law?

Reckless operation in Ohio can constitute any number of offenses within the Ohio Revised Code dealing with operation of a vehicle with willful or wanton disregard to persons or property.  Commonly, reckless operation is charged under O.R.C. 4511.20 (all codes sections are set forth below).  There is a separate O.R.C. section dealing with reckless operation while off-road (O.R.C. 4511.201) and while on a watercraft (O.R.C. 1547.07).  O.R.C. 4511.202 is Ohio’s Reasonable Control Statute.

The Ohio Supreme Court, in State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21-22, stated, “we believe that the statute simply provides two definite and clear bases upon which a finding of guilt may be premised. A person may be found guilty of violating R.C. 4511.20 if he acts willfully. Such conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse. Black’s Law Dictionary (5th Ed.1979) 1434. Or conversely, R.C. 4511.20 is violated when a person acts wantonly in disregard of the safety of others. A wanton act is an act done in reckless disregard of the rights of others which evinces a reckless indifference of the consequences to the life, limb, health, reputation, or property of others. (Citations omitted.)”  The statutory definition of reckless operation can be found at Ohio Revised Code Section 4511.20 which states:

4511.20 Operation in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

People who enjoy off-roading, whether in a motor vehicle, an ATV, a Gator, a snow machine or other machine are governed by Ohio’s off-roading reckless operation statute.

4511.201 Operation off street or highway in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any public or private property other than streets or highways, in willful or wanton disregard of the safety of persons or property.

This section does not apply to the competitive operation of vehicles on public or private property when the owner of such property knowingly permits such operation thereon.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

Ohio’s reasonable control statute is often a companion charge to a reckless operation violation.  It is not a lesser included offense to reckless operation.  State v. Lovell, 157 Ohio App. 3d 227, 2004-Ohio-2617 .  It is set forth at O.R.C. 4511.202.

4511.202 Operation without being in reasonable control of vehicle, trolley, or streetcar.

(A) No person shall operate a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic without being in reasonable control of the vehicle, trolley, or streetcar.

(B) Whoever violates this section is guilty of operating a motor vehicle without being in control of it, a minor misdemeanor.

O.R.C. 1547.07 governs the behavior of operation of a water vessel.  It gives examples of prohibited behavior.

1547.07 Reckless or unsafe operation of vessel, water skis, aquaplane.

(A) Any person who operates any vessel or manipulates any water skis, aquaplane, or similar device on the waters in this state carelessly or heedlessly, or in disregard of the rights or safety of any person, vessel, or property, or without due caution, at a rate of speed or in a manner so as to endanger any person, vessel, or property is guilty of reckless operation of the vessel or other device.

(B) No person shall operate or permit the operation of a vessel in an unsafe manner. A vessel shall be operated in a reasonable and prudent manner at all times.

Unsafe vessel operation includes, without limitation, any of the following:

(1) A vessel becoming airborne or completely leaving the water while crossing the wake of another vessel at a distance of less than one hundred feet, or at an unsafe distance, from the vessel creating the wake;

(2) Operating at such a speed and proximity to another vessel or to a person attempting to ride on one or more water skis, surfboard, inflatable device, or similar device being towed by a vessel so as to require the operator of either vessel to swerve or turn abruptly to avoid collision;

(3) Operating less than two hundred feet directly behind a person water skiing or attempting to water ski;

(4) Weaving through congested traffic.

Reckless operation of a vehicle clearly falls under the definition of  a “traffic case.”  A defendant found guilty of a fourth degree misdemeanor cannot be sentenced to more than 30 days in jail. R.C. 2929.21(B)(4). Thus, the advisement that is required in this case is misdemeanor traffic cases involving petty offenses. Such advisement is spelled out in Traf.R. 10(D), which is entitled “Misdemeanor cases involving petty offenses.” Traffic Rule 2 defines which cases fall under the Traffic Rules. It states:

(A) Traffic case’ means any proceeding, other than a proceeding resulting from a felony indictment, that involves one or more violations of a law, ordinance, or regulation governing the operation and use of vehicles, conduct of pedestrians in relation to vehicles, or weight, dimension, loads or equipment, or vehicles drawn or moved on highways and bridges. `Traffic case’ does not include any proceeding that results in a felony indictment.

(D) Petty offense’ means an offense for which the penalty prescribed by law includes confinement for six months or less.

(E) Serious offense’ means an offense for which the penalty prescribed by law includes confinement for more than six months.” Traf.R. 2.

Traffic Rule 10(D) reads:
“In misdemeanor cases involving petty offenses, except those processed in a traffic violations bureau, the court may refuse to accept a plea of guilty or no contest and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”

Reckless operation carries four “points” on your Ohio driver’s license.  “Points” under Ohio law are set forth at O.R.C. 4510.036(C).

6 Point Violations

  • -Aggravated Vehicular Homicide
  • -Vehicular Homicide
  • -Vehicular Manslaughter
  • -Aggravated Vehicular Assault
  • -Willful Fleeing and Eluding,
  • -Failure to Stop and Disclose Identity at Accident
  • -Street Racing
  • -Driving Under Suspension
  • -OVI (drunk driving)
  • -Unauthorized Use of a Motor Vehicle
  • -Any felony motor vehicle violation or any felony committed with motor vehicle

Four Point Violations

  • -Operation of a Vehicle After Underage Consumption
  • -Operation in Willful or Wanton Disregard of Safety (a reckless operation offense)
  • -Exceeding the Speed Limit by greater than 30 mph.

Two Point Violations

  • -Exceeding the Speed Limit of 55 by at least 10 but less than 30 mph
  • -Exceeding the Speed Limit less than 55 by at least 5 but less than 30 mph.
  • -Operating a motor vehicle in violation of a restriction imposed by the BMV
  • -Most other moving violations including operating a vehicle w/o a license.

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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Posted in DUI & Boating, Ohio Traffic Law, Reckless Operation

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Aggravated Drug Trafficking vs. Drug Trafficking in Ohio

February 22nd, 2012

Because of the high-profile nature of drug offenses, trafficking in drugs has overlapping federal and state jurisdiction.  The Comprehensive Drug Abuse Prevention and Control Act is the legal foundation of “War on Drugs” in the United States. The Act regulates the manufacture, possession, movement, and distribution of drugs in our country. It places all drugs into one of five schedules, or classifications, and is controlled by the Department of Justice and the Department of Health and Human Services, including the Federal Drug Administration.  Ohio law, as set forth below, adopts this drug classification system.  Drug trafficking can be charged as a federal offense, Ohio offense or both a state and federal offense.  In Ohio, O.R.C. 2925.03 prohibits trafficking in drugs.  It provides that,

(A) No person shall knowingly do any of the following:

(1) Sell or offer to sell a controlled substance;

(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.

Ohio uses “Schedules” to classify drugs. See O.R.C. 3719.41.  Schedule I drugs have the most potential for abuse and no acknowledged medical use in the United States. Drugs in this schedule include heroin, cocaine, marihuana and hashish.  Schedule II drugs include drugs like hydrocodone, opium, methamphetamine and opium which have a great potential for abuse and a minimal medical use.  LSD and pentobarbital have an acknowledged medical use and a lower potential for abuse, thus they are classified as Schedule III drugs.  Schedule IV drugs have a lower potential for abuse than Schedule III drugs and have accepted medical uses in the United States. Examples of controlled substances in this schedule are Xanax and Valium.  Schedule V drugs have a lower chance of abuse than Schedule IV drugs, have a currently accepted medical use in the US, and lesser chance or side effects of dependence compared to Schedule IV drugs.  This schedule includes such drugs as cough suppressants with Codeine. Schedule V drugs are regulated but generally do not require a prescription.

According to Ohio Rev. Code § 2925.03(C)(1), if the offense involves certain controlled substance in Schedule I or II, it is considered aggravated trafficking in drugs.  Drug trafficking, Ohio Rev. Code § 2925.03(C)(2), generally only applies to controlled substances listed in schedules III, IV or V of Ohio’s drug schedule.  The penalty provisions for drug offenses are among the most complicated in the criminal code and require an attorney of sophistication to navigate.  If you get arrested for possession of a controlled substance, aggravated trafficking or any other drug charge, it feels like your world is falling apart.  If you are unfamiliar with the judicial system you are likely scared to death and wondering what will happen.  The first and most important decision you can make at this point is to hire an experienced and competent defender.  Charles M. Rowland II will file a motion to suppress, aggressively prepare for trial and present your best case to the prosecutor.  Preparation leads to better results including dismissal, a reduction in your charge, treatments in lieu of conviction, or an acquittal at trial. CONTACT him here!

Charles M. Rowland II dedicates his practice to defending the accused in Fairborn, Dayton,Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood,Beavercreek, Centerville and throughout Ohio.  He is counsel to Miami Valley NORML and a speaker for LEAP (Law Enforcement Against Prohibition).  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebookand on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at:CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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