Category: DUI & ALS Suspensions

presumption of innocence

Presumption of Innocence? Not For OVI

00DUI & ALS Suspensions, DUI & College, DUI Case Law, DUI Trucking & CDL, DUI Under 21/Juvenile, VideoTags: , , , , , ,

The History of The Presumption of Innocence

The presumption of innocenceEi incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent unless proven guilty. It dates back to the very foundations of western jurisprudence. The sixth century Digest of Justinian provides, as a general rule of evidence:”Proof lies on him who asserts, not on him who denies.” The presumption requires that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof. More info

Why The ALS Suspension Is Unconstitutional

00DUI & ALS Suspensions, DUI Case LawTags: , , , , , , , , , , , , , , ,

ALS SuspensionWe are often asked how the arresting officer is authorized to take a persons’ license under the ALS suspension, and whether or not this is constitutional.  The dilemma presented by Ohio DUI Law is this: If I am innocent until proven guilty, how can they punish me by immediately taking my license when I am accused of DUI?  This site takes the position that the current law is unconstitutional.  But before we jump into the argument, it is important to understand how the current law works.

If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breathblood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The ALS suspension is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court, but a penalty imposed under civil/administrative law.  For constitutional purposes, the entirety of the ALS scheme depends on the penalty being construed as a civil penalty.

Dept. of Revenue of Mont. v. Kurth Ranch

The United States Supreme Court has addressed a very similar distinction between a civil penalty and a criminal penalty in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994).  In this case, the Defendant was both tried for selling marijuana — and then charged civilly for a failure to pay a tax on that marijuana. The Supreme Court held that it was a violation of the Constitutional prohibition against Double Jeopardy: The fact that one proceeding was criminal and the other civil did not matter, the Court said, as long as they both involved the same offense and both were intended as punishment.

United States v. Halper

The Kurth Ranch decision upheld a previous ruling in United States v. Halper, 490 US 435 (1989) the United State Supreme Court addressed a civil penalty being used as a punishment.  In this case, Irwin Halper, the manager of a company that provided medical services to patients eligible for Medicare benefits, was charged and convicted in criminal court of submitting 65 separate false Medicare claims. He was sentenced to two years in prison and fined $5,000. This was the criminal penalty.

The United States then brought additional civil charges under the False Claims Act, which authorized it to collect $2000 for each offense in addition to attorney’s fees and twice the damages sustained. In this case the actual damages were just $585, but because of the number of offenses the total penalty was more than $130,000. The District Court, however, ruled that the penalty was “entirely unrelated” to the government’s actual damages and would therefore be a second punishment for the same offense, violating the Double Jeopardy Clause of the Fifth Amendment. The penalty was therefore limited to double the amount of actual damages and attorney’s fees. The government appealed the decision directly to the U.S. Supreme Court. Quoted from Oyez HERE.

Justice Harry Blackmun, on behalf of a unanimous Supreme Court, wrote that while previous cases had held penalties under the Act to be civil in nature, that did not foreclose the possibility of the penalty being so extreme and so unrelated to the actual damages as to constitute “punishment.” Because Halper had already been jailed and fined, additional punishment in a separate proceeding would violate the Double Jeopardy Clause of the Fifth Amendment. The Court remanded the case to the District Court so that the government could challenge the original assessment of its attorney’s fees.

So: The ALS Suspension Is Unconstitutional, Right?

 

These cases have repeatedly been cited in DUI cases as authority for the proposition that the State cannot both criminally prosecute for driving with over .08% blood alcohol and civilly suspend the individual’s driver’s license for the same offense. Although there have been federal court decisions taking this position, to date state courts have not accepted this reasoning and the U.S. Supreme Court has not addressed the issue in a drunk driving context.

As regular readers of this blog know, I am always looking for a way to change the most harsh and unreasonable aspects of DUI law that hurt innocent people.  There is no “penalty” more severe than immediately losing your license and having to scramble to arrange to put your life back together.  I hope to be in a position to challenge the constitutionality of the Ohio ALS scheme.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

For more info on the ALS suspension, check these city-specific sites at the following links:

Fairborn, Dayton, Springfield,Kettering,Vandalia,XeniaMiamisburg,Huber HeightsSpringboroOakwood,Beavercreek, Centerville

Methods for Obtaining A Test Under Ohio’s Implied Consent Law

00Blood & Urine Tests, Breath Testing, DUI & ALS Suspensions, DUI Case LawTags: , , , , , , , , , , , , , , , , , ,

 

implied consent law

 

When you drive on Ohio’s roadways you are assumed to have consented to a search of your blood, breath, plasma or urine if you are arrested pursuant to the Ohio Drunk Driving statute, R.C. 4511.19(A) or R.C. 4511.19(B). Ohio Revised Code 4511.191(A)(2) is Ohio’s Implied Consent Law. It states, in pertinent part,

 

“Any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance.”

 

The first of three methods officer’s use to obtain a test is submission by a defendant. This is a typical scenario wherein a person is observed driving and arrested for OVI. At the station the officer reads the warnings on the SR-2255 form and requests that the defendant take a chemical test. The statutory authority for this method of obtaining a test is set forth at R.C. 4511.19(A)(2). It is necessary that a defendant be placed under arrest prior to the officer’s request to submit.

 

Section 4511.191(A)(4) applies the implied consent statute to persons who are dead or unconscious at the time a blood breath or urine sample is requested. It states,

 

“Any person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented as provided in division (A)(2) of this section, and the test or tests may be administered, subject to sections 313.12 to 313.16 of the Revised Code.”

 

Issues over this method of obtaining a test are often invoked in serious accident cases. Questions of fact about whether the person was semi-conscious, fully conscious or able to give consent are common. Due to the unusual circumstances of this type of case, an arrest is not necessary prior to the chemical test.

 

The third method for obtaining a chemical test under the implied consent provisions of Ohio law is the controversial forced blood draw.  Ohio adopted a “no refusal” forced blood draw statue at R.C. 4511.191, which states, “if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” [emphasis added]. Obviously, the McNeeley decision places this law in jeopardy.  When a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained.  In State v. Hollis, 2013-Ohio-2586, the Fifth Appellate District was faced with an appeal of a decision from the Richland County Common Pleas Court. The case was the first forced blood draw decision following the United States Supreme Court ruling in Missouri v. McNeeley, which held “that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  The decision of the court used the previous rules for exigent circumstancesas set forth in Schmerber v. California and does not address or rely upon the McNeeley ruling.  Instead, the court (relying on Schmerber) finds that exigent circumstances existed justifying the blood draw. Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant.

 

 

 

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

To learn more about Ohio’s Implied Consent law contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

 

 

 

Can I Get An ALS Suspension On A Physical Control Charge?

00DUI & ALS Suspensions, Physical ControlTags: , , , , , , , , , , , , , , , , ,

physical control If you are found drunk in a non-moving car, you may be charged with a violation of O.R.C. 4511.194, Physical Control of an Automobile While Impaired instead of drunk driving (O.R.C. 4511.19, OVI, DUI, OMVI).  The arresting officer, on behalf of the Ohio Bureau of Motor Vehicles (hereinafter BMV), imposes an Administrative License Suspension at the time of arrest for OVI, or OVUAC when the driver refuses to take the chemical test or takes it and has an alcohol concentration in his whole blood of .08%, blood serum or plasma of .096%, breath of .08%, or in his urine of .11 grams.

The BMV imposes an Administrative License Suspension at the time of arrest for a violation of 4511.194 when the driver refuses to take the test. If the driver takes the chemical test, no Administrative License Suspension is imposed. ORC §4511.191(C)(1).  So go ahead and take the test only if you are sure that you are not being charged with DUI!

Physical Control of a Vehicle While Impaired (O.R.C. 4511.194) is the offense of being intoxicated while in control of a car, but not having caused the vehicle to move. If you are under the influence and the prosecutor can prove that you “operated” your car and were not simply in “physical control” of your car, you may face a charge of OVI/DUI (drunk driving). Thus the legal analysis will turn on whether on the prosecutor can prove you “operated” your car. “Operation” includes causing or having caused a vehicle (such as a car, truck, RV, bicycle or motorcycle) to move. See Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N.E.2d 85 (1976).

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

To schedule a free physical control  consultation contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

How Will A DUI Affect My Insurance Costs?

00Driving Under Suspension, DUI & ALS Suspensions, DUI Penalties, Ohio BMV IssuesTags: , , , , , , , , , ,

how will a dui affect my insurance costsHow will a DUI affect my insurance costs?”  This is one of the most common questions we get at initial client conferences.  I have grown frustrated in trying to give a short answer that sufficiently covers the nuances of the situation, so – here is my long-winded multi-part answer.

How Will A DUI Affect My Insurance Costs (Part I)

Insurance company evaluators look at you as a risk. Your rates are based on a number of super-secret algorithms and proprietary factors. Having a DUI conviction is just one of many things they look at and consider. Depending on their factors, insurers may raise your rates require you to purchase “high risk” insurance, or cancel your coverage. Some insurers rank a drunk driving conviction as a lesser risk than an at-fault accident, multiple moving violations or a bad credit score. Some treat reductions to a lesser charge more favorably than others. One way of understanding this is to know that a DUI offender with a bad credit score and moving violations will pay more than a person with only a DUI conviction. How high your rates go depends on the driver, the company, whether or not you are an existing customer and whether or not you are willing to shop for quotes.

You can help lower your rates following a DUI if you drive for a few years without any moving violations. Improving your credit score, moving to a home in the suburbs, having kids, trading in that sports car for a minivan and simply getting older also help you lower your rates. Perhaps the most important factor, however, is your willingness to shop, shop, shop. My wife always calls at least five companies, gets three quotes and then uses one companies’ quote against the other offer.

How Will A DUI Affect My Insurance Costs (Part II)

It may happen that you are “dropped” by your insurance company. If this happens, the insurance company has made the decision that your circumstances create a risk too high for them to accept. Does this mean that you will be uninsurable? No. Taking action to change your personal risk factors and shopping wisely will help you find a reasonable insurance rate. Some insurers, agents or salesmen may try to convince you that “high-risk” is anyone who has a DUI and that you should accept this and re-up with your company at a higher rate. Don’t believe it! See above.

How Will A DUI Affect My Insurance Costs (Part III)

The most common element a DUI or DWI offender will encounter after their license and driving privileges have been reinstated is the SR-22 form. The SR-22 is a form that your car insurance company files with the Ohio Bureau of Motor Vehicles.  The form provides the Ohio Bureau of Motor Vehicles with proof of financial responsibility by showing that you have the required insurance coverages in effect.  The filing acts as a guarantee to the Ohio BMV that an insurance company has issued at least minimum liability coverage for the person making the filing.  An SR-22 also requires the insurance company to notify the Ohio BMV if you cancel your coverage, thus creating a system of continuous monitoring.  The BMV usually requires that you file an SR-22 for a period of 3 years from the beginning date of your suspension. Some suspensions may have a 5 year period. The Ohio BMV will accept SR22 filings showing the purchase of either an Auto Liability Insurance Policy, for vehicle owners who want more than the minimum, or a Financial Responsibility Bond, designed for those who want just the minimum coverage.

The minimum mandatory liability insurance coverage required in the state of Ohio for private passenger vehicles is set forth at O.R.C. 4509.51. Ohio mandates the following liability coverage:

  • $12,500 bodily injury liability (BIL) per persson
  • $25,000 for two or more people in one accidents
  • $7,500 property damage liability (PDL) coverage

There are three types of Ohio SR22 certificates available:

  • Ohio SR22 Operators Certificate: 
This covers the driver for the operation of any non-owned vehicle they have been given permission to drive.
  • Ohio SR22 Owners Certificate: 
This covers the driver to drive any vehicles owned by the driver. The certificate may be issued with the details of the make and mode  of the drivers automobile or it may cover any vehicle owned by the driver.
  • Ohio SR22 Operators-Owners Certificate: 
This covers any vehicles owned by the driver and any vehicles that are not owned but the driver has been given permission to drive.

Any vehicle that is registered in Ohio falls under Ohio vehicle laws. R.C. 4509.101 requires that a vehicle’s owner maintain insurance or other acceptable form of financial responsibility coverage on a registered vehicle throughout the registration period of that vehicle.  If you have an out-of-state license and you have received a suspension in Ohio, Ohio has authority to suspend your right to drive in Ohio. This means you may no longer operate a vehicle in this state. Ohio will post your suspension on the National Driver Registry (NDR) and Problem Driver Pointer System. Your home state may check this Registry for suspensions, and may take its own action against your driver’s license. Some states will run NDR checks at the time of license renewal; others will run checks if a vehicle is stopped and the peace officer decides there may be a reason to run the check.  It is up to you to stay on top of all issues related to your SR-22 filing.  Most insurance companies send the Bureau SR-22/Bond filings electronically. These filings are usually processed the same day that they are received.  Some send paper copies of SR-22/Bonds which can take up to 72 hours to process.  We have seen some outrageous delays but it is seldom takes greater than five business days.  Sometimes SR-22/Bonds are rejected and returned to the insurance company because information is incomplete or incorrect.  To access your BMV records and stay on top of your SR-22, please visit HERE.

It is important that your Ohio DUI attorney show the Court your that you had insurance at the time of your alleged DUI offense.  Any driver and/or owner who fails to show proof that financial responsibility was in effect at the time of an accident/offense/random selection, will lose his/her driving and registration privileges for a minimum of 90 days.  Per Senate Bill 123, the length of the suspension will be 90 days for the first offense, one year for a second offense and two years for third and subsequent offenses committed within a five-year period, if the offense occurred on or after January 1, 2004.  The registration and license plates of the motor vehicle involved may be impounded when the defendant is the owner of the vehicle.  In order to regain driving and registration privileges, the individual must comply with the following requirements:

  • Serve out the suspension time, as outlined above;
  • File and maintain Financial Responsibility Insurance (Form SR-22 or Bond) for three years on a first offense, and five years on a second and subsequent offense;
  • Pay Reinstatement Fee. See Reinstatement Fee List for required fee amount.

There is a $50 non-voluntary surrender fee. If registration, license plates and driver license are surrendered within a specified time period (postmarked on or prior to suspension start date), the $50 non-voluntary surrender fee may be deducted from the amount owed. This fee reduction does not apply to individuals driving without a license because their license has expired or has been revoked, or to individuals who have never had a license.  Per House Bill 687, effective October 12, 1994, all driver licenses and license plates received by the Bureau of Motor Vehicles (BMV) will be destroyed. Duplicate driver license and license plates must be purchased by the driver and/or owner once suspensions end and all requirements are met.  Registration privileges and duplicate license plates can be issued prior to the ending date of the suspension if the necessary fees are paid and Financial Responsibility Insurance is filed.  Any party that is going to be placed under a Noncompliance Suspension, resulting from a Crash Report/Accident, UTT Ticket or Random Selection has the option to request an Administrative Hearing.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

For more on, “How will a dui affect my insurance costs” contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville