Category: DUI & ALS Suspensions

Commercial Driver’s License – Gone For Life!

00DUI & ALS Suspensions, DUI Trucking & CDLTags: , , ,

commercial driver's licenseIf you have a commercial driver’s license, you are held to a high standard. You see, if you are a doctor, lawyer, teacher, or police officer; you get a second chance. But if you drive a big rig a second mistake can result in a lifetime disqualification. This is true even if your “mistakes” do not happen when you are on the clock. A CDL holder does not have to be driving a commercial vehicle under the influence to trigger a suspension of his commercial driver’s license.

The first offense drunk driving charge is bad enough. Blow over the limit or refuse to blow, a CDL permit holder automatically loses his commercial driver’s license for one year. This is the case if the driver is in his rig or  in his private car. Worse yet,  the CDL driver cannot by law get driving privileges. R.C. 4506.161. A first offense conviction means that you lose your right to earn a living for one year. If you have an OVI conviction, you can no longer get convicted of an OVI or have a refusal of a breath test for the rest of your life! R.C. 4506.16 (F)(2). This is the bad news!

The good news is that I can defend you. First step – make sure the officer did his/her job. The police officers must read the proper consequences to a CDL holder from the 2255 form, which includes specific advice for CDL holders. R.C. 4506.17 (C). Many police officers do not realize that the advice for CDL is applicable when the offender was operating an ordinary vehicle—not just a commercial vehicle. The Administrative License Suspension (ALS) is often improperly executed, because the officer fails to read the offender the pertinent sections on the BMV 2255. Want to get back to work? Appealing the ALS for failure to read the specific consequences will allow you to get back to work.

Step two – Plead To The Right Section!

If you plead to the OVI city ordinance instead of the state ordinance, many times this will not trigger a lifetime disqualification of the commercial driver’s license. Why? The answer lies in the  language of the Revised Code. The BMV has, at times, set aside disqualifications and issued reinstatements of CDL’s when appealed. If it saves your job, most prosecutors will not oppose a conviction for OVI under the city code.

Is that good enough? No! You cannot plead to the “per se” section (prohibited concentration) of the city code, for that would likely trigger the per se level prohibition under 4506.16 (D)(1). If so convicted, it would lead to lifetime disqualification on a second offense.

Let’s save your job. You can apply for a “regular” license and then seek limited driving privileges. Although you will not be able to have privileges to operate a commercial vehicle, you can work at the dock or in some other phase of the packing or distribution division without need for the CDL. Sometimes, this will save your job.

What else?   My father was a CDL driver. He delivered coal for a living. Without his back-breaking hard work, I wouldn’t have had the opportunity to go to college. On occasion, I helped him and believe me – working for you is not as hard as shoveling two or three tons of coal in the cold. I am good at what I do and he would be proud of me helping you.

Call (937) 318-1384 for a free initial consultation. “All I do is DUI defense.”

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