DUI & ALS Suspensions

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Innocent Until Proven Guilty; Does it apply in Ohio DUI Prosecutions?

February 8th, 2012

Ei incumbit probatio qui dicit, non qui negat

In America you are presumed innocent until proven guilty beyond a reasonable doubt.  ”Presumption of innocence” serves to emphasize 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.  This presumption is ancient, dating back to the Old Testament.  In Genesis 18:23-32, it states, “Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? What if ten are found there? The Lord said, “I will not destroy it for the ten’s sake.”  Latin legal principle provided that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).  Relying on this tradition Maimonides, a twelfth-century legal theorist looked to Exodus 23:7, “the innocent and righteous slay thou not” and argued against the use of presumptive evidence, concluding, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”  In the De Laudibus Legum Angliae, c. 1470, Sir John Fortescue argues that “one would much rather that twenty guilty person should escape the punishment of death, than that one innocent person should be condemned and suffer capitally.”  In 1678, Lord Hale says that , ”In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.” He further observes: “And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris.”  The principle and the concomitant prosecutor’s duty was referred to in the English Common Law and the “golden thread” by Lord Sankey, who wrote in Woomington v. DPP [1935]  AC 462, “throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject to any statutory exception…”

The principle of presumed innocence was accepted in America even before we were a county.  On Ocotber 3, 1692, Increase Mather relied upon Fortescue to decry the Salem Witch Trials writing, “It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned.” Benjamin Franklin, writing in a letter of 1785 stated it as, “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. The words “Innocent Until Proven Guilty” do not appear in the United States Constitution but many provisions rely upon the proposition.  The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury and the 14th Amendment.  The presumption of innocence principle supports the practice of releasing criminal defendants from jail prior to trial. Based upon this premise, the Eighth Amendment to the U.S. Constitution states that excessive bail shall not be required, but it is widely accepted that governments have the right to detain through trial a defendant of a serious crime who is a flight risk or poses a danger to the public. In such cases the presumption of innocence is largely theoretical but deserving of, and receiving, special constitutional protection.

In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, to Deuteronomy.  The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution’s burden of proof–that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt–but also must instruct on the presumption of innocence–by informing the jury that a defendant is presumed innocent. The Court stated, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”  Much later in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), the United States Supreme Court described the presumption of the innocence of a criminal defendant as an assumption of innocence that is indulged in the absence of contrary evidence. It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence.  The Supreme Court has required, under some circumstances, a court should issue jury instructions on the presumption of innocence in addition to instructions on the requirement of proof beyond a reasonable doubt. Id.  A presumption of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case.

The rights associated with the presumption of innocence have become a staple of modern democratic ideals and have been included in several important international legal codes and constitutions, including:

  • In the South African Constitution, section 35(3)(h) of the Bill of Rights states: “Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings.”
  • In the 1988 Brazilian constitution, article 5, section LVII states that “no one shall be considered guilty before the issuing of a final and unappealable penal sentence”.
  • The Constitution of Russia, in article 49, states that “Everyone charged with a crime shall be considered not guilty until his or her guilt has been proven in conformity with the federal law and has been established by the valid sentence of a court of law”. It also states that “The defendant shall not be obliged to prove his or her innocence” and “Any reasonable doubt shall be interpreted in favor of the defendant”.
  • The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence. (from Wikipedia, original link HERE).
In short, the principle of “innocent until proven guilty beyond a reasonable doubt” is a fundamental right recognized as one of the great gifts bestowed by democratic government on its citizens.  BUT INNOCENT UNTIL PROVEN GUILTY DOES NOT EXIST FOR DUI DEFENDANTS! 
THE DUI EXCEPTION TO THE CONSTITUTION
If you are stopped by law enforcement and the officer believes he has probable cause to arrest you for operating a vehicle impaired you most likely going to lose your license.  You are not innocent until proven guilty, but presumed to have broken the law.  According to Ohio Revised Code4511.191, if you are arrested on suspicion that you are operating a vehicle while impaired (commonly called a DUI) and you take a chemical test which produces a result which is over the per se limit as set by the Ohio Department of Health, your license will be suspended immediately. Depending on previous offenses or refusals, you can have your license suspended for a period of 1 year to 5 years.  The presumption of innocence is so destroyed (in the DUI context) that even a NOT GUILTY finding by a jury cannot restore it.  Verdial Lewis was found not guilty of OVI in a trial in the Hamilton County Municipal Court.  Upon finding the defendant not guilty, the court terminated the (ALS)  administrative license suspension that was imposed for the driver’s refusal to submit to achemical test.  Upon appeal, the 1st District Court of Appeals held that a not guilty verdict on a charge of OVI did not permit termination of the (ALS) automatic license suspension of a motorist’s driver’s license for having refused to submit to a chemical test.  Even though the OVI charge was not a sufficient charge under Ohio law, the harshest provisions of the OVI suspension will remain in effect.  This ruling effectively prevents a not guilty trial verdict from protecting a defendant’s driver’s license when they refuse to take the test. State v. Lewis, 187 Ohio App.3d701, 2010-Ohio-2872.  If you have a commercial driver’s license an Ohio DUI charge can have devastating effects on your career.  Often clients who hold a commercial driver’s license fail to understand that Ohio’s OVI laws can affect your livelihood even if you receive a drunk driving charge while you are not operating a commercial vehicle.  If you plead guilty, or are found guilty, of an OVI (drunk driving) offense your commercial driver’s license will be taken away for one year.  If you are a second-time OVI offender, an Ohio OVI will result in an indefinite revocation of your CDL.  What is more, a court cannot give you privileges to operate a commercial vehicle while the case is pending and that a CDL suspension is in addition to any suspension that the court may impose.  If you drive for a living these penalties can be devastating for you and your family.
In Ohio, any person who operates a vehicle within the state of Ohio is said to have given his or her consent to a chemical test of their blood, breath, or urine to determine alcohol content if arrested for OVI (drunk driving).  Pursuant to recent changes in Ohio OVI law, an OVI suspect has 3 hours to comply with the request to submit to a test, and failure to do so within the 3 hour limit will be considered a “refusal.”  Recent changes allow the police to use “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.”  In State v. Allen, 2010-Ohio-1257, 13-09-25(OHCA3), the defendant  was stopped and arrested for OVI and subsequently tested over 0.08. She was given an unsworn copy of the 2255 and then the officer submitted an unsworn copy of the 2255 to the Court and the BMV. The Tiffin Municipal Court upheld the suspension. The 3rd District Court of Appeals held that the suspension was valid IMMEDIATELY upon testing over and it has nothing to do with the 2255 being sworn or not.  The Court held,
[T]o interpret the effectiveness of the ALS to be dependent on the Registrar receiving a sworn report is not only contrary to the express statutory language but would also serve to make the suspension process inefficient and impractical. If the ALS does not take effect immediately upon refusal to submit to the chemical test or upon the chemical test indicating a prohibited concentration of alcohol, then presumably a person’s driver’s license would remain effective until the Registrar processed the form.
If you ever question why an attorney would fight so hard for the accused drunk driver look no further than the decision (recently affirmed at Middleburg Hts. v. Henniger, 2006-Ohio-3715) setting forth the US Supreme Court DUI exception to the Fifth Amendment.  The United States Supreme Court has held that the admission of evidence at trial of a defendant’s refusal to take a chemical test does not violate the defendant’s Fifth Amendment privilege against self-incrimination or the Fourteenth Amendment right to due process. South Dakota v. Neville (1983), 459 U.S. 553, 564-566. Following Neville, the Supreme Court of Ohio has held that the trier of fact may consider a defendant’s refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik (1994), 69 Ohio St.3d 339, syllabus; see, also, State v. Spurlock (Dec. 15, 1995), Portage App. No. 95-P-0067.  The following language was taken from the recently decided Middleburg v. Henniger, cited above:

Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in R.C. 4511.191. The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state ofOhio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, “no impermissible coercion is involved when the suspect refuses to submit to take the test.” Neville, 459 U.S. at 562.

In Birkemer vs. McCarty, the UnitedStates Supreme Court concluded that there was a DUI exception to the constitution. And that, “Well, we really can’t tell you when you’re supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations.” So, U.S. Supreme Court has told us we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later.  In 1989 the United States Supreme Court in Blanton vs. North Las Vegas, a DUI case, said, “There is no constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail.”  Furthermore, Ohio has interpreted its DUI law (at the insistence of advocacy groups such as MADD) that any test within three hours that results in a blood-alcohol reading, it shall be presumed that it was the same at the time of driving.  Even though we know absolutely, as a matter of science, fact, that that is not true.  
When you hear a DUI/OVI attorney decrying “junk science” that is used in court, they are most likely referring to the fact that the air blown into the breath test machine for purposes of testing cannot be the same air that is exchanged with the deep lung alveolar sacs. It is impossible to limit the breath test to limit itself to deep lung alveolar air. The theory breaks down because: IF THE MAJORITY OF AIR BEING MEASURED HAS NOTHING TO DO WITH THE BLOOD EXCHANGE THEN THE TEST IS NOT MEASURING THE AMOUNT OF ALCOHOL IN THE BLOOD.  The machine does not and cannot discriminate in its air sample.   It will measure and analyze the 1.5 liters of breath that it is given. The problems with the theory is that the breath machine has to assume a similar lung volume amongst the population. Common sense dictates that a 21 year old, 6 foot male in perfect health blowing 7 liters of air IS DIFFERENT than an 65 year old, 5 foot 2 inch woman who may only blow 1.5 liters.  The major injustice in DUI/OVI law in Ohio is that attorneys are prevented from attacking the “junk science” of breath tests machines due to the decision in State v. Vega. As amazing as it seems, Ohio has decided that if the government says the science is good enough, then attorneys cannot challenge it. Imagine if the same philosophy were used in other areas of criminal law. What if the Ohio legislature decided that eye-witnesses were inherently reliable and an attorney could not challenge them at trial. What is to stop them from saying that police officers are inherently reliable and they too are free from cross examination.  Does this sound consistent with the principle that you are innocent until proven guilty?  Does this sound like a principle that is consistent with any other aspect of American jurisprudence?  Does this sound fundamentally fair?  A man I greatly admire, DUI defense attorney Lawrence Taylor of California, has described DUI as a political crime which is fought by extremists who have used every tactic at their disposal to overcome the fairness inherent in the American constitution.  What is worse, is that the extreme advocacy has a deleterious effect not only on our system of justice, but also on our character.  
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton and throughout the Miami Valley.  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, www.facebook.com/daytondui 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.
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DUI Law: Is This Constitutional?

February 3rd, 2012
English: View of Capitol Hill from the U.S. Su...

Even if you are found not guilty at trial, the Automatic License Suspension issued at the beginning of your case will remain in effect.  Yes, even if a jury of your peers concludes that you were wrongly arrested for OVI and exonerates you in court, the harsh ALS penalty will remain in effect.  Guilt or innocence does not matter.  How can this be?

In State v. Lewis, 2010 Ohio 2872 the First District Court of Appeals found that Ohio DUI law calls for an automatic license suspension if a person refuses a chemical test and O.R.C. 4511.191(D)(1) specifically states that “[a]ny subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of this section does not affect the suspension.”  The appellate court relied on the case of State v. Kurtz (Dec. 31, 1997), 2nd Dist. No. 97-CA-25.  In that case Kurtz had been stopped and refused to submit to a chemical test resulting in an ALS.  Kurtz eventually pled no-contest to a lesser charge, but the court continued to ALS citing the above statute.

I believe this to be a violation of the United States Constitution and I am looking for the perfect case to challenge this rule. In the United States, every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury, which arises in federal court from Article Three of the United States Constitution, which states in part, “The Trial of all Crimes…shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” The right was expanded with the Sixth Amendment to the United States Constitution, which states in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” Both provisions were made applicable to the states through the Fourteenth Amendment.  In the cases Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court of the United States held that a criminal defendant has a right to a jury trial not only on the question of guilt or innocence, but any fact used to increase the defendant’s sentence beyond the maximum otherwise allowed by statutes or sentencing guidelines.

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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Automatic License Suspension; Testing Over the Limit

November 7th, 2011

According to Ohio Revised Code 4511.191, if you are arrested on suspicion that you are operating a vehicle while impaired (commonly called a DUI) and you take a chemical test which produces a result which is over the per se limit as set by the Ohio Department of Health, your license will be suspended immediately. Depending on previous offenses or refusals, you can have your license suspended for a period of 1 year to 5 years.  After a second offense your vehicle may also be immobilized.

You, or your attorney,  can appeal the automatic license suspension (O.R.C. 4511.197)  at the initial court appearance which will be held within 5 days of the arrest or the issuance of a citation.  The filing of an appeal will not stay the suspension.  Pursuant to Ohio Revised Code 4510.021, a driver may petition the court for limited driving privileges any time subsequent to the date on the notice of suspension. This petition may be filed in the municipal, county, or in the case of a minor, juvenile court with jurisdiction over the place at which the arrest occurrsuspension on a person who had a OVI conviction 6 years First 180 days of suspension on a person who had 2 previous OVI convictions within 6 years;

  • First 15 days of suspension on a first offense.
  • First 30 days of suspension on a person who had a previous OVI conviction within 6 years.
  • First 180 days of suspension on a person who had 2 previous OVI convictions within 6 years.
  • No driving privileges granted if a person has had 3 previous OVI convictions within 6 years;
  • A person, who within the preceding 7 years, has been convicted of or pleaded guilty to 3 or more OVI violations cannot be granted limited privileges.

If you plead guilty to OVI (drunk driving) or enter a no-contest plea to OVI (drunk driving) the automatic license suspension will terminate. O.R.C. 4511.191.  Ohio law requires the court to suspend your license upon entry of a plea to an OVI offense (example: a first-time OVI offender has a mandatory license suspension of a minimum of six (6) months).  Effectively, your ALS suspension will end and a court suspension will begin.  After serving the term of your suspension, reinstatement of your license is required before you can legally drive.  See Reinstatement Fee List for required fee amount. Show Proof of Insurance by forwarding the proper documentation to: Ohio Bureau of Motor Vehicles, Attn. RE Fee, P.O. Box 16520, Columbus OH 43216-6520.

If you find yourself facing the loss of your license due to an automatic license suspension, it is important that you speak to a DUI attorney right away.  Your attorney will advise you on whether or not a ALS appeal hearing is in your best interest.  Dayton DUI lawyer Charles M. Rowland II has been representing people accused of drunk driving for over fifteen (15) years.  Call him at 937-318-1DUI [318-1384] today for a free consultation.

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Posted in Driving Under Suspension, DUI & ALS Suspensions, DUI & Driving Privileges, DUI Court Process, DUI Penalties, Ohio Traffic Law

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Classes of License Suspensions in Ohio

August 18th, 2011
Walking

How Long Will My Suspension Last?

Ohio has devised a “CLASS” suspension system setting forth the lengths of time a person can be without a license.  The classifications can be found at R.C. 4510.02 (A) (Court Suspensions; denoted by numbers) and R.C. 4510.02(B)(BMV Suspensions; denoted by letters).  It is advisable that you speak with your attorney as many courts offer programs (at little or no cost) that help you get valid.  Below are the lengths of the various suspensions as set forth in the Ohio Revised Code:

COURT SUSPENSIONS

  • Class 1: Lifetime
  • Class 2: 3yrs to life
  • Class 3: 2 – 10yrs
  • Class 4: 1 – 5yrs
  • Class 5: 6mos. – 3yrs.
  • Class 6: 3mos – 2yrs.
  • Class 7: “a definite period” – 1yr

BMV SUSPENSIONS (Note: all for a fixed length)

  • Class A: 3 yrs
  • Class B: 2 yrs
  • Class C: 1 yr
  • Class D: 6 mos
  • Class E: 3 mos
  • Class F: until conditions are met

If you are having trouble with a license suspension as part of your Ohio OVI arrest, contact attorney Charles M. Rowland II to discuss how to get your license back.  (937) 318-1DUI (318-1384); 1-888-ROWLAND (888-769-5263); by texting DaytonDUI (one word) to 50500; on Facebook at Ohio DUI/OVI Defense or on Twitter @DaytonDUI.  You can also visit www.DaytonDUI.com or www.OhioDUIdefense.com.

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I Did Not Refuse!

May 2nd, 2011
ACT Police Breath Testing/Command truck

If you were tested on an Intoxilyzer 5000 breath test machine, the source-code (software inside the machine) may have been rigged against you.  One of the most dramatic happenings in the science of a DUI has been the developments of the source-code battle taking place in Minnesota.  Ohio has recently rejected the Ohio-made BAC DataMaster in favor of the Intoxilyzer breath test machine (often referred to as the Intoxi-LIAR) so we can soon expect similar science-based battles in the Buckey State.

Chuck Ramsay, a DWI attorney in Minnesota has been litigating the reliability of the Intoxilyzer 5000 for several years.  Recently in Minnesota a Court has held that the machine cannot be used to prove that a person refused to give a sample.  The idea of the machine is that a person must blow a certain amount of air thru the machine for a certain length of time.  If not, the machine classifies the non sample as a “deficient” sample.

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code’s instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

Like Minnesota, it is an offense in Ohio to refuse to give a breath sample.  In many circumstances, an officer who sees the machine register a “deficient sample” will mark the case as a refusal and the innocent client will face harsher penalties.  If you, or a loved one, are arrested for DUI in Ohio do you trust that the Intoxilyzer will properly “guess” in your favor?  Do you think that “close enough for government work” should replace the traditional American values of Innocent Until Proven Guilty, or Proof Beyond a Reasonable Doubt?  We at DaytonDUI will keep fighting for you.

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