DUI Court Process

DUI Trial Techniques (Voir Dire)

April 17th, 2013

If you see me trip over a crack in the sidewalk, you would consider me to be clumsy or uncoordinated. If, however, you trip over a crack in the sidewalk you are much more likely to blame the crack. The same is true for most people. This discrepancy is called the actor–observer bias.

In social psychology, the fundamental attribution error (also known as correspondence bias or attribution effect) describes the tendency to over-value dispositional or personality-based explanations for the observed behaviors of others while under-valuing situational explanations for those behaviors. The fundamental attribution error is most visible when people explain the behavior of others. It does not explain interpretations of one’s own behavior—where situational factors are often taken into consideration.

This bias can be devastating in a DUI trial when jurors are asked to consider the performance of your client when performing field sobriety tests. They will view the actions with a “bias” that they do not know they have. Furthermore, they use this error to exclude factors of vital importance to both the scientific validity of the tests and the factual innocence of your client. For instance, jurors may under-value situational factors such as anxiety, lack of sleep, inherent lack of coordination, passing cars, environmental factors etc. When we look at some of the underlying assumptions of the fundamental attribution error, we see some scary stuff that we, as advocates, must point out and overcome. Here are several hypotheses of the causes of the error:

Just-world phenomenon. The belief that people get what they deserve and deserve what they get, which was first theorized by Melvin Lerner in 1977. Lerner, M.J. & Miller, D.T. (1977). Just-world research and the attribution process: Looking back and ahead. Psychological Bulletin, 85, 1030-1051. Attributing failures to dispositional causes rather than situational causes, which are unchangeable and uncontrollable, satisfies our need to believe that the world is fair and we have control over our life. We are motivated to see a just world because this reduces our perceived threats,Burger, J.M. (1981). Motivational biases in the attribution of responsibility for an accident: A meta-analysis of the defensive-attribution hypothesis. Psychological Bulletin, 90, 496-512, Walster, E. (1966). Assignment of responsibility for an accident. Journal of Personality and Social, 31, 73-79, gives us a sense of security, helps us find meaning in difficult and unsettling circumstances, and benefits us psychologically. Gilbert, D.T., & Malone, P.S. (1995). The correspondence bias. Psychological Bulletin, 117, 21–38.

Unfortunately, the just-world hypothesis also results in a tendency for people to blame and disparage victims of a tragedy or an accident, such as victims of rape (See Abrams, D., Viki, G.T., Masser, B., & Bohner, G. (2003). Perceptions of stranger and acquaintance rape: The role of benevolent and hostile sexism in victim blame and rape proclivity. Journal of Personality and Social Psychology, 84, 111-125^;Bell, S.T., Kuriloff, P.J., & Lottes, I. (1994). Understanding attributions of blame in stranger-rape and date-rape situations: An examinations of gender, race, identification, and students’ social perceptions of rape victims. Journal of Applied Social Psychology, 24, 1719-1734) and domestic abuse (See Summers, G., & Feldman, N.S. (1984). Blaming the victim versus blaming the perpetrator: An attributional analysis of spouse abuse. Journal of Applied Social and Clinical Psychology, 2, 339-347) to reassure themselves of their insusceptibility to such events. People may even go to such extremes as the victim’s faults in “past life” to pursue justification for their bad outcome.(Woogler, R.J. (1988). Other lives, other selves: A Jungian psychotherapist discovers past lives. New York: Bantam.)

Salience of the actor. We tend to attribute an observed effect to potential causes that capture our attention. When we observe other people, the person is the primary reference point while the situation is overlooked as if it is nothing but mere background. So, attributions for others’ behavior are more likely to focus on the person we see, not the situational forces acting upon that person that we may not be aware of. (See Lassiter, F.D., Geers, A.L., Munhall, P.J., Ploutz-Snyder, R.J., & Breitenbecher, D.L. (2002). Illusory causation: Why it occurs. Psychological Sciences, 13, 299-305; Robinson, J., & McArthur, L.Z. (1982). Impact of salient vocal qualities on causal attribution for a speaker’s behavior. Journal of Personality and Social Psychology, 43, 236-247. Smith, E.R., & Miller, F.D. (1979). Salience and the cognitive appraisal in emotion. Journal of Personality and Social Psychology, 48, 813-838. (When we observe ourselves, we are more aware of the forces acting upon us. Such a differential inward vs. outward orientation accounts for the actor-observer bias.) Storms, M.D. (1973). Videotape and the attribution process: Reversing actors’ and observers’ points of view. Journal of Personality and Social Psychology, 27, 165-175.

Lack of effortful adjustment. Sometimes, even though we are aware that the person’s behavior is constrained by situational factors, we still commit the fundamental attribution error. (Jones, E.E. & Harris, V.A. (1967). The attribution of attitudes. Journal of Experimental Social Psychology, 3, 1–24) This is because we do not take into account behavioral and situational information simultaneously to characterize the dispositions of the actor. (Gilbert, D.T. (2002). Inferential correction. In T. Gilovich, D.W. Griffin, & D. Kahneman (Eds.), Heuristics and biases: The psychology of intuitive judgment. New York: Cambridge University Press) Initially, we use the observed behavior to characterize the person by automaticity. (Carlston, D.E., & Skowronski, J.J. (1994). Savings in the relearning of trait information as evidence for spontaneous inference generation. Journal of Personality and Social Psychology, 66, 840-880; Moskowitz, G.B. (1993). Individual differences in social categorization: The influence of personal need for structure on spontaneous trait inferences. Journal of Personality and Social Psychology, 65, 132-142; Newman, L.S. (1993). How individuals interpret behavior: Idiocentrism and spontaneous trait inference. Social Cognition, 11, 243-269; Uleman, J.S. (1987). Consciousness and control: The case of spontaneous trait inferences. Personality and Social Psychology)

We need to make deliberate and conscious effort to adjust our inference by considering the situational constraints. Therefore, when situational information is not sufficiently taken into account for adjustment, the uncorrected dispositional inference creates the fundamental attribution error. It also explains that people commit to fundamental attribution error more when they have no motivation or energy (i.e. under cognitive load) to process the situational information. (See Gilbert, D.T. (1989). Thinking lightly about others: Automatic components of the social inference process. In J.S. Uleman & J.A. Bargh (Eds.), Unintended thought (pp. 189–211). New York: Guilford Press).

For the DUI trial attorney, many of these biases can be diminished or eliminated by taking them on in voir dire. We can also overcome their devastating effects by doing a comprehensive direct of our client if we choose to put them on the stand to testify. Here, I am envisioning a Gerry Spence/psychodrama type approach which puts the jurors in your client’s shoes. If our client does not testify, some good work can be done on cross examination of the arresting officer. The cross examination would be more effective if the jurors are made aware of the bias and the officer completely denies it when testifying. I could see this working well in DISCONNECT DEFENSE type cases or in cases where you are attempting to show that the officer had his mind made up as soon as he or she pulled your client over.

Dayton/Springfield 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.

The research set forth in this article was taken from the journals site, free use internet resources and hard-won experience.

Freedom, Not Money, Buys Happiness (livescience.com)
DUI Court Process: The Stopping Sequence (daytondui.com)
The Fundamental Attribution Error (ppsych.wordpress.com)
Standardized Field Sobriety Tests: The One Leg Stand Test (daytondui.com)
The Biases You Don’t Know You Have (blogs.hbr.org)

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Arrested for DUI? You Are Innocent.

March 18th, 2013

If you tell your friends that you were arrested for punching someone in the face, their overwhelming reaction will be, “Wow, what happened?” If, however, you tell them that you were arrested for DUI, those same friends will say, “Oh, I’m so sorry.” What is the difference? When a person is facing a DUI charge, guilt is assumed. How in the world did this happen? How did our presumption of innocence, so valued in the American tradition of law, become so cheapened? Perhaps we can look to the politically charged nature of the crime of drunk driving. We can blame the media who gleefully report on the drunk driving charge, but often treat a reduction or dismissal as “winning on a technicality.” Should accuse advocacy groups like MADD that have lead a decades long propaganda campaign against our core values? Whatever the source, we have seen the diminishment of our rights to the point that the public believes that anyone accused of a DUI is assumed to be guilty.

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:

The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course. Nevertheless, this assertion is iterated verbatim in Article 48 of the Charter of Fundamental Rights of the European Union.

In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

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 France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says “Everyone is supposed innocent until having been declared guilty.” and the preliminary article of the code of criminal procedure says “any suspected or prosecuted person is presumed to be innocent until their guilt has been established”. The jurors’ oath reiterates this assertion.

Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. See also Coffin v. United States and In re Winship.

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 validIMMEDIATELY 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, 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 to40404. 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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Why Was I Charged With Two OVI Offenses?

January 24th, 2013

There are two ways to be charged with OVI (drunk driving) in Ohio. Often, both are charged for reasons that will be addressed shortly. First, let’s explore what the two charges mean.

“Per Se” Offenses: per se is a latin phrase meaning “in itself.” It is also a legal term of art defined in Black’s Law Dictionary as “taken alone… unconnected with other matters.” For purposes of Ohio OVI law, it means that OVI is a strict liability offense that occurs if you take a chemical test and fail. Ohio presumes that if you test over the proscribed legal limit (.08% BrAC) you are guilty of operating a vehicle impaired. The law is set forth at Ohio Revised Code Section 4511.19(A)(1)(B), which states:

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

(b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.

(c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.

(d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.

(e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.

Ohio has also created a per se “high-tier” limit of .17% BrAC, sometimes referred to as a SUPER-OVI. The per se high-tier limits are set forth at O.R.C. 4511.19(A)(1)

(f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.

(g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.

(h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.

(i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.

You can also be charged with a per se offense based on the concentration of illicit drugs in your system. To be convicted of a per se offense, the state must prove that a person operated a motor vehicle in Ohio and that at the time of operation, the person had a prohibited concentration of alcohol or drugs in their blood, breath or urine. Your DUI attorney will devise defenses particular to the specific evidential test you took. The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the rules of the Ohio Administrative Code (OAC) as adopted and approved by the Ohio Department of Health. At DaytonDUI, we know how to defend a breath test case and employ sophisticated scientific defenses to win your DUI case. An oft’ quoted maxim that you should know is, “An arrest is not a conviction.”

Appreciable Impairment Offenses: If you refuse to take a chemical test, the State will still be able to prove you guilty of an OVI if they prove (beyond a reasonable doubt) that you operated a motor vehicle in Ohio after having consumed some alcohol, drugs of abuse, or a combination of the two and their ability to operate the motor vehicle was appreciably impaired. How does a jury determine “under the influence?” The following is an excerpt from the Ohio Jury Instructions:

“Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person.

The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence. The Ohio jury Instruction cites language from State v. Hardy (1971), 28 Ohio St.2d 89, 57 O.O.2d 284, 276 N.E.2d 247; and State v. Steele (1952), 95 Ohio App. 107, 52 O.O. 488, 117 N.E.2d 617.

The “appreciable impairment offense” is set forth at Ohio Revised Code 4511.19(A)(1)(a) which states,

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

At DaytonDUI we refer to the (A)(1)(a), appreciable impairment offense as the OTIS standard, derived from the popular OTIS character featured on the classic Andy Griffith program. OTIS was the stereotypical town drunk who often found himself in the Mayberry jail. OTIS was obviously intoxicated based on how he looked, walked, acted and talked. Viewers had no doubt that he was intoxicated. Law enforcement will attempt to prove impairment with the same evidence we use to judge OTIS.

It is up to your defense attorney to point out the inconsistencies and omissions in the officer’s observations. Charles M. Rowland II was the first attorney in the United States to earn a certificate in Forensic Sobriety Assessment. FSA certification requires proficiency in the scientific principles and research relating to sobriety testing in a DUI/OVI stop. It subsumes the police/NHTSA training (knowledge of the NHTSA manual is required) and greatly extends it. Charles Rowland is currently the only lawyer in Ohio to hold FSA certification. In 2010, Charles M. Rowland II attended the most current NHTSA training wherein he was trained to administer and evaluate the standardized field sobriety tests . This is the same NHTSA/SFST training course that law enforcement officers are trained in nationwide and testify to in court. Charles is a frequent speaker and a prolific writer on all matters related to DUI defense.

Why Both Charges? Often, the arresting law enforcement officer will charge both the per se and appreciable impairment cases, knowing that you cannot be convicted of both. In essence, the officer is hedging his bets, hoping that if your test is found to be faulty you can still be found guilty of being impaired. At your trial or sentencing hearing, your conviction will either be for the per se or appreciable impairment charge. Your DUI attorney will help you understand the pros and cons of any plea agreement and empower you to make choices that will benefit you on a short-term and long-term basis. Choosing the best DUI attorney for your case is the most important decision that you can make and should not be rushed or taken lightly. At DaytonDUI, we are striving to be the best Dayton DUI defense firm in Ohio and we work hard to keep you informed and help you make good decisions. When you hire Charles Rowland he will be your attorney throughout your case and will not pass you onto a less experienced associate. He maintains a 24-hour DUI Hot-line (937) 776-2671 and has a staff dedicated to taking care of your needs.

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.

Problems with the Intoxilyzer 8000 (daytondui.com)
Federal Court Overturns Bogus DUI Arrest (daytondui.com)
Reasonable and Articulable Suspicion (daytondui.com)
DUI on the Water and the Return of Boating Season (daytondui.com)

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Posted in DUI Court Process

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Service and Personal Jurisdiction in OVI Cases (by DaytonDUI)

January 18th, 2013

uniform traffic ticket In order to have personal service over a defendant in an OVI case, the court must be satisfied that the citation has been properly served pursuant to Ohio Traffic Rule 3(E). Toledo v. Williams, 1991 WL 3811 (Ohio Ct. App. 6th Dist. Lucas County 1991). Taffic Rule 3(E) requires that the officer who completes the complaint sign the ticket and serve the citation on the defendant. See City of Cleveland v. Trzebuckowski, 2002-Ohio-584 (Ohio Ct. App. 8th Dist. Cuyahoga County 2002), holding that the officer’s printing of his name instead of signing in cursive was sufficient to have satisfied the minimum requirements for completing a complaint under Traffic Rule 3(E). Mailing the complaint to a defendant is not sufficient. See Akron v. Detweiler, 54 Ohio Misc. 5, 8 Ohio Op.3d 216, 375 N.E.2d 824 (Muni. Ct. 1978). The Ohio Supreme Court has held that a change on an original ticket from a violation of R.C. 4511.19(A)(5) to a violation of 4511.19(A)(6) did not require additional service because the defendant received adequate notice of the charges when he was served with the original ticket. State v. Campbell, 100 Ohio St. 3d 361, 2003-Ohio-6804, 800 N.E.2d 356 (2003), reconsideration denied, 101 Ohio St. 3d 1470, 2004-Ohio-819, 804 N.E.2d 43 (2004). While service of the citation is not usually an issue in an OVI, care should be taken to address this issue in cases wherein the defendant took a blood or urine test that was sent off for analysis. In these cases, law enforcement is still required to comply with Traffic Rule 3(E).

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, Centerville, Springboro, Franklin 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 Twitterupdates 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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Posted in DUI Court Process, Ohio Traffic Law

Tags: charles rowland dayton dui dayton dui attorney dayton dui law Dayton OVI dayton ovi attorney Driving under the influence dui dui law fairborn ohio huber heights ohio Miami Valley Ohio Ohio Supreme Court ohio traffic law ohio traffic rule 3(E) ovi ovi law personal jurisdiction traffic citation Traffic ticket uniform traffic ticket YouTube

Can A Defendant Waive A Jury Trial In Ohio? (by DaytonDUI)

December 19th, 2012

Controversial Jury Bill Dies In Committee

Ohio is one of 21 states that give the power to decide whether or not to have a jury trial solely to the defendant. Thus, a defendant can, at any point, decide against a jury trial and opt for a trial only to the judge. This is often done in serious OVI cases wherein a technical or scientific point is the most salient point. It is particularly apt when a defendant wants to avoid allowing the prosecution to enflame the jury with sympathetic evidence of injuries or in cases where the defendant has a lengthy criminal history. In short, it is one of very few tools that can (in very limited circumstances) benefit a criminal defendant. This benefit does not exist in the federal system. Federal Rule of Criminal Procedure 23 states that a defendant may only waive a trial by jury with the consent of the prosecution. This provision has been upheld by the Supreme Court in Patton v. U.S. and Singer v. U.S.

Ohio State Rep. Lynn Slaby, a former prosecutor, introduced HB 265 last December to change Ohio law to make it consistent with federal law, and thus more beneficial to Ohio prosecutors. The Bill states, in pertinent part:

The prosecuting attorney, a village solicitor, a city director of law, or a similar chief legal officer for a municipal corporation responsible for prosecuting a criminal case before a municipal court may demand a jury trial in any criminal case in which a defendant may demand a jury trial. The prosecuting attorney, village solicitor, city director of law, or similar chief legal officer may demand a jury trial notwithstanding a defendant’s failure to demand a jury trial and over the objection of the defendant.(Emphasis added.)

From the beginning the bill was controversial and garnered little support outside of the prosecutors. ”This is the second time in nine years that the legislature has attempted to take away a defendant’s right to waive a jury trial; a right that simply levels the playing field for defendants in a game where the prosecution enjoys exclusive control over the nature of the charges filed, the number of charges brought, and execution of the charges through warrant and arrest. The last time, in 2002, the measure (H.B. 541) was squashed through the hard work of attorneys and judges who saw the danger in such legislation.” Columbus Bar Association, Fall 2011.

On Wednesday, December 12, the Ohio Senate Judiciary Committee held testimony on HB 265. After hearing testimony, Chairman Mark Wagoner did not call for a vote. This action by Chairman Wagoner effectively defeated the bill for this session. As of this writing it is unknown whether the bill will be reintroduced at a later date. We will keep you informed.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights,Beavercreek, 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,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube. You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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Posted in DUI Case Law, DUI Court Process, Ohio Criminal Law

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- I am a DUI/OVI attorney, representing the accused drunk driver in the Miami Valley and throughout Ohio. Here you will find information to fight your case and get your life back! You can talk with me right now, or arrange a free consultation by calling 937-318-1DUI or 1-888-ROWLAND. "ALL I DO IS DUI DEFENSE"
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