Category: Illegal Police Stops

Top 10 Defenses To An Ohio OVI

00Illegal Police Stops

ohio oviOhio OVI – When people need an Ohio OVI Attorney, the biggest challenge is knowing whether or not an attorney truly has the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win drunk driving cases. Countless attorneys handle impaired driving cases,  but only a very small percentage have the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win cases. Unfortunately for the public, even attorneys who have been practicing law for many years and devote a significant portion of their practice to OVI law, often don’t have the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win DUI cases. Make sure your attorney is  familiar with these “TOP 10” defenses to an Ohio OVI.

1. Hire The Best DUI Attorney: The most important decision that you can make in defending your case is hiring the right OVI defense attorney.  OVI defense involves understanding Ohio’s complex impaired driving  laws, the Ohio Administrative Code, the breath test device, standardized field sobriety testing (administration and interpretation) and all manners of science which may affect your case. Defense begins with an attorney who has the experience to fight your case, the scientific knowledge to attack in the right places, and the skill to negotiate with the prosecuting attorney to secure the best outcome.  We have written “How To Hire An Ohio OVI Attorney” to help you understand some issues you may not consider.

2. Illegal Police Stop: If the officer lacked proper cause to initiate a traffic stop, your case may be dismissed.  The Fourth Amendment requires an officer have a reasonable suspicion that a crime is being committed or about to be committed before making a traffic stop. Reasonable suspicion may consist of any minor traffic offense, such as speeding, weaving, an accident, expired plates, or a failure to activate headlights.  Upon being stopped the officer must establish an articulable reason to continue your detention to do an alcohol/drunk driving investigation.

3. Improper Administration of Standardized Field Sobriety Tests: If an officer improperly administers the field tests, gives faulty instructions, misunderstands how to administer the tests or holds the accused to impossible standards, then the botched tests amount to nothing more than “Stupid Human Tricks.”  Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine the level of intoxication of a driver without chemical testing. When an OVI suspect refuses a chemical test, the tests can be substantial evidence of intoxication.  The NHTSA has guidelines as to how the standardized field sobriety tests must be given. If the arresting officer fails to substantially comply with the guidelines established by the NHTSA, then the results of the tests are not admissible as evidence against the defendant. Your Ohio OVI defense attorney will be familiar with the standardized tests, the NHTSA manual and have experience cross-examining an arresting officer.

4. Faulty Interpretation of the Standardized Field Sobriety Tests: The officer may say all of the right things to get a valid field sobriety test, and still improperly interpret what he or she is seeing.  Your Ohio DUI defense attorney will review any video of the stop to make sure that your fields tests were fairly administered and properly scored.  Arresting officers can (and do) misinterpret the performance of the SFST’s, and determine the performance to be a failure. The dashboard video and aggressive cross examination of the arresting officers will determine whether a DUI defendant actually failed the SFST’s, or if the officer made a mistake. If the defendant did not fail the SFST’s, the results will serve as evidence that the defendant was not intoxicated.

5. Unlawful Arrest Not Supported By Probable Cause:  Assuming the officer has made a valid traffic stop, he or she must continue the investigation until probable cause exists for an OVI arrest.  Often, an officer intending to determine whether probable cause exists for an OVI arrest will make the arrest before this determination is made. When this happens, the officer has made an unlawful arrest, and all evidence obtained after the arrest may be deemed inadmissible in court.  Placing a suspect in a patrol car or ordering a suspect to follow directions before determining a suspect’s sobriety may constitute an unlawful arrest. If so, any evidence obtained regarding intoxication may be deemed inadmissible in court.

6. Officer Error Prior To Chemical Testing: If any statements are made after the accused is in custody, they may excluded unless a proper Miranda warning was given.  The officer must also satisfy a 20 minute observation period prior to administering an evidential breath test.  The breath test must be given within three hours of operation.  The officer must make sure that the testing conditions are free from radio frequency interference and that the testing location is not otherwise compromised.  Prior to requesting a suspect to submit to a chemical test, the arresting officer is required inform the driver of the consequences of submitting to the test, the driver’s right to refuse to submit to the test and the consequences for so refusing. If the driver submits to the test, he may be providing the State with evidence of intoxication. Failure of the arresting officer to advise the suspect of the above may render the results of the test, or the refusal inadmissible, and may fail to justify a license suspension.  Your Ohio OVI defense attorney should have a firm understanding of the Ohio Administrative Code and its requirements for a proper chemical test.

7. Bad Breath: A Flawed Breath Machine: Above we discussed defenses that arise prior to the administration of the chemical test.  There are also potential defenses present in the administration of the test. You Ohio DUI defense attorney will be familiar with the Ohio Administrative Code requirements regarding calibration and officer performance.  You should ask your Ohio OVI defense attorney to show you the “guts” of the tests that are available at the Ohio Department of Health website.  What is more, you should only hire an attorney who has become certified on the breath test machine or attended sufficient specialized training so that he or she can spot any issues with the results.  Machines, despite what some may say, are far from perfect and often a keen eye will result in a “Not Guilty.”

8. Discovery, Discovery, Discovery: Your Ohio DUI defense attorney cannot defend you against an issue he or she does not know exists.  An experienced DUI defense attorney will get proper discovery to explore every possible defense.  Filing motions for discovery, motions to preserve evidence and expeditiously obtaining the evidence is a good start.  In every DUI case, I submit a comprehensive discovery request for every type of evidence possible.   I contact the law enforcement agency directly to place it on notice to preserve evidence, such as dashboard videos and booking videos. These videos must be requested before they are destroyed. These videos can be indispensable in establishing exactly how a field test was administered, how a driver performed, and can also establish whether a driver’s speech was slurred. Often, these videos contradict an officer’s allegations and exonerate the driver.

9. Credibility Is King:  The coin of the realm in all plea negotiations is the credibility, experience and knowledge.  Credibility comes from presenting your case in a way that makes the prosecutor understand your arguments.  Experience is knowing when and where to be persuasive.  Most prosecutors distain whiners, bullies and bullshit artists, so don’t do it.  I always strive to earn the respect of every prosecutor I come into contact with.  Knowledge about Ohio DUI defense comes from being dedicated to learning as much as you can.  We once had a slogan that said, “Is your attorney thinking of DUI defense right now? If not call DaytonDUI.”  I have practiced DUI defense since 1995 and have practice DUI defense exclusively for many of those years.  I continue to try to establish myself as one of the best DUI attorneys in Ohio.

10. Noting Matters If You Won’t Fight: You can have the best defenses in the world, but they won’t matter unless you pursue them.  A good attorney will not only pursue the best possible plea, but will prepare for trial.  Your attorney should provide context and give you enough information to make a good decision.  Your attorney has an obligation to give you information and abide by your decision.  If you think you have a good chance of winning, make sure you hire an attorney who can execute and try your case.  In our office we say “good things happen at trial.”

Don’t Volunteer Evidence – You Have Rights! Use Them!

00Breath Testing, Illegal Police StopsTags: , , , , , , , , ,

tipp city oviA typical DUI/OVI stop starts with a probable cause traffic stop.  Depending on the time of day, the location or the way you are driving, the officer may begin the encounter believing that you are possibly “19” (police shorthand for a possible R.C. 4511.19 (DUI) violation). Probable cause for the stop can be anything from severe weaving or crashing all the way down to something as de minimus as a license plate light out.  The officer’s true purpose in pulling you over cannot be questioned if there is even a minor violation of law.

The officer will observe the way you pull over and will approach the vehicle with caution. Always keep your hands where the officer can see them and avoid furtive movements.  When the officer asks “do you know why I pulled you over?” what do you say? When the officer asks if you have been drinking, what do you say? If the officer asks you if you are willing to take some roadside tests, what do you say? Always begin every police encounter by asserting your rights, “I DO NOT WANT TO ANSWER QUESTIONS AND I WANT TO SPEAK TO AN ATTORNEY.”

When you are pulled over for a traffic infraction the police officer has no evidence that you may be driving under the influence. Once you are stopped, the officer begins gathering evidence against you for OVI/DUI.  If you do not give him the evidence I can win a charge of DUI/OVI. And there is only one way for the officer to obtain evidence: You must give it to him! Examples are letting the officer engage you in conversation. By doing this he hears your speech hears your thought processes and begins to build his case. He smells your breath. During the process he also views your eyes to see if they are red, bloodshot, or watery.  The officer will also ask you for your license, insurance and registration. He is doing this to see if you fumble through your belongings, thereby demonstrating lack of dexterity.  Have these papers ready at hand anytime you are in the car. Have them waiting for the officer on the dash.

At this point, the officer must determine if he has enough evidence to remove you from the vehicle.  If he believes he does, he will ask you to take standardized field sobriety tests. There is no legal obligation or requirement to perform these tests. Do not take Field Sobriety Tests! Finally, do not be a knucklehead to the officer. Be polite and courteous even if you do not receive the same treatment as most encounters are recorded. Do not argue or try to justify your conduct as all of this will be used against you. Once the officer decides to arrest you there is nothing you can do to avoid the arrest.  Let me handle that for you later!

 

To blow or not to blow, that is the question. Unfortunately, the answer is “maybe” and involves a very complicated investigation of the facts of your case and your personal history. You should NEVER refuse the test without understanding how a refusal would affect YOU. No attorney can know all of the circumstances of your arrest and your personal history, always ask to speak to an attorney when making this decision.

Can you answer “TRUE” to ALL of the following questions? If so, you can politely DECLINE any police test(s) of your blood, breath, or urine with minimum impact. Be prepared and know your rights.

  • I am an Ohio license holder, 21 years or older; AND
  • I was not involved in an accident involving possible death or to serious injury to ANYBODY, even members of my family, pedestrians or passengers; AND
  • I do not have a commercial driver’s license (CDL); AND
  • No matter where I currently have a license to drive, I have had no prior drunk driving convictions or deferred pleas for DUI in ANY state within 6 years (from the date of conviction until now).
  • Refusing a chemical test can result in harsh penalties which includes a one-year license suspension, but your attorney can fight to get this reduced. In some courts your refusal may be held strictly against you and in others you may be able to get a reduced suspension despite your refusal. In State v. Hill, 2009-Ohio-2468, the Appellate Court upheld the right of a trial court to enhance a penalty based on a refusal to take the chemical test. In most circumstances, a refusal to take a chemical test will result in a longer hard-time suspension (30 days rather than 15 days without any driving privileges). [see the Automatic License Suspension section of this blog]. You should also engage in an honest assessment of your alcohol consumption. If you risk testing over Ohio’s “super-OVI” threshold (over a .17% BAC) you may do harm by taking the test. Take these factors into account when making your decision to blow or not to blow.

Any criminal defense attorney would rather have less evidence against you rather than more, but giving blanket advice to refuse the chemical test is a mistake. Be prepared to make the best decision for you. You can also plan ahead by storing my contact information in your smart phone: (937)776-2671.

Why Wasn’t I Mirandized?

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You were not Mirandized because the officer did not take

you into custody… or did he?

standardized field sobriety testWhen an officer comes to your door following a traffic stop anything the officer sees, smells or hears is fair game. It is common that the officer will ask you questions such as, “Do you know why I pulled you over?” or “Have you had anything to drink tonight?”  You do not have to answer these questions. Simply remain silent.  By being silent (the officer will call it non-compliant) you have removed the possibility of damaging statements and the universal “slurred speech” from the probable cause determination. The officer must make a difficult decision: place you under arrest or let you go.

The officer is required to give you Miranda warnings only once you are not free to go, i.e. you are in custody, i.e. you have been placed under arrest.  Courts do not consider the initial contact, when you are in your car, to be a custody situation.  Thus, anything you say at this point would be admissible in court.  The manner in which you speak (slurred, slow, mush-mouthed) will also be admissible.  And here is the kicker…

If you invoke your Miranda rights and say nothing, the jury will never find out.  Because it is such an important right, invoking your right to remain silent will not be used against you in a trial.  Likewise, a jury will never find out that you asked to speak to an attorney.  A famous comedian once said that understanding your right to remain silent and invoking your right to remain silent are very different skills. To quote Ron White, “I had the right to remain silent, but not the ability.”  Trust me, no one has talked their way out of a DUI if the officer had an evidence-based belief that they were intoxicated.

Once you are in custody, you are facing harsher penalties if you do not agree to take a chemical test. This blog post does not apply to the decision to take the test, but to the decision to answer questions. This blog post also does not address the issue of whether or not you must identify yourself to the officer (spoiler: you must!). If you are unsure about your rights, ask to speak to an attorney.  Better yet, call my 24 hour number at (937) 776-2671.

Dayton OVI attorney

Drive Sober Or Get Pulled Over In Full Effect!

00Illegal Police Stops, Ohio Traffic LawTags: , , , , , , ,

The annual “Drive Sober or Get Pulled Over” campaign, sponsored by the National Highway Traffic Safety Administration, MADD and local law enforcement agencies, is in full effect. The OVI (drunk driving) crackdown will last from now until January 1st. Below is the new ad for 2015.

xenia ovi

Xenia OVI Arrests – Now With Body Cameras

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If you have a Xenia OVI case, your attorney can now ask for body camera footage of your arrest. All Xenia police officers are armed with body cameras according to information released by the city on Monday. The officers are using Digital Ally’s First Vu HD personal body cameras which were partially funded with a grant.

For Xenia OVI cases, this means that we will get to see the standardized field sobriety tests as the officer does. It may provide a defense to an officer’s accusation that a defendant was slurring their words or fumbling for information.

At DaytonDUI.com we are prepared to use the body camera evidence on behalf of our clients to fight your Xenia OVI case. Please give us a call.