Category: Ohio Criminal Law

Yes, Rolling Coal Is Illegal

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Yes, “rolling coal” is illegal.

Rolling coal is a form of conspicuous air pollution by anti-environmentalists: “a very public way for conservative drivers to simultaneously broadcast that they aren’t worried about whether humans are the cause of global warming and to openly mock the people who are.”  Targets of coal rolling often include owners of hybrid vehicles (hence the nickname “Prius duster”) as well as foreign vehicles, bicyclists and pedestrians. In addition to environmentalism concerns, it’s been noted that this phenomenon also has health risks associated with it, particularly respiratory issues, as well as safety, as the black coal can make visibility difficult.

Rolling coal is not a new phenomenon. The trend stems from truck-pull competitions popular at county fairs and rural speedways, in which two diesel trucks face off to see which one can carry a weighted sled the farthest. To increase power and speed, truck-pull drivers modify their vehicles to dump excess fuel into the motor, which has the added effect of making the trucks emit clouds of soot. It’s an impressive effect—a sort of visible manifestation of the vehicle’s power and speed. Unsurprisingly, other pickup enthusiasts (mostly teenage boys) have tried to recreate the show, coughing up anywhere between $500 and $5,000 to make their car smoke.

The Environmental Protection Agency confirmed that the behavior is illegal and runs afoul of the Clean Air Act. According to the “tampering” section of the EPA’s “Air Enforcement” website,

“The CAA [Clean Air Act] prohibits anyone from tampering with an emission control device on a motor vehicle by removing it or making it inoperable prior to or after the sale or delivery to the buyer. A vehicle’s emission control system is designed to limit emissions of harmful pollutants from vehicles or engines.”

In fact, one company that manufactured devices that allowed people to remove emission control devices from their trucks agreed to pay a $500,000 civil penalty to the EPA in January 2013. “The diesel industry has spent the last decade investing billions of dollars in developing new technology to reduce emissions, so as you might expect, the practice is somewhat disturbing, and it’s certainly not mainstream,” said Allen Schaeffer, executive director of the Diesel Technology Forum, a nonprofit industry group. Rolling coal, he added, has been around for a long time among truck enthusiasts, mostly without incident.

Truck enthusiasts may also face state charges including, assault, reckless operation or equipment violations.  Here is how the fine art of “rolling coal” is being practiced by some of our best and brightest.


4th Amendment

Ohio Law Offers More Protection Than The 4th Amendment (Sometimes)

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Did you know that, in certain circumstances Ohio law affords greater protection to its citizens than the 4th Amendment to the United States Constitution. Here is an example.

In State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, officers arrested Dali Jacques Brown, a suspected drug dealer, for jaywalking, a minor misdemeanor, and a search incident to the arrest revealed that Brown had crack cocaine. Id. at ¶ 1-3. The state indicted him for possession of a controlled substance. The trial court, however, suppressed the drug evidence because the officers lacked statutory authority to make an arrest for a minor misdemeanor pursuant to R.C. 2935.26, and therefore the search incident to the arrest was unreasonable for purposes of Article I, Section 14 of the Ohio Constitution. Id. at ¶ 3.

{¶ 20} The court of appeals affirmed the suppression of the evidence, and the Ohio Supreme Court accepted the state’s discretionary appeal to consider “whether an arrest for a minor misdemeanor violates the Fourth Amendment of the United States Constitution and Section 14, Article I of the Ohio Constitution” in light of the United States Supreme Court’s decision in Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Id. at ¶ 5-7. Atwater had held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a minor misdemeanor seat belt violation punishable only by a fine.

{¶ 21} The Supreme Court recognized that the warrantless arrest for a minor misdemeanor did not violate the Fourth Amendment, Brown at ¶ 20-21, but we determined that “Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors,” id. at ¶ 22. In reaching that conclusion, they reaffirmed the application of the balancing test set forth in State v. Jones, 88 Ohio St.3d 430, 727 N.E.2d 886 (2000), to ascertain whether a search or seizure is reasonable by weighing the competing interests involved and considering the extent of the officer’s intrusion on an individual’s liberty and privacy against the need to promote legitimate governmental interests. Brown at ¶ 17-19, 22; Jones at 437.

{¶ 22} They concluded that “Brown was arrested for a minor misdemeanor offense when none of the R.C. 2935.26 exceptions were applicable, and thus, the arrest violated Section 14, Article I of the Ohio Constitution.” Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, at ¶ 25. Accordingly, they upheld the suppression of the evidence discovered. Id.

{¶ 23} Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment against searches and seizures conducted by members of law enforcement who lack authority to make an arrest. Therefore, a traffic stop for a minor misdemeanor offense made by a township police officer without statutory authority to do so violates Article I, Section 14 of the Ohio Constitution.

If you are arrested on suspicion of committing a crime, make sure that the officer had authority to actually make the arrest. If you need an experienced criminal defense attorney, contact Babb & Rowland, at (937) 318-1384.


Will The Defense Bar Miss Justice Scalia?

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I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interrèd with their bones.

The above quote from Shakespeare’s Julius Caesar sums up many reactions following the death of Supreme Court Justice Antonin Scalia. The political class and the talking heads quickly lined up behind their respective political biases to either “praise” or “bury” the Justice. It was yet another example of how America has become so divided that we cannot even govern ourselves.

“In addition to his fiery rhetoric, his originalism, and his profound impact on his fellow Supreme Court justices and the court itself, Antonin Scalia was famous for another thing: his surprising support of criminal defendants in many cases.” Scalia argued that he should be the darling of the criminal defense bar stating, “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.” To highlight the complex nature of his defense of criminal rights, I point to this comprehensive article written by Robert J. Smith on I also want to give credit to NCDD DUI Defense attorney, William Kirk who posted this article on the NCDD blog.

The article demonstrates the many pro-defendant rulings on a wide range of topics and the callous disregard for the rights in cases involving the death penalty. “If there are justices that were the conscience of the court, then Scalia was its wrath,” said Lee Kovarsky, a law professor at the University of Maryland. “He used that voice to transform legal experiences into cultural ones, and capital punishment inspired his most weaponized prose.” Id. Given the nomination of Judge Merrick Garland, a drug war veteran and law and order judge, the criminal defense bar may come to do the unthinkable – miss the days of Justice Scalia. I hope you enjoy the article.


How The Constitution Died In America

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US Constitution

This article is about the Constitution.  It is a departure from my norm (a rant really!).

“The ability to learn from others is central to the evolution and persistence of culture, and it is viewed as part of the reason humans have come to dominate the planet.  Sometimes individuals copy the behaviors of others seemingly at random; other times they appear to decide who to copy based on the level of prestige of the individual” [Source].  An example is a person who learns to affix a sharpened rock to the end of a stick. We do the same so as to successfully take down a wooly mammoth and survive.   Famed sociologist Max Weber writes about this evolutionary adaptation in his leadership theory, wherein he says that we have a need to place “charismatic leaders” in a position so that we may emulate their success.  Weber defines charismatic leadership as “resting on devotion to the exceptional sanctity, heroism or exemplary character of an individual person, and of the normative patterns or order revealed or ordained by him” [Source]. Who are our cultural leaders today?

With the advent of television and our celebrity culture we see the destructive nature of this evolutionary drive. In America, we have eschewed the valuable thinkers in government, philosophy, science and the arts in favor of celebrity. Kim Kardashian and Paris Hilton (among others) are emulated and their desires and actions implicitly placed as examples for society to follow.  What we know of evolution dictates that a significant portion of people will follow them as an example worthy of emulation.  We acquiesce without conscious thought based on the unseen drive to copy the behavior of the successfully adapted.   It is yet to be seen if we can survive and adapt as a society if we follow the leadership and example of people who have no discernible talent (except that of maintaining attention and fame).

The point of this post is to have us examine what we place in front of police officers as charismatic leadership behavior. Recall the early days of cinema where law enforcement was seen as upholding the law; so much so, that they would defend the prisoner against the mob at the risk of their own lives. The rule of law was important and we were only safe if we submitted ourselves to it.  Lawlessness and chaos were kept at bay by the brave men (usually only men back then) that understood the rule of law was sacrosanct.  Early television shows like Gunsmoke, 1-ADAM-12 and Dragnet followed this philosophy. The characters found their nobility in upholding and trusting the system.  The police, sheriff, marshall, FBI agent, were all US.  They valued “us” because we shared with them a value system rooted in our mutual respect for the law and each other.

Somewhere in the 1960’s we lost faith in each other.  Depictions of law enforcement behavior changed accordingly.  Now, the system was the enemy.  Instead of a shared value system worthy of respect; Dirty Harry taught us that it was not to be trusted.  Only the law enforcement officer could reliably inflict punishment and justice.  He was a lone force for good.  Detective Sipowicz on NYPD Blue was lauded for his ability to “work around” the rules and intimidate criminals into confessions. “Colors” is a film about a 19 year veteran (Robert Duvall) who is teamed with a rookie (Sean Penn).  They debate (via their attitudes and actions) which approach to policing is best in our modern society.  Not surprisingly, the values of rapport and diplomacy are symbolically killed with the death of the Duvall character.  The charismatic leadership takeaway for aspiring officers: we are not in this together; the citizen is the enemy; don’t trust the Constitution because it does not work.  This had a cultural impact. [language warning for clip].

Beginning in the 1980’s we see the courts begin to adopt the same philosophy toward the Constitution as that depicted in the culture.  We began to see our cherished Constitutional American values shown as technicalities that protected criminals.  Is it any surprise that we see an erosion of the 4th Amendment, 5th Amendment and other Constitutional protections?  Should we expect anything less than the police seeking military grade weapons to protect itself against us?  Since the criminals are “the other” why not just lock up and store as many people in prisons as we can?  Why should we not adopt any tactic, no matter how unscrupulous to attack people who use drugs — they are the enemy!  Red-light cameras, civil asset forfeiture, mass incarceration, the drug war, and ultimately the sanctioning of torture by our government can be traced back to this cultural adaptation. Some more evidence -Almost 60% of teens think torture is ok! According to a Red Cross poll looking at attitudes US citizens have about the use of torture on enemy combatants. So is it a stretch to think that teens, who grew up in the last decade now think torture is an acceptable form of punishment?  In my particular practice (DUI defense) we see no shortage of advocacy groups who seek to remove that pesky Constitution from their goal of punishing the “other” the drunk driver — the enemy!

Let’s change this!  Support the Constitution. Let’s be American again! It begins by believing in the system and believing in each other.  Police officers are not our enemy and we are not theirs.

“All I Do Is DUI Defense” And That Inspires Some Reaction

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“All I do is DUI defense.”

There is always that time at a party when someone will ask me what I do for a living. I proudly respond, “All I do is DUI defense.” When I tell people what I do, it inspires some mixed responses. Some folks are perplexed that anyone would provide a defense to “those people.”  Others attack my integrity and the integrity of the criminal justice system by stating that I am “just in it for the cash”  A more extreme reaction is to get so angry that you wish harm upon me and my family, “I hope that a drunk driver…

All I do is DUI defenseI have learned that often, the hate and vitriol comes from a place of great pain. Losing a loved one to drunk driving is a tragedy that is too awful for most of us to imagine.  Those who find themselves in that place have every right to seek the end of drunk driving and to be validated in their grief.  Like Candy Lightener, founder of MADD, they also have the right to turn that pain into a social movement.  And, if it helps, they have the right to be angry with me, a DUI attorney,  for defending those accused of the crime that took their loved one.

The focus of my practice and my life is preserving the rights enshrined in the Constitution and making the criminal justice system better. I have had two decades of experience in standing up for those principles. All I do is DUI defense because it is on the cutting edge of defending the Fourth Amendment, fighting against the War on Drugs, standing against petty police stops, curbing civil asset forfeiture and standing between the public and a very aggressive police force.  Being a DUI attorney allows me to represent those who need it most.

Fighting for these principles is what made me want to be an attorney.  I take great pride and find nobility in my efforts. I have taken solace in a quote from the great Clarence Darrow,

“To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.”

“All I do is DUI defense.”