DUI Case Law

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Ohio DUI Law: Crossing Jurisdictional Lines

February 16th, 2012

 

Jukebox in Glopheim café, Norway.

THE FACTS: Suppose a person sits at a bar in Richmond, Indiana listening to John Mellencamp on the juke box and drinks to a point where he exceed the .08% BAC limit in Indiana.  The person then gets in his car and drives from Richmond, Indiana into Ohio.  While in Ohio and still in excess of the .08% BAC limit he drives through Eaton, Preble County, Ohio.  Leaving Enon, the driver is noticed by a citizen who alerts the Enon Police Department and the Ohio State Highway Patrol about erratic driving and “Jack & Diane” being played very loudly in violation of the municipal noise ordinance.  Near the Preble County boarder the defendant is intercepted by a trooper who follows him all the way to the Oregon District in Dayton, Ohio.  While listening to “I Fight Authority,” the driver is arrested for Operating a Vehicle Impaired and is summoned to appear in the Dayton Municipal Court.  He also receives summons to appear in Enon Municipal Court (Preble County) and a summons to appear in the court in Indiana.  According to Ohio law where can the defendant be tried?

The Defendant may argue that he was first drunk in Indiana.  Since he was charged in Indiana he argues he cannot be tried for OVI in Ohio.  Ohio disagrees.  In State v. Smith (1991), 61 Ohio Misc. 2d 165, Ohio asserted the right to try a defendant irrespective of whether or not a similar charge exists in another state.  This makes sense from a public policy standpoint as it is the job of Ohio judges to protect Ohio citizens from the harm of criminal conduct.

The only good news for our defendant is that he cannot be tried in both Enon Municipal Court and the Dayton Municipal Court.  Why?  In State v. Anderson (1989), 57 Ohio App. 3d 108 the court held,  ”[t]he Double Jeopardy Clauses of the United States and Ohio Constitutions forbid the prosecution of a defendant for drunk driving by a political subdivision when that defendant has already been placed in jeopardy by another political subdivision of the same state for the same offense, stemming from the same underlying course of conduct.”

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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DUI Law and the Fourth Amendment: Is Your Home Your Castle?

February 10th, 2012
The Ohio Seventh District Court of Appeals bui...

The doctrine that “a man’s home is his castle” is enshrined in the Bill of Rights.  The Fourth Amendment to the United State Constitution embodies the principle and states that a home should be free from search without a warrant.  The Fourth Amendment states, “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * * *.” Furthermore, in United States v. United States Dist. Court for the E. Dist. of Michigan (1972) 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764, the court noted that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”  Under normal circumstances, a police officer is not permitted to enter one’s home to effectuate an arrest.  But does this principle apply in DUI prosecutions?

In State v. Lake, 2009-Ohio-3057, a police officer observed the Defendant commit several traffic violations, but failed to stop the Defendant before he could pull into his garage.  The Defendant argued in a motion to suppress to the trial court that he was illegally arrested when the officer barged into his garage.  His motion was overruled and he was eventually found guilty.  On appeal, the Seventh District Court of Appeals (Columbiana County) dismissed the Defendant’s argument. The Court held that the “hot pursuit” entry exception to the Fourth Amendment applied. They then stated that a defendant cannot defeat an arrest which has been set in motion in a public place by the escape to a private place, reiterating U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed. 2d 598 (1976), the United States Supreme Court case on point.  In United States v. Santana (1976), 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300, the court made it clear that a suspect may not avoid arrest simply by outrunning pursuing officers and finding refuge in her home. The court noted that hot pursuit “need not be an extended hue and cry ‘in and about [the] public streets.’ “ Id. at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 305, quoting the trial court. Moreover, the court went on to conclude that “a suspect may not defeat an arrest which has been set in motion in a public place * * * by the expedient of escaping to a private place.” Id. at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 306.  In 2002, the Ohio Supreme Court extended this principle to misdemeanors, see Middletown v. Flinchum 95 Ohio St.3d 43, 2002-Ohio-1625 wherein the court reasoned that since the officers observed at least two traffic violations, they had probable cause to stop the Defendant and pursue the Defendant into his “home” to effectuate an arrest.

So where does this leave us?  Does the proscriptions dating back to Roman law still apply: quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? (What more sacred, what more strongly guarded by every holy feeling, than a man’s own home? -Cicero-)  The answer lies in how effectively your attorney can argue your case before a trier-of-fact and the strength of the facts you are able to present.  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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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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Ohio DUI Law: Ineffective Assistance of Counsel

February 2nd, 2012

Sometimes despite the best efforts of a skilled and competent DUI attorney, a client will be forced to endure an outcome they do not like.  When this happens there Is a natural and understandable desire to place blame.  We field many calls, mostly after a conviction, seeking an opinion about an attorney’s performance.  Some ask whether or not we would be willing to undertake an appeal.  To date, our answer has always been an emphatic “No!”

The purpose of this article is two-fold; the first is to re-emphasize the importance of selecting the best attorney for your case right at the outset.  Most problems can be resolved by talking to your attorney about your case and about your expectations.  The second purpose is to inform you of the legal standard your attorney is judged by and what burden you would carry in order to show that you had a “bad” lawyer.

The leading case on this issue is the United States Supreme Court decision in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.  The Ohio Supreme Court adopts and applies the Strickland decision in State v. Bradley, 42 Ohio St. 3d 136 and the Second District Court of Appeals (which covers most of the Miami Valley) applied the Strickland reasoning in State v. Sparks, 2011 Ohio 3868.  Speaking to the issue of ineffective assistance of counsel, the Court held,

“To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different…Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel,” State v. Mitchell, Montgomery App. No. 21957, 2008 Ohio 493.

Therefore, to demonstrate that an attorney is ineffective, you must show:

  1. 
That the attorney’s actions fell below the standard that is reasonable, AND
  2. That, the actions of the attorney were so serious as to create a reasonable probability that the outcome of the trial would have been different.

The basis of an appeal for ineffective assistance counsel can not be based upon a reflection of an attorney’s strategy during trial as the higher court will not use hindsight to determine the appropriateness of the attorney’s strategy.  Even if the strategy was wrongheaded or stupid, even if you did not agree to the strategy and even if the strategy proved amazingly unsuccessful, if the strategy is reasonable, the court will not remand based upon that fact.

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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Intoxilyzer 8000 Is Unreliable!

January 27th, 2012

Today, in State v. Heather Reid, Case No. TRC 1100716 in the Circleville Municipal Court, Judge Gary Dumm has ruled that “The State of Ohio cannot expect this Court to find the Intoxilyzer 8000 reliable when the State refuses to address known problems and explain why those problems can be ignored.”

The Court calls for independent laboratory testing to address the issues raised by the adoption of the Intoxilyzer 8000: RFI, sample size of the chamber, volume of the sample tested, possible operator manipulation of the results, possible CMI modifications of the software without the knowledge of ODH and slope detector inadequacy.  Judge Dumm wrote, “If this testing is not done independently of CMI and ODH, all municipal courts in Ohio will be dealing with these challenges for years to come.” The Court also states, “At a time when scientific testing can readily determine the accuracy and validity of many tools and processes, it would seem that both CMI and ODH should be happy to run independent testing with known and respectable laboratories to determine the accuracy and reliability of the equipment.”

The Court does not address the looming question of whether or not ODH or CMI will have to turn over source code data.  However, the Court eviscerated ODH stating that “the less than candid answers to the questions regarding the data base, the ability of CMI to enter and alter the machine without knowledge or documentation, lack of explanation of newer versions software, missing information and unexplained inconsistent results clearly cast doubt on ODH’s transparency as to the Intoxilyzer 8000.”

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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