Category: DUI & Military Issues

wright patterson ovi

An Out-of-State OVI Offense Enhances A Wright-Patterson OVI

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An Out-of-State OVI Offense Enhances A Wright-Patterson OVI

Babb & Rowland and DaytonDUI proudly serve the military community in and around Wright-Patterson A.F.B..  One of the recurring questions we get from military personnel is whether or not a federal or out-of-state DUI can be used to enhance a Wright-Patterson OVI.  At one time they did not.  Now, however, the offenses received in another state or on federal property do count. See Ohio Revised Code 4511.181(A).  DUI defense attorneys challenged the ex post facto application of R.C. 4511.181(A) but the courts have held that since it serves only as an enhancement it meets constitutional standards. State v. Morrison, 2003-Ohio-3244 (Ohio Ct. App. 8th Dist. Cuyahoga County 2003).

Located conveniently near Wright Patterson Air Force Base, we have successfully represented active-duty military, contractors, and civilian employees since 1995.  We have successfully dealt with issues of deployment, security clearances, loss of rank, loss of on-base driving privileges and issues related to out-of-state licenses.  I have even attended specialized training through the National College for DUI Defense in handling a military drunk driving offense (2014 NCDD Winter Conference). If you face a Wright-Patterson OVI, or if you just have questions, give us a call.

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Do I Have To Report An Air Force DUI?

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We frequently receive questions about an active-duty service members requirement to report an Air Force DUI arrest to his superiors.  We rely upon a decision (HERE) from the United States Navy, Navy Admin 373/11, which states that, in light of the decision in U.S. v. Serianne:

1. THIS NAVADMIN AMPLIFIES REF A, WHICH REVISED ARTICLE 1137 TO REF B TO INCORPORATE AND EXTEND REF C. THIS NAVADMIN ALSO AMENDS REFS D THROUGH J, AS NOTED BELOW.

2. CRIMINAL CONVICTIONS. PER REF A, U.S. NAVY REGULATIONS NOW REQUIRE THAT ALL PERSONS IN THE NAVAL SERVICE SELF-REPORT CRIMINAL CONVICTIONS, INCLUDING FOREIGN CONVICTIONS.

3. CIVILIAN ARRESTS AND CRIMINAL CHARGES. PARAGRAPH 3 OF REF B ARTICLE 1137 AUTHORIZES THE CHIEF OF NAVAL OPERATIONS (CNO) TO PROMULGATE INSTRUCTIONS REQUIRING SERVICE MEMBERS TO SELF-REPORT CIVILIAN ARRESTS OR CRIMINAL CHARGES IF THOSE INSTRUCTIONS SERVE A REGULATORY OR ADMINISTRATIVE PURPOSE (AS COMPARED TO A PUNITIVE PURPOSE). THIS CHANGE RESPONDED TO THE DECISION BY THE COURT OF APPEALS FOR THE ARMED FORCES IN U.S. V. SERIANNE, IN WHICH THE COURT INVALIDATED A SELF-REPORTING REQUIREMENT.

4. REVIEW OF SELF-REPORTING REQUIREMENTS IN OPNAV INSTRUCTIONS.
BASED ON A REVIEW OF ALL CURRENT OPNAV INSTRUCTIONS, THE FOLLOWING GUIDANCE IS PROVIDED TO CLARIFY REQUIREMENTS BASED ON THE REVISIONS IN REF A. (NOTE: THE FOLLOWING LIST DOES NOT INCLUDE SECNAV INSTRUCTIONS.)

  • A. REF D, PARAGRAPH 5.D(12), CONTAINS A REQUIREMENT TO SELF-REPORT ARRESTS THAT APPLIES THROUGHOUT THE PERIOD OF PROGRAM PARTICIPATION. THAT PROVISION, CONSISTENT WITH REF A, IS BASED ON A LEGITIMATE ADMINISTRATIVE REQUIREMENT AND REMAINS IN EFFECT.
  • B. THE SELF-REPORTING REQUIREMENT OF REF E, PARAGRAPH 8.R, IS CANCELED.
  • C. THE SELF-REPORTING REQUIREMENT OF REF F, IS AMENDED BY REPLACING
    CURRENT PARAGRAPH 510.6 WITH NEW PARAGRAPH 510.6 (IN UPPERCASE ITALICS TO REMAIN A GENERAL ORDER THAT APPLIES WITHOUT FURTHER IMPLEMENTATION) AS FOLLOWS:

ANY PERSON ARRESTED OR CRIMINALLY CHARGED BY CIVIL AUTHORITIES SHALL IMMEDIATELY ADVISE THEIR IMMEDIATE COMMANDER OF THE FACT THAT THEY WERE ARRESTED OR CHARGED. THE TERM ARREST INCLUDES AN ARREST OR DETENTION, AND THE TERM CHARGED INCLUDES THE FILING OF CRIMINAL CHARGES. PERSONS ARE ONLY REQUIRED TO DISCLOSE THE DATE OF ARREST/CRIMINAL CHARGES, THE ARRESTING/CHARGING AUTHORITY, AND THE OFFENSE FOR WHICH THEY WERE ARRESTED/CHARGED. NO PERSON IS UNDER A DUTY TO DISCLOSE ANY OF THE UNDERLYING FACTS CONCERNING THE BASIS FOR THEIR ARREST OR CRIMINAL CHARGES. DISCLOSURE IS REQUIRED TO MONITOR AND MAINTAIN THE PERSONNEL READINESS,WELFARE, SAFETY, AND DEPLOYABILITY OF THE FORCE. DISCLOSURE OFARREST/CRIMINAL CHARGES IS NOT AN ADMISSION OF GUILT AND MAY NOT BE USED AS SUCH, NOR IS IT INTENDED TO ELICIT AN ADMISSION FROM THE PERSON SELF-REPORTING. NO PERSON SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ) MAY QUESTION A PERSON SELF-REPORTING AN ARREST/CRIMINAL CHARGES REGARDING ANY ASPECT OF THE SELF-REPORT, UNLESS THEY FIRST ADVISE THE PERSON OF THEIR RIGHTS UNDER UCMJ ARTICLE 31(B).

5. SEVERAL INSTRUCTIONS INDICATE THAT SERVICE MEMBERS MAY BE ASKED ABOUT ARRESTS OR CRIMINAL CHARGES AS PART OF A SPECIFIC APPLICATION OR SCREENING PROCESS. THOSE PROVISIONS ARE VALID WHETHER ISSUED BY CNO, OR OTHER COMPETENT AUTHORITY. THEREFORE, REFS G THROUGH J REMAIN IN EFFECT.

6. GUIDANCE ON DISCIPLINARY ACTION.

  • A. COMMANDERS SHALL NOT IMPOSE DISCIPLINARY ACTION FOR FAILURE TO SELF-REPORT AN ARREST OR CRIMINAL CHARGES PRIOR TO ISSUANCE OF THIS NAVADMIN. IN ADDITION, COMMANDERS SHALL NOT IMPOSE DISCIPLINARY ACTION FOR THE UNDERLYING OFFENSE UNLESS SUCH ACTION IS BASED SOLELY ON EVIDENCE DERIVED INDEPENDENTLY OF THE SELF-REPORT. CONSULT A JUDGE ADVOCATE PRIOR TO IMPOSING DISCIPLINARY ACTION IN SUCH CASES.
  • B. PER THIS NAVADMIN, COMMANDERS MAY IMPOSE DISCIPLINARY ACTION FOR
    FAILURE TO SELF-REPORT AN ARREST OR CRIMINAL CHARGES. HOWEVER, WHEN A SERVICE MEMBER DOES SELF-REPORT PURSUANT TO A VALID SELF-REPORTING REQUIREMENT, COMMANDERS WILL NOT IMPOSE DISCIPLINARY ACTION FOR THE UNDERLYING OFFENSE UNLESS SUCH DISCIPLINARY ACTION IS BASED SOLELY ON EVIDENCE DERIVED INDEPENDENTLY OF THE SELF-REPORT.
    COMMANDERS SHOULD CONSULT A JUDGE ADVOCATE PRIOR TO IMPOSING DISCIPLINARY ACTION.

7. COMMANDERS SHALL ENSURE THEIR INSTRUCTIONS DO NOT INCLUDE ADDITIONAL SELF-REPORTING REQUIREMENTS. HOWEVER, COMMANDERS OR PROGRAM MANAGERS MAY CONTINUE TO REQUEST INFORMATION ON ARRESTS OR CRIMINAL CHARGES AS PART OF AN APPLICATION OR SCREENING PROCESS, AS DESCRIBED IN PARAGRAPH 5 ABOVE.

Obviously, the interpretation of federal law is a difficult matter that should always be made in consultation with a competent advocate.  If an attorney is beyond your means, please take the time to talk to you Area Defense Counsel about your Air Force DUI charge.  Your career is important; too important to not take the time to ask the right questions.  If you need to speak to an attorney who has represented the accused drunk driver for over twenty years. We offer discounts to anyone charged with an Air Force DUI and anyone who is referred to us by an active-duty soldier.

Call Air Force DUI attorney Charles M. Rowland II at (937) 318-1384. 
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Military DUI? Who Will Punish You?

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If you get a military DUI you can be punished by three different (and overlapping) authorities.  The first potential punishment comes from the civilian courts and includes a loss of driving privileges, fines, incarceration and other possible penalties.  Typically, these punishments occur after being stopped on suspicion of drunk driving while outside the military base.  The military cannot administer action under the UCMJ for the same offense if you are being charged by civilian authorities. This applies regardless of the outcome of the civilian case. This blog has a section devoted to the various punishment and their consequences which you can check out at the Military DUI page.

Punitive actions under the Uniformed Code of Military Justice are available to the military if you are not being prosecuted by civilian authorities, which is typically the case if you were stopped for a DUI while on the installation. Two military sources of punishment may come in the form of PUNITIVE (UCMJ) and ADMINISTRATIVE penalties.

  • Nonjudicial punishment – Commanding officers can levy NJP to their service members for minor disciplinary offenses under Article 15 of the UCMJ. Each of the services uses different names for NJP to include “Article 15” in the Army and Air Force, “Captain’s Mast” or “Mast” in the Navy and Coast Guard, and “Office Hours” in the Marine Corps. Under NJP, commanders can make an inquiry into the facts surrounding the offenses allegedly committed, afford the accused a hearing and either dismiss the charges, impose punishment under the provisions of Article 15 or refer the case to a court-martial. Under NJP, commanding officers can punish you through a variety of mechanisms, usually dependent on the nature of the offense. These can include an official reprimand, extra duty, restriction to limits, forfeiture of pay and reduction of grade.
  • Judicial punishment (court-martial) – If you are stopped on the installation, or the civilian authorities are not prosecuting you, you can still receive a court-martial for a DUI under Article 115 of the UCMJ. Article 115 specifically states that any person who operates or physically controls any vehicle, aircraft or vessel in a reckless or wanton manner or while impaired shall be punished as a court-martial may direct. Punishments related to court-marital can include forfeiture of pay, reduction in grade, confinement and dismissal from the military.

There is another layer of potential punishment which can be levied by your commanding officer. These may include:

  • Letter of reprimand – A letter of reprimand is a formal document from your superior (usually a general officer) that details your wrongful actions and the punishment that can be expected. Although letters of reprimand are less severe than a court-martial, they can be career-ending as the letter remains in your record and can have adverse effects on your ability to receive a promotion.
  • Revocation of pass privileges – Your commander can revoke your ability to go on leave. If you are being charged by civilian authorities, this usually lasts until the civilian court proceedings are complete. If you are facing military punitive actions, this denial of leave typically lasts until your UCMJ punishments are served and complete.
  • Mandatory referral to a substance abuse treatment program – Your commander can mandate that you enroll in and complete a substance abuse treatment program through your branch of service’s respective program.
  • Corrective training – Your commander may require corrective training if he/she believes you would benefit from additional instruction or practice in a particular area. This training is designed to correct deficiencies and eliminate the need for formal disciplinary measures in the future.
  • Administrative reduction in grade – Depending on your situation and your rank, your commander can reduce your grade. The rank of the commander who may approve an administrative reduction in grade depends on your rank.
  • Bar to reenlistment – A bar to reenlistment is a procedure that commanders may use to deny you the opportunity to reenlist after your current service is complete. This procedure is used for those whose immediate separation is not warranted, but whose reenlistment is not in the best interest of the military.

As you can see, a DUI is a big deal with career-threatening consequences.  A night of bad judgment can carry a heavy price.  It is important that you contact an attorney who has experience with the court and prosecutors in the civilian court, and an attorney who has the credentials to help you in all aspects of the military DUI case. We are here 24/7 at (937) 776-2671.

We offer discounts to military individuals.  We have been serving persons accused of a military DUI since 1995.

Active Duty DUI? What Law Applies?

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active duty duiIf you get an Active Duty DUI charge what law applies and where will you be punished?  This article (which owes a nod to John Hunsucker and the Hunsuker Legal Group, NCDD Winter Session 2015) explores where your case will be heard and what law applies.

The Uniform Code of Military Justice (UCMJ) applies to all active service members and all active duty DUI cases, regardless of where a crime occurs. However, jurisdiction over DUI charges may be military, civilian or both. When both entities file charges, they often coordinate to determine which will prosecute the offense criminally. An offender cannot be tried twice criminally, but because he is always subject to the UCMJ, he may face both civilian and military administrative punishment. The place of arrest and the authorities involved typically dictate jurisdiction .

A serviceman arrested for DUI on-base may be prosecuted under the Uniform Code of Military Justice by the administrative sanctions of an Article 15 NJP; a combination of NJP and a non-military federal prosecution; or an Article 32 court-martial. (Major Aaron L.
Lykling, The Disposition of Intoxicated Driving Offenses Committed by Soldiers on Military Installations, Army Law., Jan. 2013, at 8.) The most common course of prosecution for an on base active duty DUI is NJP combined with federal prosecution under the Assimilated Crimes Act (ACA). (Id.) This combination of punishments has been challenged as a violation to the Double Jeopardy Clause of the Constitution. (William G. Phelps, Assimilation, Under Assimilative Crimes Act (18 U.S.C.A. § 13), of State Statutes Relating to Driving While Intoxicated or Under Influence of Alcohol, 175 A.L.R. 293 (2002)). Courts-martial for on-base DUI’s are rare.
(Lykling, supra, at 8). A serviceman who is arrested for DUI while not on his assigned base or post (off-base) is subject to the local state laws and punishments as well as the military-imposed Article 15 nonjudicial punishment (NJP).

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

For more info on active duty DUI issues, check these city-specific sites at the following links:

Fairborn,Dayton,Springfield,Kettering,Vandalia,XeniaMiamisburg,Huber HeightsSpringboroOakwood,Beavercreek, Centerville

Do You Face A Military OVI Charge?

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Do you face a military OVI? 

military OVI The consequences of an OVI while serving active duty in the military can be devastating: dishonorable discharge, rank reduction, pay deduction, loss of security clearance, fines and jail time and mandatory military counseling sessions and potential exclusion from some sensitive operations.  Military regulations often subject its members to enhanced Non-Judicial Punishment (NJP), which go above and beyond the punishments allowed by civilian law.  We are seeing more cases where the leadership is “cracking down” on drunk driving offenses and promising to end the career of personnel who are found guilty of a military OVI offense.  This limits the ability of commanding officers in protecting their soldiers from harsh consequences and places more and more emphasis on fighting your DUI case.

Defending military clients against DUI charges requires engaging in three battles; the civilian charges in criminal court, the administrative sanctions imposed by the Ohio Bureau of Motor Vehicles (as well as the issues in the state of residence of the military member, as many are not licensed in Ohio), and the military base infrastructure which may or may not include court martial proceedings.  In Ohio, local prosecutors defer to the military in decisions of jurisdiction.  This means that your case may be tried in the civilian courts, or in a court-martial proceeding.  In court-martial proceeding, the legal standard for “impaired” is easier to meet and the punishments more severe. Air Force/military DUI/OVI law also does not adhere to state blood alcohol levels, and if deemed under the influence by the hearing officers at the military trial, any blood alcohol level is sufficient for a conviction.  You can expect the case to move much more quickly than in the civilian system.  You can choose to have a private attorney represent you in this case or rely on Area Defense Counsel.

Charles M. Rowland II has been certified as an expert in evidential breath testing and has testified as such in military OVI court martial proceeding.  Charles M. Rowland II has tried DUI cases in the federal courts.  Located in Fairborn, we have had the privilege of representing hundreds of active duty, civilian and government contracting clients.  We focus 100% on winning your case and having the DUI removed from your record, keeping your record clean and preventing you from losing your license.  We also provide good advice on dealing with out-of-state license issues that may eventually cause problems in your home state.  Given our track record, we are able to help in cases that seem impossible and focus on saving your military career.  You will be treated fairly and meet with the utmost in forthrightness when it comes to matters of billing.  All we do is DUI defense and we do it well.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

For more info on military OVI cases, check these city-specific sites at the following links:

Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia,Miamisburg, Huber Heights, Springboro, Oakwood,Beavercreek, Centerville