Prior Offenses

Ohio DUI Law R.C 4511.19(A)(2) “a codified dilema”

August 27th, 2014

ohio dui law

Ohio DUI law R.C. 4511.19(A)(2) enhances the penalty for a motorist who, having been convicted once in the last six (6) years, after having been arrested, refuses to take a blood, breath or urine test.  In State v. Hoover,173 Ohio App.3d 487, 2007-Ohio-5773, the issue of whether or not a person can have a DUI sentence enhanced pursuant to R.C. 4511.19(A)(2) for refusing to take a chemical test was before the Ohio Supreme Court.  The government sought to have the sentence of Corey Hoover enhanced from the ten (10) day mandatory penalty for a second time DUI offender in Ohio to twenty (20) days because he refused to take a breath test.  “The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. …  Imposing criminal sanctions for failure to consent goes far beyond the state’s power … to regulate the licensure of drivers. Id.

The defendant argued that “ he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure.”  Justice Lanzinger emphasized that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. “The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Id.  The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Paul E. Pfeifer entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell. Justice Pfeifer wrote that today’s majority holding diverges from previous court decisions which have upheld only the imposition of administrative penalties against DUI defendants for refusing to submit to chemical testing.

“R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test. This court’s previous jurisprudence regarding sanctions for a DUI defendant’s failure to consent to chemical tests have all involved license suspensions. … This court has previously answered the question whether a person can face criminal sanctions for failure to consent to a search.  In Wilson v. Cincinnati (1976) … this court held that that the Fourth Amendment prohibits the imposition of criminal penalties upon a person who refuses to submit to a warrantless search.”

“The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. …  Imposing criminal sanctions for failure to consent goes far beyond the state’s power … to regulate the licensure of drivers. As in Wilson, the statute at issue herein imposes a codified dilemma – consent to a warrantless search or face the possibility of a criminal penalty – and thus amounts to coercion. R.C. 4511.19(A)(2) therefore violates defendants’ rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.”

This important DUI decision has withstood challenge, so far.  This author posits what impact the recent United States Supreme Court decision in Missouri v. McNeely133 S.Ct. 1552 (2013) regarding the State to obtain a warrant prior to a forced blood draw will have on this decision and other Ohio DUI law issues.  The “codified dilema” as Justice Pfeifer called this matter will have to be relitigated in cases where the State decides not to seek a warrant and also attempts to “enhance” the sentence.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He knows Ohio DUI law and 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.  Email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

For more information on Ohio DUI law  check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

Ignition Interlock Devices For Everyone – We Warned You!

March 10th, 2014

ignition interlockH.B. 469 (Annie’s Law) presented at the Ohio Statehouse on Thursday will require an ignition interlock device  be installed on the vehicle of all convicted drunk drivers, including first-time offenders.  Ohio law currently prescribes “blow to go” devices for repeat drunk driving offenders, but not on a first offense.  We have longed warned (previous story HERE) that this was at the top of MADD’s agenda and a continuation of their desire to impose penalties on a driver before they are found guilty of an offense.  Essentially, this law is an attack on a person’s presumption of innocence.  State Representatives Terry Johnson (R-McDermott) and Gary Scherer (R-Circleville) are the lead sponsors of House Bill 469.

Currently, interlock search devices are used in all 50 states and the District of Columbia. However, states vary widely in how the ignition interlock devices are used and which drivers are required to install them. In West Virginia, for example, interlock devices are only ordered at a judge’s discretion while Michigan mandates their use for drivers who are found with a BAC more than twice the state’s legal limit.  In Ohio, ignition interlock devices are required for any driver accused of a second OVI (drunk driving) offense and are otherwise discretionary to the judge.  NHTSA and MADD want to eliminate these discrepancies and urge the adoption of a model rule which covers first-time offenders with a BAC just over the legal limit and would require the installation of ignition-preventing interlock search devices on hundreds of thousands more vehicles.  Currently, only 20 states require the devices for anyone convicted of a drunken driving-related offense.

Some studies show that ignition-preventing interlock devices are about 75 percent effective in keeping those previously convicted of drunken driving from repeating their behavior. While there are numerous different designs, the typical ignition interlock requires the driver to blow into a tube that measures breath alcohol levels. If a person fails he or she may try again, for up to three attempts before the vehicle is locked down.  Other versions may also use cameras to record a person’s behavior behind the wheel. Courts may access the data recorded and, in some jurisdictions, a motorist who blew over the limit may face additional penalties.  Ignition Interlock devices typically cost about $150 and may run $80 a month or more to maintain.

Attorney 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.”

 Find information on Ignition Interlock devices on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Ohio OVI Law: The Habitual Offender Registry

August 6th, 2013

morguefile free beer can topOhio OVI law states that you  can’t be a chronic alcoholic and drive in Ohio.  Ohio driver’s license laws forbid the issuance of a driver’s license to, or the retention of a license by, a person who is “alcoholic, or is addicted to the use of controlled substances to the extent that the use constitutes an impairment to the person’s ability to operate a motor vehicle with the required degree of safety” (Ohio R.C. 4507.08(D)(1).  Such persons will be placed on Ohio’s Habitual Offender Registry.

If you have an OVI conviction after September 30, 2008 and you have four or more prior OVI (or equivalent) convictions in the past 20 years, you will be placed on the Ohio Habitual Offender Registry.  The Registry includes the name, address, and date of birth of offenders as well as their date of convictions.  The Registry is accessible to the public.  Offenders remain on the Registry until they no longer have five or more offenses within the past 20 years.  Such easily accessible information raises significant privacy concerns.  Ohio is one of very few states that have created such a registry.

If you are placed on the “Habitual Offender Suspension” registry, you will need to take specific steps to be removed.  The Ohio Bureau of Motor Vehicles will monitor your progress by ensuring that the Habitual Offenders completes a treatment / rehabilitation program after the date of the last Ohio OVI conviction.  To be removed from the registry, you must complete the following steps:

1. BMV Form 2326 must be completed by a license physician, licensed psychologist, or a certified alcoholism counselor.  The form must attest that you have completed treatment successfully.

 

2. This person must vouch for the offender’s successful completion of the rehabilitation program and continous sobriety for at least 6 months AFTER completing the program.  

 

3. BMV Form 2326 must be returned to the Ohio BMV within 90 days of it being completed.

 

4. Once this form is completed and submitted, the Special Case / Medical Unit will review all the information and make a decision about lifting the Habitual Offender Suspension.

 

5. If, however, within 1 year from the date of restoration the offender gets convicted of another DUI (or “equivalent offense” the suspension will be reinstated.

 

The following offenses constitute “equivalent offenses” for purposes of the statute: Physical Control Offenses(O.R.C. 4511.194); Misdemeanor OVI convictions (both test and refusal cases); Boating Under the Influence; OVUAC(underage/juvenile OVI); DUID (driving under the influence of drugs); OVI while operating under a Commercial Driver’s LicenseVehicular Assaults(including aggravated vehicular assaults); Vehicular manslaughterInvoluntary manslaughter with alcohol; Vehicular homicide (including aggravated vehicular homicide);

If you face placement on Ohio’s Habitual Offender Registry, please CONTACT Dayton Ohio DUI lawyer Charles M. Rowland II at 937-318-1DUI (318-1384), 1-888-ROWLAND (888-769-5263), or text DaytonDUI (one word) to 50500. www.DaytonDUI.com has proudly served Dayton and the Miami Valley since 1995.  He has been featured in both Time Magazine and Car & Driver Magazine for his leading role in DUI Defense. “ALL I DO IS DUI DEFENSE

Driving Privileges: Hard Time

May 8th, 2013

15 days if you took the test, 30 days if you did not (First Offense)

Seal of the Ohio Bureau of Motor Vehicles Source

If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breath, blood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The ALS is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court.  A court may not grant driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test.

First Offense Midemeanor OVI Failed Chemical Test R.C. 4511.191(C): Occupational driving privileges cannot be granted during the following periods in test cases:

  • First 15 days of suspension on a first offense
  • First 30 days of suspension on a person who had a prior OVI or refusal within 6 years.
  • First 180 days for a person who has had 2 prior OVI/refusals within 6 years.
  • First 3 years of suspension on a person who had 3 or more previous OVI/refusals within 6 years

First Offense Misdemeanor OVI Refusal R.C. 4511.19(B): Occupational driving privileges cannot be granted during the following periods in refusal cases:

  • First 30 days of suspension on a first offense.
  • First 90 days of suspension on a person who had a previous refusal within 6 years.
  • First year of suspension on a person who had 2 previous refusals within 6 years.
  • First 3 years of suspension on a person who had 3 previous refusals within 6 years.
  • A person, who within the preceding 7 years, has been convicted of or pleaded guilty to 3 or more OVI violations cannot be granted limited privileges.

One of the first conversations you should have with your OVI lawyer will involve wether or not grounds exist for an appeal of the ALS.  You will discuss the limited circumstances under which an Administrative License Suspension can be challenged.  The court must hold the administrative license suspension hearing within five days of arrest.  You only have 30 days from your arraignment to file an appeal of the Administrative License Suspension. The scope of appeal is confined to four issues:

 1. Was your arrest based on reasonable grounds? 

2. Did the officer request that you to take a test? 

3. Were you made aware of the consequences if you refused or failed the test? 

4. Did you refuse or fail the test?

Charles M. Rowland II is familiar with the case law relevant to determining if an ALS appeal would be beneficial in your case.  He will check to see if the 2255 form (the yellow piece of paper you were given) was notorized.  The BMV must receive a notarized sworn copy of the 2255.  If the form is not executed as required by law, then he can bring that to the court’s attention and request that the ALS be terminated or stayed.  It is important to discuss whether or not you were able to produce the requested sample.  If you have a verifiable medical condition the Administrative License Suspension may not be plausible in your case.  No matter what the circumstances, Charles M. Rowland II will help secure you limited driving privileges for work or for school after the HARD TIME has passed.

Much confusion is caused by the fact that the Administrative License Suspension is a pre-trial suspension generated by the Ohio Bureau of Motor Vehicles.  The warnings given by the arresting officer are misleading.  Often a client will come to our office under the misimpression that the worst case scenario will be a 90 day suspension.  If our client refused a chemical test, they believe they are condemned to a one year suspension.  This is not usually the case.  Upon a plea to a reduced charge (such as Reckless Operation) or to an OVI,  the Administrative License Suspension will be terminated and the court will impose its own suspension.   The minimum mandatory suspension for a first OVI offense is six months.  This will horrify the person who believed that they were facing 90 days, but a welcome relief to people who thought they were going to have a one year suspension.

According to the Ohio BMV, the ALS Refusal Suspension will be terminated by the registrar upon notice that:

  • The person entered a plea of guilty to OVI and the refusal suspension arose from the same incident.
  • The person entered a plea of no contest to OVI, was found guilty and the refusal suspension arose from the same incident.

To make matters even more confusing, any suspension ordered by the Court is given a “class” numerical representation and any suspension given by the Ohio Bureau of Motor Vehicles is given a “letter” designation.  Here are the lists of the different “CLASSES” of suspensions in Ohio. See R.C. 4510.02(A) and R.C. 4510.02(B).

COURT SUSPENSIONS

  • Class 1: Lifetime
  • Class 2: 3yrs to life
  • Class 3: 2 – 10yrs
  • Class 4: 1 – 5yrs
  • Class 5: 6mos. – 3yrs.
  • Class 6: 3mos – 2yrs.
  • Class 7: “a definite period” – 1yr

BMV SUSPENSIONS (Note: all for a fixed length)

  • Class A: 3 yrs
  • Class B: 2 yrs
  • Class C: 1 yr
  • Class D: 6 mos
  • Class E: 3 mos
  • Class F: until conditions are met

It is advisable that you speak with Charles Rowland at the imposition of your suspension as many courts offer programs (at little or no cost) that help you get valid.  DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, 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.

Prior Convictions Used To Enhance An OVI

March 20th, 2013

English: Main section of prisoners' call block...

It is not uncommon for a client to choose my representation on a second, third, or fourth OVI offense.  One of the first things we check is whether or not the client was represented by an attorney in the previous convictions.  We also check to see if the prior plea had a valid waiver of counsel.  Both of these issues were addressed by the Ohio Supreme Court in State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533, 863 N.E. 2d 1024 (2007), wherein the Court stated:

Generally, a past conviction cannot be attacked in a subsequent case.  However, there is a limited right to collaterally attack a conviction when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.  A conviction obtained against the defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel, has been recognized as constitutionally infirm.

The case law following State v. Brooke has led to many cases which result in client’s not having a subsequent OVI enhanced.  This area of law is fact dependent and your attorney should make a thorough review of the law in your court and appellate district when pursuing this line of collateral attack.  The Ohio Supreme Court has set forth precedent that it is the defendant’s responsibility and burden to make a prima facie showing of a defect in the prior plea.  Upon this prima facie showing, the burden shifts to the state to rebut the evidence by showing that the plea did, in fact, contain a valid waiver of counsel.  See State v. Thompson, 2007-Ohio-6098 (Ohio Ct. App. 5th Dist. Fairfield County 2007). 

In 2007, the Ohio Legislature passed 2007 Am. Sub. S.B. 17 which added 2945.75(B)(3).  The purpose of this law was to overrule the law set forth in State v. Brooke which required the defendant to raise a prima facie showing and instead, place on the defendant the burden of proving by a preponderance of the evidence that the prior plea was infirm.  As Judge Weiler points out in Ohio Driving Under The Influence Law, 2011-2012 ed., pp. 402, “It will undoubtedly be challenged in the future as a violation of procedural due process. But, it will be some time before the matter reaches the appellate level and even longer before it is reviewed by the Ohio Supreme Court.”

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in FairbornSpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, 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.