Posts Tagged ‘arrest’

Bloodshot and Glassy Eyes Are Not Clues of Impairment

September 15th, 2011
Seal US DOT

In almost every DUI I have encountered, the arresting officer has indicated that the alleged drunk driver had “bloodshot” or “glassy” eyes.  We challenge the officer by pointing out that he has never seen the defendant before and has no idea whether or not the defendant was engaging in activity that would logically cause bloodshot eyes (fatigue, being in a smoky environment, etc.).  This would usually end cross-examination on this issue and the officer would be able to establish an important factor in deciding whether or not to remove the driver for standardized field sobriety testing. (Phase II of the NHTSA DUI Investigation) It turns out that NHTSA has conducted a study which could really help out.  NHTSA has discounted these clues as prejudicial and irrelevant to determining intoxication. NHTSA released a report in 1997 that removes all of these clues as indicators of impairment. The materials provide an excellent resource for cross-examination of an arresting officer. Specifically, the report states:

“Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.” Jack Stuster, U.S. Department of Transportation, NHTSA Final Report, The Detection of DWI at BACs Below 0.10, DOT HS-808-654 (Sept. 1997), p. E-10.

Charles M. Rowland II has dedicated his practice to representing the accused drunk driver.  His commitment includes continuous study of the forensic sciences and legal strategies that will help you win your DUI case.  If you find yourself in need of a qualified and experienced Ohio OVI attorney, CONTACT Charles M. Rowland II at (937) 318-1DUI or 1-888-ROWLAND.

Nonstandardized Field Sobriety Tests

September 13th, 2011

Ohio has adopted the three-test field sobriety protocol as set forth in the National Highway Traffic Safety Administration (NHTSA) manual for training law enforcement officers.  The three tests adopted by NHTSA all survived scientific scrutiny as being indicative of impairment.  The tests are: (1) horizontal gaze nystagmus, a test of the subject’s eyes; (2)  walk & turn; (3) one-leg-stand.  The officer is trained to administer the tests in a standardized fashion and record “clues” of impairment as evidenced by the subject’s performance on the tests.

Often, you will encounter a circumstance where the officer employs an non-standardized field sobriety test.  These tests may include nonscientific “techniques”, some of which are described in the NHTSA manual, and can include a finger dexterity test, an alphabet test, a counting test or some other form of confusing coordination test.  Some jurisdictions still employ a thoroughly discredited test which requires the subject to tilt their head back and touch the tip of his finger to the tip of his nose.

The first step in challenging the officers decision to employ non-standardized tests is to determine why the officer is employing the tests.  Ohio has set forth eleven (11) factors that courts consider in determining whether or not the officer has established reasonable and articulable suspicion of drunk driving sufficient to request that the suspect step from the car.  See State v. Evans, citation omitted.  It is appropriate pursuant to the NHTSA manual to employ the above-described “techniques” at this phase of the officer’s investigation.  Your DUI attorney will know how to use cross examination to establish that there were omissions in the officers investigation, or that the officer lacked the legal standard necessary to ask you to step from the car.

If, however, the officer is using the tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O'Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

If you find yourself needing the assistance of a qualified Ohio DUI lawyer, contact Charles M. Rowland II at (937) 318-1DUI or 1-888-ROWLAND.  Charles Rowland has taken the same NHTSA approved training as law enforcement, is Ohio’s only Forensic Sobriety Assessment certified attorney and has honed his skills as both a defense attorney and a prosecuting attorney.  Please visit www.DaytonDUI.com to find out more.

Arrested for DUI? What Can You Do Now To Protect, Educate and Empower Yourself

June 1st, 2011
Speedcuffs Handcuffs Rear Back Behind Handcuff...

What do I do now?  Being arrested for DUI is a frightening and traumatic experience.  Our clients often struggle to deal with the stigma and shame associated with a DUI arrest.  Many strong people are brought to tears when telling a loved-one about their arrest.  Complicating matters is an palpable sense that everything is spinning out of control.  Charles Rowland and the staff at DaytonDUI have been helping people through this process for over fifteen years.  We want to reassure you that your DUI case can be successfully managed.  Like any other crisis, it is imperative that you take steps to PROTECT YOURSELF, EDUCATE YOURSELF and EMPOWER YOURSELF.  Below are some helpful steps that you can take to begin the process of putting a DUI arrest in perspective.

1. PROTECT YOURSELF

As soon as possible after your arrest, take time to write down every single detail of that you can remember.  Sometimes critical pieces of a defense can be found in details that may be forgotten if not recorded immediately.  Start with a time-line or chronology.  What were you doing prior to drinking? When did you start drinking?  How was your health in general on that day?  Did you work out earlier in the day?  Were you around any chemicals?  When did you last sleep?  What do you remember watching on television that day?  Did you make any cell phone calls or have text chats?  When did you last eat and what was it?  What cologne or aftershave lotion did you use that day?  What kind of shoes were your wearing?  Other important areas of consideration include what medications or drugs you ingested prior to driving.  Do you take prescription medication? Do you regularly smoke cigarettes or marijuana?  Did you use breath spray or tic-tacs or tobacco?  Who did you see that day?  Could you have visited a store with a video surveillance camera?  Do you know the bartender who served you?  How was your car operating that night or day?  Think of this first step as establishing what happened before you came in contact with law enforcement.

Next comes the “during arrest information.”  Yes, it may be painful, but try to write down everything that you can remember when you were stopped by law enforcement.  When did you first notice the officer following you?  What was your reaction?  Were you using a cell phone or texting (which may explain swerving), or were you oblivious to the officer until he turned his lights on.  Did you have anything in your mouth?  Often, the location of your stop can provide powerful assistance to your attorney.  Was it a busy road?  What were the conditions?  Was the roadway wet, slick, slanted, pot-holed?  Your memory may tempt you to focus on the administration of the standardized field sobriety tests, but many law enforcement decisions are made prior to asking you to step from the car.  The officer writes these important details in his report.  Make sure your attorney knows your version of events.  Remembering what you and the officer said is vital to establishing your defense.  Details of what happened at the station are also important.  How long were you in the cruiser?  How many officers were on the scene?  Who, if anyone, searched your car?  At the station, where were you placed prior to the test?  What, if anything, was read to you by the officer?  Try to be as precise as possible and write down exact quotes when you remember them.

Another way to protect yourself is to take pictures of your car and of the location of the stop.  The location may be vital in any number of ways in establishing the validity of the field tests and may possibly explain your driving habits on that roadway.  If the officer alleges that your tail light was out, or that your license plate light was inoperable, pictures taken shortly after the incident may exonerate you.

Do not drive!  If your license has been suspended you should protect yourself by arranging for transportation for at least two weeks.  Taking a taxi, or the bus, or just huffing it is less cumbersome than an additional charge of driving under a DUI suspension which carries additional mandatory jail time in Ohio.  You should also find out what ramifications will take place at your job.  If you have a CDL, you cannot drive under the CDL until the charges are resolved.  Active-duty military personnel also have obligations which may prove difficult without a license.  Losing your right (it’s not a privilege in my opinion) to drive is terrible.  It is my opinion that, to many people, the pre-conviction suspension is the worst punishment that they will incur in the entirety of this experience.  Address your particular situation with a qualified and competent DUI attorney.

Reasonable doubt comes from the recollection of events in a coherent and believable manner.  Protect yourself by taking the time to record what happened and by acting responsibly.

2. EDUCATE YOURSELF

DaytonDUI.com was started with the intent that you could find reliable information that would allow you to evaluate your case and choose an attorney.  Education about your charge will make you better equipped to find the attorney that is right for you.  A good place to start is the article “How to Hire a DUI Attorney” [linked HERE].  Ask everyone you know if they have had good or bad experiences with a particular attorney.  Talk to attorneys on the phone.  Meet with them in person.  Educate yourself about the particular court that you are going to, and the prosecutor, and the location of the court.  Check the credentials of the DUI attorneys in your area. [See HERE for a biography of Charles M. Rowland] Sometimes the scariest part of your DUI experience will be not knowing what the court process is like.  Good attorneys will try to help you by answering your questions and not trying to take advantage of your vulnerability at this critical time.  [See HERE for a video of Charles M. Rowland II explaining the Court Process].

My dad always said, “If you know how somebody gets paid, you’ll never get ripped off.”  Have a discussion with potential attorneys about how they expect to get paid and what you can expect for that service.  Ask who will be handling your case; will it be the attorney you are meeting with or an associate.  Ask how many cases they have tried in that court and whether or not they will listen to what you want.  One-size fits all is great from some things, but not for legal services.  Take control and get what you pay for.

Educate your self about your circumstances and your options so that the DUI experience is less traumatic.

3. EMPOWER YOURSELF

Some people come to my office, drop the ticket on my desk and expect me to take care of it.  Others want to understand every aspect of a DUI case from beginning to end.  I will work to make sure that you are taken care of in a manner that meets your expectations.  I will conform to what you need your attorney to be.  Now is not the time to retreat into yourself, but you must call on your inner champion to make the best decisions possible under the circumstances.

Everything we do at DaytonDUI is designed to provide you with a sense that your case is going to be handled to the best of our ability.  We have a great staff, good on-line and printed material, the best DUI library around and a proven track record.  We want you to win your case and put a bad experience behind you.  If you want to find out more, please check our blog or call Charles M. Rowland II at 937-318-1384 or 1-888-ROWLAND.

“Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.” -Arnold Schwarzenneger-

Dayton OVI Sobriety Checkpoint Update: July 17, 2010

July 17th, 2010

I have checked with all of our regular sources and there appears to be no sobriety checkpoints scheduled tonight in the Miami Valley.  There will be two checkpoints tonight in Cincinnati.  The first will be from 9-11 pm, on North Bend Road.  The second OVI checkpoint will be from midnight until 2 am on Colerain near Blue Spruce.  The Clermont County checkpoint will be on Rt. 52 near mile marker 7 (in Neville) from 4-8pm.  The underlying theory of OVI checkpoints is not to arrest drunk drivers but to instill fear of arrest in the law-abiding public.  By advertising these sites, law enforcement instills a state of general deterrence.  To that end, it is a requirement of the checkpoint protocol that the times and locations be advertised in the local media.  Most checkpoints result in more seatbelt and insurance tickets than drunk driving arrests.  Saturation patrols rely on traditional American notions of reasonable suspicion and probable cause and are much more effective at catching drunk drivers than random checkpoints.  Isn’t it time that Americans stood up and said NO to ineffective, un-American, tactics and freed our diminishing police resources on more effective measures.  Playing politics with law enforcement to appease special interest groups [like MADD] is soooo 1999!

Charles M. Rowland II is passionate about OVI defense and limits his practice to representing the accused drunk driver.  If you need a Dayton DUI defense attorney who will bring every tool at his disposal to your defense, CONTACT Charles Rowland today at 937-318-1DUI (318-1384), 1-888-ROWLAND (888-769-5263), by texting DaytonDUI (one word) to 50500, by e-mail at CharlesRowland@Charles Rowland.com or by visiting www.DaytonDuI.com.

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OVI Arrest Decisions and Pre-Exit Techniques

June 18th, 2010

What Level of Proof Does Law Enforcement Need to Pull You From Your Car For Standardized Field Tests?

One of the major decision points in the OVI arrest process is the officer’s decision to remove a suspect from his or her car and conduct standardized field sobriety testing. The officer is trained to arrive at this “decision point” by conducting an interview and using specific “pre-exit interview techniques” which include asking for two things simultaneously; asking interrupting or distracting questions; and asking unusual questions. (NHTSA Student Manual VI-4).  Additional techniques which an officer may employ include and Alphabet test (begin with E and end with P); a Countdown test (count out loud backward starting with 68 and ending with 53); and the Finger Count test (touch the tip of the thumb in turn to the tip of each finger while simultaneously counting).  Absent evidence of intoxication adduced at this point in the investigation, the officer lacks reasonable and articulable suspicion to allow him to request you to step from the car. (NHTSA Student Manual, VI-4, VI-5, VI-6).

In State v. Evans (11th Dist 1998), 127 Ohio App.3d 56, the Court cites factors to determine if an officer has reasonable articulable suspicion of driving under the influence: (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.  Citing five factors present in this case, the Court concluded the officer did have reasonable and articulable suspicion of driving under the influence.

An Ohio OVI lawyer should be prepared to challenge the officer’s determination of reasonable and articulable suspicion.  Make sure the Ohio OVI lawyer you choose has the most recent copy of the National Highway Transportation Safety Administration, Student Manual.  Charles M. Rowland has all such manuals and has received the same level of training in the standardized field sobriety tests as law enforcement.  He has furthered his education by being Ohio’s only Forensic Sobriety Assessment certified attorney which goes beyond the NHTSA manual to investigate the science (pseudo-science) of the tests.  If you need an attorney who has worked hard to achieve the highest level of training possible, contact Charles M. Rowland II today at 937-318-1DUI (318-1384), 1-888-ROWLAND or www.DaytonDUI.com.

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