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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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Posted in DUI Case Law, DUI Out-of-State

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Ohio DUI Law: Your Right To A Speedy Trial

February 15th, 2012
Speedy gonzalez2

Your right to a speedy and public trial is enshrined in the Bill of Rights.  The Sixth Amendment to the United States Constitution provides,

“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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” 

The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.  Ohio Revised Code 2945.71 sets forth Ohio’s statutory rules regarding speedy trial rights which are coextensive with the constitutional speedy trial provisions.  State v. King (1994), 70 Ohio St. 3d 158, 161.  According to O.R.C. 2945.71, a defendant must be brought to trial as follows:

  1. Within forty-five days after the person’s arrest or the service of summons, if the offense charged is a misdemeanor of the third or fourth degree, or other misdemeanor for which the maximum penalty is imprisonment for not more than sixty days;
  2. Within ninety days after the person’s arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.
  3. Within two hundred seventy days after the person’s arrest for any felony.
  4. Most municipal ordinances and the Ohio Revised Code codify a misdemeanor OVI as a first degree misdemeanor requiring trial within 90 days of arrest.  An OVI arrest designated as a felony (four or more) requires trial within 270 days of arrest.  If a defendant is not tried within these time parameters, the case must be dismissed.
HOWEVER, there are a number of ways for the statutory time to be “tolled” against the Defendant.  The most common tolling mechanism  is for the Defendant (or his attorney)  to consent to a TIME WAIVER.  ”A defendant’s right to be brought to trial within the time limits expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial preparation and the defendant is bound by the waiver even though the waiver is executed without his consent.” State v. McBreen (1978), 54 Ohio St. 2d 315 (syllabus), see also State v. McRae (1978), 55 Ohio St. 2d 149, 151; State v. Davis (1975), 44 Ohio App. 2d 95.  Also, the filing of  ”[a] demand for discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E).”  State v. Brown, 98 Ohio St. 3d 121, 2002-Ohio-7040.  Time is also tolled if the court is busy or otherwise unable to conduct a trial due to the “business of the court.”  This delay must be reasonable.
Often, complicated speedy trial issues will be raised following a lengthy or complex motion to suppress.  For example, reasonable was determined in State v. Arizola (1992), 79 Ohio App. 3d 72 wherein “time is not tolled when court takes an excessive amount to time to rule on pretrial motions filed by the defense (seven months in an OMVI case).”  See also State v. Mullins, 152 Ohio App. 3d 83, 2003-Ohio-477 (Court granted defendant’s motion to suppress statements 635 days after the evidentiary hearing. Constitutional right to a speedy trial was violated. A court’s discretion as to the time needed to rule on a defense motion is not limitless, and no explanation was given for the delay.)
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 Has Declared War on Drunk Drivers

February 13th, 2012

In 1982, Ohio declared “WAR” on drunk driving.  Since that time Ohio has devised one of the toughest DUI systems in the nation.  By creating a civil penalty called an automatic license suspension, even a first time DUI results in an immediate loss of your “right” to drive.  A conviction can result in a jail sentence ranging from the mandatory minimum three days to a maximum of six months and a minimum fine of $375.00 up to $1,075.  Conviction of a first time DUI will result in a license suspension lasting from six months to three years.  If a driver takes a chemical test in which the result is over a .17% BAC, the fines and jail time will be doubled.  This means that a first time offender faces six days mandatory incarceration, a minimum one-year license suspension and a minimum $750 fine. 

The mandatory jail time, fines and suspensions grow increasingly harsh upon subsequent convictions.  A second offense carries a minimum 10 days of jail, 20 if the defendant refuses to take a test or tests over a .17% BAC.  Ohio has also devised a law that allows law enforcement to force a blood draw “by any means necessary” for repeat offenders.  In order to obtain driving privileges, a second-time DUI defendant must buy “party plates” and put them on any car they may drive.  They must also pay for an interlock ignition devise into which they must blow before starting their car.  Conviction of a third DUI offense within a six-year period carries a mandatory jail sentence of 30 days (double for “high-tier” offenders) and the car used in the offense will be forfeited to the state.  A fourth offense is a felony carrying mandatory prison time.

In addition to these provisions of law, Ohio allows law enforcement to conduct sobriety checkpoints.  Commercial (CDL) drivers who obtain a DUI conviction face a loss of their CDL for one year and, if convicted a second time will lose their right to drive for life.  Conviction will be on your record forever as Ohio does not allow expungement for DUI in most cases and law enforcement is allowed to look back twenty years to force a blood draw should you refuse.  A DUI is always lurking to prevent you from getting a job, a promotion, a company car or a state license.  A DUI can ruin your life.  Diminishments in civil liberties are always a casualty of war and Ohio’s war on drunk driving has been no exception.  You need an attorney who will fight with the same level of passion the state demonstrates in prosecuting you.

DUI is a complex and constantly evolving field of law.  Some cases involve scant physical evidence and require a skilled trial attorney to know the investigative techniques the police use and possess the skill to challenge a cop’s opinions effectively.  Other cases involve a detailed understanding of the chemical testing technique and the forensic science underlying the BAC result.  You need an attorney who has the experience and knowledge necessary to defend your freedom and livelihood.  We fight! We fight against junk science, false convictions, and faulty assumptions.  We fight for families, for jobs and for fairness in the judicial system.

I am committed to being the best DUI attorney in Ohio.  I have spent countless thousands of hours honing my skills.  I have read everything I can read and attended seminars to hear the best attorneys in the country.  I have taken the same classes that law enforcement officers take to master the standardized field sobriety tests.  I have earned certifications on the BAC DataMaster and the Intoxilyzer 8000 breathalyzer machines.  I am the only attorney in Ohio to hold Forensic Sobriety Assessment certification and I have been qualified as an expert in evidential breath testing by the United States government, testifying in court martial proceedings.  I have tried DUI cases as both a prosecutor and a defense attorney giving me unique insights into how to prepare a case.  Everything that I have done is summed up in one phrase: “All I do is DUI.”

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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Arrested For OVI in Miamisburg? West Carrollton? Miami Township?

February 9th, 2012

If you are arrested on suspicion of OVI (drunk driving) in Miamisburg, West Carrollton,Germantown, German Township or Miami Township, your misdemeanor DUI case will be heard in the Miamisburg Municipal Court.  The Honorable Robert W. Rettich III  was elected the Miamisburg Municipal Court judge in the general election on November 8, 2011.  He was sworn into office on December 30, 2011. The Court is served by Magistrate Margaret Quinn and Chief Bailiff Kirk J. Bell.  The Miamisburg Municipal Court, located at 10 N. First Street, Miamisburg, Ohio 45342, serves a population of over 80,000 and handles in excess of 15,000 cases per year.  The court is open Monday through Friday, 8:00 am — 4:00 pm and can be reached at (937) 866-2203.  The Miamisburg Municipal Court has a very good web site that you can access at www.miamisburgcourts.com.  Follow the links below to utilize popular aspects of the Court’s site:

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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