Posts Tagged ‘dayton dui law’

The Ohio “Clear and Convincing Evidence” Standard

February 27th, 2014

clear and convincing evidence

Clear and Convincing Evidence is required for the standardized field sobriety tests to be admitted. Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests in substantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

Clear and convincing evidence  is defined  in In re Chappell (1938), 33 N.E.2d 393, 397, as “…that degree of proof which will produce in the mind of the court a firm belief or conviction of the truth of the charges and specifications sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph 3 of the syllabus: “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required by ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts to be established.” Also see Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St. 3d 176, 180-181; In re Meyer (1994), 98 Ohio App. 3d 189, 195; Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121, 122; In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368; In re Brown (1994), 98 Ohio App. 3d 337, 342-343.

Ohio DUI 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 clear and convincing evidence and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Dayton DUI Attorney Charles M. Rowland II

February 26th, 2014

Dayton DUI AttorneyDayton DUI attorney Charles M. Rowland II serves the Dayton Municipal Court.

If you are arrested on suspicion of  drunk driving in the City of Dayton, your misdemeanor case will be heard in the Dayton Municipal Court.  The Dayton Municipal Court is located at 301 West Third Street Dayton, Ohio 45402.  You can visit the Dayton Municipal Court’s website at: www.DaytonMunicipalCourt.org. Office hours for the Clerk of Court are 8:00am to 4:30pm, Monday through Friday, excluding holidays, for the acceptance of case filings and payments. Parking, Traffic and Criminal payments can also be paid online at www.PayMyFine.org.  A full list of contact numbers is available on the Court’s website and the Clerk can be reached at (937) 333-4300.  Five full-time elected judges, selected on a nonpartisan ballot to serve for a six-year term, serve the Dayton Municipal Court.  Currently the serving judges are: The Honorable Chris Roberts, The Honorable John S. Pickrel, The Honorable Daniel Gehres, The Honorable Carl S. Henderson and The Honorable Dierdre Logan. Two full-time Magistrates who hear certain civil cases, small claims cases, eviction procedures and initial appearances for defendants summoned in for arraignment also serve the court. They also preside over traffic and criminal cases.  The jurisdiction of the Court includes everything within the boundaries of the City of Dayton. The court has jurisdiction over a violation of any ordinance of the City of Dayton; any state of Ohio statutory misdemeanor or traffic violation committed in Dayton; and jurisdiction to preside over preliminary hearings for felony cases that occur in the City of Dayton.  Call Dayton attorney Charles M. Rowland II to help you with your Dayton DUI case.

Dayton DUI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio and protecting you.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Dayton DUI attorney 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 emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Dayton DUI Attorney information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

MADD’s Agenda For Ohio Is Announced

February 25th, 2014

MADD s agenda for OhioOver the last decade we have learned MADD’s agenda for Ohio via its “Campaign To Eliminate Drunk Driving.”  Their legislative and lobbying efforts have focused on three areas.

  • Support for high-visibility law enforcement activities
  • Legislation requiring ignition interlocks for all convicted drunk drivers
  • Development of automotive technologies for passive alcohol detection

MADD’s agenda for Ohio includes continuing the ineffective and expensive OVI checkpoint approach that is accompanied by a large budget media campaign.  This year, MADD’s agenda for Ohio included a buy-in on their media blitz to announce the new ROBOCOP movie.  As could be expected, they want to expand on this concept.

MADD’s agenda for Ohio includes a push for expanded use of interlock ignition devices. Currently, ignition interlock 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 interlock devices on hundreds of thousands more vehicles.  Currently, only 20 states require the devices for anyone convicted of a drunken driving-related offense.

MADD’s agenda for Ohio includes working with major insurance companies and automobile manufacturers to get a passive alcohol system (called DADDS) as mandated equipment in every automobile in the world.  In 2008, at MADD’s urging, the Automotive Coalition for Traffic Safety entered into a $10 million agreement with the federal government to develop such a technology. This system would  search every driver (not just convicted DUI offenders) every single time they started their car.  This year, MADD’s power as one of the nation’s leading lobbying groups resulted in a provision in the Senate transportation bill to ““more widespread deployment of in-vehicle technology” that would prevent drunken driving.  The research will be carried out by the Driver Alcohol Detection System for Safety, a collaboration between NHTSA and the automobile industry.

In a report released earlier this month, MADD set forth “grades” for each state given for the following agenda items:

  • Requiring ignition interlocks for all convicted drunk drivers
  • Conducting sobriety checkpoints
  • Creating enhanced penalties for those who drive drunk with children in the vehicle
  • Participating in “no-refusal” activities for those suspected of drunk driving
  • Utilizing Administrative License Revocation for drunk driving offenders

That’s right, MADD’s agenda for Ohio includes expanded use of ignition interlock, checkpoints, and forced blood draws.  They have also taken great efforts to make sure that Ohio’s decision makers are notified of their plans.  I call on you to contact your State and Federal representative to give your opinion on these and other important issues in the criminal justice system.

Ohio DUI 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 MADD’s agenda for Ohio and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Snow: What is the Law in Ohio? (by DaytonDUI)

December 9th, 2013

English: Trees covered by snow in Boreal, Cali...

With the return of winter weather, we have received some questions about what constitutes a snow emergency and under what authority a snow emergency can be deemed to exist.  We have also counseled clients who wanted to know what law would circumscribe their behavior during a snow event.  Here is what we learned:

A county sheriff may, pursuant to Ohio Revised Code sections 311.07 and 311.08, declare a snow emergency and temporarily close the state roads and municipal streets within his/her jurisdiction when such action is reasonably necessary for the preservation of the public peace. Ohio Attorney General’s Opinion 97-015, issued April 1, 1997, concluded that this authority includes state roads, county and township roads and municipal streets.

Ohio law provides for three levels of snow emergency.

Snow Emergency Classifications

LEVEL 1: Roadways are hazardous with blowing and drifting snow. Roads may also be icy. Motorists are urged to drive very cautiously.

LEVEL 2: Roadways are hazardous with blowing and drifting snow. Roads may also be very icy. Only those who feel it is necessary to drive should be out on the roads. Contact your employer to see if you should report to work. Motorists should use extreme caution.

LEVEL 3: All roadways are closed to non-emergency personnel. No one should be driving during these conditions unless it is absolutely necessary to travel or a personal emergency exists. All employees should contact their employer to see if they should report to work. Those traveling on the roads may subject themselves to arrest.

Ohio Revised Code 2917.13 sets forth the crime of “Misconduct at an Emergency.”  Any person who knowingly hampers or fails to obey a lawful order of the sheriff declaring a snow emergency and temporarily closing highways, roads and/or streets within his/her jurisdiction may be subject to criminal prosecution under Ohio Revised Code Section 2917.13, “Misconduct at an emergency” or other applicable law or ordinance. A violation under that section is a misdemeanor of the fourth degree, punishable by a jail sentence not to exceed 30 days and/or a fine not to exceed $250. If the misconduct creates a risk of physical harm to persons or property, it is a misdemeanor of the first degree, punishable by a jail sentence not to exceed 180 days and/or a fine not to exceed $1,000.  Below is the full text of the statute.

ORC 2917.13. Misconduct at emergency.

(A) No person shall knowingly do any of the following:

  • 1. Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person’s duties at the scene of a fire, accident, disaster, riot or emergency of any kind;
  • 2. Hamper the lawful activities of any emergency facility person who is engaged in the person’s duties in an emergency facility;
  • 3. Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer’s duties at the scene of or in connection with a fire, accident, disaster or emergency of any kind.

(B) Nothing in this section shall be construed to limit access or deny information to any news media representative in the lawful exercise of the news media representative’s duties.

(C) Whoever violates this section is guilty of misconduct at an emergency. Except as otherwise provided in this division, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree.

(D) As used in this section:

  • 1. “Emergency medical services person” is the singular of “emergency medical services personnel” as defined in section 2133.21 of the Revised Code.
  • 2. “Emergency facility person” is the singular of “emergency facility personnel” as defined in section 2909.04 of the Revised Code.
  • 3. “Emergency facility” has the same meaning as in section 2909.04 of the Revised Code.

Effective Date: 03-22-2004

To view the state’s weather-related road closures and restrictions, visit the Ohio Department of Transportation’s traffic Web site at www.buckeyetraffic.org.

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”

There’s A New Standardized Field Sobriety Tests “Guide”

November 18th, 2013

standardized field sobriety testsStandardized Field Sobriety Tests are commonly known as the roadside activities that police officers ask drivers to perform if the officer suspects that the driver is impaired by alcohol or another impairing substance. We call them “stupid human tricks.”  Contrary to popular understanding and belief, many of these tests have little basis in science, and the ones that do are frequently performed incorrectly.

NHTSA has developed a new “GUIDE” in assessing Standardized Field Sobriety Tests.  The new (March, 2013) version focuses more on having law enforcement recognize and administer tests to determine impaired driving by substances other than alcohol.  No new scientific studies regarding the scientific validity of the Standardized Field Sobriety Tests are given and no improvements to the process are undertaken. This is the latest in many revisions to the NHTSA Standardized Field Sobriety Testing Manuals (1987, 1992, 1995, 2000, 2002, 2004, 2006 (R2/06 and R8/06 R2/06/09).

Instead of improving the tests, the author’s have decided to take out one of the basic factual components of the entire Standardized Field Sobriety Test scheme – the preface.  Yep, that’s right; the preface has been targeted for change.  Recall the following preface to the most recent NHTSA manual.

The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.

Why target the preface?  It is this author’s opinion that the preface was being used by DUI defense attorneys to place the Standardized Field Sobriety Tests in proper context before the jury in DUI prosecutions.  Just like other areas, the government would rather hide behind words rather than give attorneys defending citizens’ freedom something that has proven to aid jurors in laying bear the problems with these tests. Now more than ever, it is important to have an attorney who understands what they are doing and why they are doing it.  Sadly, many attorneys will never know of the change and more innocent people will be convicted based on pseudo-scientific stupid human tricks.

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 standardized field sobriety tests and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville