Tag Archives: dayton dui

Dayton DUI attorney Charles Rowland specializes in DUI / OVI defense for the accused drunk driver in Ohio.

OVI Trial Practice: Admission of the Alcohol Influence Report

alcohol influence report

The Alcohol Influence Report is a document prepared by the arresting officer noting each and every indicator for alcohol impairment that they took note of in their investigation.  Most of the forms require that the officer simply check the predetermined indicator.  Not surprisingly, all the officer’s observations fall neatly into these predetermined areas. The report is a document of the officers opinions and should not be considered routine ministerial reports of a non-adversarial nature.   Clearly, letting the jury have this document as evidence to review in the jury room would be prejudicial to an OVI defense.

Evidence Rule 803(8) excludes the alcohol influence report from evidence.  It states, in pertinent part:

RULES OF EVIDENCE

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.

Some courts have found that admissions of the forms is reversible error. State v. Joyce, 1998 WL 315913 (Ohio Ct. App. 1st Dist. Hamilton County 1998); State v. Weaver, 1985 WL 4343 (Ohio Ct. App. 10th Dist. Franklin County 1985); State v. Nightwine, 1982 WL 6042 (Ohio Ct. App. 12th Dist. Preble County 1982).  See also Ohio DUI Law, Weiler & Weiler  2013-2014 ed. at 439.

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.”

To learn more about the alcohol influence report check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville, Alcohol Influence Report 

Driving Is A Right Not A Privilege

driving is a rightDriving Is A Right!

Have you ever been told that “driving is a privilege?” Bah! This author argues that the DUI case law needs to be expanded to include “driving” as a fundamental right under the First Amendment’s Freedom of Assembly. Thus, the analysis should be under the substantive due process analysis not simply under the procedural due process analysis. Because the human rights of freedom of movement, right to earn a living and the right to peaceably assemble are only capable of being maintained with a valid driver’s license, the Court should require a more rigorous standard before depriving someone of this basic right. The right to drive is a fundamental right that is deeply rooted in American history and tradition. Why is it important to establish driving as a fundamental right? Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest.

I base this claim on cases decided in the United States Supreme Court.  DUI case law analysis at the United States Supreme Court provides that driving is not “just” a privilege as alleged and assumed by most Ohioans. You may have heard the expression that a driver’s license is “a privilege — not a right”, and thus there were few effective remedies available to a driver who wished to contest a suspension. The U.S. Supreme Court changed that in Bell v. Burson, 402 U.S. 535 (1971), recognizing that a license’s “continued possession may become essential in the pursuit of a livelihood”. Because of their value, then, they “are not to be taken away without that procedural due process required by the Fourteenth Amendment”. The Court premised its opinion on the Fifth and Fourteenth Amendments protections that neither the State or Federal government can deprive a person of life, liberty or property without due process of law. Without this decision it is likely that the police would confiscate your license without any recourse in or appeal. See also, Mackey v. Montrym (1979) 443 U.S. 1, involving a license suspension for refusing to submit to a DUI breath test.  But they need to go further.

To understand why driving is a right in light of DUI case law, it is important to understand how the United States Supreme Court analyzes due process issues.  “The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the Bill of Rights. Through a process known as “selective incorporation,” the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the Second Amendment right to bear arms, the Third Amendment right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have “selectively incorporated” the Bill of Rights into the Due Process Clause.

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. Legal History. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from Arbitrary impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination. Id.  Let’s get driving, freedom of movement and freedom of assembly to be included as a fundamental liberty.

Attorney Charles M. Rowland II believes that driving is a right and 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.”

To help make sure driving is a right call me or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

DUI Law: What Did SCOTUS Say In Missouri v. McNeely

dui lawIf you have been following developments in DUI law, you have no doubt heard about the United States Supreme Court decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013).  The case deals with when, and under what circumstances the government is required to seek a warrant prior to drawing blood from a suspected DUI offender. Below is a quote from the case which provides a reasonable (and short) analysis of the case.  If you want to read the full opinion please click on the case name above.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per seexigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

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 and DUI law 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 DUI law check these city-specific sites at the following links:

FairbornDayton DUI LawSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

Determining Probable Cause For An OVI Offense

probable causeA warrantless arrest must be supported by probable cause in order to be constitutionally valid. State v. Timson, 38 Ohio St.2d 122, 67 Ohio Op.2d 140, 311 N.E.2d 16 (1974).  In order to make a finding that probable (more likely than not) cause existed the court must look at the totality of the circumstances surrounding the arrest. State v. Miller,  117 Ohio App.3d 750, 691 N.E.2d 703 (11th Dist. Court of Appeals 1997), State v. Brandenburg, 41 Ohio App.3d 109, 534 N.E.2d 906 (2nd Dist. Court of Appeals, Montgomery County 1987). “[B]ecause of the mosaic which is analyzed for a …probable cause inquiry is multi-faceted, ‘one determination is seldom useful precedent for another.'” State v. Anez, 108 Ohio Misc.2d 18, 27, 738 N.E.2d 491 (2000) citing Ornelas v. United States, 517 U.S. 690, 698, 116 S.Ct. 1657, 1663, (1996) quoting Illinois v. Gates, 462 U.S. 213, 280, 103 S.Ct. 2317, 2332 (1983).

In an OVI case filed pursuant to O.R.C. 4511.19, the court must consider the following in making a determination:

  1. whether at the moment of arrest;
  2. the police had sufficient information
  3. derived from a reasonably trustworthy source of the facts and circumstances
  4. sufficient to cause a prudent person to believe
  5. that the suspect was driving under the influence

These factors are set forth at State v. Homan, 89 Ohio St. 3d 421, 427, 2000-Ohio-212, 732 N.E.2d 952 (2000), superseded by statute, State v. Bozcar, 2007-Ohio-1251, 113 Ohio St.3d 148, 863 N.E.2d 155 (2008) citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964); State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974).  It is clear from these cases that probable cause is a high standard that the government must meet in order to prosecute an OVI offense.

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.”

To learn more about probable cause contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

A Motion To Suppress Is Vital In An Ohio DUI Case

motion to suppressIn State v. French, 72 Ohio St. 3d 446, 1995-Ohio-32, 646 N.E. 2d 887 (1995), the Ohio Supreme Court held that a pretrial motion to suppress is the only way to challenge the admissibility of a chemical test.  If not filed, the results will be automatically admissible at trial.  The prosecuting attorney will not need to lay a foundation and any objection by the defense as to their admission will be overruled by the judge.  This makes choosing an experienced DUI attorney vital to your case as they will know what to challenge in a pretrial suppression motion.

A motion to suppress is one of the most important tools in a DUI attorney’s arsenal. It’s purpose is to render “the state’s proof … so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.” State v. Davidson, 17 Ohio St.3d 132, 135, 477 N.E.2d 1141 (1985). If successful, a motion will likely end the case in favor of the defendant.

The motion is the defendant’s challenge to crucial aspects of the State’s case, which may include challenges to:

  • the reason for the initial police contact;
  • the reason for asking the defendant to exit the car;
  • the reason for administering the standardized field sobriety tests;
  • the administration of the field sobriety tests;
  • the 20 minute observation period before the chemical test;
  • the administration and time frame of the chemical test; and
  • the results of the chemical test.

Ancillary benefits of a motion to suppress include the ability to see and hear the officer testify about the arrest. The officer may be an exceptionally good or bad witness. The state may or may not choose to pursue certain aspects of the case based on the testimony. Further, the motion hearing may prove to be a valuable discovery tool. From a purely strategic standpoint, a motion to suppress demonstrates to the State that you are committed to your client’s position and will do whatever it takes to prevent a DUI conviction.

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.”

For more information about a motion to suppress contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville