Probation in Ohio is now called “community control” and provides for terms and conditions you must comply with in order not to go to jail. Probation requires you to work with a “probation officer” (P.O.) for a given period of time as set by the court. A common misconception is that the probation officer will actively work against you in an effort to return you to jail. Most of the time, the probation officer is working to make sure you comply with the court order and stay out of jail. It is up to you to show up and make sure the probation officer is kept aware of your circumstances. You should maintain contact with your trial attorney as may problems can be solved if there is good communication. Most experienced attorneys can advise you about how to navigate the courts probation department and successfully complete probation. Under Ohio law, you cannot demand to serve jail time instead of being placed on community control in misdemeanor OVI cases, seeState v. Walton (2000), 137 Ohio App. 3d 450, 457 — “…(A) misdemeanor offender has no right to refuse probation and to demand to serve her sentence of imprisonment.” Unlicensed driver was headed to prison for eight months and wanted six month traffic sentence served concurrently. Instead, the judge put her on probation.
Often, a court will only keep you on probation until you have paid all fines and costs and complied with the requirements of your punishments. In DUI/OVI cases, the probation department is responsible for setting up the 72 hour Driver Intervention Program and will make sure you attend and complete the program. Work with your Ohio DUI attorney to learn about how to comply with the terms and conditions of probation (now called “Community Control Sanctions”). Depending on the court, you may face any or all of the following probationary conditions: No new DUI or serious traffic arrests; Alcohol Assessment and/or Follow Up Alcohol Counseling; Random Urine Screens; Restrictions on driving times; No “Refusals” of blood, breath, or urine tests if arrested for DUI; No odor of alcohol while driving a vehicle; Pay fines and court costs; Attend MADD’s Victim Impact Panel; Attend probation officer meetings; Install Ignition Interlock (breath tester in the vehicle); Continuous Alcohol Monitor (ankle bracelet); Restrictions on travel outside of Ohio or the county; Electronic Home Monitoring or House Arrest; Work-Release or Community Service. As you can see, the probation department and your probation officer have a great deal of power over your life while you are on community control. Your DUI attorney should be a continued resource available to help you with issues that arise while on community control.
If you have been arrested for violating probation, you will have a hearing in front of the judge. Since you have already been sentenced to probation for committing a crime, you will not be entitled to a jury to determine whether or not you have violated the terms of your probation. The sentencing judge will hear the facts of your alleged violation, and determine if you did in fact violate any of the terms or conditions. A probation violation is not like a new criminal charge, you can be forced to testify against yourself and witness testimony can be used against you. In most courts violations of the terms of your probation are very serious matters. Unlike criminal matters, prosecutors are not bound by the “beyond a reasonable doubt standard. Under Ohio law, prosecutors need only show that there exists a “preponderance of the evidence” that a violation has occurred, which means they only have to prove that it is more likely than not that you violated probation. You should be aware of the terms and ask questions if you have any confusion. A violation of technical terms (such as changing your address without informing the court, failing to pay on time and not showing up for your probation appointment) are as serious as the violation of a more substantive term. Being charged with a new crime can result in a revocation of probation even if you are not convicted due to the lower preponderance of the evidence standard. You could not only face jail time on the new charge, but face the time previously suspended from your earlier offense. The charges need not be in the same court to invoke the court’s community control jurisdiction.
A typical DUI/OVI stop starts with a probable cause traffic stop. Depending on the time of day, the location or the way you are driving, the officer may begin the encounter believing that you are possibly “19” (police shorthand for a possible R.C. 4511.19 (DUI) violation). Probable cause for the stop can be anything from severe weaving or crashing all the way down to something as de minimus as a license plate light out. The officer’s true purpose in pulling you over cannot be questioned if there is even a minor violation of law.
The officer will observe the way you pull over and will approach the vehicle with caution. Always keep your hands where the officer can see them and avoid furtive movements. When the officer asks “do you know why I pulled you over?” what do you say? When the officer asks if you have been drinking, what do you say? If the officer asks you if you are willing to take some roadside tests, what do you say? Always begin every police encounter by asserting your rights, “I DO NOT WANT TO ANSWER QUESTIONS AND I WANT TO SPEAK TO AN ATTORNEY.”
When you are pulled over for a traffic infraction the police officer has no evidence that you may be driving under the influence. Once you are stopped, the officer begins gathering evidence against you for OVI/DUI. If you do not give him the evidence I can win a charge of DUI/OVI. And there is only one way for the officer to obtain evidence: You must give it to him! Examples are letting the officer engage you in conversation. By doing this he hears your speech hears your thought processes and begins to build his case. He smells your breath. During the process he also views your eyes to see if they are red, bloodshot, or watery. The officer will also ask you for your license, insurance and registration. He is doing this to see if you fumble through your belongings, thereby demonstrating lack of dexterity. Have these papers ready at hand anytime you are in the car. Have them waiting for the officer on the dash.
At this point, the officer must determine if he has enough evidence to remove you from the vehicle. If he believes he does, he will ask you to take standardized field sobriety tests. There is no legal obligation or requirement to perform these tests. Do not take Field Sobriety Tests!Finally, do not be a knucklehead to the officer. Be polite and courteous even if you do not receive the same treatment as most encounters are recorded. Do not argue or try to justify your conduct as all of this will be used against you. Once the officer decides to arrest you there is nothing you can do to avoid the arrest. Let me handle that for you later!
To blow or not to blow, that is the question. Unfortunately, the answer is “maybe” and involves a very complicated investigation of the facts of your case and your personal history. You should NEVER refuse the test without understanding how a refusal would affect YOU. No attorney can know all of the circumstances of your arrest and your personal history, always ask to speak to an attorney when making this decision.
Can you answer “TRUE” to ALL of the following questions? If so, you can politely DECLINE any police test(s) of your blood, breath, or urine with minimum impact. Be prepared and know your rights.
I am an Ohio license holder, 21 years or older; AND
I was not involved in an accident involving possible death or to serious injury to ANYBODY, even members of my family, pedestrians or passengers; AND
I do not have a commercial driver’s license (CDL); AND
No matter where I currently have a license to drive, I have had no prior drunk driving convictions or deferred pleas for DUI in ANY state within 6 years (from the date of conviction until now).
Refusing a chemical test can result in harsh penalties which includes a one-year license suspension, but your attorney can fight to get this reduced. In some courts your refusal may be held strictly against you and in others you may be able to get a reduced suspension despite your refusal. In State v. Hill, 2009-Ohio-2468, the Appellate Court upheld the right of a trial court to enhance a penalty based on a refusal to take the chemical test. In most circumstances, a refusal to take a chemical test will result in a longer hard-time suspension (30 days rather than 15 days without any driving privileges). [see the Automatic License Suspension section of this blog]. You should also engage in an honest assessment of your alcohol consumption. If you risk testing over Ohio’s “super-OVI” threshold (over a .17% BAC) you may do harm by taking the test. Take these factors into account when making your decision to blow or not to blow.
Any criminal defense attorney would rather have less evidence against you rather than more, but giving blanket advice to refuse the chemical test is a mistake. Be prepared to make the best decision for you. You can also plan ahead by storing my contact information in your smart phone: (937)776-2671.
One of the areas where a DUI attorney’s experience is most obvious is in the cross-examination of the arresting officer on the issue of the standardized field sobriety tests. The National Highway Traffic and Safety Administration (NHTSA) was tasked with determining which tests, if any, could be correlated with impairment by alcohol. After extensive testing, NHTSA determined that three tests were specific for alcohol intoxication: the HGN (horizontal gaze nystagmus), the walk & turn test and the one leg stand test. This three-test battery are now referred to as the “standardized field sobriety tests.”
If the officer is using the non-standardized field sobriety tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific and legal 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.