Posts Tagged ‘DUI attorney’

Determining Probable Cause For An OVI Offense

August 25th, 2014

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These factors are set forth at State v. Homan, 89 Ohio St. 3d 421, 427, 2000-Ohio-212, 732 N.E.2d 952 (2000), superseded by statute, State v. Bozcar, 2007-Ohio-1251, 113 Ohio St.3d 148, 863 N.E.2d 155 (2008) citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964); State v.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

August 13th, 2014

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

Judges Express Concerns Over Ignition Interlock Implementation

August 6th, 2014

2004 model of an ignition-interlock breath ana...

As Ohio is contemplating “Annie’s Law” which would require Ignition Interlock Devices for every first-time OVI offender, it is important to look at how implementation went in other states.  The National Highway Traffic Safety Administration recently released a report on Arizona’s adoption of the law. DOT HS 812 025, Ignition Interlock: An Investigation into Rural Arizona Judges’ Perceptions, Fred Cheesman, Matthew Kleiman, Cynthia G. Lee, and Kathryn Holt (May, 2014).   In 2007, Arizona became the second state in the nation to require all first-time drunk driving offenders to equip their vehicles with ignition interlock devices. The first was Arizona’s neighbor New Mexico, which implemented a one-year interlock requirement for first-time offenders in 2005.

First some context on the timing of the Arizona law.  What we find in this report is that the ignition interlock implementation was started in the middle of a downward trend.  “There is also a decreasing trend in the percent of these fatalities that were alcohol-related (BAC of .01 and higher). The trend is obvious from the first data point in 1982 to the last in 2010, when the percentage dropped from 58% to 42% respectively. The trend began well before the legislation was implemented in 2007.” Id. at 4-5.   A similar trend can also be noted for alcohol-impaired driving fatalities (i.e., fatalities wherein the driver had a BAC of .08 or higher), for which the percentage dropped from 52% in 1982 to 36% in 2010.  This provides a context for the claims of the interlock proponents who use these statistics in a deceptive way to show a causal relationship between implementation of the interlock law and the drop in fatalities. Id. at 4-5.

The report details how rural Arizona judges were given a lengthy “education” session about the law by interlock proponents prior to being asked their opinion of the law.  Despite intense indoctrination, some judges still had concerns.

“Many of the judges indicated that it is difficult for DUI offenders to have ignition interlock devices installed in their vehicles. Most of the rural jurisdictions do not have a vendor that services their locality. Instead, offenders are forced to drive 50 to 150 miles, each way, to providers who are in the nearest ‘large’ town or city. The judges pointed out that this is a challenge for many rural defendants who may have cars that are operationally unreliable. The end result is that some defendants are not obtaining the interlock device and are being arrested for driving with a suspended license.” Id. at 19-20.

Other judges expressed concern about the costs associated with a first offense.

Several judges expressed their concern that the monetary expense of the sanctions make it difficult for rural defendants to comply. “We are a very poor rural county and I think the requirement is good, but there are definitely financial and logistical barriers.” Id. at 21.

The judges even found a way to voice concerns over the requirement of treatment for rural and poor defendants.

Additionally, a few of the judges pointed out that rural communities do not have sufficient DUI counseling centers or programs. This makes it very difficult for DUI offenders to comply with their treatment requirements. The end result is that warrants can be issued for those who do not attend their review hearings (where an offender is required to provide proof of counseling) and additional, costly jail time may be imposed. Id. at 21.

It seems that many of the judges were skeptical of the efficacy of the law and its implementation even after they have been required to use “blow to go” devices for over  seven years.

Despite the availability of information and extant training opportunities, several of the judges pointed to information gaps where they would like additional information about ignition interlock programs. Specifically, judges were interested in knowing more about:

  • What are the costs involved for installation and the monthly rates?
  • How do the ignition interlock devices work and function in practice?
  • What is the efficacy of the device? How easy or hard is it to tamper with the device?
  • What is the availability of local providers and how challenging is it for defendants to obtain the ignition interlock device in their jurisdiction?
  • Are ignition interlock devices effective as a deterrent? What studies are available that documents the effectiveness in reducing recidivism?
  • What are the rates of compliance? (Since the sanction is an administrative matter of the Motor Vehicle Department, judges would like to know how the ignition interlock requirements are being monitored and enforced).
  • Are there other areas where the technology could be used (e.g., underage drinking)?

The authors also did an interesting look into whether or not the law is resulting in more drunk driving cases being reduced.  Not surprisingly, “[t]here is clearly a general trend of increasing charge reductions in most counties, including rural counties.” Id. at 24-25.  Although they offer this caveat: “[t]his trend began well before the implementation of the 2007 legislation and does not appear to be related to it.”  Which raises the question is the harshness of the law causing prosecutors and judges to realize the crushing burdens placed on first time offenders.  In the conclusion section of the report the authors note: “Our analyses revealed that there has been a general and longstanding trend of increasing rates of charge reductions for convicted DUI offenders that began well before implementation of the 2007 legislation.” Id. at 28.

The authors, recognizing the trend toward reducing drunk driving charges, make the following recommendation. “Recommendation: Any state implementing legislation that changes penalties for DUI should investigate whether sentencing behavior (particularly charge reductions) changes in response to the legislation, to ensure fidelity of implementation.” Id. at 29. With regard to the implementation issues they make the following recommendation. “Recommendation: Any state considering requiring ignition interlock for all convicted DUI offenders should develop plans and contingencies well in advance of implementation of such a policy to ensure that citizens from rural jurisdictions, as well as from urban jurisdictions, have ready access to ignition interlock services.”

It is my hope that our legislators are looking at the costs of implementing and monitoring the law.  I hope that they take a step back and review how amazingly harsh the penalties are for first-time offenders and how many poor people are disproportionally impacted by these laws.  The vast majority of individuals charged with a first OVI do not come back into the system – this is good.  So why pass laws that will create more crime and not make the streets any safer?  I am holding out hope that Ohio will have men and women who will take the hard stance against MADD’s agenda.

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 on ignition interlock devices check these city-specific sites at the following links:
FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

The Dayton DUI Blog Gets Recognition

July 31st, 2014

Dayton DUI BlogThis very Dayton DUI blog has received inclusion in the LawBlogs.net collection of prestigious legal blogs.  At LawBlogs.net they have collected blogs that deal with almost every conceivable area of law.  It is well organized and fully integrated so that you can follow it on Twitter, Facebook and G+.  Look for us listed as Ohio DUI | OVI Blog!

The founder, Matthias Klappenbach explains,

I would love to start building out this community of law blogs. Right now there’s barely anyone around. Visitors are coming through links from JuraBlogs.com or somehow find the site on Google. However I will keep adding features as I believe in the idea of aggregating the posts and building the “one-stop” to stay up to date. I would love to get some feedback on new features or new blogs and of course I will listed to critique as well.  Eventually my goal is to algorithmically curate the popular and trending legal posts and related articles from the main stream media. LawBlogs.net should be seen as a quick help to navigate through the vast amount of legal content published every day.

If you are interested in all things legal give it a try.  I am proud to be a member of this group of blogs and proud that our DUI blog content was deemed good enough to merit inclusion.

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 DUI or the Dayton DUI blog check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Methods for Obtaining A Test Under Ohio’s Implied Consent Law

July 28th, 2014

 

implied consent law

 

When you drive on Ohio’s roadways you are assumed to have consented to a search of your blood, breath, plasma or urine if you are arrested pursuant to the Ohio Drunk Driving statute, R.C. 4511.19(A) or R.C. 4511.19(B). Ohio Revised Code 4511.191(A)(2) is Ohio’s Implied Consent Law. It states, in pertinent part,

 

“Any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance.”

 

The first of three methods officer’s use to obtain a test is submission by a defendant. This is a typical scenario wherein a person is observed driving and arrested for OVI. At the station the officer reads the warnings on the SR-2255 form and requests that the defendant take a chemical test. The statutory authority for this method of obtaining a test is set forth at R.C. 4511.19(A)(2). It is necessary that a defendant be placed under arrest prior to the officer’s request to submit.

 

Section 4511.191(A)(4) applies the implied consent statute to persons who are dead or unconscious at the time a blood breath or urine sample is requested. It states,

 

“Any person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented as provided in division (A)(2) of this section, and the test or tests may be administered, subject to sections 313.12 to 313.16 of the Revised Code.”

 

Issues over this method of obtaining a test are often invoked in serious accident cases. Questions of fact about whether the person was semi-conscious, fully conscious or able to give consent are common. Due to the unusual circumstances of this type of case, an arrest is not necessary prior to the chemical test.

 

The third method for obtaining a chemical test under the implied consent provisions of Ohio law is the controversial forced blood draw.  Ohio adopted a “no refusal” forced blood draw statue at R.C. 4511.191, which states, “if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” [emphasis added]. Obviously, the McNeeley decision places this law in jeopardy.  When a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained.  In State v. Hollis, 2013-Ohio-2586, the Fifth Appellate District was faced with an appeal of a decision from the Richland County Common Pleas Court. The case was the first forced blood draw decision following the United States Supreme Court ruling in Missouri v. McNeeley, which held “that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  The decision of the court used the previous rules for exigent circumstancesas set forth in Schmerber v. California and does not address or rely upon the McNeeley ruling.  Instead, the court (relying on Schmerber) finds that exigent circumstances existed justifying the blood draw. Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant.

 

 

 

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 Ohio’s Implied Consent law contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville