Posts Tagged ‘dui charge’

Dayton OVI Attorney

February 19th, 2013

DaytonSealIf you are arrested on suspicion of  drunk driving in the City of Dayton, your misdemeanor DUI 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.

If you are arrested on federal property (like Wright-Patterson Air Force Base), your DUI/OVI case may be held in the United Stated District Court for the Southern District of Ohio.  The fact that the DUI will be heard in a federal court should not concern you, as Charles M. Rowland II has experience in that court handling DUI cases.  Established in 1803, the United States District Court for the Southern District of Ohio handles over 400 criminal cases a year in 48 of Ohio’s 88 counties.  The court has an eastern division, located in Columbus and two western divisions located in Dayton and Cincinnati.  If you are arrested for a federal DUI offense in Champaign, Clark, Greene, Darke, Miami, Montgomery, Preble or Shelby counties you will appear in Dayton’s Federal Building, 200 W. Second St., Dayton, Ohio 45402.  You can contact the Court at (937)512-1400 Monday through Friday from 9:00 a.m. until 4:00 p.m.  An Ohio DUI lawyer experienced in federal dui laws and drunk driving cases can explain the difference between state and federal prosecutions, and the potential penalties of each.  If you are arrested for DUI on Wright-Patterson Air Force Base, the court will apply Ohio law in adjudicating your case via the Assimilative Crimes Act.  Generally, you will face the same harsh penalties for a federal DUI as you would under Ohio DUI law.

Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Immediate help is available by filling out the CONTACT form on any of these pages.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitterupdates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Why Was I Charged With Two OVI Offenses?

January 24th, 2013

There are two ways to be charged with OVI (drunk driving) in Ohio.  Often, both are charged for reasons that will be addressed shortly.  First, let’s explore what the two charges mean.

Per Se” Offenses:  per se is a latin phrase meaning “in itself.”  It is also a legal term of art defined in Black’s Law Dictionary as “taken alone… unconnected with other matters.”  For purposes of Ohio OVI law, it means that OVI is a strict liability offense that occurs if you take a chemical test and fail.  Ohio presumes that if you test over the proscribed legal limit (.08% BrAC) you are guilty of operating a vehicle impaired.  The law is set forth at Ohio Revised Code Section 4511.19(A)(1)(B), which states:

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

  • (b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.
  • (c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.
  • (d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.
  • (e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.
Ohio has also created a per se “high-tier” limit of .17% BrAC, sometimes referred to as a SUPER-OVI.  The per se high-tier limits are set forth at O.R.C. 4511.19(A)(1)
  • (f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.
  • (g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.
  • (h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.
  • (i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.
 You can also be charged with a per se offense based on the concentration of illicit drugs in your system.  To be convicted of a per se offense, the state must prove that a person operated a motor vehicle in Ohio and that at the time of operation, the person had a prohibited concentration of alcohol or drugs in their blood, breath or urine.  Your DUI attorney will devise defenses particular to the specific evidential test you took.  The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the rules of the Ohio Administrative Code (OAC) as adopted and approved by the Ohio Department of Health.  At DaytonDUI, we know how to defend a breath test case and employ sophisticated scientific defenses to win your DUI case.  An oft’ quoted maxim that you should know is, “An arrest is not a conviction.”
Appreciable Impairment Offenses:  If you refuse to take a chemical test, the State will still be able to prove you guilty of an OVI if they prove (beyond a reasonable doubt) that you  operated a motor vehicle in Ohio after having consumed some alcohol, drugs of abuse, or a combination of the two and their ability to operate the motor vehicle was appreciably impaired.  How does a jury determine “under the influence?”  The following is an excerpt from the Ohio Jury Instructions:
“Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person.

The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence. The Ohio jury Instruction cites language from State v. Hardy (1971), 28 Ohio St.2d 89, 57 O.O.2d 284, 276 N.E.2d 247; and State v. Steele (1952), 95 Ohio App. 107, 52 O.O. 488, 117 N.E.2d 617.

The “appreciable impairment offense” is set forth at Ohio Revised Code 4511.19(A)(1)(a) which states,

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

At DaytonDUI we refer to the (A)(1)(a), appreciable impairment offense as the OTIS standard, derived from the popular OTIS character featured on the classic Andy Griffith program.  OTIS was the stereotypical town drunk who often found himself in the Mayberry jail.  OTIS was obviously intoxicated based on how he looked, walked, acted and talked.  Viewers had no doubt that he was intoxicated.  Law enforcement will  attempt to prove impairment with the same evidence we use to judge OTIS.

It is up to your defense attorney to point out the inconsistencies and omissions in the officer’s observations.  Charles M. Rowland II was the first attorney in the United States to earn a certificate in Forensic Sobriety Assessment. FSA certification requires proficiency in the scientific principles and research relating to sobriety testing in a DUI/OVI stop.  It subsumes the police/NHTSA training (knowledge of the NHTSA manual is required) and greatly extends it.  Charles Rowland is currently the only lawyer in Ohio to hold FSA certification.  In 2010, Charles M. Rowland II attended the most current NHTSA training wherein he was trained to administer and evaluate the standardized field sobriety tests . This is the same NHTSA/SFST training course that law enforcement officers are trained in nationwide and testify to in court.  Charles is a frequent speaker and a prolific writer on all matters related to DUI defense.

Why Both Charges?  Often, the arresting law enforcement officer will charge both the per se and appreciable impairment cases, knowing that you cannot be convicted of both.  In essence, the officer is hedging his bets, hoping that if your test is found to be faulty you can still be found guilty of being impaired.  At your trial or sentencing hearing, your conviction will either be for the per se or appreciable impairment charge.  Your DUI attorney will help you understand the pros and cons of any plea agreement and empower you to make choices that will benefit you on a short-term and long-term basis.  Choosing the best DUI attorney for your case is the most important decision that you can make and should not be rushed or taken lightly.  At DaytonDUI, we are striving to be the best Dayton DUI defense firm in Ohio and we work hard to keep you informed and help you make good decisions.  When you hire Charles Rowland he will be your attorney throughout your case and will not pass you onto a less experienced associate.  He maintains a 24-hour DUI Hot-line (937) 776-2671 and has a staff dedicated to taking care of your needs.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton and throughout the Miami Valley.  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 Facebookwww.facebook.com/daytondui 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.

Ohio DUI Law: Reasonable and Articulable Suspicion

October 23rd, 2012

What Level of Proof Does Law Enforcement Need to Pull You From Your Car For Standardized Field Tests?

One of the major decision points in the OVI arrest process is the officer’s decision to remove a suspect from his or her car and conduct standardized field sobriety testing. The officer is trained to arrive at this “decision point” by conducting an interview and using specific “pre-exit interview techniques” which include asking for two things simultaneously; asking interrupting or distracting questions; and asking unusual questions. (NHTSA Student Manual VI-4).  Additional techniques which an officer may employ include and Alphabet test (begin with E and end with P); a Countdown test (count out loud backward starting with 68 and ending with 53); and the Finger Count test (touch the tip of the thumb in turn to the tip of each finger while simultaneously counting).  Absent evidence of intoxication adduced at this point in the investigation, the officer lacks reasonable and articulable suspicion to allow him to request you to step from the car. (NHTSA Student Manual, VI-4, VI-5, VI-6).

In State v. Evans (11th Dist 1998), 127 Ohio App.3d 56, the Court cites factors to determine if an officer has reasonable articulable suspicion of driving under the influence: (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.  Citing five factors present in this case, the Court concluded the officer did have reasonable and articulable suspicion of driving under the influence.

An Ohio OVI lawyer should be prepared to challenge the officer’s determination of reasonable and articulable suspicion.  Make sure the Ohio OVI lawyer you choose has the most recent copy of the National Highway Transportation Safety Administration, Student Manual.  Charles M. Rowland has all such manuals and has received the same level of training in the standardized field sobriety tests as law enforcement.  He has furthered his education by being Ohio’s only Forensic Sobriety Assessment certified attorney which goes beyond the NHTSA manual to investigate the science (pseudo-science) of the tests.  If you need an attorney who has worked hard to achieve the highest level of training possible, contact Charles M. Rowland II today at 937-318-1DUI (318-1384), 1-888-ROWLAND or www.DaytonDUI.com.

Juvenile DUI Addressed in Ohio Supreme Court

July 6th, 2011
Self made photo, taken August 05.

The issue the Ohio Supreme Court addresses in State v. Adkins, 2011-Ohio-3141  is whether a pre-January 1, 1996 juvenile adjudication can be considered one of the five prior similar offenses necessary to enhance an R.C. 4511.19(A)(1)(a) charge for operating a motor vehicle while under the influence of alcohol (“OVI”). Under R.C. 4511.19(G)(1)(d), an OVI is a fourth-degree felony if the defendant has been convicted of or pleaded guilty to five OVIs in 20 years.  Effective January 1, 1996, the Ohio legislature passed a new law making a prior juvenile adjudication constitutes a prior conviction for purposes of R.C. 4511.19(G)(1)(d).

PROCEDURAL HISTORY

On September 14, 2007, defendant-appellant, Gary Adkins, was indicted for an OVI violation under R.C. 4511.19(A)(1)(a). Pursuant to R.C. 4511.19(G)(1)(d), he was charged with a fourth-degree felony based upon the allegation that he had been previously convicted of or pleaded guilty to five or more OVI offenses within the previous 20 years. Specifically, the indictment alleged that Adkins had been convicted of six prior OVI offenses, including a November 20, 1987 adjudication in Delaware County Juvenile Court, where Adkins had been adjudicated “a juvenile traffic offender as a result of Alcohol Concentration, Fleeing an Officer and Failure to Maintain Assured Distance.” Whether that adjudication could properly be considered a prior offense is the issue in this case.

LAW & ANALYSIS

The Ohio Supreme Court ruled that “R.C. 2901.08 did not change Adkins’s juvenile adjudication; it merely added another type of legal violation as an aggravating offense under R.C. 4911.19(G)(1)(d). Prior to the passage of R.C. 2901.08, at least one appellate court had held that juvenile adjudications could not be considered previous OVI convictions for purposes of enhancement. State v. Blogna (1990), 60 Ohio App.3d 141, 573 N.E.2d 1223, syllabus. In that case, the court held that the defendant’s delinquency adjudication could not be used as an enhancement under 4511.19 due to the difference between an adult conviction and a juvenile adjudication. Id. at 143. R.C. 2901.08 statutorily overturned that holding and clarified the law. It did nothing to Adkins’s record – it simply made clear that for enhancement purposes, courts could consider a juvenile adjudication as a conviction. ” The Court also refused to find application of the law an a retroactively applied law, holding, “[b]ecause R.C. 2901.08 is applied prospectively and is not unconstitutionally retroactive, we affirm the judgment of the court of appeals.”

Dayton DUI attorney Charles M. Rowland II regularly handles cases involving juvenile OVI offenders.  He has advocated for the sealing of records provisions of juvenile law be applied to prevent enhancements of further offenses and works tirelessly with families to address both the child’s case and the long-term ramifications of a juvenile OVI conviction.  If you know a child that could benefit from Mr. Rowland’s services, please visit www.DaytonDUI.com or call (937) 318-1384 or 1-888-ROWLAND to discuss the case.