Posts Tagged ‘dui defense’

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

 

 

 

The Militarized Police Have Become The Founders’ Worst Nightmare

July 22nd, 2014

militarized police force

 

In a great article for the New American, attorney Joe Wolverton reviews the horrors of militarized police set forth in the Randy Balko book, “Rise of the Warrior Cop.”  I have expressed my admiration for the book as a call for a return to “the law” as it was traditionally understood throughout our history.  The publisher of Balko’s Rise of the Warrior Cop book, explains:

 

The American approach to law enforcement was forged by the experience of revolution. Emerging as they did from the shadow of British rule, the country’s founders would likely have viewed police, as they exist today, as a standing army, and therefore a threat to liberty. Even so, excessive force and disregard for the Bill of Rights have become epidemic in today’s world. According to civil liberties reporter Radley Balko, these are all symptoms of a generation-long shift to increasingly aggressive, militaristic, and arguably unconstitutional policing—one that would have shocked the conscience of America’s founders.

 

Listed below are other quotes attributed in the article.  They set forth a very different law enforcement than the militarized police forces currently patrolling our cities in tanks and armored personnel carriers.  During the Virginia ratifying convention, James Madison described a standing army as the “greatest mischief that can happen.”

 

Fellow delegate to the Constitutional Convention of 1787, George Mason put a finer point on it:

 

No man has a greater regard for the military gentlemen than I have. I admire their intrepidity, perseverance, and valor. But when once a standing army is established in any country, the people lose their liberty. When, against a regular and disciplined army, yeomanry are the only defence [sic], — yeomanry, unskilful and unarmed, — what chance is there for preserving freedom? Give me leave to recur to the page of history, to warn you of your present danger. Recollect the history of most nations of the world. What havoc, desolation, and destruction, have been perpetrated by standing armies!

 

In The Federalist, No. 29, Alexander Hamilton echoes not only Mason’s warning against a standing army, but his solution to the threat, as well.

 

If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

 

In commenting on Blackstone’s Commentaries, founding era jurist St. George Tucker speaks as if he foresaw our day and the fatal combination of an increasingly militarized police force and the disarmament of civilians:

 

Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

 

In an essay published in the Wall Street Journal last August, Radley Balko presented chilling and convincing evidence of the blurring of the line between cop and soldier:

 

Driven by martial rhetoric and the availability of military-style equipment — from bayonets and M-16 rifles to armored personnel carriers — American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop — armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.

 

Balko rightly connects the menace of the martial police with the decline in liberty and a disintegration of legal boundaries between sheriffs and generals.  The threat of the police becoming a standing army of the sort our forefathers believed to be “inconsistent with liberty” is a reality on our streets.  Understanding the issues of law and policy raised by a militarized police force will inform your understanding of any number of issues we will be struggling with as Americans for the next generation.

 

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 on militarized police issues or to schedule a free DUI consultation contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

 

Dayton DUI Wishes You a Happy Memorial Day Holiday

May 26th, 2014

“Poor is the country that has no heroes.  But beggared is the people who having them forgets.”

-Col. Wm. A. Jones III, Medal of Honor Recipient-

As you pause to remember those who have died in our nation’s service, have a safe and relaxing Memorial Day Weekend.  If you find yourself in need of representation resulting from a DUI arrest, contact Charles M. Rowland II at 937-318-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263).

Vandalia Municipal Court Case Look Up (Public Records)

May 15th, 2014

Vandalia Municipal CourtThe Vandalia Municipal Court Case Lookup is a service of VandaliaDUI.com, VandaliaOVI.com and the offices of Babb & Rowland, Vandalia’s DUI law firm.

The Court serves approximately 83.5 square miles, which includes the Cities of Vandalia, Englewood, Clayton, Union and the Townships of Harrison and Butler, located in the Montgomery County, Ohio.  The Court is located on the 2nd floor of the Justice Center at 245 James E. Bohanan Memorial Drive, Vandalia, Ohio. The Court operates Monday through Friday, 8:00 a.m. to 4:00 p.m.  The honorable Cynthia M. Heck is the elected judge and will preside over your case.  Listed below is some very helpful links.

  • To visit the Vandalia Municipal Court, please click HERE.
  • For Court Contact Information visit HERE.
  • Court Rules are located HERE.
  • You can make a payment to the court HERE.
  • Look up Public Records (Case Look-up) HERE.
  • Learn more about the Court’s Probation Department HERE.
  • Access Court Forms HERE.

The Court Case Lookup information is current as of the previous business day and information is only updated every 24 hours, excluding weekends and legal holidays. There will be a delay between court filings and judicial action and the posting of such data by the Clerk of Courts for some or all of the filings types.


Vandalia Drunk Driving Attorney
Vandalia drunk driving attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Vandalia Municipal Court and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Vandalia’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 us 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 us 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.”

Find Vandalia Municipal Court Info and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Ohio DUI Attorney: Is It A Just World?

April 10th, 2014

ohio dui attorneyAs an Ohio DUI attorney, I often observe a bias that people carry toward those accused of drunk driving.  Psychologists call this phenomena the “Just World Hypothesis.”

The belief that people get what they deserve and deserve what they get, which was first theorized by Melvin Lerner in 1977.  Lerner, M.J. & Miller, D.T. (1977). Just-world research and the attribution process: Looking back and ahead. Psychological Bulletin85, 1030-1051.  Attributing failures to dispositional causes rather than situational causes, which are unchangeable and uncontrollable, satisfies our need to believe that the world is fair and we have control over our life. We are motivated to see a just world because this reduces our perceived threats,Burger, J.M. (1981). Motivational biases in the attribution of responsibility for an accident: A meta-analysis of the defensive-attribution hypothesis. Psychological Bulletin90, 496-512, Walster, E. (1966). Assignment of responsibility for an accident. Journal of Personality and Social31, 73-79, gives us a sense of security, helps us find meaning in difficult and unsettling circumstances, and benefits us psychologically.  Gilbert, D.T., & Malone, P.S. (1995).The correspondence bias. Psychological Bulletin117, 21–38.

Unfortunately, the just-world hypothesis also results in a tendency for people to blame and disparage victims of a tragedy or an accident, such as victims of rape (See Abrams, D., Viki, G.T., Masser, B., & Bohner, G. (2003). Perceptions of stranger and acquaintance rape: The role of benevolent and hostile sexism in victim blame and rape proclivity. Journal of Personality and Social Psychology84, 111-125;Bell, S.T., Kuriloff, P.J., & Lottes, I. (1994). Understanding attributions of blame in stranger-rape and date-rape situations: An examinations of gender, race, identification, and students’ social perceptions of rape victims. Journal of Applied Social Psychology24, 1719-1734) and domestic abuse (See Summers, G., & Feldman, N.S. (1984).Blaming the victim versus blaming the perpetrator: An attributional analysis of spouse abuse.Journal of Applied Social and Clinical Psychology2, 339-347) to reassure themselves of their insusceptibility to such events. People may even go to such extremes as the victim’s faults in “past life” to pursue justification for their bad outcome.(Woogler, R.J. (1988). Other lives, other selves: A Jungian psychotherapist discovers past lives. New York: Bantam.)

The just world phenomena is observed in DUI trials as a bias that can cause a jury to overlook the evidence and blame the accused driver for putting himself or herself in a position where an officer could arrest them.  When you combine this inherent bias with a society that stigmatizes drinking drivers (Friends Don’t Let Friends Drive Drunk, Drive Sober or Get Pulled Over), you are left with a turbulent trial scenario for your attorney to face.  An experienced Ohio DUI attorney will make allowances for the juries unknown bias by addressing it in the void dire and in a closing argument.  Often, simply addressing the bias is enough of an inoculation to allow the jurors to focus on the evidence.

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 Ohio DUI attorney Charles M. Rowland II on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville