Posts Tagged ‘dui defense’

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

 

 

Forced Blood Draw In Ohio (What Happens After Missouri v. McNeeley?)

February 6th, 2014

forced blood draw

What is the status of Ohio’s forced blood draw law [R.C. 4511.191] following the decision in Missouri v. McNeeley, 2013 U.S. LEXIS 3160 (2013).

In Missouri v, McNeely, the United States Supreme Court ruled that a nonconsensual warrantless forced blood draw violates a person’s right to be free from unreasonable searches and seizures under the 4th Amendment to the Constitution. The McNeely decision raises some questions for search warrants in OVI cases. Some of the questions include (1) Did this decision invalidate the implied consent laws? and (2) Are search warrants required for every DUI arrest before a forced blood draw can be taken from a person suspected of drunk driving? First, let’s review the facts giving rise to the decision.

Facts of the Case. On October 3, 2010, at 2:08 a.m., a Missouri State Trooper stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and cross the centerline three times. Upon making contact with the McNeely, the trooper observed McNeely to have bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. McNeely admitted to consuming “a couple of beers” at a bar.  Based upon these observations, the trooper asked McNeely to step out of the vehicle and immediately noticed McNeely to be unsteady on his feet. McNeely performed poorly on the field sobriety tests and declined to submit to a preliminary breath test. Based upon the trooper’s observations, the trooper placed McNeely under arrest for driving under the influence of alcohol.  While en route to the jail, the Trooper asked McNeely if he would agree to voluntarily provide a breath sample when they arrived at the jail. McNeely stated he would refuse to provide a breath sample. Based upon this statement, instead of taking McNeely to the jail, the trooper took McNeely to a nearby hospital to obtain a blood sample to secure evidence of intoxication. McNeely refused to voluntarily provide a blood sample. Consequently, the trooper directed a hospital lab technician to draw a blood sample. Although the trooper had obtained search warrants in previous drunk-driving cases, in this instance, the trooper did not seek a search warrant based upon a training session he attended where it was stated that a search warrant was no longer necessary due to a recent change to the “refusal” provision of the Missouri implied consent law.  Blood was taken from McNeely without a warrant. The trial court granted McNeely’s motion to suppress the blood evidence, holding that the warrantless blood draw violated his Fourth Amendment right. The trial court held that the natural dissipation of alcohol in the bloodstream does not constitute a sufficient exigency to justify a warrantless blood draw in a routine DUI case.

Issues for Consideration. The U.S. Supreme Court was tasked with determining whether the trial court, holding that the dissipation of alcohol in a routine DUI case does not create a per se exigency was consistent with its prior decision in Schmerber v. California384 U.S. 757 (1966).  In Schmerber, the Supreme Court affirmed the drawing of blood without a warrant or consent.  Since 1966, the enforcement of drunk driving laws has increased and many states adopted “no refusal” laws giving police the right to force blood from a defendant. See Ohio Revised Code 4511.191.

Decision and RulingThe court notes that because the invasion beneath the skin in a forced blood draw is of greater significance than searching a person’s pockets, the search incident rationale does not carry the whole day – a warrant is required. The Court pointed out that the diminishing of BAC upon the cessation of drinking is only one factor that must be considered in determining whether a warrant is required. The Court further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. The Court did not address the factors to be taken into account in determining the reasonableness of acting without a warrant. These factors will be developed by subsequent decisions on this issue.  The Court made a point to highlight that all 50 states have adopted implied consent laws.  While the Court concluded that a reasonable expectation of privacy against involuntary blood draws exists, granting individual’s nonconsensual (forced) blood draws protection under the Fourth Amendment, it did not invalidate the existing implied consent laws. Consequently, the ruling  requires that if a person revokes their “implied” consent, a warrant must be obtained.

How Does The Ruling Affect Ohio?  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 inves- tigations, 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 circumstances as 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.

OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio and protecting you.  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 emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Ohio forced blood draw information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

OVI In The Fairborn Municipal Court

September 3rd, 2013

Fairborn Municipal CourtInformation about OVI cases in the Fairborn Municipal Court

If you are charged with an OVI in Fairborn, your misdemeanor OVI case will be heard in the Beavercreek/Fairborn Municipal Court.  The Fairborn Municipal Court, located at at 1148 Kauffman Ave., Fairborn, Ohio 45324, maintains a copy of its fee schedule on its web site. The Fairborn Municipal Court serves Fairborn, Bath TownshipBeavercreek and Beavercreek Township. The court conducts preliminary hearings in felony cases, handles traffic and non-traffic misdemeanors, and civil cases where the money in dispute does not exceed $15,000. The Greene County Common Pleas Court (in Xenia) handles felony criminal cases.  You can contact the Fairborn Municipal Court at; (937) 754-3040 or by fax at  (937) 879-4422.  The presiding Judge of the Fairborn Municipal Court is Beth W. Root who became judge of the Fairborn/Beavercreek Municipal Court in January 2008.

Fairborn OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Fairborn Municipal Court 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.”

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

DUI Science: Pharmacokinetics and Pharmacodynamics

August 26th, 2013

pharmacodynamics and pharmacokineticsPharmacokinetics and Pharmacodynamics

Defending a DUI (now called OVI in Ohio) requires an attorney to understand how the body reacts to the impairing substance (pharmacokinetics) and how the brain is affected by the substance (pharmacodynamics).  Pharmacokinetics explains the absorption, distribution and elimination of the drug.  Pharmacodynamics includes the action of the drug on the brain, pharmacologic effects and toxicity. [Holford, N., Chapter 3: Pharmacokinetics and Pharmacodynamics: Rational Dosing and the Time Course of Drug Action, in B. Katzung, Editor, McGraw Hill, Eighth Edition, 2001, p. 36].  Pharmacokinetics and pharmacodynamics are explained in this short introductory video.

Charles M. Rowland II has attended the National College for DUI Defense intensive “Mastering Science” class in New Orleans and is Ohio’s only Forensic Sobriety Assessment certified attorney.  He uses science to help win your DUI case.  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 emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find city-specific Ohio DUI information about teachers and OVI in specific cities, please follow these links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Marked Lane Violation Overturned By Third District Court of Appeals

August 21st, 2013

State v. Shaffer, 2013-Ohio-3581 Overturns Marked Lane Violation

marked lane violation

In a decision that will impact many OVI cases, the Third District Court of Appeals ruled that a trooper did not have a “reasonable, articulable” suspicion to stop a Paulding County woman for a marked lanes violation. O.R.C. 4511.33.   Accordingly, her convictions for reckless operation and failure to drive within the marked lanes were reversed.

In the court’s unanimous decision, authored by Judge Stephen R. Shaw, the court agreed with Shaffer’s claims “that Trooper Sisco’s testimony that a vehicle’s tires touched the white fog line on a single occasion, causing the right fender of the vehicle to extend slightly over the line for three seconds, without any other evidence in the record addressing either the practicability or safety of the circumstances, is not sufficient to establish reasonable, articulable suspicion of a marked lane violation of R.C. 4511.33(A)(1).”

Judge Shaw particularly pointed to one specific phrase in section (A)(1).

“We believe the language ‘as nearly as is practicable’ inherently contemplates some inevitable and incidental touching of the lane lines by a motorist’s vehicle during routine and lawful driving, without the vehicle being considered to have left the lane of travel so as to constitute a marked lanes violation,” Judge Shaw wrote.

“Accordingly, it is our conclusion that consideration of the statutory factors of practicability and safety is integral to any determination of a violation of R.C. 4511.33(A)(1).”

“The fact remains that in this case there is no evidence in the record from which any legitimate inference can be drawn regarding either one of these requisite statutory elements,” Judge Shaw noted.

“Accordingly without some additional evidence in the record regarding the surrounding circumstances, traffic and road conditions going to the express statutory language regarding either practicability or safety, we cannot conclude that the act of Shaffer driving onto the white fog line one time for a matter of three seconds is alone sufficient to establish the requisite reasonable and articulable suspicion to stop Shaffer for a violation of R.C. 4511.33(A)(1).”

In conclusion, Judge Shaw wrote: “We simply believe our decision is more consistent with the specific statutory language of R.C. 4511.33(A)(1), which among other things, refers to the movement and location of vehicles, not tires.”  For a link to the Marked Lane Violation statute, please visit this link [HERE].

 

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 emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 

 Find city-specific Ohio DUI information on Marked Lane Violation in specific cities, please follow these links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville