Posts Tagged ‘dui law’

The Ohio “Clear and Convincing Evidence” Standard

February 27th, 2014

clear and convincing evidence

Clear and Convincing Evidence is required for the standardized field sobriety tests to be admitted. Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests in substantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

Clear and convincing evidence  is defined  in In re Chappell (1938), 33 N.E.2d 393, 397, as “…that degree of proof which will produce in the mind of the court a firm belief or conviction of the truth of the charges and specifications sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph 3 of the syllabus: “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required by ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts to be established.” Also see Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St. 3d 176, 180-181; In re Meyer (1994), 98 Ohio App. 3d 189, 195; Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121, 122; In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368; In re Brown (1994), 98 Ohio App. 3d 337, 342-343.

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 clear and convincing evidence and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Snow: What is the Law in Ohio? (by DaytonDUI)

December 9th, 2013

English: Trees covered by snow in Boreal, Cali...

With the return of winter weather, we have received some questions about what constitutes a snow emergency and under what authority a snow emergency can be deemed to exist.  We have also counseled clients who wanted to know what law would circumscribe their behavior during a snow event.  Here is what we learned:

A county sheriff may, pursuant to Ohio Revised Code sections 311.07 and 311.08, declare a snow emergency and temporarily close the state roads and municipal streets within his/her jurisdiction when such action is reasonably necessary for the preservation of the public peace. Ohio Attorney General’s Opinion 97-015, issued April 1, 1997, concluded that this authority includes state roads, county and township roads and municipal streets.

Ohio law provides for three levels of snow emergency.

Snow Emergency Classifications

LEVEL 1: Roadways are hazardous with blowing and drifting snow. Roads may also be icy. Motorists are urged to drive very cautiously.

LEVEL 2: Roadways are hazardous with blowing and drifting snow. Roads may also be very icy. Only those who feel it is necessary to drive should be out on the roads. Contact your employer to see if you should report to work. Motorists should use extreme caution.

LEVEL 3: All roadways are closed to non-emergency personnel. No one should be driving during these conditions unless it is absolutely necessary to travel or a personal emergency exists. All employees should contact their employer to see if they should report to work. Those traveling on the roads may subject themselves to arrest.

Ohio Revised Code 2917.13 sets forth the crime of “Misconduct at an Emergency.”  Any person who knowingly hampers or fails to obey a lawful order of the sheriff declaring a snow emergency and temporarily closing highways, roads and/or streets within his/her jurisdiction may be subject to criminal prosecution under Ohio Revised Code Section 2917.13, “Misconduct at an emergency” or other applicable law or ordinance. A violation under that section is a misdemeanor of the fourth degree, punishable by a jail sentence not to exceed 30 days and/or a fine not to exceed $250. If the misconduct creates a risk of physical harm to persons or property, it is a misdemeanor of the first degree, punishable by a jail sentence not to exceed 180 days and/or a fine not to exceed $1,000.  Below is the full text of the statute.

ORC 2917.13. Misconduct at emergency.

(A) No person shall knowingly do any of the following:

  • 1. Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person’s duties at the scene of a fire, accident, disaster, riot or emergency of any kind;
  • 2. Hamper the lawful activities of any emergency facility person who is engaged in the person’s duties in an emergency facility;
  • 3. Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer’s duties at the scene of or in connection with a fire, accident, disaster or emergency of any kind.

(B) Nothing in this section shall be construed to limit access or deny information to any news media representative in the lawful exercise of the news media representative’s duties.

(C) Whoever violates this section is guilty of misconduct at an emergency. Except as otherwise provided in this division, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree.

(D) As used in this section:

  • 1. “Emergency medical services person” is the singular of “emergency medical services personnel” as defined in section 2133.21 of the Revised Code.
  • 2. “Emergency facility person” is the singular of “emergency facility personnel” as defined in section 2909.04 of the Revised Code.
  • 3. “Emergency facility” has the same meaning as in section 2909.04 of the Revised Code.

Effective Date: 03-22-2004

To view the state’s weather-related road closures and restrictions, visit the Ohio Department of Transportation’s traffic Web site at www.buckeyetraffic.org.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  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 Facebook 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. “All I do is DUI”

S.B. 337: Ohio DUI Law and Expungment

November 6th, 2013

ohio dui law and expungment

Ohio DUI law and expungment, am I eligible?  Expungment is the legal method of sealing the record of a prior conviction.  Generally, you attorney will file an Application for Expungment.  The Court will then undertake an investigation, often consisting of a face-to-face interview with the investigator.  If you application is granted the Court will “seal” your record, meaning they physically remove your conviction from the general court records making it “invisible” to the public.  Once expunged, your conviction should not appear on any background checks.  This does not apply if your background check is done for certain government jobs, in which case the FBI’s National Crime Information Center (NCIC) database will maintain a record of the arrest.

Under the “old” law a DUI (now called OVI) was not expungeable and prevented a person from qualifying as a first offender, making expungement for offenses committed subsequent to the DUI non-expungeable.  However, Senate Bill 337 (The Collateral-Sanctions Reform Bill), signed into law in September 2012 changed the law to allow a person who has one DUI conviction to still be eligible for expungment of another criminal conviction.  The result is that many more people are now eligible for expungment under Ohio law.

The law still states that even if another charge was dismissed when you were convicted of DUI, the dismissal can only be expunged if happened separately from the DUI. DUI convictions are not eligible for expungement from a criminal record. Having a DUI conviction also means that any further offenses will not be able to be expunged. This is one of the collateral impacts of pleading to or being found guilty of a DUI that should be discussed with an attorney.

People with the following convictions or combination of convictions will be eligible for an expungement and sealing of their record: 1) one felony conviction; or 2) one misdemeanor conviction; or 3) one felony conviction and one misdemeanor conviction even if they are not related to the same case, or 4) two misdemeanor convictions even if they are not related to the same case.  For an analysis of Ohio DUI law and expungment in the new law click here. To read the bill in its entirety click here.

Ohio DUI law and expungment is a complicated area of law.  In addition, this is a new law and will surely be the subject of judicial interpretation.  Take some time to sit down with a lawyer to discuss your Ohio DUI and expungment issues.

OVI 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.”

Ohio DUI law and expungment information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

DaytonDUI: Dayton’s DUI Law Firm

September 19th, 2013

Dayton DUI law firm

If you are searching for a DUI law firm in Dayton, you’ve come to the right place.

The DUI law firm of Babb & Rowland, LLC was founded in 2013 as an extension of the practices of Charles M. Rowland II and Mark Babb.  An attorney since 1995, Charles Rowland dedicates his practice exclusively to representing the accused drunk driver and has worked to amass more credentials than any attorney in his field.  Here are just a few advantages to hiring the Dayton’s DUI law firm.

  • Graduated magna cum laude from Wright State University as a University Honors Scholar with a B.A. in Political Science, 1992
  • Recipient of the H.E. Ashcroft Memorial Scholarship to attend Ohio Northern University, Pettit College of Law, 1992
  • Visiting Scholar University College London, Bentham Inns of Court, London, United Kingdom, 1993
  • As an L-2, Charles was a finalist at the National Tax Moot Court Competition in Houston, Texas, 1994
  • Graduated from Ohio Northern University (top 25% of his class), 1995
  • City Prosecuting Attorney (responsible for DUI prosecutions), 1999
  • Special Prosecutor in and for Greene County (handling high-profile felony cases), 1998-2000
  • Served two terms on the Beavercreek City Schoool Board, 2000-2006
  • President of the Board of Directors of TCN-BHS, Greene County’s Drug and Alcohol provider from 2003-2005
  • Ohio State Bar Foundation recipient of the Community Service Award for Attorneys under 40 years old, 2004
  • Named a Fellow to the Ohio State Bar Foundation, 2005-2006
  • Adjunct Professor of Political Science, Wright State University Honors Program, 2007
  • National College for DUI Defense (attended the 2006 Institute at Harvard University)
  • DUI/Standardized Field Sobriety Testing seminar to the Greene County Bar Association
  • Co-recipient of the 2006 Beavercreek Chamber of Commerce Public Education Award
  • Certified by NPAS on the BAC DataMaster breath testing machine, 2006
  • First private attorney in Ohio certified on the Intoxilyzer 8000 breath testing machine, 2007
  • President of the Greene County Bar Association, 2008-2009
  • C0-authored an update to the Anderson’s Ohio Civil Practice along with J. Timothy Campbell and Steven A Wolaver
  • First attorney in Ohio to earn a Forensic Sobriety Assessment, 2009
  • Certified in the NHTSA Standardized Field Sobriety Standards, 2010
  • Qualified as an Expert Witness on Evidential Breath Testing and testified in WPAFB Court-martial proceeding
  • DUI presentation before the Dayton Bar Association, 2011
  • DUI presentation on the Intoxilyzer 8000 to the Ohio Municipal Attorneys Association, 2012
  • AVVO’s Client Choice for DUI Defense, 2012-present
  • Named a Fellow to the American Bar Foundation, 2013
  • Certified as an Ohio SuperLawyer, 2013
  • Featured in the May, 2013 edition of Car & Driver Magazine and the August, 2013 edition of Time Magazine for DUI Defense

 

When you are looking for a DUI law firm, pick a DUI law firm that has a track record of experience and credentials.  Charles M. Rowland II  and the DUI law firm of Babb & Rowland dedicate their practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  They have the credentials and the experience to win your case and have made themselves 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 DUI law firm information at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

 

Teachers & OVI: Do I Report an OVI?

September 9th, 2013

teachers, ovi

You Don’t Need To Report

Teachers, if you have an OVI (drunk driving) conviction, you may be worried about your career.  We have represented many teachers and strive to have every OVI reduced or dismissed so that it cannot have an adverse impact on your future.  One question we frequently encounter is, “Do I have to report and OVI conviction on my application?”  The answer is NO!

A great OVI resource for teachers is the Ohio Educator Conduct FAQ provided by the Ohio Department of Education’s Office of Professional Conduct.  It states, 

Do I have to indicate an OVI or DUI conviction on my application?

A conviction for operating a motor vehicle while intoxicated (OVI) or driving under the influence (DUI) is a traffic offense and therefore does not have to be reported on an application.

There are other great answers on this page and we highly recommend that teachers consult this page for information about what information needs to be disclosed on your professional application regarding OVI.  Having served two terms on my local school board, I know how much teachers impact our kids.  I know that without great teachers I could not have seen the path to law school.  I will go the extra mile to make sure that your dream of educating kids is fulfilled.  An OVI will not stand in your way.

Ohio DUI/OVI 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 (here) or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, 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.”

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