Posts Tagged ‘dui trial’

Standardized Field Sobriety Tests: You Can’t Say That!

March 1st, 2013

headshot.beard“The notion that an officer may testify and estimate that a person, based on his or her Horizontal Gaze Nystagmus results, will test over the statutory limit a certain percentage of the time is alarming.”  This is not the opinion of an OVI defense attorney, but the opinion of the 4th District Court of Appeals in State v. Martin, 2005-Ohio-1732 (Ohio Ct. App. 4th Dist. Pickaway County 2005)(error found to be harmless in light of the other evidence adduced).  Therein, the court found it was error for the trial court to permit the arresting officer to testify that four or more clues  on an Horizontal Gaze Nystagmus test meant a 77% probability that the subject would have tested over the legal limit, although the officer did not state the results would show the defendant’s exact alcohol concentration.  Ohio’s First District Court of Appeals reached a similar conclusion in State v. Grizovic, 177 Ohio App. 3d 161, 2008-Ohio-3162, 894 N.E.2d 100 (Ohio Ct. App. 1st Dist. Hamilton County 2008), appeal not allowed at 120 Ohio St. 3d 1419, 2008-Ohio-6166, 897 N.E.2d 654 (2008).  In Grizovic, the Court held that trial testimony as to the statistical probability that a person would have tested over the legal limit based on the number of clues exhibited in any field sobriety test, without expert testimony linking the person’s blood alcohol content to impairment, is highly prejudicial and inadmissible.

 DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, Franklin 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 Twitterupdates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.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.

 

Liespotting (from Ted Talks)

October 16th, 2011

On any given day we’re lied to from 10 to 200 times, and the clues to detect those lie can be subtle and counter-intuitive. Pamela Meyer, author of Liespotting, shows the manners and “hotspots” used by those trained to recognize deception — and she argues honesty is a value worth preserving.

Blood, Breath & Urine Testing In Ohio: The Three Hour Rule

September 25th, 2011
Self made photo, taken August 05.

Help your attorney defend your case by creating a credible time-line of events.

R.C. 4511.19(D) sets forth a three-hour time limitation for the collection of bodily substances for alcohol and/or drug testing.  This rule is a change from Ohio‘s previous law which gave the State only two hours in which to obtain a sample.  The time requirement has been adopted by the Ohio Supreme Court in Cincinnati v. Sand, 43 Ohio St.2d 79, 330 N.E.2d 908 (1975) and more definitively at Newark v. Lucas, 40 Ohio St.3d 100, 532 N.E.2d 130 (1988),  where the court held that tests in test cases (cases involving a violation of the prohibited alcohol level) the would only be admissible when drawn within the time limitations of the statutes.  What about in refusal cases?

After some confusion following the Lucas decision, the Ohio Supreme Court ruled in State v. Mayl, 106 Ohio St.3d 207, 833 N.E.2d 1216 (2005) that the state must show substantial compliance with R.C. 4511.19(D) and the Department of Health regulations before the test results are admissible.  A door for use outside of the three-hour limitation  exists, however.  In Columbus v. Taylor, 39 Ohio St. 3d 162, 529 N.E.2d 1382, the Court gave trial court’s broad discretion to allow in retrograde extrapolation evidence if properly supported by an expert.  In State v. Hassler, 115 Ohio St.3d 322, 875 N.E.2d 46 (2007), the Supreme Court back-tracked on its Mayl decision in an aggravated vehicular homicide case, allowing in expert-supported testimony of a blood test drawn more than seven (7) hours after an accident.  This may be a return to the Lucas rule or it may be a case that is limited only to aggravated vehicular homicide cases.

DUI trial counsel will need to establish a time-line of the incident.  A common scenario in which the three-hour limitation is raised is in situations where the police did not witness operation of the vehicle, like in an accident.  Another possible issue that trial counsel can raise is a challenge to the “beyond the three hour test” is an Evidence Rule 403 argument that the probative value of the evidence is outweighed by the unfair prejudice of its admission.  Sources for this article include Intoxication Test Evidence, Fitzgerald & Hume and Ohio Driving Under the Influence Law, 2009-2010 ed.,  Weiler & Weiler

Ohio OVI Law – a definition

June 13th, 2010
Sample version of Ohio's DUI plate mandated on...
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The term OVI (Operating a Vehicle while Impaired) is the latest acronym for the universally understood DUI; they mean the same thing.  Often you will find yourself charged with OVI offenses in two ways: the first is for testing over the per se limit, and the second charge for operating a vehicle while impaired. In Ohio driving under the influence includes driving while intoxicated with too much alcohol, or driving under the influence of a drug of abuse. The traditional offense is “driving under the influence of alcohol” (DUI). Ohio has also enacted a second, so-called “per se” offense: driving with an excessive blood-alcohol concentration (.08%). In Ohio, BOTH OVI offenses are usually charged just to allow the prosecutor some discretion in pursuing his or her case.

A jury instruction which is given at every Ohio DUI trial states,

  • UNDER THE INFLUENCE. “Under the influence means that the defendant consumed some (alcohol)(drug of abuse)(alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and appreciably impaired the defendant’s actions, reactions, or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself which he 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 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 an appreciable degree, his ability to operate the vehicle, then the defendant was under the influence.

Driving with a prohibited concentration of alcohol in your blood breath or urine is a separate offense under Ohio OVI law. If you have ever heard anyone refer to “blowing above a .08” they are referring to the most common test administered by law enforcement today, the breath test. Ohio Revised Code section 4511.19 sets forth the elements of Ohio’s tough OVI law. The Ohio legal limit for persons 21 and over is any of the following:

  • .08 or more by weight of alcohol in blood;
  • .08 of one gram or more by weight of alcohol per two hundred ten liters of breath;
  • .11 of one gram or more by weight of alcohol per one hundred milliliters of urine;
  • .17 of one per cent or more by weight of alcohol in the person’s blood:
  • .17 of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath:
  • .238 of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.

The .17 threshold is used to enhance the penalties for “higher test” offenders, doubling the mandatory OVI jail time at each tier of the sentencing.  You may hear these high tier OVI cases referred to as “SUPER OVIs” or as OVIs requiring mandatory minimum jail time on a first offense.

As can be seen from the definition provided to the jury, some subjectivity does come into play. A skillful prosecutor will attempt to narrow this definition. It will be up to your attorney to demonstrate to the jury that your ability to drive was not impaired at the time of you OVI arrest. It is important to understand that you can be in violation of the law by simply being under the influence. The officer does not need to test your blood breath or urine if he/she believes that sufficient evidence exists for your arrest. Current Ohio OVI law makes driving with above a .08% concentration of alcohol a separate offense for which you can be convicted. The law prevents “operation” of a “vehicle, streetcar, or trackless trolley” “anywhere in the state.” “Operation” of the vehicle can include pulling over to the side of the road to “sleep it off” while the car is running and can include simply sitting behind the wheel of the vehicle with the motor off and the key in the ignition. Besides a car, truck or van a person can be found guilty of OVI in Ohio by “operating” a bicycle, a snowmobile, or a golf cart. Unlike other laws which require operation of the vehicle on public highways or areas open to the public, DUI. convictions can come “anywhere in the state.” Convictions have been upheld for operation on a private shopping center parking lot, a private driveway or your own property.

Charles M. Rowland II has worked hard to amass the skills, credentials and experience necessary to fight and win your Ohio OVI case.  He provides this information so that you will feel empowered and will be informed enough to make the best decision in hiring competent OVI counsel.  If you have been arrested in Ohio on charges of OVI, it is important that you consult an attorney right away.  Charles M. Rowland is available 24/7 at 937-776-2671 (DUI Hotline); during business hours at 937-218-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263); text DaytonDUI (one word) to 50500 for immediate help on your cell phone; or you can follow DaytonDUI on Twitter or Dayton DUI/OVI defense on Facebook.  Charles M. Rowland II limits his practice to the representation of the accused drunk driver.  ”All I Do Is DUI Defense.”

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Dayton Sobriety Checkpoint is a Bust

November 1st, 2009
A sobriety checkpoint in East Haven, CT. Also ...
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The sobriety checkpoint Friday, Oct. 30 on North Dixie Drive produced only three arrests for operating a vehicle while intoxicated.  Other citations included nine charges for driving under suspension or without a license, and 21 other violations, including traffic, seat belt and child restraint issues.

The checkpoint was set up from 8 p.m. to midnight Friday by the Montgomery County Sheriff’s Office, the Ohio State Highway Patrol and the Montgomery County Combined Agency O.V.I. Task Force, and included saturation patrols in the area surrounding the checkpoint. The sheriff’s office and task force plan extra patrols throughout the Halloween weekend.

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