Tag Archives: dui

DUI attorney Charles Rowland represents the accused drunk driver in Ohio.

The Importance of the Burden of Proof

burden of proofWe want our judges to stand up for the highest tenets of justice and apply the burden of proof in a fair and impartial way – especially when the pressure is on.  Here is a very pertinent quote from the Charlotte Observer.

The law presumes every citizen innocent, even when charged with DWI. A judge violates the judicial oath when he or she presumes that a citizen charged with DWI is guilty, gives greater weight to the state’s evidence, is predisposed to find for the state, or looks for ways to assist the state in the prosecution of a case. Judges with high conviction rates are NOT fair and impartial but proxies for the prosecution or result-oriented interest groups.

The law imposes the highest burden of proof in criminal matters — proof beyond a reasonable doubt of every element of the offense. Judges who lower this high burden in DWI cases make it probable that innocent people will be convicted, robbed of their liberty, their property, and their rights. When we permit or encourage judges to lower the burden of proof, we embark upon a slippery slope where expediency and results, rather than justice and law, guide decisions.

Source: Rawls, Eben. The Intoxilyzer isn’t perfect: Judges in DWI trials must stand for justice despite pressure from public. Charlotte Observer, August 20, 2004.

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

For more information on the burden of proof check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

 

 

OVI Trial Practice: Admission of the Alcohol Influence Report

alcohol influence report

The Alcohol Influence Report is a document prepared by the arresting officer noting each and every indicator for alcohol impairment that they took note of in their investigation.  Most of the forms require that the officer simply check the predetermined indicator.  Not surprisingly, all the officer’s observations fall neatly into these predetermined areas. The report is a document of the officers opinions and should not be considered routine ministerial reports of a non-adversarial nature.   Clearly, letting the jury have this document as evidence to review in the jury room would be prejudicial to an OVI defense.

Evidence Rule 803(8) excludes the alcohol influence report from evidence.  It states, in pertinent part:

RULES OF EVIDENCE

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.

Some courts have found that admissions of the forms is reversible error. State v. Joyce, 1998 WL 315913 (Ohio Ct. App. 1st Dist. Hamilton County 1998); State v. Weaver, 1985 WL 4343 (Ohio Ct. App. 10th Dist. Franklin County 1985); State v. Nightwine, 1982 WL 6042 (Ohio Ct. App. 12th Dist. Preble County 1982).  See also Ohio DUI Law, Weiler & Weiler  2013-2014 ed. at 439.

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 the alcohol influence report check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville, Alcohol Influence Report 

Ohio DUI Law R.C 4511.19(A)(2) “a codified dilema”

ohio dui law

Ohio DUI law R.C. 4511.19(A)(2) enhances the penalty for a motorist who, having been convicted once in the last six (6) years, after having been arrested, refuses to take a blood, breath or urine test.  In State v. Hoover,173 Ohio App.3d 487, 2007-Ohio-5773, the issue of whether or not a person can have a DUI sentence enhanced pursuant to R.C. 4511.19(A)(2) for refusing to take a chemical test was before the Ohio Supreme Court.  The government sought to have the sentence of Corey Hoover enhanced from the ten (10) day mandatory penalty for a second time DUI offender in Ohio to twenty (20) days because he refused to take a breath test.  “The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. …  Imposing criminal sanctions for failure to consent goes far beyond the state’s power … to regulate the licensure of drivers. Id.

The defendant argued that “ he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure.”  Justice Lanzinger emphasized that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. “The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Id.  The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Paul E. Pfeifer entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell. Justice Pfeifer wrote that today’s majority holding diverges from previous court decisions which have upheld only the imposition of administrative penalties against DUI defendants for refusing to submit to chemical testing.

“R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test. This court’s previous jurisprudence regarding sanctions for a DUI defendant’s failure to consent to chemical tests have all involved license suspensions. … This court has previously answered the question whether a person can face criminal sanctions for failure to consent to a search.  In Wilson v. Cincinnati (1976) … this court held that that the Fourth Amendment prohibits the imposition of criminal penalties upon a person who refuses to submit to a warrantless search.”

“The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. …  Imposing criminal sanctions for failure to consent goes far beyond the state’s power … to regulate the licensure of drivers. As in Wilson, the statute at issue herein imposes a codified dilemma – consent to a warrantless search or face the possibility of a criminal penalty – and thus amounts to coercion. R.C. 4511.19(A)(2) therefore violates defendants’ rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.”

This important DUI decision has withstood challenge, so far.  This author posits what impact the recent United States Supreme Court decision in Missouri v. McNeely133 S.Ct. 1552 (2013) regarding the State to obtain a warrant prior to a forced blood draw will have on this decision and other Ohio DUI law issues.  The “codified dilema” as Justice Pfeifer called this matter will have to be relitigated in cases where the State decides not to seek a warrant and also attempts to “enhance” the sentence.

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

For more information on Ohio DUI law  check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

Determining Probable Cause For An OVI Offense

probable causeA warrantless arrest must be supported by probable cause in order to be constitutionally valid. State v. Timson, 38 Ohio St.2d 122, 67 Ohio Op.2d 140, 311 N.E.2d 16 (1974).  In order to make a finding that probable (more likely than not) cause existed the court must look at the totality of the circumstances surrounding the arrest. State v. Miller,  117 Ohio App.3d 750, 691 N.E.2d 703 (11th Dist. Court of Appeals 1997), State v. Brandenburg, 41 Ohio App.3d 109, 534 N.E.2d 906 (2nd Dist. Court of Appeals, Montgomery County 1987). “[B]ecause of the mosaic which is analyzed for a …probable cause inquiry is multi-faceted, ‘one determination is seldom useful precedent for another.'” State v. Anez, 108 Ohio Misc.2d 18, 27, 738 N.E.2d 491 (2000) citing Ornelas v. United States, 517 U.S. 690, 698, 116 S.Ct. 1657, 1663, (1996) quoting Illinois v. Gates, 462 U.S. 213, 280, 103 S.Ct. 2317, 2332 (1983).

In an OVI case filed pursuant to O.R.C. 4511.19, the court must consider the following in making a determination:

  1. whether at the moment of arrest;
  2. the police had sufficient information
  3. derived from a reasonably trustworthy source of the facts and circumstances
  4. sufficient to cause a prudent person to believe
  5. that the suspect was driving under the influence

These factors are set forth at State v. Homan, 89 Ohio St. 3d 421, 427, 2000-Ohio-212, 732 N.E.2d 952 (2000), superseded by statute, State v. Bozcar, 2007-Ohio-1251, 113 Ohio St.3d 148, 863 N.E.2d 155 (2008) citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964); State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974).  It is clear from these cases that probable cause is a high standard that the government must meet in order to prosecute an OVI offense.

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 probable cause contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Judges Express Concerns Over Ignition Interlock Implementation

2004 model of an ignition-interlock breath ana...

As Ohio is contemplating “Annie’s Law” which would require Ignition Interlock Devices for every first-time OVI offender, it is important to look at how implementation went in other states.  The National Highway Traffic Safety Administration recently released a report on Arizona’s adoption of the law. DOT HS 812 025, Ignition Interlock: An Investigation into Rural Arizona Judges’ Perceptions, Fred Cheesman, Matthew Kleiman, Cynthia G. Lee, and Kathryn Holt (May, 2014).   In 2007, Arizona became the second state in the nation to require all first-time drunk driving offenders to equip their vehicles with ignition interlock devices. The first was Arizona’s neighbor New Mexico, which implemented a one-year interlock requirement for first-time offenders in 2005.

First some context on the timing of the Arizona law.  What we find in this report is that the ignition interlock implementation was started in the middle of a downward trend.  “There is also a decreasing trend in the percent of these fatalities that were alcohol-related (BAC of .01 and higher). The trend is obvious from the first data point in 1982 to the last in 2010, when the percentage dropped from 58% to 42% respectively. The trend began well before the legislation was implemented in 2007.” Id. at 4-5.   A similar trend can also be noted for alcohol-impaired driving fatalities (i.e., fatalities wherein the driver had a BAC of .08 or higher), for which the percentage dropped from 52% in 1982 to 36% in 2010.  This provides a context for the claims of the interlock proponents who use these statistics in a deceptive way to show a causal relationship between implementation of the interlock law and the drop in fatalities. Id. at 4-5.

The report details how rural Arizona judges were given a lengthy “education” session about the law by interlock proponents prior to being asked their opinion of the law.  Despite intense indoctrination, some judges still had concerns.

“Many of the judges indicated that it is difficult for DUI offenders to have ignition interlock devices installed in their vehicles. Most of the rural jurisdictions do not have a vendor that services their locality. Instead, offenders are forced to drive 50 to 150 miles, each way, to providers who are in the nearest ‘large’ town or city. The judges pointed out that this is a challenge for many rural defendants who may have cars that are operationally unreliable. The end result is that some defendants are not obtaining the interlock device and are being arrested for driving with a suspended license.” Id. at 19-20.

Other judges expressed concern about the costs associated with a first offense.

Several judges expressed their concern that the monetary expense of the sanctions make it difficult for rural defendants to comply. “We are a very poor rural county and I think the requirement is good, but there are definitely financial and logistical barriers.” Id. at 21.

The judges even found a way to voice concerns over the requirement of treatment for rural and poor defendants.

Additionally, a few of the judges pointed out that rural communities do not have sufficient DUI counseling centers or programs. This makes it very difficult for DUI offenders to comply with their treatment requirements. The end result is that warrants can be issued for those who do not attend their review hearings (where an offender is required to provide proof of counseling) and additional, costly jail time may be imposed. Id. at 21.

It seems that many of the judges were skeptical of the efficacy of the law and its implementation even after they have been required to use “blow to go” devices for over  seven years.

Despite the availability of information and extant training opportunities, several of the judges pointed to information gaps where they would like additional information about ignition interlock programs. Specifically, judges were interested in knowing more about:

  • What are the costs involved for installation and the monthly rates?
  • How do the ignition interlock devices work and function in practice?
  • What is the efficacy of the device? How easy or hard is it to tamper with the device?
  • What is the availability of local providers and how challenging is it for defendants to obtain the ignition interlock device in their jurisdiction?
  • Are ignition interlock devices effective as a deterrent? What studies are available that documents the effectiveness in reducing recidivism?
  • What are the rates of compliance? (Since the sanction is an administrative matter of the Motor Vehicle Department, judges would like to know how the ignition interlock requirements are being monitored and enforced).
  • Are there other areas where the technology could be used (e.g., underage drinking)?

The authors also did an interesting look into whether or not the law is resulting in more drunk driving cases being reduced.  Not surprisingly, “[t]here is clearly a general trend of increasing charge reductions in most counties, including rural counties.” Id. at 24-25.  Although they offer this caveat: “[t]his trend began well before the implementation of the 2007 legislation and does not appear to be related to it.”  Which raises the question is the harshness of the law causing prosecutors and judges to realize the crushing burdens placed on first time offenders.  In the conclusion section of the report the authors note: “Our analyses revealed that there has been a general and longstanding trend of increasing rates of charge reductions for convicted DUI offenders that began well before implementation of the 2007 legislation.” Id. at 28.

The authors, recognizing the trend toward reducing drunk driving charges, make the following recommendation. “Recommendation: Any state implementing legislation that changes penalties for DUI should investigate whether sentencing behavior (particularly charge reductions) changes in response to the legislation, to ensure fidelity of implementation.” Id. at 29. With regard to the implementation issues they make the following recommendation. “Recommendation: Any state considering requiring ignition interlock for all convicted DUI offenders should develop plans and contingencies well in advance of implementation of such a policy to ensure that citizens from rural jurisdictions, as well as from urban jurisdictions, have ready access to ignition interlock services.”

It is my hope that our legislators are looking at the costs of implementing and monitoring the law.  I hope that they take a step back and review how amazingly harsh the penalties are for first-time offenders and how many poor people are disproportionally impacted by these laws.  The vast majority of individuals charged with a first OVI do not come back into the system – this is good.  So why pass laws that will create more crime and not make the streets any safer?  I am holding out hope that Ohio will have men and women who will take the hard stance against MADD’s agenda.

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 information on ignition interlock devices check these city-specific sites at the following links:
FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville