Posts Tagged ‘felony dui’

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Morphine, Heroin and the Horizontal Gaze Nystagmus

September 26th, 2011
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In the past years, my office has seen an increase in the number of “drugged” driving cases we receive. While arrests for marijuana make up the vast majority of those cases, we are also seeing a dramatic rise in prescription drug cases along with traffic stops implicating harder drugs such morphine and heroin.

As with other impaired driving cases, it is vital that you know the observations that would be consistent with impairment by that drug.  It is also vital that you determine if the “standardized field sobriety test” protocol adopted in Ohio is applicable in recognizing clues of impairment due to that specific drug.  The National Highway Traffic Safety Administration (hereinafter NHTSA) has been at the forefront in research to this very point.  The information in this article is derived from the NHTSA Drug and Human Performance Fact Sheet.

Heroin and Morphine are both classified as narcotic analgesics.  Morphine is a naturally occurring substance extracted from the seedpod of the poppy plant, Papavar somniferum. The milky resin that seeps from incisions made in the unripe seedpod is dried and powdered to make opium, which contains a number of alkaloids including morphine. Morphine concentration in opium can range from 4-21%. An alternate method of harvesting morphine is by the industrial poppy straw process of extracting alkaloids from the mature dried plant, which produces a fine brownish powder. Morphine is a schedule II controlled substance and is available in a variety of prescription forms: injectables (0.5-25 mg/mL strength); oral solutions (2-20 mg/mL); immediate and controlled release tablets and capsules (15-200 mg); and suppositories (5-30 mg). Heroin is a schedule I controlled substance and is produced from morphine by acetylation at the 3 and 6 positions. The majority of heroin sold in the U. S. originates from Southeast Asia, South America (Columbia) and Mexico. Low purity Mexican black tar heroin is most common on the West coast, while high purity Columbian heroin dominates in the East and most mid-western states.

Depending on the morphine dose and the route of administration, onset of effects is within 15-60 minutes and effects may last 4-6 hours. The duration of analgesia increases progressively with age although the degree of analgesia remains unchanged. Following heroin use, the intense euphoria lasts from 45 seconds to several minutes, peak effects last 1-2 hours, and the overall effects wear off in 3-5 hours, depending on dose.

The drug manufacturer states that morphine may impair the mental and/or physical abilities needed to perform potentially hazardous activities such as driving a car, and patients must be cautioned accordingly. Driving ability in cancer patients receiving long-term morphine analgesia (mean 209 mg daily) was considered not to be impaired by the sedative effects of morphine to an extent that accidents might occur. There were no significant differences between the morphine treated cancer patients and a control group in vigilance, concentration, motor reactions, or divided attention. A small but significant slowing of reaction time was observed at 3 hours. In several driving under the influence case reports, where the subjects tested positive for morphine and/or 6-acetylmorphine, observations included slow driving, weaving, poor vehicle control, poor coordination, slow response to stimuli, delayed reactions, difficultly in following instructions, and falling asleep at the wheel.  Classification of risk depends on tolerance, dose, time of exposure, acute or chronic use, presence or absence of underlying pain, physiological status of individual, and the presence of other drugs: moderately to severely impairing in non-tolerant individuals; mild to moderately impairing if morphine is used as medication on a regular basis for chronic pain; severely impairing in acute situations if used orally, or as an intravenous medication, or if either drug is taken illicitly.

With regard to the standardized field sobriety tests, law enforcement will be required to rely on the coordination tests rather than the horizontal gaze nystagmus test.  Horizontal gaze nystagmus is not present; vertical gaze nystagmus is not present; lack of convergence is not present; pupil size is constricted; little or no reaction to light; pulse rate down; blood pressure down; body temperature down. Other characteristic indicators may include presence of fresh injection marks, track marks, flaccid muscle tone, droopy eyelids, drowsiness or “on-the-nod”, and low raspy slow speech.

Charles M. Rowland II has dedicated his practice to representing the accused drunk driver.  His commitment includes continuous study of the forensic sciences and legal strategies that will help you win your DUI case.  If you find yourself in need of a qualified and experienced Ohio OVI attorney, CONTACT Charles M. Rowland II at (937) 318-1DUI or 1-888-ROWLAND.

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Posted in DUI, Drugs & Driving, Field Tests (SFSTs)

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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

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Posted in Blood & Urine Tests, Breath Testing, DUI Court Process

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The 20 Year Look-back Provisions of Ohio DUI Law

July 7th, 2011
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If you accumulate a sixth or greater DUI/OVI offense within a twenty year look-back period, you can be charged with a fourth degree felony. R.C. 4511.19(G)(1)(d).  Another harsh provision under Ohio law is the “once a felony, always a felony” rule contained in R.C. 4511.19(G)(1)(e), meaning that any future DUI regardless of how many years have passed is charged as a third-degree felony.  This means that if you have many years of sobriety in between DUI convictions, you still face a felony rather than having your case treated as a first-in-six misdemeanor offense.

DUI defense attorneys have challenged the constitutionality of these look-back provisions on the grounds that they violated due process and that they are a retroactive application of laws.  In State v. Miccap, 2006-Ohio-2854 (Ohio Ct. App. 9th Dist, Summit County), the 9th District Court of Appeals rejected these arguments and upheld the enhanced punishments.  It stated that the penalties imposed were not enhancements punishing prior conduct, but punishing any violations that occur after enactment of the enhancement provision.  In State v. Brooke, 113 Ohio St.3d 199, 863 N.E.2d 1024 (2007), the court upheld the right of a defendant to challenge whether or not a prior conviction was conducted in accordance with the rule of law.  For a complete discussion of Attack on prior convictions, see Ohio Driving Under the Influence Law, Weiler & Weiler J., 2009-2010 ed., pp 333-335.

Dayton/Springfield OVI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’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, www.facebook.com/daytondui.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at2190 Gateway Dr.,Fairborn,Ohio45324.

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Juvenile DUI Addressed in Ohio Supreme Court

July 6th, 2011
Self made photo, taken August 05.

The issue the Ohio Supreme Court addresses in State v. Adkins, 2011-Ohio-3141  is whether a pre-January 1, 1996 juvenile adjudication can be considered one of the five prior similar offenses necessary to enhance an R.C. 4511.19(A)(1)(a) charge for operating a motor vehicle while under the influence of alcohol (“OVI”). Under R.C. 4511.19(G)(1)(d), an OVI is a fourth-degree felony if the defendant has been convicted of or pleaded guilty to five OVIs in 20 years.  Effective January 1, 1996, the Ohio legislature passed a new law making a prior juvenile adjudication constitutes a prior conviction for purposes of R.C. 4511.19(G)(1)(d).

PROCEDURAL HISTORY

On September 14, 2007, defendant-appellant, Gary Adkins, was indicted for an OVI violation under R.C. 4511.19(A)(1)(a). Pursuant to R.C. 4511.19(G)(1)(d), he was charged with a fourth-degree felony based upon the allegation that he had been previously convicted of or pleaded guilty to five or more OVI offenses within the previous 20 years. Specifically, the indictment alleged that Adkins had been convicted of six prior OVI offenses, including a November 20, 1987 adjudication in Delaware County Juvenile Court, where Adkins had been adjudicated “a juvenile traffic offender as a result of Alcohol Concentration, Fleeing an Officer and Failure to Maintain Assured Distance.” Whether that adjudication could properly be considered a prior offense is the issue in this case.

LAW & ANALYSIS

The Ohio Supreme Court ruled that “R.C. 2901.08 did not change Adkins’s juvenile adjudication; it merely added another type of legal violation as an aggravating offense under R.C. 4911.19(G)(1)(d). Prior to the passage of R.C. 2901.08, at least one appellate court had held that juvenile adjudications could not be considered previous OVI convictions for purposes of enhancement. State v. Blogna (1990), 60 Ohio App.3d 141, 573 N.E.2d 1223, syllabus. In that case, the court held that the defendant’s delinquency adjudication could not be used as an enhancement under 4511.19 due to the difference between an adult conviction and a juvenile adjudication. Id. at 143. R.C. 2901.08 statutorily overturned that holding and clarified the law. It did nothing to Adkins’s record – it simply made clear that for enhancement purposes, courts could consider a juvenile adjudication as a conviction. ” The Court also refused to find application of the law an a retroactively applied law, holding, “[b]ecause R.C. 2901.08 is applied prospectively and is not unconstitutionally retroactive, we affirm the judgment of the court of appeals.”

Dayton DUI attorney Charles M. Rowland II regularly handles cases involving juvenile OVI offenders.  He has advocated for the sealing of records provisions of juvenile law be applied to prevent enhancements of further offenses and works tirelessly with families to address both the child’s case and the long-term ramifications of a juvenile OVI conviction.  If you know a child that could benefit from Mr. Rowland’s services, please visit www.DaytonDUI.com or call (937) 318-1384 or 1-888-ROWLAND to discuss the case.

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Posted in DUI Case Law, DUI Felony, DUI Under 21/Juvenile

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What Constitutes a Felony DUI in Ohio?

June 9th, 2011

Ohio has enacted two “look-back” statutes which enhance the penalties for a DUI; a six year look-back and a twenty year look-back.  This post will focus on when a DUI becomes a felony.  For a complete list of penalties for DUI offenses check out my previous article OHIO OVI PENALTIES.

Six Year Look-Back

If you receive a second DUI six years from the conviction date of your first DUI, the penalties are enhanced.  Both a first and second DUI within a six year period are first degree misdemeanors which carry a maximum fine of $1,075.00 and a maximum incarceration of six (6) months.  A second DUI within six years is enhanced, meaning that the minimum number of incarceration days and the fine are heavier. R.C. 4511.19(G)(1)(a) and (b).  A third offense within six years has even heavier fines and incarceration and carries a possibility of one year of incarceration, owing to the fact that a third offense is an unclassified misdemeanor. R.C. 4511.19(G)(1)(c).  A DUI becomes a fourth degree felony if it is a fourth offense within six (6) years. R.C. 4511.19(G)(1)(d).

Twenty Year Look-Back

A sixth or greater offense within a twenty year look-back period is a fourth degree felony. R.C. 4511.19(G)(1)(d).  Another harsh provision under Ohio law is the “once a felony, always a felony” rule contained in R.C. 4511.19(G)(1)(e), meaning that any future DUI regardless of how many years have passed is charged as a third-degree felony.  This means that if you have many years of sobriety in between DUI convictions, you still face a felony rather than having your case treated as a first-in-six misdemeanor offense.

DUI defense attorneys have challenged the constitutionality of these look-back provisions on the grounds that they violated due process and that they are a retroactive application of laws.  In State v. Miccap, 2006-Ohio-2854 (Ohio Ct. App. 9th Dist, Summit County), the 9th District Court of Appeals rejected these arguments and upheld the enhanced punishments.  It stated that the penalties imposed were not enhancements punishing prior conduct, but punishing any violations that occur after enactment of the enhancement provision.  In State v. Brooke, 113 Ohio St.3d 199, 863 N.E.2d 1024 (2007), the court upheld the right of a defendant to challenge whether or not a prior conviction was conducted in accordance with the rule of law.  For a complete discussion of Attack on prior convictions, see Ohio Driving Under the Influence Law, Weiler & Weiler J., 2009-2010 ed., pp 333-335.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  Contact Charles Rowland at (937)318-1384 [318-1DUI], 1-888-769-5263 [888-ROWLAND] or visit his web site at www.DaytonDUI.com or www.facebook.com/DaytonDUI or on Twitter @DaytonDUI.

“All I do is DUI.”

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