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Driving While High?

April 25th, 2012
3D rendering of the THC molecule

3D rendering of the THC molecule

Today, 90 million Americans have the right to access medical marijuana when they are seriously ill.  Ohioans will consider the passage of a medical marijuana bill this fall.  As more states decriminalize and legalize marijuana, law enforcement is scrambling to deal with what it warns will be a dramatic increase in driving while stoned.  What can we expect?

LAW ENFORCEMENT RESPONSE. Many states have adopted a specified training regimen for law enforcement officers.  This protocol allows officers to testify as to specific observations of marijuana impairment.  Drug Recognition Experts (DRE) are trained to recognize when an individual has been driving under the influence of drugs and to identify the type of drug causing impairment.  Drug Recognition Expert (DRE) refers not only to the officers themselves, but to the 12-step procedure that these officers use. DRE was developed by police officers from the Los Angeles (California) Police Department. In 1979, the Drug Recognition program received the official recognition of the LAPD. As of 2005, approximately 6000 police officers are certified as Drug Recognition Experts.  Ohio has not adopted the DRE protocol… yet.

STATUTORY RESPONSE. Several states, including Arizona, Georgia, Illinois, Indiana, Iowa, South Dakota, and Utah have adopted a “zero tolerance” approach to marijuana impairment while driving. Other states including Ohio, Pennsylvania and Nevada have attempted to set arbitrary levels which presume impairment.  These laws are similar to the familiar drunk driving laws which set a limit of .08% BAC.  Ohio, which also imposes a limit of 2 ng/mL for THC blood tests, and 10 ng/mL for THC urine tests. For the marijuana metabolite THC-COOH, Ohio’s limit is 50 ng/mL in blood and 35 ng/mL in urine; the limits are lower if the metabolite is detected along with alcohol or other drugs.

SCIENTIFIC RESPONSE.  As reported in this Reuters story, scientists are hard at work developing a roadside test for drivers who are impaired by marijuana.  It may soon be economically feasible to test drivers by using a quick saliva test which detects the presence of THC, the psychoactive ingredient in pot.   The saliva THC test is in its final phases of testing.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in 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 to40404. 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.

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Admissibility of the Standardized Field Sobriety Tests – Statutory Rules

April 18th, 2012
JACKSONVILLE, Fla. (March 17, 2009) Lt. j.g. J...

Ohio Revised Code 4511.19(D)(4)(b) sets forth the law on admissibility of the standardized field sobriety tests in Ohio.  It reads, in pertinent part:

(b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum or plasma, breath, or urine, if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:

(i) The officer may testify concerning the results of the field sobriety test so administered.

(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.

(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate.

Thus, the State must establish by (1) clear and convincing evidence (2) that the officer administered the test in substantial compliance (3) with the testing standards for any reliable, credible, and generally accepted tests (4) in effect at the time the tests were administered (5) including, but not limited to, the standards set by the National Highway Traffic Safety Administration.  Since the adoption of this standard and its acceptance by the Ohio Supreme Court, DUI attorneys have been fighting to define the parameters of what it means to be in substantial compliance with the standards.  See State v. Boczar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 155 (2007), upholding the constitutionality of R.C. 4511.19(D)(4)(b).  Such determinations are made on a case-by-case basis. State v. Robinson, 160 Ohio App.3d 802, 2005-Ohio-2280, 828 N.E.2d 1050 (Ohio App. 5th District Fairfield County 2005), appeal not allowed, 106 Ohio St. 3d 1544, 2005-Ohio-5343, 835 N.E.2d 726, abrogated on other grounds by State v. Boczar Id.; see also Brookpark v. Key, 2008-Ohio-1811 (Ohio Ct. App. 8th Dist. Cuyahoga Cty 2008).

DUI attorney Charles M. Rowland II dedicates his practice to defending those accused of DUI 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 to40404. 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.  Charles M. Rowland II is working hard to be your trusted source for DUI information in the Miami Valley. “All I do is DUI Defense.”

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“Hiding the Ball” in Ohio DUI Cases

April 16th, 2012

ODH and the Disappearing Intoxilyzer 8000 Records

The Ohio Statehouse in Columbus where the Ohio...

One of the proposed benefits of the adoption of the Intoxilyzer 8000 was to be the consolidation of breath test records in one place.  Previously, breath test records were maintained by the individual police departments.  Implementation and maintenance of the Intoxilyzer 8000 is the responsibility of the Ohio Department of Health and specifically the ODH’s Bureau of Alcohol and Drug Testing.  The Ohio Department of Health has started a web site containing all information about breath tests in the state, called the Breath Instrument Data Center. [HERE]  Records were to be available on-line and subject to review as public records making the entire process of reviewing a case easier.

Problems and allegations of wrongdoing surfaced almost immediately.  When the new machines gave some impossible results (10.00 and 23.00), the records disappeared.  Why?  If defense attorneys could point to outrageous results, the entirety of the breath testing scheme could be brought into question.  No adequate reason for the disappearance of these records has yet been given.  Later the ODH changed what records were accessible to the public. Why?  The Intoxilzyer 8000 was recording an unusually high number of “sample attempts” on tests.  Some of the tests said that over 20 “sample attempts” were made for one subject test.  This anomaly could be used by defense attorneys to show problems with the machine.  Instead of investigating the problem, the ODH decided to hide the report.  Similar problems were presented when ODH called the subject samples “tests.”  Why is this a problem?  If it is a “subject test” then the tests are out of bounds according to the rules written by the Ohio Department of Health.  Again, ODH took the most expedient route by changing the words “subject test” to “subject sample.”

The activity of the Ohio Department of Health, suspect from the beginning of this process, has descended to farce.  People, citizens of our great country, are being convicted of crimes that contain harsh mandatory penalties while the Department of Health arbitrarily changes the rules.  While ODH has not cited a legal basis upon which to premise these capricious changes, Ohio law does speak to the issue.  According to Ohio law records of breath tests “shall be retained for not less than three years.”  Deletion of these records, if they have been deleted forever, may also be a violation of O.R.C. 2921.12 (Tampering With Evidence) which says that no person shall “alter, destroy, conceal or remove any record or document, or thing with purpose to impair its value or availability as evidence in such a proceeding or investigation.”  Would any prosecutor fail to prosecute a criminal defense attorney who purposely deleted evidence of an OVI offense?  Enterprising defense attorneys may also have issues under the Brady discovery rules and Ohio Criminal Rule 16 discovery.  Such activity may also give rise to the affirmative defense of “outrageous governmental conduct.”  These problems will surely find themselves thrown into the laps of judges who must find a way to protect our Constitution from this bungle.  How this is sorted out may well turn into one of the most important judicial issues of our time.

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 to40404. 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.  Charles M. Rowland II is working hard to be your trusted source for DUI information in the Miami Valley. “All I do is DUI Defense.”

 

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Arrested for OVI in Centerville, Ohio?

March 22nd, 2012
Official seal of Centerville, Ohio

If you are arrested for OVI in Centerville, Ohio your case will be heard in the Kettering Municipal Court.  The Kettering Municipal Court provides justice services for the communities of Centerville, Kettering, Moraine and Washington Township. The Kettering Municipal Court is located at 2325 Wilmington Pike in Kettering, Ohio 45420.  You can reach the Kettering Municipal Court Clerk’s Office at (937) 296-2461.  The Kettering Municipal Court’s web site is HERE.  You can get directions to the Kettering Municipal Court by clicking HERE.  You can reach the Centerville Police Department (155 W. Spring Valley Rd., Centerville, Ohio 45458) at 937-433-7661 or by fax at (937) 433-0735.  The Centerville Police Department office hours are Monday through Friday 8:00 AM to 4:30 PM.  Visit the Centerville Police Department web site HERE.

If you or a loved one are accused of drunk driving in Centerville, Ohio, CONTACT Centerville OVI attorney Charles M. Rowland II for a free consultation at (937) 318-1DUI (318-1384), or visit www.DaytonDUI.com, www.KetteringDUI.com or www.CentervilleDUI.com. Charles Rowland regularly appears in the Kettering Municipal Court and has worked hard to earn the experience and credentials necessary to defend your Centerville OVI case.  To learn more, check out “How to Hire a DUI Attorney.”


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You Have The Right To Remain Silent

March 20th, 2012
The Three Wise Monkeys, carving on the stable ...

We frequently encounter jurisdictions that conduct “interviews” with a suspect following an arrest.  These interviews are carefully crafted checklists that gather incriminating statements related to the elements of the crime and further attempt to limit mitigating factors which your attorney may later wish to assert.  The questions typically seek to establish that the suspect was “operating” the vehicle.  Officers will also ask what the person had to eat and drink, when, where and how much.  Medical issues, mental issues, eye health, and other questions seek to limit the suspect’s ability to later assert a defense to the clues of impairment noted by the officer.  Some interviews end with the ultimate question of the suspect’s sobriety, asking, “Do you feel you were impaired by alcohol” or similar questions that go to the ultimate issue in the case.  What is amazing is the number of people who willingly cooperate and answer damning questions.  Doubly amazing is that every single “interview” we have ever seen begins by telling the suspect of their right to remain silent.  Please, please, please assert your right to remain silent!

Your silence cannot be used against you, so lawyer up.  Politely tell the officer that you will only answer questions if your attorney is present.  We are so protective of this right that the prosecutor is not allowed to mention your invocation of the right to silence at all. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d (1976);  State v. Stephens, 24 Ohio St. 2d 76, 53 Ohio Op.2d 182, 263 N.E.2d 773 (1970).  The prosecutor cannot remark about your silence in his closing, State v. Reed, 23 Ohio App.3d 119, 491 N.E.2d 723 (1st Dist. Hamilton County 1985), nor can he use it against you even if you choose to testify at trial. State v. Stephens, 24 Ohio St. 2d 76, 53 Ohio Op.2d 182, 263 N.E.2d 773 (1970).  Your attorney will file a motion in limine prior to the trial to prevent the prosecutor from addressing your silence after questioning.  However, the protection is waived if you sign a Miranda waiver form and answer the officer’s questions.  By remaining silent you give yourself an incredibly enhanced chance of winning your case.

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”

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