Posts Tagged ‘Law’

Top Ten Rules for Partying in Ohio

March 31st, 2014

In light of the arrest made following the University of Dayton’s victory, we offer college students these rules for partying (legally) in Ohio.

Rule #1: Don’t Drink and Drive

Ohio has some of the most stringent drunk driving laws in the county.  A first-time offender faces 180 days in jail and a one thousand seventy-five dollar fine, loss of their driver’s license for up to three years and enhanced penalties upon subsequent convictions.  A DUI (called an OVI in Ohio) is not subject to expungement, meaning it will be on your record forever, and subjects an offender to a six (6) year look-back period for enhancements and up to twenty (20) years for enhanced punishments for refusing an officer’s request to provide a breath, blood or urine sample.  In addition to the penalties you will face in court, you may face suspension from your school or other discipline. (Ohio Revised Code 4511.19)

Rule #2: Don’t Drink If You Are Under 21

It is illegal in Ohio for anyone under 21 to purchase, possess or consume an alcoholic beverage.  A conviction of Underage Consumption is a first degree misdemeanor and carries a maximum fine of $1,000.00 and/or up to six months in jail.  Despite efforts to lower the drinking age, the law remains rigidly enforced.  Athletes, students on scholarship and students who live in on-campus housing may face additional harsh penalties for underage drinking and be particularly vulnerable to the penalties that are sure to follow an arrest.  Ohio Revised Code Section 4301.69 contains most of the information concerning underage alcohol possession and use. Penalties are in Ohio Revised Code Section 4301.99.

Rule #3: Don’t Furnish Alcohol to Minors

Furnishing someone under 21 with alcohol is a first degree misdemeanor.  If you are providing the alcohol, make sure you know where it is going.  You may be responsible if an underage person consumes the alcohol and face harsh punishments.  Ohio regularly receives funding for programs aimed at curbing underage drinking and uses these funds to go after people providing the booze.  The bigger your party the more likely it is to draw attention from law enforcement.

Rule #4: Don’t Use a Fake ID

Just possessing  a fake ID is illegal in Ohio and is classified as a first degree misdemeanor.  Using the fake ID to purchase alcohol is punished by a mandatory $250.00 fine and may result in a 3 year driver’s license suspension.  A popular enforcement method is for police officers to serve as vendors in drive-through establishments:  “COPS IN SHOPS”

Rule #5: Don’t Drink Where You Shouldn’t

Ohio has an open container law.  It is a minor misdemeanor to possess in public an open container of an alcoholic beverage.  You are subject to a fine of up to $150.00 (a minor misdemeanor).  Possession of alcohol while in a car bumps the charge up to a fourth degree misdemeanor and subjects the offender to 30 days in jail. 4301.62 Opened container of beer or intoxicating liquor prohibited at certain premises.

Rule #6: Don’t Be Drunk In or Near a Car

Pursuant to Ohio Revised Code 4511.194 (effective Jan. 1, 2005), it is illegal to be in physical control of a vehicle while under the influence. “Physical Control” is defined as being in the driver’s seat of a car and having possession of the vehicle’s keys.  Physical Control does not require that the vehicle have ever been driven or even started.  Under the statute, having the keys within reach will satisfy the definition of having “physical control.”   The crime is one of potentiality, (i.e. you are so close to driving that we will punish you) and speaks to the growing neo-prohibitionist tendencies in Ohio law.

Rule #7:  Don’t Be Disorderly

Disorderly conduct can occur from simply being intoxicated in public.  Officers are given a great deal of discretion in determining what constitutes disorderly behavior.  Disorderly conduct occurs when one recklessly causes inconvenience, annoyance or alarm to another due to offensive conduct. Disorderly conduct also occurs when one makes unreasonable noise in such a manner as to violate the peace and quiet of the neighborhood or to be detrimental to the life and health of any individual.  While normally a minor misdemeanor ($150.00 fine) a disorderly conduct can be enhanced to a fourth degree misdemeanor (30 days jail/$250 fine) if an officer tells you to stop the behavior and you persist. See O.R.C. 2917.11 Disorderly Conduct.

Rule #8: Don’t burn stuff

Intentionally setting fire to property that might endanger other or their property, in fact damages the property of another and/or preventing police, fire or EMS personnel from doing their job is a violation of O.R.C. 2909.01 to 2909.0.  Students at public universities in Ohio who are found guilty of these crimes will lose all state-funded financial aid for two years.

Rule #9: Disperse When Instructed

Failure to disperse is also a crime in Ohio.  You should begin walking away and/or go indoors upon such an order. You must obey all lawful orders given by such persons at an emergency site.  A recent revision in the law makes a failure to disperse in situations such as campus area riots an offense for which you can be arrested and jailed. If you actively hamper police officers, firefighters, emergency medical personnel, and other public officials while they are doing their jobs you subject yourself to the charge of Misconduct During An Emergency.

Rule #10 Don’t Riot

The party is getting out of control.  If more than five people are engaging in disorderly behavior the party may be deemed a riot under Ohio law.  Your participation in a riot may subject you to criminal penalties. If there is violence involved the rioting gets bumped up to aggravated rioting.  Aggravated rioting is a felony level offense.  Those found guilty of rioting and aggravated rioting must be dismissed from their university and are not permitted to enroll in any state-supported institution of higher education for one year.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, 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, www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Ohio’s Felony OVI Look-Back Rule

September 11th, 2013

felony oviOhio has established a twenty year felony OVI look-back period.

A sixth or greater OVI (drunk driving) offense within a twenty year look-back period is a fourth degree felony OVI. R.C. 4511.19(G)(1)(d).  Another harsh provision under Ohio OVI  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.

Felony OVI 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.

Felony OVI is different from Aggravated Vehicular Homicide, O.R.C. 2903.06,  a crime that results from the death of another caused by the defendant’s operating a vehicle while impaired (a violation of R.C. 4511.19)  or while driving negligently or recklessly.  The statute  encompasses driving an automobile recklessly or negligently (called Vehicular homicide) whether or not alcohol played a part in the death. O.R.C. 2903.08, Aggravated Vehicular Assault is the crime of causing serious physical harm to a person while violating Ohio’s drunk driving statute.  Aggravated vehicular assault is a felony of the third degree.

Ohio DUI Laws: An Overview

August 12th, 2013

ohio dui lawsThis post collects together in one place many of the Ohio DUI Laws that arise in drunk driving cases.  

Some Ohio DUI laws are listed because law enforcement will charge these offenses to establish probable cause for pulling over your vehicle.  If you need to find out more about a specific law, or how the statute has been interpreted or applied, call Charles M. Rowland II at (937) 318-1384 or read about the specific Ohio DUI law at the Ohio DUI Law Blog.

Operating a Vehicle Impaired (OVI); O.R.C. 4511.19

This is Ohio’s drunk driving statute (Ohio’s DUI law).  It is a complex and constantly changing statute that encompasses impaired driving by having a prohibited concentration of alcohol or drugs as well as the charge of driving impaired based on no test or a defendant’s refusal to take a chemical test.  The statue has been expanded to include both high-tier and low-tier OVI charges as well as setting the under 21 prohibited concentration.  Ohio DUI laws are complex and require the assistance of an experienced Ohio DUI attorney.

Aggravated Vehicular Homicide; O.R.C. 2903.06

Ohio DUI Laws: Aggravated Vehicular Homicide is a crime that results from the death of another caused by the defendant’soperating a vehicle while impaired (a violation of R.C. 4511.19)  or while driving negligently or recklessly.  The statute  encompasses driving an automobile recklessly or negligently (called Vehicular homicide) whether or not alcohol played a part in the death.

Aggravated Vehicular Assault; O.R.C. 2903.08

Ohio DUI Laws: Aggravated Vehicular Assault is the crime of causing serious physical harm to a person while violating Ohio’s drunk driving statute.

Operating A Vehicle After Underage Consumption (OVUAC); O.R.C. 4511.19(B)

Ohio DUI Laws: O.R.C. 4511.19(B) makes it illegal for persons under 21 years of age to drive a vehicle with a concentration of .02 percent, but less than .08 percent by weight of alcohol by whole blood or breath, or with an equivalent amount by blood serum or plasma or urine.  (1994 S.B. 82, eff. 5/4/94).

Having Physical Control of a Vehicle While Under the Influence (Physical Control); O.R.C. 4511.194

Ohio DUI Laws: The crime of “Physical Control” involves being in physical control of a vehicle while under the influence of alcohol or a drug of abuse.  This definition means that you do not have to be driving or operating the car.

Reckless Operation; O.R.C. 4511.20

Reckless operation in Ohio can constitute any number of offenses within the Ohio Revised Code dealing with operation of a vehicle with willful or wanton disregard to persons or property. It can be charged as a 3rd degree misdemeanor, a 4th degree misdemeanor or as a minor misdemeanor under Ohio law.

Boating Under the Influence (BUI); O.R.C. 1547.11

Penalties for Boating Under the Influence offenses are set forth at O.R.C. 1547.99 and are similar to those provided for DUI/OVI offenses.  Boating Under the Influence is a first degree misdemeanor and is subject to a minimum 3-day jail sentence and a maximum 6 months in jail.  The 3-day jail sentence can be served in a qualified driver intervention program.  The minimum mandatory fine for a first BUI offense is $150.  The language of the statute is broad, including control of any vessel underway or shall manipulate any water skis, aquaplane, or similar device on Ohio waterways.

Driving in Marked Lanes (Marked Lanes); O.R.C. 4511.33

A marked lanes charge is often a companion charge to a DUI/OVI offense.  It is also a “cue” that the officer may look for based on his/her National Highway Transportation Safety Administration training.

Lanes of travel upon roadways of sufficient width; O.R.C. 4511.25

Going the wrong way on a designated roadway or traveling into the “other” lane may be a violation of the “Lanes of Travel” law.  Some experienced officers choose to charge this offense rather than a Marked Lanes violation or charge this in combination with a Marked Lanes violation.

Turn and Stop Signals; O.R.C. 4511.39

“No person shall turn a vehicle… or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided. When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle… before turning.”

Underage Consumption or Possession; O.R.C. 4301.69

This statue encompasses the crime of possessing and furnishing alcohol to minors.  If you are under 21 years old, drinking alcohol is illegal in the State of Ohio.  Ohio Revised Code 4301.69(E)(1) provides that “No underage person shall knowingly order, pay for, share the cost of, attempt to purchase, possess, or consume any beer or intoxicating liquor in any public or private place. No underage person shall knowingly be under the influence of any beer or intoxicating liquor in any public place.”  As a parent, you cannot give alcohol to your teen’s friends under the age of 21, under any circumstance, even in your own home, even with their parent’s permission.

Speeding and Assured Clear Distance, Following Too Closely; O.R.C. 4511.21

The speed law is set forth at Ohio Revised Code 4511.21.  It states:(A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead.  The law goes on to set forth the “speed limits” or presumed speed limits.  According to the Ohio State Highway Patrol, there were more than 65,500 crashes statewide last year because of drivers following too closely. And of those crashes, 58 died and 18,552 were injured.

License Plate Light Not Illuminated, O.R.C. 4513.05

In Ohio, it is illegal to operate a motor vehicle without a white light illuminating the rear registration plate. See O.R.C. 4513.05.  This law is often used as a pretext for a traffic stop which allows the officer to come into contact with the motorist. This is among the more “ticky-tack” reasons to pull someone over and the public views this as something of an underhanded trick used by law enforcement to justify a stop.

Driving Under SuspensionO.R.C.4510.14

Driving under an OVI suspension is a violation of Ohio Revised Code 4510.14.  It is a separate offense from a DUI/OVI charge and carries harsh mandatory penalties. With the use of “party plates” which stigmatize people convicted of DUI and their innocent family members, and the increased use of computer license plate readers, Ohioans are seeing an increase in the number of people being ticketed for driving under suspension.

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 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.”

 

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

OVI Breath Tests: Faulty Assumptions

July 31st, 2013

English: Bronchial anatomy detail of alveoli a...

Why do Ohio OVI attorneys question OVI breath tests?

Each of our lungs contain about 300 million small air sacs called “alveoli” that are responsible for the air exchange that keeps us alive.  In the alveoli, oxygen from the inhaled air is exchanged for carbon dioxide.  Air finds its way to the alveoli via the trachea which divides into the two main stems (bronchi) of the lungs.  From there, the air passes through sub-bronchi that may subdivide over 23 times.  As the air is passing through the lungs it passes over a rich layer of mucus which warms and humidifies it.

Like the exchange of carbon dioxide, when ethanol (drinking alcohol) is present, it too is exchanged in the lungs via the alveoli.  It is an inefficient system of exchange and we know this because you can smell an odor of an alcoholic beverage if a person has recently consumed.  The amount of alcohol that leaves the blood to via alveoli exchange is critically dependent on the blood alcohol concentration and the peculiarities of the person’s lung.

Drunk driving defense attorneys have long argued that the differences between human breathing and the dynamics of alcohol exchange at the alveoli level make the comparison questionable for purposes of evidential breath testing.  This exchange and its proposed value is based on Henry’s law, a chemical law which states that the proportion of alcohol contained in an air sample is comparable to the amount of alcohol contained in the blood.  Henry W., Experiments on the Quantity of Gases Absorbed by Water at Different Temperatures and Under Different Pressures. Philos Transcripts of the Royal Society 93:29-42, 1803.

If you have ever opened a cold beer you are familiar with Henry’s Law.  As the drink is poured small gas bubbles escape into the atmosphere.  Why? It is due to the decrease in pressure caused by opening the bottle and the increased if you pour the liquid into a glass which is hotter than the refrigerated beer bottle.

We can attack the operation of Henry’s Law in the accusation of drunk driving when a person is over-heated due to an illness or physical exertion like dancing.  The higher the temperature, the higher a breath test will be according to science.  Breathing patterns can also affect the concentration of alcohol in a breath sample.  This variation is primarily caused by the difference between the ambient air temperature and that of the human body.  Since it is impossible for any breath testing device to sample the air exchange at the alveolar level, it has to assume that the air coming out is of an equivalent alcohol concentration based on Henry’s Law.  It cannot and does not take into account any differences in the individual, the individual’s lungs or the differences in temperature between the ambient air and the sample.

Read more about the breath machine’s assumptions at Halstala, M.P. Physiological Errors Associated With Alcohol Breath Testing. The Champion 10:16-39, 1985.
 
Much of the information in this article comes from the International Association of Forensic Toxicologists.  Specifically the Proceedings of the 27th International Meeting held in Perth, Australia on October 19-23, 1990.
 

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, 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,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

A Prosecutor’s Voir Dire Advantage: The Primacy & Recency Effect

June 12th, 2013

A graph demonstrating the serial position effect

In Ohio, the prosecuting attorney in a DUI/OVI trial gets to make the first presentation in voir dire, has the first opportunity to do opening and closing, and also has a rebuttal that follows the Defendant’s closing argument.  Why is this a big advantage?

Psychologists tell us that there is the tendency for the first items presented in a series to be remembered better or more easily, or for them to be more influential than those presented later in the series. If you hear a long list of words, it is more likely that you will remember the words you heard first (at the beginning of the list) than words that occurred in the middle. This is the primacy effect. You should also note that you will be likely to remember words at the end of the list more than words in the middle, and this is called the recency effect. Solomon Asch (1946) asked some people about a person described as envious, stubborn, critical, impulsive, industrious and intelligent. He then asked other people about a person described as intelligent, industrious, impulsive, critical, stubborn and envious. The second group rated the person more highly than the first group. He also found that the second and third items on the list had reduced primacy effects.

Miller and Campbell recorded proceedings from a trial with a combination of sequences of arguments for and against the plaintiff, sometimes with delays of a week between parts and the judgment that they sought from experimental participants. The results in the table below show that when there was no delay between the first and second message, but then a week’s delay before the judgment, a primacy effect occurred. When there was a delay between the first and second message, but no gap between the second message and the judgment, then a recency effect occurred.

First message Delay after first message? Second message Delay after second message? Judgment
For plaintiff No Against plaintiff No Balanced
Against plaintiff No For plaintiff No Balanced
For plaintiff No Against plaintiff Yes For
Against plaintiff No For plaintiff Yes Against
For plaintiff Yes Against plaintiff No Against
Against plaintiff Yes For plaintiff No For
For plaintiff Yes Against plaintiff Yes Balanced
Against plaintiff Yes For plaintiff Yes Balanced

For the defense attorney, you should be aware of the inherent advantages provided to the prosecutor and point them out to your potential jurors.  Let them know that they owe you the attention that they give to the prosecutor.  Inform them of the importance of not forming an opinion until you have the chance to speak.  This also feeds into the importance of always giving an opening statement.  The attorney should also be cognizant of the primacy and recency effect when planning a cross-examination around breaks.

Be dynamic and stand out!  One way to overcome the primacy and recency effect is with the Von Restorff Effect. The Von Restorff effect was identified by Hedwig von Restorff in 1933. She conducted a set of memory experiments around isolated and distinctive items, concluding that an isolated item, in a list of otherwise similar items, would be better remembered than an item in the same relative position in a list where all items were similar. There can also be a reverse effect here. You remember the unique item, but the attention that it grabs from you is removed from other items — thus you may in fact remember less overall. Hedwig’s work relates to Gestalt, where she related it to the Figure and Ground principles. Taylor & Fiske, (1978) indicated that attention is usually captured by salient, novel, surprising, or distinctive stimuli. These may be used to enhance the von Restorff effect. In the ‘attention age’, when the plethora of media around us is constantly battling for a moment of our time, advertisers make much use of this principle, each vying with the other to stand out from the crowd and hence be remembered by the target audience. The Von Restorff effect is also called the Isolation Effect or the Distinctiveness Principle (Nelson, 1979). The same principle has also been described as prominence effects (Gardner, 1983) environmental salience effects(Taylor & Fiske, 1978), and novel popout effect (Johnson, Hawley, Plewe, Elliott, & De Witt, 1990).

 DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 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. “All I do is DUI