Posts Tagged ‘nhtsa student manual’

How Do I Find A Good OVI Attorney?

June 2nd, 2014

ovi attorneyI offer this common-sense guide to helping you find the right OVI attorney because I believe that with a good game plan and realistic expectations you can win your case.   Since the inception of my practice I have provided the accused drunk driver with access to information about Ohio’s toughdrunk driving laws.  I believe that information is the key to overcoming fear and empowering you to make good decisions.  Don’t be afraid to ask tough questions and demand straight answers in order to make an informed decision.  Here are 10 questions that you should use to interview potential OVI attorneys.

Question One: Do You Limit Your Practice to OVI?

All web sites (even this one) are marketing tools set up to highlight the best aspects of an attorney’s practice.  As one web development company tag line puts it, “NO ONE LOOKS BAD ON THE WEB.”  Often, a firm will have multiple pages dedicated to each area of law that they practice, implying that they are “dedicated” to one or another particular practice area when in fact OVI defense is a small part of their practice. You don’t want a lawyer who “dabbles” in OVI.  ASK THE QUESTION: “Is your practice limited to representing the accused drunk driver?”

OVI defense is a complex area of law involving forensic science, specialized knowledge and litigation techniques specific to OVI.  Successful practitioners will have access to information, arguments, experts and materials that come from being exposed to multiple DUI cases.  DUI attorneys will have blogs, websites, materials, scientific studies, and books specific to the field.  Ask your potential attorney what OVI-specific organizations he belongs to, what legal education conferences he has spoken at or attended. Ask your potential attorney to hand you his or her copy of the NHTSA Student Manual that he will use in court.  Does the attorney have one?  Is it up to date?  Thanks to the internet you can find out all you need to know by looking at other sites that the attorney is featured on.  On www.AVVO.com attorney profiles have a breakdown of the lawyer’s practice areas that are self-reported by the attorney.

 Charlie says, “All I Do Is OVI.”

Question Two: What Kind of OVI Credentials Do You Have?

Credentials are earned through hard work and dedication to the cause of drunk driving defense.  Often, OVI attorneys receive specialized training and certification on the breath testing machines in their jurisdictions.  These certifications are invaluable in understanding how a machine could malfunction or give a falsely high reading.  Dedicated OVI counsel can also receive specialized training in the Standardized Field Sobriety Testing by becoming certified to administer and evaluate the field tests.  Having worked both sides of the OVI issue can also be an important credential.  Has the attorney ever worked as a prosecuting attorney?  Has the attorney ever prosecuted a OVI case?  Has the attorney ever lectured or written on OVI topics for journals, newspapers or bar associations?  The truth is that the internet has many directories or referral services where an attorney can be listed as a “OVI” attorney with little or no OVI experience whatsoever.  Yellow page advertisements, which often have OVI listed among many other practice areas, can also be misleading as to OVI credentials.  It is up to you to dig deeper and demand that the attorney demonstrate a depth of knowledge in OVI defense.

See the “About Me” section above to learn about my OVI credentials.  I am very proud of my credentials.  I believe myself to be amongst the most qualified and credentialed OVI attorneys in the country.  What is more, I am constantly trying to learn and improve.  You deserve nothing less.

Question Three: What Is Your OVI Experience?

You should walk out of your attorney’s office confident in the knowledge that you have spoken to someone who has real experience defending OVI cases.  Ask the following and, if you don’t get straight answers, get up and leave: Have you ever tried a OVI case to a jury?  Have you ever tried a felony OVI case?  Have you ever tried a “test” case (a case where the person blew into a breath machine)?  Have you ever tried a “refusal” case (a case where the person refused to blow into a breath test machine)?  Have you ever tried a OVI case in federal court?   Have you ever argued cases involving dentures?  Have you ever argued a case involving AMBIEN sleep medication?  Have you ever represented doctors? Dentists? Pilots? Paramedics? Athletes? Military Personnel?  How many OVI Motions to Suppress have you done?  Have you ever done a motion or trial in the court where I will appear?

Some firms add up the years of practice of each person in the office and say things like, “our firm has over thirty years of representing clients,”  This is not experience, this is mathematics.  If you were having heart surgery would you care how many years of experience some other doctor had, or would you want the most experience heart surgeon you could get.

 Charlie says, “I have tried each of the “types” of cases described above. See the following ARTICLE on my Aggravated Vehicular Homicide case in the Greene County Common Pleas Ct.”

Question Four: Will You Or Someone Else Represent Me?

One of the most important questions to ask is “who will be representing me in court.”  If you meet with a highly qualified, experienced OVI attorney make sure that he or she will be beside you in court.  Having the attorney answer this question by referring to a “team approach” may be a way of saying that you will be shuffled off to an associate once we get your money.  Another evasion is for the firm to say, “all of our attorneys are involved in your case.”  If you hire Michael Jordan make sure you don’t get someone who attended the Michael Jordan basketball camp.  Your case is the most important case in the world to you! You are not a commodity to be managed, but a client to receive the best the attorney has to offer.

 When you hire Charles M. Rowland II, you get Charles M. Rowland II at every stage of your OVI case.

Question Five: What Do Other Attorneys (and Real People) Think of You?

The legal profession requires a high degree of collaboration and cooperation with others in the legal community.  Often, successful attorneys will be an active member of their local or state bar associations.  Like jury trials, serving on boards, taking on leadership positions and having valuable “real-life” experiences demonstrate that the attorney has the ability to represent your interest.  You can also see your attorney’s rankings and endorsements on www.AVVO.com.  Use this information to form your own opinion.  There is nothing like sitting down and having a conversation with someone to learn about that person.  Trust your instincts!  If something about the attorney seems off-putting in his office, imagine how nervous you will be when that attorney goes into a room to talk about your life without you there.  The DUI experience is traumatic and you are very vulnerable, so consider bringing someone you trust to interview the attorney with you.  At DaytonDUI we have developed a vibrant online community atwww.Facebook.com/daytondui.  Join us to get an idea about my insights and my passion for my clients.

 See the “About Me” section above to learn about my credentials beyond the courtroom.

Question Six: Have You Ever Been Disciplined by the State Bar?

It goes without saying that a lawyer who has been disciplined in the past should receive extra scrutiny.  You should also look for things like gaps in the attorney’s resume, dramatic job shifts or traveling from job to job.  Thanks to the internet you can find out a great deal of information about a potential attorney.  Usually, a good face-to-face interview will reveal the attorney’s character and personality and will give you a good read about the person. Ask direct questions and demand straight answers.

 I have never been disciplined by the State Bar.  This can be verified at www.Avvo.com (search Charles M. Rowland II) or at the Ohio Supreme Court web site (www.sconet.state.oh.us/).

Question Seven: What Is The Court Process?

Have the attorney explain in detail what each step in the OVI court process will be like.  Have your attorney explain what he or she will be doing at each stage and what will be required of you at each stage.  This is also a good way of determining what level of communication you can expect from your attorney and how your attorney approaches the problems in your case.  Have the attorney explain what possible defenses he or she will raise.  Ask how the attorney what his or her philosophy is regarding pre-trial hearings.  Ask what his or her negotiation philosophy is based upon, what books they have read about negotiation and how they will approach the negotiation in your case.  Ask how the decision to go forward on a motion to suppress will be made.  If the attorney won’t (or can’t) explain things easily to you, why should you expect them to communicate well with a jury.

Please click HERE for a video of me explaining the OVI court process.  You can also find multiple articles I have written in the “DUI Court Process” section of this blog.

Question Eight: Who Do You Work With?

OVI attorneys often rely on expert witnesses in defending cases.  Experts can prove vital to raising defenses to chemical tests and challenging the officer’s interpretations at the scene.  Other experts can include optometrists, accident reconstruction experts, psychologists, private investigators, forensic toxicologists, doctors and forensic scientists.  Experienced OVI counsel will have worked with top-of-the-line experts in court and will know how to use them to your advantage.  Another benefit of hiring experienced counsel rests in knowing when not to rely upon an expert.  Ask for names, and case references and don’t be afraid to demand an interview with the expert prior to hiring them.  Remember the attorney works for you – you don’t work for the attorney.

See the following ARTICLE in which I used expert witnesses to earn a not guilty verdict.  I have cultivated relationships with the best experts in the world.

Question Nine: What Will This Cost Me?

I always say, “If you know how somebody gets paid you’ll never get ripped off.”  Here are some common-sense questions to determine what you will be charged for:

  • Will you be charged a flat fee or will you pay a retainer fee and have an open-ended bill?
  • Will your attorney be incentivized to keep the case going on longer?
  • Will your attorney be incentivized to take any plea just to end the case?
  • Will you be charged copy fees, filing fees, paralegal fees, or any other fees on top of your bill?
  • Will you be billed monthly, weekly or all at once?
  • Does the fee include the costs of a trial?
  • Does the fee include the costs of an appeal?
  • Does the fee include representation on case-related issues after the case is over (driver’s license issues)?

Again, if the attorney won’t give straight answers to these questions be prepared to leave without hiring that attorney.

Warning: If you are shopping based on price alone, you probably won’t hire me.  I am not “cheap” and I don’t want to be.  In my opinion, hiring an attorney based solely on price is as senseless as representing yourself.  Do not expect answers to fee questions over the telephone.  I cannot give you a realistic price unless I know all the information about you and your case.  It is inconceivable to me that a dedicated and ethical attorney could, or would, quote a fee without a thorough investigation of your case.  Asking for a quote over the phone is like asking the question, “what will I pay for a used car?”

BE CAREFUL!  If you get a letter in the mail offering a flat fee for OVI services – be careful.  If you find an attorney who will charge considerably less than any other attorney you consult with – be careful.  If you talk to, or visit a web page that tries to scare you – be careful.  If you talk to an attorney that puts down public defenders – be careful.  If you meet with an attorney who stresses his friendship with the Judge or Prosecutor – be careful.  If you talk with a referral service rather than an attorney – be careful.  If you meet with an attorney who puts other attorneys down – be careful.  If you meet with an attorney that pressures you into making a decision right away – be careful.  If you get treated rudely on the phone by the attorney, staff, or anyone associated with him or her – be careful.  If you meet with an attorney that guarantees an outcome or makes an outcome seem a foregone conclusion – be careful.  Let common-sense be your guide.

Question Ten: Can You Help Me?

Do not hire an attorney that promises outcomes or implies that they are the only lawyer who could handle your case.  You know better!  All that ethical counsel can promise is their best effort at defending you.  Some lawyers, through hard work, may be in a better position to recognize issues in your OVI case.   No lawyer will win all their cases, but you can’t win issues you don’t know exist.  Hire the person who is best situated to be your guide. As the old cowboys used to say, “he’ll do to ride the river with.”  Like all relationships, you will know when it is right. Rely on your judgment and experience and trust your instincts.  You will know whether or not you have made a good decision.  Thank you for considering me to be your attorney.

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 OVI defense.”

To learn more about OVI Attorney Charles Rowland,  contact me or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Standardized Field Sobriety Tests; the walk & turn test

April 5th, 2013

The Trooper gave me a “walk the line” test.  What was he looking for?

The Walk & Turn test is a divided attention test that is used as part of the three-test battery of field sobriety tests.  The officer will observe your performance on this test, looking for eight (8) clues of impairment.  You will be deemed to have failed the test if you present just two (2) of the eight (8) clues.  According to NHTSA, the Walk & Turn test is 68% accurate in determining alcohol intoxication above 0.10% BAC (when two or more clues are present).  See generally 2006 NHTSA Student Manual, VII-4, VIII 10, et al.

The law enforcement officer will begin the test by asking you to stand with your right foot in front of your left, touching heel to toe.  He or she will then begin to give you a series of instructions and demonstrate how the test is to be conducted.  This part of the test is commonly referred to as the Instruction Stage. There are two clues that are scored during this preliminary phase:

Clue #1: Cannot Maintain Balance During Instructions

Clue #2: Starts the Test Too Early

The obvious tip here is to listen as best you can to the officer’s instructions.  Ask him or her to repeat any instruction that you did not understand as many times as is necessary to be fully informed of what is expected of you.  DO NOT BEGIN UNTIL TOLD TO DO SO.  This is fundamental and should be one of the easiest parts of the test to comply with.

NOTE: I have seen a number of cases where the subject is taken outside of the range of the cruiser camera to conduct the tests.  Take advantage of the recording by talking your way through the test. One client said, “Oh, I stepped off the line because of that passing truck.”  Another client demanded explanations when they came to the “turn” portion of the test.  Yet another client described the conditions (i.e. cracks in the road, poor shoes, cold, shivering).  GIANT CAVEAT: Don’t say things that will hurt your case.  Unfortunately, more than one client has met the challenges of the Walk & Turn test by saying, “I can’t do that sober.”  Admissions against interest will be used against you.

NOTE: You are being judged on your ability to maintain position.  Raising your arms prior to the test will not and cannot be used as a clue. NHTSA specifically instructs that this clue must not be recorded “simply because the subject raises arms or wobbles slightly.” 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-49; 2000 NHTSA Instructor Manual, VIII-42.

The remain clues of the Walk & Turn Test are:

  • The Subject Stops While Walking
  • The Subject Does Not Touch Heel-to-Toe
  • The Subject Steps Off the Line
  • The Subject Raises Arms for Balance
  • The Subject Turns Improperly
  • The Subject Takes the Incorrect Number of Steps

Clue #3: Stops While Walking.  In the early versions of the NHTSA Student Manual (1995 NHTSA Student Manual, VIII-20 later omitted) instructed the officer to only record this clue if the subject stopped to steady himself or herself.  The officer should also not record a clue if the subject is merely walking slowly or carefully.

Clue #4: Heel to Toe.  Would it surprise you to learn that the subject is not required to actually touch heel to toe?  According the NHTSA standards, the officer is only to count this clue if a gap of more than one-half inch is present.

Clue #5: Stepping Off the Line:  Originally, the officer was required to use an actual designated straight line. 1992 NHTSA Student Manual, VIII-19; 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36, but the “straight line must be clearly visible,” 1992 NHTSA Student Manual, VIII-18. Later versions of the NHTSA Student Manual removed the requirement of an actual designated line and allowed the officer to use an imaginary line.  Which raises the following question… “How thick was your imaginary line officer because ours was pretty wide.”

Clue #6: Using Arms for Balance.  If you put most human beings on a balance beam and ask them to walk across, the vast majority will instinctively raise their arms to maintain their balance.  During the walk and turn test we ask people to turn off this instinct and walk with their arms at their sides.  If a subject raises their arms more than six inches, it is used against them.  It is vital that the officer be heard giving this instruction as it is so fundamentally awkward.   If your client was never told to keep his arms at his or her side, then make sure that they are not “clued” on this portion of the test.

Clue #7: Improper Turn.  No other portion of the test is as unfair to a novice subject than the turn.  It must be done with precision.  More emphasis is placed on how it looks than how it is accomplished.  If done with deft balance but improper technique it will be counted against the subject.  Make sure the officer instructs the subject properly and make sure the officer demonstrates the turn properly.  My experience tells me that defense counsel can use the inherent unfairness of this test to great effect for the defendant.

Clue #8: Improper Number of Steps.  It may sound odd, but extreme stress caused by the intimidating presence of an intimidating law enforcement officer can cause people to do strange and amazing things.  Some people have a fight or flight response kick in and they run.  Other people shut down or pass out or cry.  Having viewed numerous videos of good people in this stressful environment, I have seen many people “forget” how to count to nine, mess up the alphabet and say horribly stupid things.  The overriding question to ask is whether nerves or intoxication contribute to your client’s missteps.  Jurors, in my experience, are willing to give your client great latitude if given a proper context.

Charles M. Rowland II has been defending the accused drunk driver for over fifteen years.  He holds numerous certifications in the field of DUI law and is Ohio’s only Forensic Sobriety Assessment certificate holder. He has observed Ohio Standardized Field Sobriety Testing first-hand at the Ohio Peace Officer Training Academy and has attended the same training as law enforcement officers in administering and grading the field tests.  He has been used by the Police Academy to instruct officers in courtroom motion practice and has been declared an expert in evidential breath testing by the United States government in court martial proceedings.  If you need an attorney who will fight for you, Charles Rowland says, “All I do is DUI defense.”

Ohio DUI Law: Reasonable and Articulable Suspicion

October 23rd, 2012

What Level of Proof Does Law Enforcement Need to Pull You From Your Car For Standardized Field Tests?

One of the major decision points in the OVI arrest process is the officer’s decision to remove a suspect from his or her car and conduct standardized field sobriety testing. The officer is trained to arrive at this “decision point” by conducting an interview and using specific “pre-exit interview techniques” which include asking for two things simultaneously; asking interrupting or distracting questions; and asking unusual questions. (NHTSA Student Manual VI-4).  Additional techniques which an officer may employ include and Alphabet test (begin with E and end with P); a Countdown test (count out loud backward starting with 68 and ending with 53); and the Finger Count test (touch the tip of the thumb in turn to the tip of each finger while simultaneously counting).  Absent evidence of intoxication adduced at this point in the investigation, the officer lacks reasonable and articulable suspicion to allow him to request you to step from the car. (NHTSA Student Manual, VI-4, VI-5, VI-6).

In State v. Evans (11th Dist 1998), 127 Ohio App.3d 56, the Court cites factors to determine if an officer has reasonable articulable suspicion of driving under the influence: (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.  Citing five factors present in this case, the Court concluded the officer did have reasonable and articulable suspicion of driving under the influence.

An Ohio OVI lawyer should be prepared to challenge the officer’s determination of reasonable and articulable suspicion.  Make sure the Ohio OVI lawyer you choose has the most recent copy of the National Highway Transportation Safety Administration, Student Manual.  Charles M. Rowland has all such manuals and has received the same level of training in the standardized field sobriety tests as law enforcement.  He has furthered his education by being Ohio’s only Forensic Sobriety Assessment certified attorney which goes beyond the NHTSA manual to investigate the science (pseudo-science) of the tests.  If you need an attorney who has worked hard to achieve the highest level of training possible, contact Charles M. Rowland II today at 937-318-1DUI (318-1384), 1-888-ROWLAND or www.DaytonDUI.com.

Reasonable Articulable Suspicion & Illegal Police Stops

July 17th, 2011

Protecting You From Illegal Police Stops!

The Fourth Amendment of the United States Constitution protects you against unreasonable searches and seizures, which  includes being unlawfully or illegally pulled over or stopped by law enforcement.  An officer cannot simply pull you over based on a hunch or intuition.  When a police officer observes a traffic violation, he or she is justified in initiating a limited stop for the purpose of issuing a citation.  State v. Brickman (2001), 11th Dist. No. 2000-P-oo58, 2001 Ohio App. LEXIS 2575.  The legal standard applied to traffic stops is reasonable and articulable suspicion, which means that the officer has reason to believe that:

  1. a crime has been committed;
  2. a crime is being committed, or
  3. a crime is about to be committed, AND
  4. the person(s) being stopped is the person who did one of the above

Terry v. Ohio, 392 U.S. 21, 88 S.Ct. 1868 (1968).  It is your attorney’s job to demonstrate to a judge or jury that the officer lacked any credible evidence upon which to base reasonable and articulable suspicion.  In an OVI arrest scenario this often means fighting the reason(s) for the stop in the first place.  You are aided in this fight by having an attorney familiar with the officer’s training as set forth in the National Highway Transportation Safety Administration Student Manual, which is specific on what the officer is to look for and what conclusions he or she can draw from your actions. (See Detecting Drunk Drivers at Night, previous post)

Dayton DUI lawyer Charles M. Rowland II has been trained in police procedures and tactics by being certified in the same NHTSA standardized field sobriety training that the police themselves undergo.  Charles M. Rowland has every NHTSA Student manual dating back to 1983, and every field sobriety validation study dating back to 1975.  His experience as a city prosecutor and his certification in Forensic Sobriety Assessment puts him in an excellent position to defend you from illegal police stops.  Further, no one is more committed to defending your Fourth Amendment Rights than Charles M. Rowland II.  Call him today at 937-318-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263).

The picture used in this posting is the exclusive property of Charles M. Rowland II and is protected by copyright. No use of this picture is permitted without the express written consent of attorney Charles M. Rowland II.

Standardized Field Sobriety Tests: Validity

March 3rd, 2011

WHEN ARE THE STANDARDIZED FIELD TESTS VALID?

The standardized field sobriety tests, as set forth in the National Highway Traffic Safety Administration Student Manual (Feb. 2006 ed.), are described in Session VIII.  The NHTSA manual provides the standards upon which every law enforcement officer is trained.  One important piece of information about standardization is included in the manual which may help the DUI practitioner provide context to a jury.

Perhaps the most important statement about standardization can be found at VIII-19 which states:

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

  • THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARDIZED MANNER
  • THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE
  • THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED THE VALIDITY IS COMPROMISED.

I have not added capitalization or bold to emphasize the importance of this warning.  The manual itself uses these indicia of importance at VIII-19.  Use this portion of the manual in conjunction with the State’s burden of proof (The State must demonstrate substantial compliance with the NHTSA manual by clear and convincing evidence) and you have some compelling arguments to make to the trier of fact.

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