Posts Tagged ‘ohio criminal defense attorney’

Can A Defendant Waive A Jury Trial In Ohio? (by DaytonDUI)

December 19th, 2012

Controversial Jury Bill Dies In Committee

Xenia Jury BoxOhio is one of 21 states that give the power to decide whether or not to have a jury trial solely to the defendant.  Thus, a defendant can, at any point, decide against a jury trial and opt for a trial only to the judge.  This is often done in serious OVI cases wherein a technical or scientific point is the most salient point.  It is particularly apt when a defendant wants to avoid allowing the prosecution to enflame the jury with sympathetic evidence of injuries or in cases where the defendant has a lengthy criminal history.  In short, it is one of very few tools that can (in very limited circumstances) benefit a criminal defendant.  This benefit does not exist in the federal system.  Federal Rule of Criminal Procedure 23 states that a defendant may only waive a trial by jury with the consent of the prosecution.  This provision has been upheld by the Supreme Court in Patton v. U.S. and Singer v. U.S.

Ohio State Rep. Lynn Slaby, a former prosecutor, introduced HB 265 last December to change Ohio law to make it consistent with federal law, and thus more beneficial to Ohio prosecutors.  The Bill states, in pertinent part:

The prosecuting attorney, a village solicitor, a city director of law, or a similar chief legal officer for a municipal corporation responsible for prosecuting a criminal case before a municipal court may demand a jury trial in any criminal case in which a defendant may demand a jury trial. The prosecuting attorney, village solicitor, city director of law, or similar chief legal officer may demand a jury trial notwithstanding a defendant’s failure to demand a jury trial and over the objection of the defendant.(Emphasis added.)

From the beginning the bill was controversial and garnered little support outside of the prosecutors.  “This is the second time in nine years that the legislature has attempted to take away a defendant’s right to waive a jury trial; a right that simply levels the playing field for defendants in a game where the prosecution enjoys exclusive control over the nature of the charges filed, the number of charges brought, and execution of the charges through warrant and arrest. The last time, in 2002, the measure (H.B. 541) was squashed through the hard work of attorneys and judges who saw the danger in such legislation.” Columbus Bar Association, Fall 2011.

On Wednesday, December 12, the Ohio Senate Judiciary Committee held testimony on HB 265. After hearing testimony, Chairman Mark Wagoner did not call for a vote. This action by Chairman Wagoner effectively defeated the bill for this session.  As of this writing it is unknown whether the bill will be reintroduced at a later date.  We will keep you informed.

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.

Proof Beyond All Reasonable Doubt And Other Closing Arguments (by DaytonDUI)

September 17th, 2012

Imagine that you woke up with a sore throat.  It persists throughout the day and into the next.  As the week drags on you feel worse and worse and your wife demands that you go to the doctor.  You hate doctors, but you feel so lousy that you agree to get your throat checked out.  When you arrive you fill out the requisite forms and wait longer than you feel is necessary.  Just as you are nearing your boiling point a nurse calls your name and leads you into a small room.  You tell her that you’ve had a sore throat for the past few days and that you feel lethargic.  She dutifully writes down the information and tells you that the doctor will be in to see you shortly.

A few minutes later the doctor opens the door and begins to look at your throat.  He tells you to say “ahh” and touches his hand to your forehead.  “No fever, but your throat is very red,” he says.  “Have you ever smoked?” he asks.  When you mutter that you smoked cigars a few years ago and begin to explain that you smoked cigarettes when you were in college the doctor abruptly cuts you off.  “I have concluded that you have throat cancer!”  The words hit you like a punch.  As you are reeling the doctor begins to tell you that he’s dealt with people like you before.  “Cancer is serious and I can’t take the chance that you only have a sore throat.”  You protest, “what about additional tests, an M.R.I. or some other tests?”  “No, no, no,” the doctor says.  “I am so sick of people who don’t see cancer close up, thinking that it is no big deal.  Just take an antibiotic you say, well mister I’ve been called to the bedside of people dying of cancer and I’ll be damned if I’ll let you hurt yourself or someone else by not getting your larynx removed.”  “I WANT A SECOND OPINION,” you yell, but the doctor does not seem to care.  “Nurse, prep the patient for surgery!”

If this scenario seems far-fetched, you have never been arrested for drunk driving.  Officers are self-proclaimed experts on spotting clues of impairment.  The come into court spouting the pseudo-scientific prattle fronted by the National Highway Traffic Safety Administration.  Invariably, they have noted bloodshot and/or glassy eyes accompanied by slurred speech and an odor of an alcoholic beverage.  They ask you to do amazingly subjective tests which amount to nothing more than “stupid human tricks.”  You do not get a chance to practice or try again.  They do not conduct an objective investigation into your state of impairment, but merely lead you through a series of steps that will inevitably lead to your arrest. Like our fictional doctor, the officer may have dealt up-close with the tragedy of drunk driving and considers it his or her duty to prevent anyone from being affected by this all-to-preventable devastation.  Like our fictional patient, you get no second opinion.

It is up to your defense attorney to explain to a jury that the officer’s observations do not lead to the conclusion that you are impaired.  Was your weaving caused by alcohol or by an ill-timed cell phone call?  Are your bloodshot and glassy eyes a sign of having consumed too much alcohol or by the fact that you are tired?  Is that slurred speech or do you simply speak differently from the officer?  Is you performance on physical tests affected by your weight, your gender, your bum knee, or the fact that you are scared to death?

At the end of every drunk driving trial, the judge tells the jury that “beyond a reasonable doubt” is “proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person’s own affairs.” O.R.C. 2901.05(E) [emphasis added]  The penalties for DUI are, in some respects, just as serious as the decision to get a medical procedure and the ramifications of a conviction last throughout a person’s life.  If you are faced with the possibility of an Ohio DUI trial, please contact Charles M. Rowland II immediately.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, Franklin 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 Twitterupdates 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.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

The 47 Types & 38 Causes of Nystagmus; (It’s Not Just Caused by Alcohol)

August 24th, 2012

Field sobriety test

The horizontal gaze nystagmus test is an eye test approved by the National Highway Traffic Safety Administration(hereinafter NHTSA) as a tool to detect clues of impairment in drivers. The HGNtest is one of three psychomotor tests approved as part of the standardized field sobriety testing protocol employed by law enforcement officers throughout the United States and used here in Ohio. The HGN is a test of your eyes wherein the testing officer is looking for abnormal movements call saccades.  These movements make the eye appear to bounce or wobble.  The officer uses this movement to make a correlation to alcohol use.  This would valid only if we are able to demonstrate that nystagmus is specific to alcohol impairment.  However, we know that there are other causes of nystagmus.  It is up to your DUI lawyer to demonstrate another valid reason for what the officer is observing.  You can find information about the Horizontal Gaze Nystagmus test and its biases on this site.

Listed beloware some other scientifically recognized causes of nystagmus.

47 Types of Nystagmus

1. Acquired

2. Anticipatory(Induced)

3. Arthrokinetic(Induced,Somatosensory)

4. Associated(Induced,Stransky’s

5. AudioKinetic(Induced)

6. Bartel’s(Induced)

7. Brun’s

8. Centripetal

9. Cervical(NeckTorsion,Vestibular-0basilarArteryInsufficiency

10.Crcular/Elliptic/Oblique (Alternataing Windmill, Circumduction, Diagonal,

Elliptic, Gyratory, Oblique, Radiary)

11.Congenital (Fixation, Hereditary)

12.Convergence

13.Convergence Invocked

14.Disaccociated, Disjunctive

15.Downbeat

16.Drug Induced (Barbiturate, Bow Tie, Induced)

17.Epileptic (Ictal

18.Flash Induced

19.Gaze-Evoked (Deviational, Gaze-Paretic, Neurasthenic, Seducible, Setting-In)

20.Horizontal

21.Induced (Provoked)

22.Intermittent Vertical

23.Jerk

24.Latent/Manifest Latent (Monocular Fixation, Unimacular)

25.Lateral Medullary

26.Lid

27.Miner’s (Occupational)

28.Muscle Paretic (Myasthenic)

29.Optokinetic (Induced, Optomotor, Panoramic, Railway, Sigma)

30.Optokinetic After-Induced (Post-Optokinetic, Reverse Post-Optokinetic)

31.Pendular (Talantropia)

32.Periodic/Aperiodic Alternating

33.Physiologic (End-Point, Fatigue)

34.Pursuit After Induced

35.Pursuit Defect

36.Pseudo Spontaneous

37.Rebound

38.Reflex (Baer’s)

39.See-Saw

40.Somatosensory

41.Spontaneous

42.Stepping Around

43.Torsional

44.Uniocular

45.Upbeat

46.Vertical

47.Vestibular (Agotropic, Geotro-Pic, Bechterew’s, Caloric, Compensatory,Electrical/Faradic/Gal Vanic, Labyrinthine, Pneumatic/Compression, Positional/Alcohol, Pseudo Caloric)

Obtained from Dr. L. F. Dell’Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Opthamology 147 (1989).  There are also 38 verified causes for a horizontal gaze nystagmus other than alcohol impairment.

 

38 Causes of Horizontal Gaze Nystagmus

1. ProblemsWithTheInnerEarLabyrinth

2. Irrigating The Ears With Warm Or Cold Water Under Peculiar Weather

Conditions

3. Influenza

4. StreptococcusInfection

5. Vertigo

6. Measles

7. Syphilis

8. Arteriosclerosis

9. MuscularDystrophy

10.Multiple Sclerosis

11.Korchaff’s Syndrome

12.Brain Hemorrhage

13.Epilepsy

14.Hypertension

15.Motion Sickness

16.Sunstroke

17.Eyestrain

18.Eye Muscle Fatigue

19.Glaucoma

20.Changes In Atmospheric Pressure

21.Consumption Of Excessive Amounts Of Caffeine

22.Excessive Exposure To Nicotine

23.Aspirin

24.Circadian Rhythms

25.Acute Trauma To The Head

26.Chronic Trauma To The Head

27.Some Prescription Drugs, Tranquilizers, Pain Medications, Anti-Convulsants

28.Barbiturates

29.Disorders Of The Vestibular Apparatus And Brain Stem

30.Cerebellum Dysfunction

31.Heredity

32.Diet

33.Toxins

34.Exposure To Solvents, PCB’s, Dry-Cleaning Fumes, Carbon Monoxide

35.Extreme Chilling

36.Lesions

37.Continuous Movement Of The Visual Field Past The Eyes

38.Antihistamine Use

See Shultz v. State, 664 A.2d 60, 77 (Md. App. 1995) citing State v. Witte; State v. Clark, State v. Superior Court, and Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney’s Textbook of Medicine § § 84.63 and 84.64 (1990).

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

Rowland Participates In Drug Debate

April 23rd, 2012
View of Tilton Hall to the West

Charles Rowland was honored to participate in a debate as part of the Heroin Seminar at Ohio Northern University which was sponsored by the Department of History, Politics and Justice.  The debate on the legalization of heroin was the culmination of an ongoing academic discussion of recognizing, understanding and fighting the abuse of heroin in the community.  Prof. Kevin Hill, a professor of law at Ohio Northern University spoke on behalf of keeping heroin illegal and subject to criminal sanction.  “Prof. Hill was one of my professors and he is a powerful advocate,” said Rowland.  Professor Hill’s  arguments for keeping heroin illegal are trumpeted by the Drug Enforcement Agency which argues that legalization would only increase the use and abuse of heroin.

Speaking on behalf of Law Enforcement Against Prohibition (L.E.A.P.) and in his capacity as a practicing criminal defense attorney, Rowland championed the idea of approaching the problems of heroin use in a more effective way.  His arguments centered on the failed “War on Drugs” and highlighted efforts to move our policy from enforcement, interdiction and incarceration to treatment and prevention.  “It was just great to stand on that familiar stage and argue for something that I have a great passion for.  I hope that we caused some policy-makers to rethink their approach to throwing people in prison.”  Rowland frequently speaks on behalf of L.E.A.P. and Miami Valley N.O.R.M.L. advocating an end to the failed policies of the drug war.

If you have been accused of a crime involving impaired driving or the use of illegal drugs, please contact Ohio OVI attorney  Charles M. Rowland II.  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.”

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 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.  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.”