Posts Tagged ‘ohio dui lawyer’

Ohio DUI Law R.C 4511.19(A)(2) “a codified dilema”

August 27th, 2014

ohio dui law

Ohio DUI law R.C. 4511.19(A)(2) enhances the penalty for a motorist who, having been convicted once in the last six (6) years, after having been arrested, refuses to take a blood, breath or urine test.  In State v. Hoover,173 Ohio App.3d 487, 2007-Ohio-5773, the issue of whether or not a person can have a DUI sentence enhanced pursuant to R.C. 4511.19(A)(2) for refusing to take a chemical test was before the Ohio Supreme Court.  The government sought to have the sentence of Corey Hoover enhanced from the ten (10) day mandatory penalty for a second time DUI offender in Ohio to twenty (20) days because he refused to take a breath test.  “The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. …  Imposing criminal sanctions for failure to consent goes far beyond the state’s power … to regulate the licensure of drivers. Id.

The defendant argued that “ he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure.”  Justice Lanzinger emphasized that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. “The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Id.  The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Paul E. Pfeifer entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell. Justice Pfeifer wrote that today’s majority holding diverges from previous court decisions which have upheld only the imposition of administrative penalties against DUI defendants for refusing to submit to chemical testing.

“R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test. This court’s previous jurisprudence regarding sanctions for a DUI defendant’s failure to consent to chemical tests have all involved license suspensions. … This court has previously answered the question whether a person can face criminal sanctions for failure to consent to a search.  In Wilson v. Cincinnati (1976) … this court held that that the Fourth Amendment prohibits the imposition of criminal penalties upon a person who refuses to submit to a warrantless search.”

“The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. …  Imposing criminal sanctions for failure to consent goes far beyond the state’s power … to regulate the licensure of drivers. As in Wilson, the statute at issue herein imposes a codified dilemma – consent to a warrantless search or face the possibility of a criminal penalty – and thus amounts to coercion. R.C. 4511.19(A)(2) therefore violates defendants’ rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.”

This important DUI decision has withstood challenge, so far.  This author posits what impact the recent United States Supreme Court decision in Missouri v. McNeely133 S.Ct. 1552 (2013) regarding the State to obtain a warrant prior to a forced blood draw will have on this decision and other Ohio DUI law issues.  The “codified dilema” as Justice Pfeifer called this matter will have to be relitigated in cases where the State decides not to seek a warrant and also attempts to “enhance” the sentence.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He knows Ohio DUI law and 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.  Email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

For more information on Ohio DUI law  check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

Ohio DUI Crackdown Begins Today!

August 15th, 2014

ohio duiYou can expect a major increase in Ohio DUI enforcement beginning today.  Operation “Drive Sober or Get Pulled Over” will put 99 law enforcement agencies on our roads with over 8,400 hours of extra enforcement that will run through Labor Day.  The national Drive Sober or Get Pulled Over crackdown is a program organized by the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) and focuses on combining high-visibility enforcement with heightened public awareness through advertising and publicity.

If you want to receive updated information on Dayton OVI checkpoint locations, enhanced traffic enforcement, saturation patrols and other important developments that affect you, sign up for text alerts on the main page of this blog. OVI checkpoint alerts will be sent directly to your mobile device/smartphone in the location you choose in the Miami Valley. In the past month we have alerted our followers to the State Route 35 traffic initiative and three local sobriety checkpoints. You should also know that we respect your trust and we will never send you irrelevant information and/or advertisements. This service is free and available to the general public.

You can also put DaytonDUI on your Android Smart phone via the DaytonDUI app. The app helps you know your rights and know yourself by providing a drink tally so that you do not overindulge. You can send safe drinking tips to friends or use the app to find the nearest taxi for a safe trip home. The app brings you the best of DaytonDUI’s video and audio content and gives you a chance to take pictures and record memories so that you can aid in your own defense. We provide OVI checkpoint information because our sincere desire is to make our roads a safer place.

Ohio DUI 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.”

To schedule a free Ohio DUI consultation contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Ruling Could Doom Ohio Stoned Driving Rules

May 28th, 2014

stoned driving

Stoned driving laws took a hit this week when Arizona ruled that per se limits on marijuana could not be applied.

Ohio has adopted a draconian impairment law that punishes drivers for having a metabolite of marijuana in their system.  In effect that means that you are stoned driving if you smoke or ingest marijuana the metabolite “hydroxy-THC” that will remain in your body long after the “high” has dissipated.  This means that you may be “impaired” for purposes of the law, but not in any way be impaired by the drug.  If you visit Colorado to legally use recreational marijuana and return to Ohio, you are impaired for up to thirty days thereafter.  This is an absurd and unjust law that gives too much power to law enforcement and enshrines Ohio’s War on Drugs into law.

With states like Colorado legalizing the sale of marijuana, jurisdictions are scrambling to deal with the consequences. Last month, the Arizona Supreme Court ruled 4 to 1 that draconian laws designed to handle driving under the influence (DUI) of alcohol could not be applied directly to pot because of the way the drug interacts with the bloodstream.

The high court justices agreed that the statute’s wording was ambiguous and should be interpreted in a way that does not lead to an absurd result, which is what would happen if prosecutors were allowed to implement a zero-tolerance reading of the law. “This interpretation would create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect,” Justice Robert M. Brutinel wrote for the majority. “For example, at oral argument the state acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”

The court was uncomfortable criminalizing legal conduct, as Arizona voters legalized medical marijuana use in a 2010 referendum. The majority also noted that certain legal drugs can share a metabolite with an illegal drug, which causes a problem with the drugged driving statute that automatically criminalizes the presence of the metabolite in the bloodstream.”Because Section 28-1381(A)(3) does not require the state to prove that a substance discovered in a driver’s body is actually metabolized from a proscribed drug, the state’s interpretation would permit prosecution if the discovered substance is a metabolite of a proscribed drug even if the proscribed drug was never ingested,” Justice Brutinel wrote. “These results are absurd and make the state’s argument untenable.”  The Supreme Court majority declared that the legislature must have meant that any amount of the impairing hydroxy-THC was a criminal act, not the substance that lingers in the bloodstream for thirty days.  Source: Arizona v. Shilgevorkyan (Arizona Supreme Court, 4/22/2014) and www.TheNewspaper.com.

The take-away from this decision is that Ohio needs to legalize marijuana so as to avoid massive injustice.  Ohio can punish stoned driving without making a de facto zero tolerance law that will do nothing but foster disrespect for the law and the people who enforce it.

 

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.”

To learn about stoned driving contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

An Explanation of Ohio’s Proposed “Annie’s Law”

May 22nd, 2014

Here is an explanation of Ohio’s proposed “Annie’s Law” from Dayton’s Fox 45.  If passed, the lawwould require first time OVI offenders to blow into an ignition interlock device before they start their car. Right now Ohio law only requires drivers with multiple OVI’s to have an ignition interlock device.  “For the first time it’s going a little too far, said Danny Moore of Dayton.It seems really unfair to me. It seems like a waste of money for someone who just made a mistake, agreed Mary Damar of Dayton.” Mothers Against Drunk Driving are urging Ohio lawmakers to pass Annie’s Law.

annie's lawAttorney 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.”

To learn more about Annie’s Law check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Keywords: Annie’s Law

OVI Checkpoints in Springdale, Hamilton and Cincinnati Tonight.

April 25th, 2014

ovi checkpointsThere are three OVI checkpoints planned for Ohioans in the City of Hamilton, Cincinnati and Springdale.

Springdale: A checkpoint will be held in the 11700 block of Springfield Pike. Operations will begin at 11:30 p.m. Friday and end at 3 a.m. Saturday morning.

Cincinnati: A checkpoint will be held in the 2000 block of Harrison Avenue. The checkpoint will begin at 9 p.m. Friday and end at 1 a.m. Saturday.

City of Hamilton: The checkpoint will be held on State Route 129 from 10 p.m. until 2 a.m.

If you want to receive updated information on OVI checkpoints,  enhanced traffic enforcement, saturation patrols and other important developments that affect you, sign up for text alerts on the main page of this blog.  OVI checkpoint alerts will be sent directly to your mobile device/smartphone in the location you choose in the Miami Valley.  You should also know that we respect your trust and we will never send you irrelevant information and/or advertisements.  This service is free and available to the general public.

You can also put DaytonDUI on your Android Smart phone via the DaytonDUI app.  The app helps you know your rights and know yourself by providing a drink tally so that you do not overindulge.  You can send safe drinking tips to friends or use the app to find the nearest taxi for a safe trip home.  The app brings you the best of DaytonDUI’s video and audio content and gives you a chance to take pictures and record memories so that you can aid in your own defense.  We provide info about OVI checkpoints because it is our sincere desire is to make our roads a safer place.

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.”

Find more about OVI checkpoints at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville