Tag: ohio dui

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Ohio OVI: What Are The Legal Limits?

00Blood & Urine Tests, Breath TestingTags: , , , , , , , , , , ,

In Ohio, an OVI refers to the charge of operating a vehicle while impaired by drugs or alcohol.  If your Blood Alcohol Content (BAC) and breath alcohol content (BrAC) is .08 or greater, you are considered to be “operating a vehicle impaired.” The .08 figure refers to the concentration of alcohol in your breath or in your blood.  There are also “legal limits” for the concentration of alcohol in a person’s blood serum or plasma and urine. For a urine sample, you will be over the “legal limit” if the alcohol concentration in your urine sample is .11 or greater.

Ohio OVIWhile Ohio still considers this a valid way to determine alcohol content, many states have done away with urine testing because handling and testing procedures have produced errors. If a blood serum or plasma sample is taken, the legal limit is .096. A test of blood, whether whole blood, serum or plasma, is the most accurate, but such tests must be completed according to Department of Health rules to be admissible in a court proceeding. Also, improper blood testing procedures still may yield inaccurate results.

There are also enhanced minimum penalties for “high tier” or “Super OVI” results. The high tier test results are .17 for breath and blood, .204 for blood serum or plasma, and .238 for urine. The enhanced penalties for “high tier” offenders double the minimum jail time requirement.

If you find yourself facing an Ohio OVI you need to speak to an attorney right away! Call DaytonDUI at (937) 318-1384.

Ohio DUI Defense – What Books Do You Need?

00Field Tests (SFSTs)Tags: , , , , , , ,

Ohio DUIOhio DUI defense includes having the right materials to prepare your case for trial.  There are 14 NHTSA police training manuals that are specific to an DUI/OVI case.  They are:

  1. NHTSA DWI Detection and Standardized Field Sobriety Testing – Instructor Manual
  2. NHTSA DWI Detection and Standardized Field Sobriety Testing – Participant Manual
  3. NHTSA Drug Recognition Expert 2-Day Pre-School – Instructor Manual
  4. NHTSA Drug Recognition Expert 2-Day Pre-School – Participant Manual
  5. NHTSA Drug Recognition Expert 7-Day School – Instructor Manual
  6. NHTSA Drug Recognition Expert 7-Day School – Student Manual
  7. NHTSA Drugs that Impair Driving – Instructor Manual
  8. NHTSA Drugs that Impair Driving – Student Manual
  9. NHTSA Standardized Field Sobriety Testing Refresher Training Court (8 hour) – Instructor Manual
  10. NHTSA Standardized Field Sobriety Testing Refresher Training Court (8 hour) – Student Manual
  11. NHTSA Standardized Field Sobriety Testing Refresher Training Court (4 hour) – Instructor Manual
  12. NHTSA Standardized Field Sobriety Testing Refresher Training Court (4 hour) – Student Manual
  13. NHTSA Advanced Roadside Impaired Driving Enforcement (ARIDE) – Instructor Manual
  14. NHTSA Advanced Roadside Impaired Driving Enforcement (ARIDE) – Student Manual

These materials provide an attorney with a complete understanding of what an officer should be doing at every stage of the investigation.  Knowing what should happen can be contrasted with what actually happens and provide a valuable cross-examination method. Ask you Ohio DUI lawyer how they will use these manuals in your defense.

Call Ohio DUI attorney Charles M. Rowland at (937) 318-1384
centerville dui

Centerville DUI – Centerville OVI

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If you are arrested on suspicion of drunk driving in Centerville, your Centerville DUI will be heard in the Kettering Municipal Court.  Presiding over all Centerville misdemeanor DUI cases in the Kettering Municipal Court is the Honorable Fred Dressel and the Honorable James Long. Small claims are heard by Richard Boucher, attorney-at-law. The elected Clerk of Courts is Andrea White.  Here is some useful contact information:

Kettering Municipal Court
2325 Wilmington Pike
Kettering OH 45420
www.ketteringmunicipalcourt.org
(937) 296-2466
(937) 296-3284 (Fax)

Clerk of Courts
(937) 296-2461
(937) 534-7017 (Fax)

Open Monday-Friday 8:30-4:30PM

For a listing of important links about Centerville and the Miami Valley, please visit HERE.

Top 10 Defenses to an Ohio OVI

00DUI Court ProcessTags: , , , , , , , , , , , ,

ohio oviWhen people need an Ohio OVI Attorney, the biggest challenge is knowing whether or not an attorney truly has the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win drunk driving cases. Countless attorneys handle impaired driving cases,  but only a very small percentage have the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win cases. Unfortunately for the public, even attorneys who have been practicing law for many years and devote a significant portion of their practice to OVI law, often don’t have the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win DUI cases. Make sure your attorney is  familiar with these “TOP 10” defenses to an Ohio OVI.

1. Hire The Best DUI Attorney: The most important decision that you can make in defending your case is hiring the right OVI defense attorney.  OVI defense involves understanding Ohio’s complex impaired driving  laws, the Ohio Administrative Code, the breath test device, standardized field sobriety testing (administration and interpretation) and all manners of science which may affect your case. Defense begins with an attorney who has the experience to fight your case, the scientific knowledge to attack in the right places, and the skill to negotiate with the prosecuting attorney to secure the best outcome.  We have written “How To Hire An Ohio OVI Attorney” to help you understand some issues you may not consider.

2. Illegal Police Stop: If the officer lacked proper cause to initiate a traffic stop, your case may be dismissed.  The Fourth Amendment requires an officer have a reasonable suspicion that a crime is being committed or about to be committed before making a traffic stop. Reasonable suspicion may consist of any minor traffic offense, such as speeding, weaving, an accident, expired plates, or a failure to activate headlights.  Upon being stopped the officer must establish an articulable reason to continue your detention to do an alcohol/drunk driving investigation.

3. Improper Administration of Standardized Field Sobriety Tests: If an officer improperly administers the field tests, gives faulty instructions, misunderstands how to administer the tests or holds the accused to impossible standards, then the botched tests amount to nothing more than “Stupid Human Tricks.”  Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine the level of intoxication of a driver without chemical testing. When an OVI suspect refuses a chemical test, the tests can be substantial evidence of intoxication.  The NHTSA has guidelines as to how the standardized field sobriety tests must be given. If the arresting officer fails to substantially comply with the guidelines established by the NHTSA, then the results of the tests are not admissible as evidence against the defendant. Your Ohio DUI defense attorney will be familiar with the standardized tests, the NHTSA manual and have experience cross-examining an arresting officer.

4. Faulty Interpretation of the Standardized Field Sobriety Tests: The officer may say all of the right things to get a valid field sobriety test, and still improperly interpret what he or she is seeing.  Your Ohio DUI defense attorney will review any video of the stop to make sure that your fields tests were fairly administered and properly scored.  Arresting officers can (and do) misinterpret the performance of the SFST’s, and determine the performance to be a failure. The dashboard video and aggressive cross examination of the arresting officers will determine whether a DUI defendant actually failed the SFST’s, or if the officer made a mistake. If the defendant did not fail the SFST’s, the results will serve as evidence that the defendant was not intoxicated.

5. Unlawful Arrest Not Supported By Probable Cause:  Assuming the officer has made a valid traffic stop, he or she must continue the investigation until probable cause exists for an OVI arrest.  Often, an officer intending to determine whether probable cause exists for an OVI arrest will make the arrest before this determination is made. When this happens, the officer has made an unlawful arrest, and all evidence obtained after the arrest may be deemed inadmissible in court.  Placing a suspect in a patrol car or ordering a suspect to follow directions before determining a suspect’s sobriety may constitute an unlawful arrest. If so, any evidence obtained regarding intoxication may be deemed inadmissible in court.

6. Officer Error Prior To Chemical Testing: If any statements are made after the accused is in custody, they may excluded unless a proper Miranda warning was given.  The officer must also satisfy a 20 minute observation period prior to administering an evidential breath test.  The breath test must be given within three hours of operation.  The officer must make sure that the testing conditions are free from radio frequency interference and that the testing location is not otherwise compromised.  Prior to requesting a suspect to submit to a chemical test, the arresting officer is required inform the driver of the consequences of submitting to the test, the driver’s right to refuse to submit to the test and the consequences for so refusing. If the driver submits to the test, he may be providing the State with evidence of intoxication. Failure of the arresting officer to advise the suspect of the above may render the results of the test, or the refusal inadmissible, and may fail to justify a license suspension.  Your Ohio DUI defense attorney should have a firm understanding of the Ohio Administrative Code and its requirements for a proper chemical test.

7. Bad Breath: A Flawed Breath Machine: Above we discussed defenses that arise prior to the administration of the chemical test.  There are also potential defenses present in the administration of the test. You Ohio DUI defense attorney will be familiar with the Ohio Administrative Code requirements regarding calibration and officer performance.  You should ask your Ohio DUI defense attorney to show you the “guts” of the tests that are available at the Ohio Department of Health website.  What is more, you should only hire an attorney who has become certified on the breath test machine or attended sufficient specialized training so that he or she can spot any issues with the results.  Machines, despite what some may say, are far from perfect and often a keen eye will result in a “Not Guilty.”

8. Discovery, Discovery, Discovery: Your Ohio DUI defense attorney cannot defend you against an issue he or she does not know exists.  An experienced DUI defense attorney will get proper discovery to explore every possible defense.  Filing motions for discovery, motions to preserve evidence and expeditiously obtaining the evidence is a good start.  In every DUI case, I submit a comprehensive discovery request for every type of evidence possible.   I contact the law enforcement agency directly to place it on notice to preserve evidence, such as dashboard videos and booking videos. These videos must be requested before they are destroyed. These videos can be indispensable in establishing exactly how a field test was administered, how a driver performed, and can also establish whether a driver’s speech was slurred. Often, these videos contradict an officer’s allegations and exonerate the driver.

9. Credibility Is King:  The coin of the realm in all plea negotiations is the credibility, experience and knowledge.  Credibility comes from presenting your case in a way that makes the prosecutor understand your arguments.  Experience is knowing when and where to be persuasive.  Most prosecutors distain whiners, bullies and bullshit artists, so don’t do it.  I always strive to earn the respect of every prosecutor I come into contact with.  Knowledge about Ohio DUI defense comes from being dedicated to learning as much as you can.  We once had a slogan that said, “Is your attorney thinking of DUI defense right now? If not call DaytonDUI.”  I have practiced DUI defense since 1995 and have practice DUI defense exclusively for many of those years.  I continue to try to establish myself as one of the best DUI attorneys in Ohio.

10. Noting Matters If You Won’t Fight: You can have the best defenses in the world, but they won’t matter unless you pursue them.  A good attorney will not only pursue the best possible plea, but will prepare for trial.  Your attorney should provide context and give you enough information to make a good decision.  Your attorney has an obligation to give you information and abide by your decision.  If you think you have a good chance of winning, make sure you hire an attorney who can execute and try your case.  In our office we say “good things happen at trial.”

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”

For more on your Ohio OVI defense, please check out these city-specific sites:

Fairborn, Dayton, Springfield, Kettering,Vandalia,Xenia,Miamisburg,Huber Heights,Springboro,Oakwood,Beavercreek, Centerville

 

How To Defend Against A One Leg Stand Test

00Field Tests (SFSTs)Tags: , , , , , , , , , ,

Did the officer allege you did poorly on the One Leg Stand standardized field sobriety test?

one leg standThe Standardized Field Sobriety Tests (SFST) are a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help law enforcement officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through the International Association of Chiefs of Police (IACP). The three tests of the SFST are:

  • Horizontal Gaze Nystagmus (HGN),
  • Walk-and-Turn (WAT),
  • and One-Leg Stand (OLS).

These tests are administered systematically and are evaluated according to measured responses of the suspect.  Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests insubstantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

The validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manualstates that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.  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.

THE ONE-LEG STAND TEST

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998).  As stated above, the validity OLS results are dependent upon law enforcement officers following the established, standardized procedures for test administration and scoring.  The criteria to establish a proper test are set forth in the NHTSA manaual as follows:

  • Requirement of a reasonably dry, hard, level, and non-slippery surface.
  • Is the individual over 65 years of age? Did officer question whether individual was over 65 years of age?
  • Did officer ask the individual whether he or she has any back, leg or middle ear problems?
  • Did the officer check to see whether the suspect was overweight by 50 or more pounds?
  • Did the officer check to see whether individual is wearing heels more than 2” high and if so, did he give them the opportunity to remove their shoes?
  • “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate)
  • “Do not start to perform the test until I tell you to do so.”
  • “Do you understand the instructions so far? (Make sure suspect indicates understanding).”
  • “When I tell you to start, raise one leg, either leg, with the foot approximately 6 inches off the ground, keeping your raised foot parallel to the ground.” (Demonstrate one-leg stance.)
  • “You must keep both legs straight, arms at your side.”
  • “While holding that position, count out loud in the following manner: one thousand and one, one thousand and two, one thousand and three, until told to stop.”
  • Demonstrate a count as follows: one thousand and one, one thousand and two, one thousand and three, etc.
  • “Officer should not look at his foot when conducting the demonstration” – OFFICER SAFETY
  • “Keep you arms at your sides at all times and keep watching the raised foot.”
  • “Do you understand?” (Make sure the suspect indicates understanding.)
  • “Go ahead and perform the test.”
  • “Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.”
  • Observe the suspect from a safe distance.
  • “If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground.”
  • “If the suspect counts very slowly, terminate the test after 30 seconds.”
  • “Observe the suspect from a safe distance and remain as motionless as possible during the test so as not to interfere.”

Information obtained from www.nhtsa.gov and is considered public information provided at www.ohiopd.com

 SO WHAT’S THE PROBLEM?

Recall the test’s four indicators of impairment:

  1. swaying while balancing,
  2. using arms to balance,
  3. hopping to maintain balance, and
  4. putting the foot down.

The One-leg stand test requires your body to something unnatural; maintain a rigid body structure while precariously balanced.   The most natural reaction to being on one foot is to sway to find your center of gravity while lifting your arms like a tightrope walker.   Why do humans do this?  This technique provides several advantages. It distributes mass away from the pivot point and moves the center of mass out. This reduces angular velocity because her center of mass is now swinging through a longer arc. It takes longer to sweep out the same angle because the center of mass has a longer distance to go. The result is less tipping.  Millions of years of evolution have designed complex vestibular systems and wired our brains to act this way.  Unfortunately, swaying and holding your arms out will be counted as indicators of impairment according to the government.  As any skipping child will tell you, hopping is an instinctive way to quickly correct the body when attempting to locate the center of gravity. Again law enforcement uses natrual and  instinctive behavior to allege intoxication.  As documented in other articles on this blog, overweight people, older people, arthritic people and the simply uncoordinated may have trouble immediately finding and maintaining balance under ideal and fair conditions.  However law enforcement will unfairly count putting a foot down as an indicator of impairment.  It is up to your attorney to make a compelling defense against the use of this biased and unfair test to demonstrate that you were impaired.

Not only does the one-leg stand test require you to behave in an unnatural way, understanding its defects requires a jury to act in a unnatural way.  For example, if you see me trip over a crack in the sidewalk, you would consider me to be clumsy or uncoordinated.  If, however, you trip over a crack in the sidewalk you are much more likely to blame the crack.  The same is true for most people. This discrepancy is called the actor–observer bias.  In social psychology, thefundamental attribution error (also known as correspondence bias or attribution effect) describes the tendency to over-value dispositional or personality-based explanations for the observed behaviors of others while under-valuing situational explanations for those behaviors. The fundamental attribution error is most visible when people explain the behavior of others. It does not explain interpretations of one’s own behavior—where situational factors are often taken into consideration.  This bias can be devastating in a DUI trial when jurors are asked to consider your performance on field sobriety tests.  They will view the actions with a “bias” that they do not know they have.  Furthermore, they use this error to exclude factors of vital importance to both the scientific validity of the tests and your factual innocence.  For instance, jurors may under-value situational factors such as anxiety, lack of sleep, inherent lack of coordination, passing cars, environmental factors etc.  When we look at some of the underlying assumptions of the fundamental attribution error, we see some scary stuff that we, as advocates, must point out and overcome.

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 physical control or DUI 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.”

For more info on the one leg stand test, check these city-specific sites at the following links:

Fairborn, Dayton,Springfield,Kettering,VandaliaXeniaMiamisburg,  Huber HeightsSpringboroOakwood,Beavercreek, Centerville