Posts Tagged ‘ohio ovi law’

New DUI Punishment Coming To Ohio

April 2nd, 2014

dui punishmentThe Ohio legislature is considering H.B. 469 (Annie’s Law) which would bring a harsh new DUI punishment to the State.

Currently, ignition interlock devices are used in all 50 states and the District of Columbia. However, states vary widely in how the ignition interlock devices are used and which drivers are required to install them. In West Virginia, for example, interlock devices are only ordered at a judge’s discretion while Michigan mandates their use for drivers who are found with a BAC more than twice the state’s legal limit.  In Ohio, ignition interlock devices are required for any driver accused of a second OVI (drunk driving) offense and are otherwise discretionary to the judge.  MADD has pushed to eliminate these discrepancies and urge the adoption of a model rule which covers first-time offenders with a BAC just over the legal limit and would require the installation of ignition interlock devices on hundreds of thousands more vehicles.  Currently, only 20 states require the devices for anyone convicted of a drunken driving-related offense.

Opponents to the law argue interlocks are too expensive and harsh for a first time offender, because they’re responsible for the cost of the DUI punishment. It costs about $2.50 a day, or $75 a month plus a hefty installation fee.  While there are numerous different designs, the typical ignition interlock requires the driver to blow into a tube that measures breath alcohol levels. If a person fails he or she may try again, before the vehicle is locked down.  At random times after the engine has been started, the IID will require another breath sample. The purpose of this is to prevent someone other than the driver from providing a breath sample. If the breath sample isn’t provided, or the sample exceeds the ignition interlock’s preset blood alcohol level, the device will log the event, warn the driver and then start up an alarm (e.g., lights flashing, horn honking) until the ignition is turned off, or a clean breath sample has been provided.  Other versions may also use cameras to record a person’s behavior behind the wheel. Courts may access the data recorded and, in some jurisdictions, a motorist who blew over the limit may face additional penalties.  No one has considered the proportionality of this DUI punishment.

Radley Balko argued in a December 2002 article that MADD’s policies are becoming overbearing. “In fairness, MADD deserves credit for raising awareness of the dangers of driving while intoxicated. It was almost certainly MADD’s dogged efforts to spark public debate that effected the drop in fatalities since 1980, when Candy Lightner founded the group after her daughter was killed by a drunk driver,” Balko wrote. “But MADD is at heart a bureaucracy, a big one. It boasts an annual budget of $45 million, $12 million of which pays for salaries, pensions and benefits. Bureaucracies don’t change easily, even when the problems they were created to address change.”

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 information on DUI punishment on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

DUI Case Law – Ohio DUI | OVI Blog (Due Process)

March 13th, 2014

DUI case law

To understand DUI case law, it is important to understand how the United States Supreme Court analyzes due process issues.  “The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the Bill of Rights. Through a process known as “selective incorporation,” the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the Second Amendment right to bear arms, the Third Amendment right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have “selectively incorporated” the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.” [Source].

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. Legal History. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from Arbitrary impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination. Id.

DUI case law analysis at the United States Supreme Court provides that driving is not “just” a privilege as alleged and assumed by most Ohioans.  You may have heard the expression that a driver’s license is “a privilege — not a right”, and thus there were few effective remedies available to a driver who wished to contest a suspension. The U.S. Supreme Court changed that in Bell v. Burson, 402 U.S. 535 (1971), recognizing that a license’s “continued possession may become essential in the pursuit of a livelihood”.  Because of their value, then, they “are not to be taken away without that procedural due process required by the Fourteenth Amendment”.  The Court premised its opinion on the Fifth and Fourteenth Amendments protections that neither the State or Federal government can deprive a person of life, liberty or property without due process of law.  Without this decision it is likely that the police would confiscate your license without any recourse in or appeal.  See also, Mackey v. Montrym (1979) 443 U.S. 1, involving a license suspension for refusing to submit to a DUI breath test. (for other DUI law information and applicable cases please check HERE).

This author argues that the DUI case law needs to be expanded to include “driving” as a fundamental right under the First Amendment’s Freedom of Assembly.  Thus, the analysis should be under the substantive due process analysis not simply under the procedural due process analysis.  Because the human right of freedom of movement, right to earn a living and the right to peaceably assemble are only capable of being maintained with a valid driver’s license, the Court should require a more rigorous standard before depriving someone of this basic right.  The right to drive is a fundamental right that is deeply rooted in American history and tradition.  Why is it important to establish driving as a fundamental right?  Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest.

 

For more DUI legal analysis, visit DUI Attorney Charles M. Rowland II.  He 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 information on DUI case law on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

Ignition Interlock Devices For Everyone – We Warned You!

March 10th, 2014

ignition interlockH.B. 469 (Annie’s Law) presented at the Ohio Statehouse on Thursday will require an ignition interlock device  be installed on the vehicle of all convicted drunk drivers, including first-time offenders.  Ohio law currently prescribes “blow to go” devices for repeat drunk driving offenders, but not on a first offense.  We have longed warned (previous story HERE) that this was at the top of MADD’s agenda and a continuation of their desire to impose penalties on a driver before they are found guilty of an offense.  Essentially, this law is an attack on a person’s presumption of innocence.  State Representatives Terry Johnson (R-McDermott) and Gary Scherer (R-Circleville) are the lead sponsors of House Bill 469.

Currently, interlock search devices are used in all 50 states and the District of Columbia. However, states vary widely in how the ignition interlock devices are used and which drivers are required to install them. In West Virginia, for example, interlock devices are only ordered at a judge’s discretion while Michigan mandates their use for drivers who are found with a BAC more than twice the state’s legal limit.  In Ohio, ignition interlock devices are required for any driver accused of a second OVI (drunk driving) offense and are otherwise discretionary to the judge.  NHTSA and MADD want to eliminate these discrepancies and urge the adoption of a model rule which covers first-time offenders with a BAC just over the legal limit and would require the installation of ignition-preventing interlock search devices on hundreds of thousands more vehicles.  Currently, only 20 states require the devices for anyone convicted of a drunken driving-related offense.

Some studies show that ignition-preventing interlock devices are about 75 percent effective in keeping those previously convicted of drunken driving from repeating their behavior. While there are numerous different designs, the typical ignition interlock requires the driver to blow into a tube that measures breath alcohol levels. If a person fails he or she may try again, for up to three attempts before the vehicle is locked down.  Other versions may also use cameras to record a person’s behavior behind the wheel. Courts may access the data recorded and, in some jurisdictions, a motorist who blew over the limit may face additional penalties.  Ignition Interlock devices typically cost about $150 and may run $80 a month or more to maintain.

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 information on Ignition Interlock devices on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Standardized Field Sobriety Tests – An Infographic

March 5th, 2014

standardized field sobriety tests

This info graphic describes the science behind the standardized field sobriety tests (spoiler alert: There isn’t much).  Field Sobriety Tests are commonly known as the roadside activities that police officers ask drivers to perform if the officer suspects that the driver is impaired by alcohol or another impairing substance. We call them “stupid human tricks.”  Contrary to popular understanding and belief, many of these tests have little basis in science, and the ones that do are frequently performed incorrectly.

You are also subjected to a great variance in the officer’s understanding of the tests and his or her ability to competently administer the standardized field sobriety tests.  Some officers have not been trained in the administration of the field sobriety tests, some have not been updated since they took the course at the police academy and others simply do not know how to administer standardized field sobriety tests in a manner that would make them indicative of impairment.  In the hands of a well-trained professional, these tests can act as a rudimentary screen for impairment.  In other hands they can give a false veneer of science to a bad arrest.The National Highway Safety and Traffic Administration’s roadside sobriety assessments were developed based on a 1977 study. The subjects of this study had blood alcohol content levels ranging from zero to .15 percent. Though there was such a large different between the test subjects, there was a 47 percent error rate in determining a person’s impairment after administering thestandardized field sobriety tests47%!This means that almost half of the people were misidentified by police officers as being drunk when in fact they were not. What is worse, one of the researchers agreed that the tests are problematic because there is no correlation between a person’s ability to perform a”stupid human trick” like the standardized field sobriety tests battery: One Leg Stand, Walk & Turn, and the Horizontal Gaze Nystagmus test and a person’s ability to operate a vehicle.  Despite the scientific flaws with the tests, they are used throughout Ohio to establish probable cause for an arrest.

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 information on standardized field sobriety tests and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

The Ohio “Clear and Convincing Evidence” Standard

February 27th, 2014

clear and convincing evidence

Clear and Convincing Evidence is required for the standardized field sobriety tests to be admitted. 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 in substantial 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.

Clear and convincing evidence  is defined  in In re Chappell (1938), 33 N.E.2d 393, 397, as “…that degree of proof which will produce in the mind of the court a firm belief or conviction of the truth of the charges and specifications sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph 3 of the syllabus: “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required by ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts to be established.” Also see Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St. 3d 176, 180-181; In re Meyer (1994), 98 Ohio App. 3d 189, 195; Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121, 122; In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368; In re Brown (1994), 98 Ohio App. 3d 337, 342-343.

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.”

Find information on clear and convincing evidence and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville