Tag: Ohio Supreme Court

juvenile dui

Ohio Supreme Court Address Juvenile Prior OVI Offenses

00DUI Case Law, DUI Felony, DUI Under 21/Juvenile, Prior OffensesTags: , , , , , , ,

In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, the Ohio Supreme Court decided an issue affecting juveniles and the ability of the state to enhance a DUI charge based on prior juvenile adjudications.

As a juvenile, the defendant was arrested for violating an equivalent offense 4511.19(A)(1)(a), colloquially referred to as a DUI charge. He was not represented by counsel. By 2011 Bode had been convicted of three more DUI charges. In 2011, Bode was indicted for and convicted of felony DUI charges. The cases were felonies because of Ohio enhancement statute R.C. 4511.19(G)(1)(d), which relied on his prior juvenile offense to enhance his charged to a felony. In Ohio, if you accumulate “five or more” DUI offenses within a twenty (20) year period, you may be charged with a felony of the fourth degree.  Here, the government was attempting to use his juvenile offenses as one of the “five or more.”

The defense argued that because he did not waive his right to counsel at his 1992 juvenile adjudication, the state should not be allowed to use that disposition against him. In a narrow 4 to 3 decision, the Ohio Supreme Court agreed. Relying heavily upon well-recognized Due Process cases, the court did not accept the state’s argument that since he was not incarcerated in the 1992 adjudication, he should not have been afforded counsel. The opinion, in dicta, also shows continued life for the collateral attack of a prior sentence under the State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533 analysis.

This case highlights the necessity of hiring an experienced and credentialed attorney who practices in the field of DUI defense. At DaytonDUI, Charles M. Rowland II has over 20 years experience helping people accused of driving under the influence. Call today!

DUI Case Law Update: State v. Ilg

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DUI case law update: State v. Ilg, Slip Opinion No. 2014-Ohio-4258

DUI case lawFor most of my career I have had to deal with a tremendous disadvantage in DUI cases.  In 1984, the Ohio Supreme Court decided State v. Vega, 12 Ohio St. 3d 185, 465 N.E.2d 1303 (1984) which was interpreted to prevent an attack on the breath test machine if it attacked the “general reliability” of a breath alcohol test if it was “conducted in accordance with methods approved by the director of the Ohio Department of Health.” Id.  In practical purposes, courts used VEGA to preclude almost all attacks on a breath test (partition ratio, radio frequency interference, etc.) thereby creating a reality that if the machine produced a result, the result was coming in.  The DUI case law was so bad that it became a matter of some discussion at the national level.

Yesterday, (October 1, 2014) the Supreme Court decided a case which dramatically “re-read” the Vega decision.  The holding of the case stands for the principle that,

Every person accused of an offense involving an Intoxilyzer 8000 machine may challenge the accuracy and credibility of a breath test by showing that the breath-analyzer machine failed to operate properly at the time of testing or that the results had not been analyzed in accordance with methods approved by the director of ODH.

Paradoxically, this is the very reading that most Ohio DUI attorneys have been urging the courts to adopt (with varying results) throughout the State.  With some trepidation I can announce that Veag appears to be dead.

The Ilg decision also requires the government to produce the “COBRA” data about each case.  The State has maintained that compliance with these requests are too burdensome and expensive – the Court disagreed. The court upheld the lower court ruling which excluded results of the test due to the State’s failure to provide the requested discovery.

Obviously, it is important to see how this decision will impact cases in the long term.  However, it stands as an important statement that challenges to the machine (often using good science) will be allowed.

I am amazingly enthusiastic about trying cases involving the Intoxilyzer 8000.  I am overjoyed that the scientific defense, long excluded, should now be used in the courtroom.  More importantly, I am excited for the many people who can now stand up and say that the machine is wrong.  Too many innocent people have been condemned to harsh mandatory sentences without recourse. Ohio DUI case law now allows us to present science in their defense.  Now the fight begins.

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.”

For more on DUI case law contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

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

00DUI Case Law, DUI Penalties, Prior OffensesTags: , , , , , , , , , , , , , , , , , , ,

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

A Motion To Suppress Is Vital In An Ohio DUI Case

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motion to suppressIn State v. French, 72 Ohio St. 3d 446, 1995-Ohio-32, 646 N.E. 2d 887 (1995), the Ohio Supreme Court held that a pretrial motion to suppress is the only way to challenge the admissibility of a chemical test.  If not filed, the results will be automatically admissible at trial.  The prosecuting attorney will not need to lay a foundation and any objection by the defense as to their admission will be overruled by the judge.  This makes choosing an experienced DUI attorney vital to your case as they will know what to challenge in a pretrial suppression motion.

A motion to suppress is one of the most important tools in a DUI attorney’s arsenal. It’s purpose is to render “the state’s proof … so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.” State v. Davidson, 17 Ohio St.3d 132, 135, 477 N.E.2d 1141 (1985). If successful, a motion will likely end the case in favor of the defendant.

The motion is the defendant’s challenge to crucial aspects of the State’s case, which may include challenges to:

  • the reason for the initial police contact;
  • the reason for asking the defendant to exit the car;
  • the reason for administering the standardized field sobriety tests;
  • the administration of the field sobriety tests;
  • the 20 minute observation period before the chemical test;
  • the administration and time frame of the chemical test; and
  • the results of the chemical test.

Ancillary benefits of a motion to suppress include the ability to see and hear the officer testify about the arrest. The officer may be an exceptionally good or bad witness. The state may or may not choose to pursue certain aspects of the case based on the testimony. Further, the motion hearing may prove to be a valuable discovery tool. From a purely strategic standpoint, a motion to suppress demonstrates to the State that you are committed to your client’s position and will do whatever it takes to prevent a DUI conviction.

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.”

For more information about a motion to suppress contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

The Ohio OVI Breath Test – How To Fight And Win

00Breath TestingTags: , , , , , , , , , , , , , , , , , , ,

OVI breath testYou may think that any person who takes an OVI breath test and blows above Ohio’s .08 legal limit is guilty of OVI.  This is not the case.

Ohio employs a device called the Intoxilyzer 8000.  This device has many problems in its operation.  In fact, after a lengthy hearing on the Intoxilyzer 8000, a judge in Marietta ruled that the machine was not reliable [Story HERE].  Prosecutors hide behind a 1984 Ohio Supreme Court decision that said because the machines were officially certified by the state, they cannot be challenged by expert witnesses. Until this ruling is overturned we have to rely on other issues… and we do.

There are several ways to challenge an OVI breath test that involve operational issues.  Operational issues that may be used as defenses in your OVI case include:

  • Human error
  • Environmental factors
  • A breath test may not accurately represent your true Blood Alcohol Content (BAC)
  • Your mouth alcohol may be measured higher than your true breath alcohol level
  • Amount of time between your arrest and breath test
  • The breath test device may be improperly maintained

Did you know that your breathing pattern can significantly alter the concentration of alcohol on your evidential OVI breath test?  According to scientific research, “[t]he subject’s test manner of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation.” (Jones, 1982, Schoknecht, 1989) as cited in Physiological Aspecs of Breath-Alcohol Measurement, Alcohol Drugs & Driving Vol. 6, No. 2, A.W. Jones.  Hyperventilation “…lowers the breath alcohol concentration by as much as 20% compared with a single moderate inhalation and forced exhalation used as control tests.” Id. (Jones, 1982).  Whereas, “holding breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by 15%. Id. (Jones, 1982).

The protocol for the Intoxilyzer 8000 in Ohio requires that you produce merely 1.1 liters of breath, less than the amount of air required to fill a two liter pop bottle.  The average adult can exhale between three and four liters of air.  If you are unlucky enough to be tested on this machine, the police will urge you to keep blowing your entire breath into the machine. However, such a long breath will artificially increase the apparent amount of alcohol in your breath by skewing the sample toward your “deep lung air,” where the alcohol is more highly concentrated. If you only blow only the required 1.1 liters, you will give an adequate sample, which may be up to 30% less than the sample that the police want you to give.

At Dayton DUI we constantly write on issues affecting an Ohio OVI breath test.  I invite you to check out these related articles:

It is my hope that even the most vehement advocate of tough DUI laws would allow an open debate on the scientific methodology of convicting a person in court.  If you are willing to fight to keep truth out of the courtroom, then you have drifted so far from the principles of fairness as to become blind to what our system of justice should be.  I call on MADD, the Century Council and all other advocates for tough DUI laws to join me in having a fair fight over the science and protecting our fragile and vulnerable system of justice.

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 visit about your OVI breath test or to learn more, check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsOakwoodBeavercreekCenterville