Posts Tagged ‘Ohio Supreme Court’

The Ohio OVI Breath Test – How To Fight And Win

June 30th, 2014

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

Ohio Supreme Court Rules on DUI Motion To Suppress Issue

April 21st, 2014

DUI Motion To Suppress

The Ohio Supreme Court ruled on a DUI Motion to Suppress issue in State v. Codeluppi, 2012-Ohio-5812.

In August of 2011, Officer Ryan M. Young of the North Ridgeville Police Department stopped Ms. Codeluppi on Lorain Road for driving 53 m.p.h. in a 35 m.p.h. zone.  When Officer Young walked to the driver’s window of Ms. Codeluppi’s car, he smelled a strong odor of alcohol coming from the interior of the car. Following an investigation and administration of standardized field sobriety tests, the defendant was arrested for OVI.

In her motion to suppress, Ms. Codeluppi asserted that: the officer lacked sufficient reasonable grounds to effectuate a traffic stop and/or probable cause to arrest her, the Field Sobriety Tests were not conducted in substantial compliance with National Highway Traffic Safety Administration (“NHTSA”) Guidelines, and statements she made during the traffic stop were obtained in violation of her Fifth, Sixth, and Fourteenth Amendment rights.  Ms. Codeluppi also requested a hearing.

In its response, the State argued that Ms. Codeluppi’s DUI motion to suppress should be denied because, pursuant to Crim.R. 47, it failed to state with particularity the respects in which Officer Young failed to conduct the Field Sobriety Tests in substantial compliance with NHTSA guidelines. As such, the State contended that Ms. Codeluppi did not put it on notice by setting forth any factual basis for her challenge to the constitutionality of the traffic stop and arrest. On November 14, 2011, after reviewing both parties’ arguments, the trial court denied Ms. Codeluppi’s motion to suppress without conducting the scheduled hearing, and, instead, set the matter for a pre-trial. In its order, the trial court stated:

[Ms. Codeluppi’s] Motion to Suppress is denied, at the [S]tate’s request, due to the fact it fails to state legal and factual bases with sufficient particularity to * * * place the prosecutor and the court on notice of the issues to be decided. * * * Case remains set for pretrial on 11/15/11 at 1:30 P.M.

This is an all-to-familiar response from some courts in addressing a motion to suppress and a powerful tactic to prevent a defendant from asserting a DUI motion to suppress.  Much confusion has been raised as to what does, and what does not, constitute a proper motion.  While it is understandable that a court does not want to make a prosecutor “guess” as to what may be raised in a DUI motion to suppress, it is also a devastating blow to deny the single most important motion in a case because of an improperly filed motion.  What is worse, some courts apply this standard in an arbitrary way, denying lengthy or boilerplate motions because they assert issues with too much particularity.  This confusion was addressed by the Ohio Supreme Court.

Justice Judith Ann Lanzinger, in her majority opinion, wrote that a motion to suppress need not describe “in excruciating detail” the basis for arguing for suppression of the evidence. It does need, she said, to provide sufficient notice of the issues to be considered.  The motion to suppress, she wrote, “is merely a procedural vehicle to ‘put the ball into play’ and serve notice that the defendant intends to have the state meet its legislatively mandated burden of demonstrating compliance with any and all challenged regulations and requirements.”  Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French and William M. O’Neill joined Lanzinger’s opinion. Justice Paul E. Pfeifer dissented without an opinion, stating that he would affirm the Ninth District ruling.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio during prom season and beyond.  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 a DUI motion to suppress check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Due Process and the Administrative License Suspension

December 23rd, 2013

Administrative License Suspension

How can it be constitutional for the State to take my license immediately via the Administrative License Suspension?

Ohio believes that driving is not a right, but a privilege. See 4511.191  If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breathblood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The Administrative license suspension is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court.  A court may not grant driving privileges for a certain period of time following the imposition of an Administrative License Suspension O.R.C. 4510.13(A).  By making the license suspension an administrative action rather than a criminal punishment, the Courts have carved out a legal zone whereby you can remain “innocent until proven guilty in a court of law” but yet receive a punishment prior to a finding of guilt.  The statutes governing the Administrative License Suspension are set forth at O.R.C. 4511.191 (establishing the implied consent law); 4511.192 (setting forth the arresting officer’s duties); and, 4511.197 (setting forth the provisions for appeal of the suspension and limited driving privileges).

If you think that the above-described scheme is on shaky constitutional ground, you are not alone.  In 1995, the 6th District Court of Appeal held in State v. Knisley (1995), 74 Ohio St. 3d 1413, 655 N.E.2d 734 held that “on the spot” suspensions violated the due process provisions of the Ohio and United States Constitution.  However, in 1996, the Ohio Supreme Court overruled the 6th District decision in State v. Hochhausler, 76 Ohio St. 3d 455, 1996-Ohio-374, 668 N.E.2d 457 (1996).  In Hochhausler the Court applied a three part due process analysis addressing whether:

 

  1. the private interest affected
  2. the risk of erroneous deprivation of that interest, and
  3. the governmental interest involved which involves a weighing of the government’s interest in removing drunk drivers from the roads against the private interest in the driver’s license

 

The Ohio Supreme Court concluded that the governmental interests outweighed the interests of the individual. Specifically, the Court relied on the provision for a five-day appeal hearing and the trial court’s inherent ability to stay the license suspension were adequate safeguards, thereby concluding that the risk of erroneous deprivation was low.  The failure of a court to conduct an Administrative License Suspension hearing within five (5) days warrants a termination of the ALS because the failure to hold the hearing is a violation of due process. State v. Gibson, 144 Ohio Misc. 2d 18, 2007-Ohio-6069, 877 N.E.2d 1053 (Municipal court decision).

But what of other Constitutional challenges?  This author has always maintained that the right to travel freely is a right enumerated in the Constitution.  Today, the automobile and the use of public roads is the presumed method of exercising that right.  Thus, an argument exists that the Constitution contains a “right” to drive.  According to the Supreme Court, enumerated rights that are incorporated are so fundamental that any law restricting such a right must both serve a compelling state purpose and be narrowly tailored to that compelling purpose.  Is the time right to make that argument?

 

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 the Administrative License Suspension on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

Case Law Update: OVI Urine Sample

November 25th, 2013

OVI urine sample

Under Ohio law, an OVI urine sample must be refrigerated while not in transit or under examination.  In State v. Schneider, 2013-Ohio-4789, the First District Court of Appeals was asked to define what “in transit” means.

At the suppression hearing, defense counsel argued that the state had failed to establish that the OVI urine sample had been refrigerated while it was not under examination or in transit as required by Ohio Adm.Code 3701-53-05(F). Defense counsel pointed to the evidence that the trooper had not refrigerated the specimen between its collection at 3:15 a.m., and its mailing at 10:00 p.m., a period of 18 hours and 45 minutes. Following a hearing, the trial court granted the motion to suppress the results of the alcohol analysis on Schneider’s urine specimen. The prosecutor appealed arguing that the trial court erred by suppressing the urine-test results.

Ohio Adm.Code 3701-53-05(F), provides: “While not in transit or under examination, all blood and urine specimens shall be refrigerated.” The regulation does not define “in transit” or set forth any time limitation for an OVI urine sample to be in transit, or to be unrefrigerated, for that matter. In general, Ohio courts agree that an OVI urine sample or blood specimen is “in transit” for purposes of Ohio Adm.Code 3701-53-05(F) for at least the time that it is placed in the mail until the time that it is received by the testing facility, even if the mailing process itself takes several days. For example, in State v. Hurst, 4th Dist. Washington No. 08CA43, 2009- Ohio-3127, the Fourth Appellate District rejected the appellant’s argument that the police should not have mailed an OVI urine sample on a Friday, thereby causing the OVI urine sample to go unrefrigerated until the crime lab received it the following Monday. See State v. Cook, 82 Ohio App.3d 619, 612 N.E.2d 1272 (12th Dist.1992) (OVI urine sample was “in transit” for the three-day period from the time it was mailed until the lab received it); State v. Cook, 5th Dist. Stark No. CA-8708, 1992 Ohio App. LEXIS 4022 (Aug. 3, 1992) (blood specimen was “in transit” for the three days it was in the mail). In one instance, a court held that the state had substantially complied with the regulation where an OVI urine sample was unrefrigerated for the seven and one-half days that it was in the mail. See State v. Partin, 12th Dist. Warren No. CA2010-04-040, 2011-Ohio-794. In another case, State v. Mullins, 4th Dist. Ross No. 12CA3350, 2013-Ohio-2688, the state limited itself to a narrow definition of the term when it stipulated that the defendant’s urine sample “was not placed in the mail (transit)” until 12 hours had passed from the time that the sample had been taken.

In State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986), the Ohio Supreme Court recognized that strict compliance with DOH regulations “is not always realistically or humanly possible.” The court said that “there is leeway for substantial, though not literal, compliance with such regulations.” Id. The court later limited the Plummer substantial-compliance standard to excusing errors that are “clearly de minimis,” or that are “minor procedural deviations.” See Burnside at ¶ 34.  In this case, the trial court determined that Schneider’s OVI urine sample “was not in transit as long as the officer is holding it.”

The First District reversed holding that Ohio Adm.Code 3701-53-05(F) contains no such limiting language. Nor does the regulation limit the term “in transit” to mean “in the mail.” They stated, in pertinent part,

We do not believe that the term “in transit” as used in Ohio Adm.Code 3701- 53-05(F) is so narrow as to include only the time that a blood or urine specimen is in the mail. Certainly the regulation contemplates other modes of transportation, as well as reasonable periods of time that a specimen is unrefrigerated. To read the term “in transit” to mean “in the mail” would not have allowed for the trooper to transport the unrefrigerated specimen from the Cincinnati district to his patrol post, or even from his post to the post office. Moreover, it is undisputed that a specimen is generally not refrigerated while in the mail; thus, the delay in mailing Schneider’s specimen was inconsequential, and a minor deviation from the requirements of the regulation.  Therefore, we hold that the trial court erred by finding that the state did not demonstrate substantial compliance with Ohio Adm.Code 3701-53-05(F). Moreover, because the trial court determined that Schneider had suffered no prejudice as a result of the lack of strict compliance, we hold that the trial court erred by suppressing the results of the urine-alcohol testing.

It would appear that, without a showing of prejudice, the police will be given no restrictions under the Ohio Administrative Code.  Like in other OVI cases, the language of the statute is not strictly construed against the state, but read in an expansive way to allow more convictions under the law.

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 OVI urine sample and scientific evidence on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

What Are (And What Are Not) Standardized Field Sobriety Tests

September 25th, 2013

standardized field sobriety testsThe dream of implementing Standardized Field Sobriety Tests has long been a goal of law enforcement.  Extensive government testing was begun in the 1970′s to determine a scientifically valid way of helping police officers detect intoxication in drivers under suspicion of drunk driving.  Prior to this undertaking, officers were doing their best to gather evidence of drunk driving, or simply not arresting for the offense due to the difficulty of proving impairment in court.  Some more ingenious tests included throwing coins on ground; if the suspect could pick them up without falling over, they must be sober.  Other popular tests that officers used included:

  • The Rhomberg stationary balance test wherein the driver stands, feet together, and leans the head back to look up at the sky while holding their arms out to the side;
  • An alphabet test where the officer asks the subject to say the alphabet from D to P (some officers asked a subject to say the alphabet backward);
  • The finger-to-nose test: this requires the driver might to close his or her eyes and bring the finger around to touch the nose; and/or
  • The hand-pat test: the driver is asked to extend a hand in front, palm upwards. The other hand is then placed on top of the first hand, palm downwards. The driver then ‘pats’ the lower hand with the upper hand by rotating it, so that first the lower hand is patted with the palm of the upper hand and then with the back of the upper hand;

The problem was that no science supported these tests and the manner of administering the tests fell far short of “Standardized Field Sobriety Tests.”  The National Highway Traffic and Safety Administration (NHTSA) was tasked with determining which tests, if any, could be correlated with impairment by alcohol.  After extensive testing, NHTSA determined that three tests were specific for alcohol intoxication: the HGN (horizontal gaze nystagmus), the walk & turn test and the one leg stand test. This three-test battery are now referred to as the “standardized field sobriety tests.”

All other tests were eliminated.  NHTSA did acknowledge that, while there is a place for using distracting questions, confusion or divided-attention tasks, it cannot be called “scientific” for purposes of in-court testimony.  The current version of the NHTSA manual used to instruct law enforcement throughout the United States allows for non-standardized tests to be a part of the officer’s determination in establishing the lower legal standard of reasonable and articulable suspicion.  The officer uses the information from these tests to determine if the suspect should be removed from the vehicle for standardized field sobriety tests.

If, however, the officer is using the non-standardized field sobriety tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific and legal footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O'Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

You need the skills of an experienced attorney who can properly challenge the reasonable suspicion and probable cause determinations made by the arresting officer.  Charles M. Rowland II has been trained in the latest NHTSA Standardized Field Sobriety Test methods (Walden & Platt, March 2010).  He is just as qualified as law enforcement to administer and evaluate the performance of a subject on the standardized three-test battery and to challenge non-scientific  “stupid-human tricks” that an officer may employ.

OVI 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 emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find Standardized Field Sobriety Tests information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville