Tag: Ohio

DUI Defense In “My Cousin Vinny”

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dui defense attorney

DUI defense is never far from my mind.  I was reminded of this last weekend watching one of my favorite movies, “My Cousin Vinny.” In the movie, a novice New York attorney (Joe Pesci) heads to the deep south to defend his cousin and his friend in a high-profile murder case.  He is met with a hostile judge and a pompous attorney who are hell bent on seeing the two kids put away for murder. Consequently, comedy ensues.

Because of his inexperience, Vinny has a hard time at trial. Especially relevant is his lack of understanding of criminal procedure. However, he makes a comeback. In the course of the trial the prosecutor call George Wilbur (James Rebhorn) as an expert for the State.  Vinny objects.

Vinny Gambini: I object to this witness being called at this time. We’ve been given no prior notice he’d testify. No discovery of any tests he’s conducted or reports he’s prepared. And as the court is aware, the defense is entitled to advance notice of any witness who will testify, particularly to those who will give scientific evidence, so that we can properly prepare for cross-examination, as well as to give the defense an opportunity to have the witness’s reports reviewed by a defense expert, who might then be in a position to contradict the veracity of his conclusions.

[there is a short pause as Judge Haller appears caught off-guard by Vinny’s sudden compentence with knowledge of the law]

Judge Chamberlain Haller: Mr. Gambini?

Vinny Gambini: Yes, sir?

Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.

Vinny Gambini: Thank you, Your Honor.

Judge Chamberlain Haller: [firm tone] Overruled.

The State’s witness is the special automotive instructor of forensic studies for the FBI. He testifies that the tire marks left at the scene of the crime match the tires of the vehicle driven by Vinny’s clients.  “Same tires,” says the prosecutor. In addition to the science, the witness has all of the traditional indicia of credibility due to an outstanding education and an authoritative command of the courtroom.  The only problem with his testimony is that he is DEAD WRONG!  In the movie the kids are saved by out-of-work hairdresser Mona Lisa Vito (Marisa Tomei) whose real world expertise proves that the car did not match the tire tracks left at the scene.

In DUI defense we are almost always faced with police officers and forensic experts who are clothed in the traditional indicia of credibility.  In addition, DUI defense attorneys also face a machine that the state of Ohio has exempted from scientific challenge. The only thing that our clients have going for them is us! As a result, you need to have an attorney you can depend on.

I also take pleasure in proving the machine and the State’s witnesses wrong.  It is said that DUI is the most frequently mis-charged crime in the United States.  When you can get a jury to see an error it is as dramatic as anything Hollywood can produce. Furthermore, it is a feeling that most attorneys, especially me, strive to have as much as humanly possible.  Maybe one day I will have the opportunity to deliver the opening statement that Vinny Gambini uses in the movie…

Vinny Gambini: [opening statements] Uh… everything that guy just said is bullshit… Thank you.

I dedicate my practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. I have the credentials and the experience to win your case. You can be sure that I want to be Dayton’s choice for drunk driving defense. Contact me 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.  Finally, you should keep my motto in mind,  “All I do is DUI defense.”

To learn more about DUI defense check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsOakwoodBeavercreekCenterville

 

DUI on the Water and the Return of Boating Season

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Slalom skier

With the return of the summer boating season, many people will soon be enjoying Ohio’s beautiful lakes and rivers.  This is a reminder that Ohio is cracking down on captains who indulge in alcohol while on the water.  Boating Under the Influence is illegal in Ohio. 2001 Sub. S.B. 123, eff. 1-1-04 sought to unify the drunk driving provisions with Ohio’s boating laws.   O.R.C. 1547.11(A)(1)  to O.R.C. 1547.11(A)(6) prohibit a person from operating or being in physical control of a vessel underway or manipulating water skis, aquaplanes, or similar devices while under the influence of alcohol or drugs.

O.R.C. 1547.11(A)(1) is the impairment provision of the law, preventing operation or physical control while under the influence.  The law also has a provision preventing operation with a prohibited level of alcohol which it sets at the same prohibited level (.08) as the DUI/OVI law Unlike the DUI/OVI law, there are no high-tier provisions which apply to boating. A third section of the law prohibits operation or physical control with a concentration of certain controlled substances (marijuana, cocaine, amphetamine, et al.) or metabolites of the same.  This section of the law is identical to the DUI-drug provisions found in O.R.C. 4511.19(A)(1)(j).

Subsequent amendments to the law, 2007 Am. Sub. S.B. 17, eff. 9-30-08, allows for forced blood draws for persons with two or BUI offenses.  A BUI offense can be used to enhance a subsequent DUI/OVI  offense. O.R.C. 4511.181(A)(6)-(7).  Some important differences in Ohio’s BUI law, stem from the fact that Ohio does not require an operator’s license to operate a watercraft.  Therefore, no administrative license suspension provisions are in the law.  Instead, the chief of the Division of Watercraft gives written notice that you are prevented from operating or being in physical control of a watercraft (or from registering a watercraft) for one year from the date of the alleged violation.  Another key difference is that a fourth or subsequent BUI offense is not subject to felony enhancement.

Penalties for Boating Under the Influence offenses are set forth at O.R.C. 1547.99 and are similar to those provided for DUI/OVI offenses.  Boating Under the Influence is a first degree misdemeanor and is subject to a minimum 3-day jail sentence and a maximum 6 months in jail.  The 3-day jail sentence can be served in a qualified driver intervention program.  The minimum mandatory fine for a first BUI offense is $150.  A second offense within 6 years carries a mandatory 10 day jail sentence, but the minimum mandatory fine is still $150.  A third offense requires a minimum of 30 days in jail. NOTE: The Ohio legislature is constantly “tweaking” the Ohio DUI and BUI laws, so please check with an attorney as these laws may have changed.

Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

The Ohio Bill of Rights

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We, the people of the State of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this Constitution

Article I – Bill of Rights
§ 01 Inalienable Rights (1851)

All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.

§ 02 Right to alter, reform, or abolish government, and repeal special privileges (1851)

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.

§ 03 Right to assemble (1851)

The people have the right to assemble together, in a peaceable manner, to consult for their common good; to instruct their representatives; and to petition the general assembly for the redress of grievances.

§ 04 Bearing arms; standing armies; military powers (1851)

The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

§ 05 Trial by jury (1851, amended 1912)

The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.

(As amended September 3, 1912.)

§ 06 Slavery and involuntary servitude (1851)

There shall be no slavery in this state; nor involuntary servitude, unless for the punishment of crime.

§ 07 Rights of conscience; education; the necessity of religion and knowledge (1851)

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. No religious test shall be required, as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.

§ 08 Writ of habeas corpus (1851)

The privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, the public safety require it.

§ 09 Bail; cruel and unusual punishments

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determineat any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

The General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumptiongreat poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishingthe amount and conditions of bail shall be established pursuant to Article IV, Section 5(b) of the Constitution of the state of Ohio.

(As amended January 1, 1998.)

§ 10 Trial for crimes; witness (1851; amended 1912)

Except in cases of impeachment, cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary, no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereof necessary to concur in finding such indictment shall be determined by law. In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel. No person shall be twice put in jeopardy for the same offense.

(As amended September 3, 1912.)

§ 10a Rights of victims of crime

Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process. This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this constitution, and does not create any cause of action for compensation or damages against the state, any political subdivision of the state, any officer, employee, or agent of the state or of any political subdivision, or any officer of the court.

(Adopted November 8, 1994)

§ 11 Freedom of speech; of the press; of libels (1851)

Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.

§ 12 Transportation, etc. for crime (1851)

No person shall be transported out of the state, for any offense committed within the same; and no conviction shall work corruption of blood, or forfeiture of estate.

§ 13 Quartering troops (1851)

No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor, in time of war, except in the manner prescribed by law.

§ 14 Search warrants and general warrants (1851)

The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.

§ 15 No imprisonment for debt (1851)

No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.

§ 16 Redress in courts (1851, amended 1912)

All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.

[Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be provided by law.

(As amended September 3, 1912.)

§ 17 Hereditary privileges, etc. (1851)

No hereditary emoluments, honors, or privileges, shall ever be granted or conferred by this state.

§ 18 Suspension of laws (1851)

No power of suspending laws shall ever be exercised, except by the general assembly.

§ 19 Inviolability of private property (1851)

Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.

§ 19a Damages for wrongful death (1912)

The amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law.

(Adopted September 3, 1912.)

§ 19b Property rights in ground water, lakes, and other watercourses

(A) The protection of the rights of Ohio’s property owners, the protection of Ohio’s natural resources, and the maintenance of the stability of Ohio’s economy require the recognition and protection of property interests in ground water, lakes, and watercourses.

(B) The preservation of private property interests recognized under divisions (C) and (D) of this section shall be held inviolate, but subservient to the public welfare as provided in Section 19 of Article I of the Constitution.

(C) A property owner has a property interest in the reasonable use of the ground water underlying the property owner’s land.

(D) An owner of riparian land has a property interest in the reasonable use of the water in a lake or watercourse located on or flowing through the owner’s riparian land.

(E) Ground water underlying privately owned land and nonnavigable waters located on or flowing through privately owned land shall not be held in trust by any governmental body. The state, and a political subdivision to the extent authorized by state law, may provide for the regulation of such waters. An owner of land voluntarily may convey to a governmental body the owner’s property interest held in the ground water underlying the land or nonnavigable waters located on or flowing through the land.

(F) Nothing in this section affects the application of the public trust doctrine as it applies to Lake Erie or the navigable waters of the state.

(G) Nothing in Section 1e of Article II, Section 36 of Article II, Article VIII, Section 1 of Article X, Section 3 of Article XVIII, or Section 7 of Article XVIII of the Constitution shall impair or limit the rights established in this section.

(SJR 8; Adopted 11-4-08, effective 12-1-08)

§ 20 Powers reserved to the people (1851)

This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.

§ 21 Preservation of the freedom to choose health care and health care coverage

(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.

(B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.

(C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

(D) This section does not affect laws or rules in effect as of March 19, 2010; affect which services a health care provider or hospital is required to perform or provide; affect terms and conditions of government employment; or affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.

(E) As used in this Section,

(1) “Compel” includes the levying of penalties or fines.

(2) “Health care system” means any public or private entity or program whose function or purpose includes the management of, processing of, enrollment of individuals for, or payment for, in full or in part, health care services, health care data, or health care information for its participants.

(3) “Penalty or fine” means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee established by law or rule by a government established, created, or controlled agency that is used to punish or discourage the exercise of rights protected under this section.

(Adopted 12-9-11; Proposed by Initiative Petition)

Fireworks! What is Ohio’s Law?

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English: This came from New Years Eve 2004 int...

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was originally prepared by Lawrence T. Bennett, Esq., program chair, Fire Science Education at the University of Cincinnati, and reviewed by Douglas Wehmeyer, Battalion Chief, Deerfield Township Fire & Rescue Department; updated by Lawrence T. Bennett.

Ohio Law Governs Fireworks

Q: What kinds of fireworks can be lawfully set off in Ohio?
A: 
Only “novelty and trick” fireworks, such as party poppers and glow worms can be discharged by unlicensed individuals. Section 3743.01 of the Ohio Revised Code defines these novelty and trick items as follows:
“(1) Devices that produce a small report intended to surprise
the user, including, but not limited to, booby traps, cigarette
loads, party poppers, and snappers.;
(2) Snakes or glow worms;
(3) Smoke devices;
(4) Trick matches.”

Q: Can traditional firecrackers and roman candles be set off by unlicensed individuals in Ohio?
A: 
No. Traditional firecrackers, roman candles, bottle rockets and similar items are all classified as “consumer fireworks.” Individuals may buy “consumer fireworks” from an Ohio licensed retailer, but they can not be discharged in Ohio, and must be transported to another state within 48 hours of purchase (72 hours if the buyer is not an Ohio resident). “Consumer fireworks are regulated as “1.4G Fireworks” by the U.S. Department of Transportation.  Individuals over the age of 18 may purchase them, but must sign a form certifying that the purchaser will transport the fireworks outside of Ohio within the required time.

Q: What about M80s, cherry bombs, and other powerful devices?
A:
 They may not be discharged or even possessed in Ohio without a special license. See Ohio Fire Marshal’s “2011 Fireworks Redbook,”http://www.com.ohio.gov/fire/FireworksRedbook.aspx. M80s and similar devices are so powerful that they are classified as “explosive devices” instead of “fireworks.” In Ohio, it is illegal for anyone to even possess any explosive device without a special license. Since 1976, the U.S. Consumer Products Safety Commission has restricted all “1.4G Fireworks” to no more than 50 milligrams of powder, with three- to nine-second fuses.

Q: Are there criminal penalties if individuals violate the fireworks law?
A:
 Yes. First-time offenders are normally charged with a first-degree misdemeanor. If they plead guilty or are convicted, they can be sentenced to up to six months in jail, and also fined up to $1,000. A subsequent conviction is a fifth degree felony, potentially punishable by a prison term of up to one year.

Q: On the 4th of July, who may set off the large fireworks displays?
A: 
These aerial shells, known as “1.3G Fireworks” can only discharged by a licensed exhibitor with a local permit. The permit must be approved by both the local fire chief and the local chief law enforcement officer, after the exhibition site has been inspected using an Ohio Fire Marshal checklist. The Fireworks & Explosive Unit of the State Fire Marshal (http://www.com.ohio.gov/fire/fmfeMain.aspx) has issued licenses to about 504 exhibitors in Ohio, who must take six hours of training on fireworks laws and safety every three years, and must review this information annually with their employees. These exhibitors employ about 1,240 registered assistants who are allowed to assist in discharging the fireworks at the discharge site.

Q: Are there licensed manufacturers and wholesalers in Ohio?
A: 
Yes. There are six licensed manufacturers in Ohio, and 42 licensed wholesalers. The Ohio Revised Code was amended, effective June 1, 1998, to increase the safety of fireworks retail showrooms. These showrooms may not exceed 5,000 square feet, and must be equipped with “interlinked” fire detection, fire suppression, smoke exhaust, and smoke evacuation systems that have been approved by the Ohio Department of Commerce and the Division of Industrial Compliance. The National Fire Protection Association (NFPA) also has sought to increase the safety of retail fireworks stores nationwide.

  • Use of consumer fireworks dramatically increases risk of fire and injury (yubanet.com)
  • Officials recommend sticking to professional fireworks displays (wvgazette.com)
  • Lean the rules before buying fireworks (goerie.com)

Happy Father’s Day From All Of Us At DaytonDUI.com

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Father's Day

Happy Father’s Day from all of us at DaytonDUI!

“Father! 
My father knows the proper way 
The nation should be run;
He tells us children every day
Just what should now be done.
He knows the way to fix the trusts,
He has a simple plan;
But if the furnace needs repairs,
We have to hire a man.
My father, in a day or two
Could land big thieves in jail;
There’s nothing that he cannot do,
He knows no word like “fail.”
“Our confidence” he would restore,
Of that there is no doubt;
But if there is a chair to mend,
We have to send it out.

All public questions that arise,
He settles on the spot;
He waits not till the tumult dies,
But grabs it while it’s hot.
In matters of finance he can
Tell Congress what to do;
But, O, he finds it hard to meet
His bills as they fall due.

It almost makes him sick to read
The things law-makers say;
Why, father’s just the man they need,
He never goes astray.
All wars he’d very quickly end,
As fast as I can write it;
But when a neighbor starts a fuss,
‘Tis mother has to fight it.

In conversation father can
Do many wondrous things;
He’s built upon a wiser plan
Than presidents or kings.
He knows the ins and outs of each
And every deep transaction;
We look to him for theories,
But look to ma for action” 
— Edgar Albert Guest

Happy Father’s Day from all of us at DaytonDUI.com.  We hope that all dad’s celebrate by doing something you enjoy.  When I asked my kids what I should put into this post to represent Father’s Day they said, “You, sitting in your chair”.