Posts Tagged ‘ovi law’

Determining Probable Cause For An OVI Offense

August 25th, 2014

probable causeA warrantless arrest must be supported by probable cause in order to be constitutionally valid. State v. Timson, 38 Ohio St.2d 122, 67 Ohio Op.2d 140, 311 N.E.2d 16 (1974).  In order to make a finding that probable (more likely than not) cause existed the court must look at the totality of the circumstances surrounding the arrest. State v. Miller,  117 Ohio App.3d 750, 691 N.E.2d 703 (11th Dist. Court of Appeals 1997), State v. Brandenburg, 41 Ohio App.3d 109, 534 N.E.2d 906 (2nd Dist. Court of Appeals, Montgomery County 1987). “[B]ecause of the mosaic which is analyzed for a …probable cause inquiry is multi-faceted, ‘one determination is seldom useful precedent for another.’” State v. Anez, 108 Ohio Misc.2d 18, 27, 738 N.E.2d 491 (2000) citing Ornelas v. United States, 517 U.S. 690, 698, 116 S.Ct. 1657, 1663, (1996) quoting Illinois v. Gates, 462 U.S. 213, 280, 103 S.Ct. 2317, 2332 (1983).

In an OVI case filed pursuant to O.R.C. 4511.19, the court must consider the following in making a determination:

  1. whether at the moment of arrest;
  2. the police had sufficient information
  3. derived from a reasonably trustworthy source of the facts and circumstances
  4. sufficient to cause a prudent person to believe
  5. that the suspect was driving under the influence

These factors are set forth at State v. Homan, 89 Ohio St. 3d 421, 427, 2000-Ohio-212, 732 N.E.2d 952 (2000), superseded by statute, State v. Bozcar, 2007-Ohio-1251, 113 Ohio St.3d 148, 863 N.E.2d 155 (2008) citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964); State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974).  It is clear from these cases that probable cause is a high standard that the government must meet in order to prosecute an OVI offense.

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.”

To learn more about probable cause contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Are DUI Laws A Sophisticated Form Of Gaslighting?

August 19th, 2014

dui lawsHow does “gaslighting” relate to Ohio DUI laws?

In the 1944 film Gaslight, Ingrid Bergman’s character  Paula Alquist Anton meets and marries the charming Gregory Anton played by Charles Boyer.  The husband does everything in his power to isolate his wife from other people. He allows her neither to go out nor to have visitors, implying that he is doing so for her own good, because her nerves have been acting up, causing her to become a kleptomaniac and to imagine things that are not real. On the one occasion when he does take her out to a musical gathering at a friend’s house, he shows Paula his watch chain, from which his watch has mysteriously disappeared. When he finds it in her handbag, she becomes hysterical, and Gregory takes her home. She sees why she should not go out in public.  We learn that these events have been part of a sophisticated manipulation by Gregory .  In the film’s dénouement the wife’s sanity is returned when a police detective confirms her belief that the gaslights are indeed flickering.  It is from this scene that we get the psychological term “gaslighting” which“is a form of mental abuse in which false information is presented with the intent of making victims doubt their own memoryperception, and sanity.” Dorpat, T.L. (1994). “On the double whammy and gaslighting”Psychoanalysis & Psychotherapy 11 (1): 91–96.  Instances may range simply from the denial by an abuser that previous abusive incidents ever occurred, up to the staging of bizarre events by the abuser with the intention of disorienting the victim.

Why do I maintain that neo-prohibitionists, their corporate backers and their government supporters are engaged in gaslighting when it comes to DUI laws?

Ohio has declared WAR on drunk drivers.  This must mean that drunk driving is more pervasive than ever, right?  This is simply not the case.  We have made massive strides in combatting the problem.  Alcohol-related traffic fatalities have dropped from 60% of all traffic deaths in 1982 down to 31% in 2010. National Highway Traffic Safety Administration (NHTSA). 2010 Motor Vehicle Crashes: Overview. Traffic Safety Facts: Research Note. 2011 (December). DOT HS 811 552. Page 2, Table 3.   Alcohol-related traffic fatalities per vehicle miles driven have also dropped dramatically — from 1.64 deaths per 100 million miles traveled in 1982 down to 0.45 in 2006 (the latest year for which such statistics are available). National Highway Traffic Safety Administration. 2006 Traffic Safety Annual Assessment: Alcohol-Related Fatalities. Traffic Safety Facts: Research Note. 2007. DOT HS 810 821. Page 1, Figure 1.  The proportion of alcohol-related crash fatalities has fallen 52% since 1982, but the proportion of traffic deaths NOT associated with alcohol has jumped 78% during the same time.  These number are not presented to demonstrate that drunk driving is not a national problem – it is.  The numbers are not meant to mitigate the immeasurable pain of a totally preventable drunk driving tragedy, but to ask whether or not implementing a policy of ever increasing penalties will help stop the problem.  It can be argued that we are winning the battle against alcohol-related traffic deaths.  National Highway Traffic Safety Administration (NHTSA). 2010 Motor Vehicle Crashes: Overview. Traffic Safety Facts: Research Note. 2011 (December). DOT HS 811 552. Page 2, Table 3; National Highway Traffic Safety Administration (NHTSA). Traffic Fatalities in 2010 Drop to Lowest Rate in Recorded History. NHTSA Press Release. April 1, 2011.

The general public has also been led to believe that longer and longer jail sentences are effective in combatting drunk drivers.  Despite the popularity and political expediency of ratcheting up jail time, research suggests that jail or prison sentences for alcohol offenses appear to be of little value in deterring high BAC drivers.  Compton, R. Preliminary analysis of the effect of Tennessee’s mandatory jail sanction on DWI recidivism. Research Notes. 1986 (June) Washington, D.C.: National Highway Traffic Safety Administration; Homel, R. Policing and Punishing the Drinking Driver: A Study of General and Specific Deterrence. NY: Springer Verlag, 1988; Joksch, H.C. The Impact of Severe Penalties on Drinking and Driving. Washington, D.C.: AAA Foundation for Traffic Safety, 1988; Ross, H.L., and Klette, H. (1995). Abandonment of mandatory jail for impaired drivers in Norway and Sweden. Accident Analysis and Prevention, 1995, 27(2),151-157 as cited by Dr. David J. Hanson, Alcohol Problems and Solutions. Research suggest that the cry for larger and larger fines is also an ineffective policy.  In fact, large fines appear have little deterrent effect, according to research. Lawpoolski, S., et al. Speeding Tickets: Effective Deterrents for  Future Violations or Not? Apaer presented at TRB annual meeting, 2006.

We have been manipulated to believe that all drunk drivers are the same and that they pose the same threat level.  In fact, some have gone as far as saying every drunk driver should be charged with attempted murder. Ozy Editors, Does DUI = Attempted Murder?, Sept. 2013. The fact is that we know the average BAC among fatally injured drinking drivers is .16. National Highway Traffic Safety Administration (NHTSA). Performance Measures. NHTSA Budget Overview FY 2007. Washington, DC: National Highway Traffic Safety Administration, 2007.  High BAC drivers tend to be male, aged 25-35, and have a history of DWI convictions and polydrug abuse. Hedlund, James and James Fell. Repeat Offenders and Persistent Drinking Drivers in the U.S..Washington, DC: National Highway Traffic Safety Administration, 2007.  Hardcore drunk drivers are responsible for 70% of all drunk driving fatalities and are 380 times more likely to be involved in a fatal crash. Drivers with blood alcohol concentration levels in excess of .15 are only one percent of all drivers on weekend nights; however, they are involved in nearly 50% of all fatal crashes during that time. Id.  Instead of focusing on this problem group, government/corporate/prohibitionist groups apply DUI laws against every driver on the road.

Often the harshest DUI penalties are applied to every driver.  An example of this is the use of roadblocks and checkpoints which are not as effective as other law enforcement methods, but are used primarily to intimidate and deter the general populous and attack some of our most cherished American ideals.   Perhaps the most egregious form of this gaslighting is the “No-refusal” checkpoint in which judges are sitting by to allow forced blood draws for any person attempting to evade a breath test.  Another example of this misguided approach is the DADSS program which seeks to have passive alcohol searches embedded in every car manufactured in the United States.  No one dares question the need for crack-downs like the twice annual “Drive Sober or Get Pulled Over” and its accompanying multimillion dollar ad blitz.  Why do we never pause to ask if this is helping.

Mothers Against Drunk Driving became the most successful advocacy group of all time not because of their demand for “penalties for all,” but because they were able to successfully challenge the social norm that drinking a driving was harmless and an activity that we all engaged in. Hellstrom, David. “Reducing Risk: The Prevention Collaborative’s Positive Social Norming Campaign.” Conference presentation at the National Conference on the Social Norms Model, July 17, 2003, Boston, MA; Collaboration and social norms: The key to reducing impaired driving among college students in Minneapolis/St. Paul. The Peer Educator, October 2002, Vol. 25, No.3; National Social Norms Resource Center. Minnesota DWI Prevention: The Prevention Collaborative as cited by Dr. David J. Hanson, Alcohol Problems and Solutions.  In his book Why People Obey The Law, legal scholar Tom Tyler argues that compliance with the law has less to do with deterrence (fear of penalty) than with the rational decision that complying with the law is in a person’s self-interest. More important to their compliance is the decision that following the law is the right thing to do. Having the biggest impact on their perception of the law is the belief in the legitimacy of the authority. “People who go to traffic court are less concerned with the outcome – even when it is a costly ticket or fine – than with the fairness of the process.” Vanderbilt, Tom. Traffic: why we drive the way we do (and what it says about us), 2008, pp 235. Thus the societal norm that driving within the speed limit and driving without being impaired, is an agreed upon social construct and is enforced best by our agreement that violating these laws is dangerous and deserving of punishment.

For generations, Ohio have been told to fear alcohol and have overly taxed and regulated the alcohol industry. Ohio is one of 17 states where the government controls liquor sales.  While the “sin tax” in Ohio is huge, with taxes accounting for 40% of the retail price, some groups push their prohibitoinist agenda in calls for higher taxes on alcohol and more regulation.  Research demonstrates the fallacy of this policy.  Increasing the cost of alcohol with increased  taxation would have virtually no impact on reducing drunk driving.  Hanson, David J. Preventing Alcohol Problems: Alcohol, Culture and Control. Westport, CT: Praeger, 1995.  Common sense dictates that cost will not be a factor in the decision making process of a heavy alcohol user. 

We have so demonized alcohol that we have created a counter-intuitive binge drinking culture amongst our youth.  Mothers Against Drunk Driving and others call this folly to even consider lowering the drinking age.  Since 1984, the National Minimum Drinking Age Act has required states to raise the age to 21 or lose federal transportation money. South Dakota was the last state to comply, in 1988.  Vermont voted to raise the age in 1985, and in the ensuing 20 years, alcohol-related traffic fatalities dropped by 40 percent, according to Vermont State Police.  “Is there any significant support in the U.S. Congress for changing the law? We don’t see that,” said Chuck Hurley, CEO of MADD.  Typically, when states flirt with the idea, they quickly abandon it for fear of losing the highway funding, he said. This is gaslighting – preventing a needed national debate by making the topic off limits at the risk of losing highway traffic funds. “Our laws aren’t working. They’re not preventing underage drinking. What they’re doing is putting it outside the public eye,” Vermont state Sen. Hinda Miller said. “So you have a lot of kids binge drinking. They get sick, they get scared and they get into trouble and they can’t call because they know it’s illegal.”

Don’t ever drink and drive.  Be a designated driver.  Use alcohol responsibly. Be there for people who suffer from addiction.  We can do this!  Things will get better!

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

IFor more about DUI laws  check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

First Offense Kettering OVI – What Is Going To Happen To Me?

August 14th, 2014

Kettering OVIfirst offense Kettering OVI is defined at O.R.C. 4511.19 as a DUI with no priors within 6 years.  A first offense OVI can be charged in three ways.  The first charge is caused by testing over the legal limit of .08% B.A.C. (example O.R.C. 4511.19(A)(1)(d)).  These types of offenses are also referred to as “per se”  violations.  A second way to be charged is for violating the high-tier provision of Ohio’s OVI law.  Ohio has also created a per se “high-tier” limit of .17% BrAC, sometimes referred to as a SUPER-OVI.  The per se high-tier limits for a first offense OVI are set forth at O.R.C. 4511.19(A)(1)

         (f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.

         (g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.

         (h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.

         (i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.

Appreciable Impairment Offenses:  If you refuse to take a chemical test, the State will still be able to prove you guilty of a first offense Kettering OVI if they prove (beyond a reasonable doubt) that you  operated a motor vehicle in Ohio after having consumed some alcohol, drugs of abuse, or a combination of the two and their ability to operate the motor vehicle was appreciably impaired.  How does a jury determine “under the influence?”  The following is an excerpt from the Ohio Jury Instructions:

“Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person.

The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence. The Ohio jury Instruction cites language from State v. Hardy (1971), 28 Ohio St.2d 89, 57 O.O.2d 284, 276 N.E.2d 247; and State v. Steele (1952), 95 Ohio App. 107, 52 O.O. 488, 117 N.E.2d 617.

The “appreciable impairment offense” is set forth at Ohio Revised Code 4511.19(A)(1)(a) which states,

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

At DaytonDUI we refer to the (A)(1)(a), appreciable impairment offense as the OTIS standard, derived from the popular OTIS character featured on the classic Andy Griffith program.  OTIS was the stereotypical town drunk who often found himself in the Mayberry jail.  OTIS was obviously intoxicated based on how he looked, walked, acted and talked.  Viewers had no doubt that he was intoxicated.  Law enforcement will  attempt to prove impairment with the same evidence we use to judge OTIS.

Why Was I Charged With Two OVI Offenses?  Often, the arresting law enforcement officer will charge both the per seand appreciable impairment cases, knowing that you cannot be convicted of both.  In essence, the officer is hedging his bets, hoping that if your test is found to be faulty you can still be found guilty of being impaired.  At your trial or sentencing hearing, your conviction will either be for the per se or appreciable impairment charge.  Your DUI attorney will help you understand the pros and cons of any plea agreement and empower you to make choices that will benefit you on a short-term and long-term basis.  Choosing the best OVI attorney for your case is the most important decision that you can make and should not be rushed or taken lightly.

First Offense OVI Felony Offenses: If your first offense Kettering DUI involves the death or serious physical harm to another, you may face felony charges.  Aggravated Vehicular Homicide is a crime that results from the death of another caused by the defendant’s operating a vehicle while impaired (a violation of R.C. 4511.19)  or while driving negligently or recklessly.  The statute  encompasses driving an automobile recklessly or negligently (called Vehicular homicide) whether or not alcohol played a part in the death.  Aggravated Vehicular Assault is the crime of causing serious physical harm to a person while violating Ohio’s drunk driving statute.

A First Offense OVI Based On Drug Use:  You can also be charged with a per se offense based on the concentration of illicit drugs in your system.  To be convicted of a per se offense, the state must prove that a person operated a motor vehicle in Ohio and that at the time of operation, the person had a prohibited concentration of alcohol or drugs in their blood, breath or urine.  Your Kettering DUI attorney will devise defenses particular to the specific evidential test you took.  The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the rules of the Ohio Administrative Code (OAC) as adopted and approved by the Ohio Department of Health.  At DaytonDUI, we know how to defend a breath test case and employ sophisticated scientific defenses to win your DUI case.  An oft’ quoted maxim that you should know is, “An arrest is not a conviction.”

First Offense OVI Penalties:  The following penalties are reserved for first offense DUI offenders.  Obviously, it is in your interests to hire counsel who can assess your case and provide you with an honest assessment of your case.  Be sure to discuss not only the mitigating factors that your attorney should know, but the not-so-good aspects of your case.  Judges have discretion to look at many factors in fashioning a remedy and your attorney should be able to give you an idea of how to approach your case so as to minimize any potential penalties.  Here are the range of possible penalties for a first offense DUI.

Jail – 3 Days Minimum up to 6 Months or,

Driver Intervention Program – For 3 Days

Jail – 6 Days (If Blood Alcohol Concentration .17 or Above)

License Suspension – From 6 Months to 3 Years

Reinstatement Fee – $475.00

Fine – From $375 to $1,075

Party Plates (Ohio’s Scarlet Letter)

When are yellow DUI plates required?  If you are convicted of OVI in Ohio, yellow “restricted plates” are required in certain circumstances.

If you are convicted of OVI as a first offense, the judge has discretion to order restricted plates as a condition of granting you limited driving privileges.

If you are placed under and administrative license suspension, a judge has discretion to order restricted plates as a condition of granting limited driving privileges.

Is an Interlock Ignition Device Mandatory?

The device is not mandatory on a first offense OVI in Ohio.  Judges have discretion to require the ignition interlock device on first offenses, but on subsequent offenses the IID is mandatory.  It is important to speak with an experienced DUI attorney who is familiar with the Court/judge presiding over your case to get an idea of whether or not you will likely receive an ignition interlock device on a first offense.  Be sure to talk with your attorney about aggravating factors in your case.  Be aware that MADD is pushing for the requirement that all first-time DUI offenders must use an ignition interlock device in order to get the car to start.  MADD is seeking to implement this mandate in the same way it coerced the states’ into adoption of a .08 alcohol standard, which is to tie the ignition interlock to receiving highway funds.  The language stipulates that if states want about 5 percent of their regularly allocated safety money, they must enact a law that requires first-time DUI offenders to install an ignition interlock device if they want to continue driving.  By seeking implementation in this way, MADD can avoid fights in more driver-friendly state legislatures.  Given the long history of pandering to MADD, this commentator is not hopeful of a pro-driver outcome.

Immobilization

If you do not have a prior OVI offense getting your car back is relatively easy as Ohio DUI law does not authorize immobilization as a penalty for a first offense.  Here are the steps you should take to get your car back.

Locate the proper tow lot;

Gather enough cash (or other proper payment) to pay towing and storage fees;

Gather proof of ownership; and

If you were placed under and Administrative License Suspension, get a licensed driver to drive your car from the impound lot.

If you have trouble with ANY of the items above, contact DaytonDUI and we will help get your car back.  We have even gone as far as having our staff drive to the tow lot on our client’s behalf.  It is to your advantage to move quickly in order to save storage fees.

What does a first offense DUI defense cost?  We encounter many people who want a rational, economic justification for hiring an OVI attorney on a first offense OVI.  The only study I could find on this topic was a 2006 Texas Department of Transportation study which calculated the costs of a drunk driving conviction “in that state showed the total costs of a DWI arrest and conviction for a first-time offender with no accident involved would range from $9,000 to $24,000.” [source]  In a story from CNBC citing that study, they speculate that total costs, absent you losing your job, could range as high as $20,000.  While projecting costs without knowing your particular circumstance is wildly speculative, here are some of the expenses you may realize:

  •          Fines.
  •          Court costs.
  •          Attorney fees.
  •          Bail.
  •          Loss of job.
  •          DUI “school.”
  •          Temporary loss of income.
  •          Car towing, impounding.
  •          Alternate transportation costs.
  •          Car ignition interlock device.
  •          Periodic blood testing.
  •          Monthly monitoring fees.
  •          Cost of incarceration.
  •          Increased auto insurance premiums

Obviously, if you were to lose your job and/or your career because of an Kettering OVI conviction, the lifetime costs skyrocket.  Insurance premiums, damages caused by personal injury or costs of restitution for property damages also cause the costs to climb.  Some of the expenses highlighted above can take years to come to fruition and the lingering effects of having a drunk driving conviction may be with you for life.  The good news is that a good DUI attorney can significantly curb the financial detriments incurred in a DUI case.  While predicting what an attorney can save you is just as wildly speculative as predicting costs, it is common for many of the costs to be subject to negotiation and/or reduction.  A reduction of the charge will not only lower the possible maximum fines, but can also get rid of ugly mandatory punishments required by Ohio’s OVI statute. O.R.C. 4511.19.  The best way to explore how much a vigorous DUI defense will costs in your case, contact Charles M. Rowland for a free consultation.

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.”

To schedule a free Kettering OVI consultation contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Judges Express Concerns Over Ignition Interlock Implementation

August 6th, 2014

2004 model of an ignition-interlock breath ana...

As Ohio is contemplating “Annie’s Law” which would require Ignition Interlock Devices for every first-time OVI offender, it is important to look at how implementation went in other states.  The National Highway Traffic Safety Administration recently released a report on Arizona’s adoption of the law. DOT HS 812 025, Ignition Interlock: An Investigation into Rural Arizona Judges’ Perceptions, Fred Cheesman, Matthew Kleiman, Cynthia G. Lee, and Kathryn Holt (May, 2014).   In 2007, Arizona became the second state in the nation to require all first-time drunk driving offenders to equip their vehicles with ignition interlock devices. The first was Arizona’s neighbor New Mexico, which implemented a one-year interlock requirement for first-time offenders in 2005.

First some context on the timing of the Arizona law.  What we find in this report is that the ignition interlock implementation was started in the middle of a downward trend.  “There is also a decreasing trend in the percent of these fatalities that were alcohol-related (BAC of .01 and higher). The trend is obvious from the first data point in 1982 to the last in 2010, when the percentage dropped from 58% to 42% respectively. The trend began well before the legislation was implemented in 2007.” Id. at 4-5.   A similar trend can also be noted for alcohol-impaired driving fatalities (i.e., fatalities wherein the driver had a BAC of .08 or higher), for which the percentage dropped from 52% in 1982 to 36% in 2010.  This provides a context for the claims of the interlock proponents who use these statistics in a deceptive way to show a causal relationship between implementation of the interlock law and the drop in fatalities. Id. at 4-5.

The report details how rural Arizona judges were given a lengthy “education” session about the law by interlock proponents prior to being asked their opinion of the law.  Despite intense indoctrination, some judges still had concerns.

“Many of the judges indicated that it is difficult for DUI offenders to have ignition interlock devices installed in their vehicles. Most of the rural jurisdictions do not have a vendor that services their locality. Instead, offenders are forced to drive 50 to 150 miles, each way, to providers who are in the nearest ‘large’ town or city. The judges pointed out that this is a challenge for many rural defendants who may have cars that are operationally unreliable. The end result is that some defendants are not obtaining the interlock device and are being arrested for driving with a suspended license.” Id. at 19-20.

Other judges expressed concern about the costs associated with a first offense.

Several judges expressed their concern that the monetary expense of the sanctions make it difficult for rural defendants to comply. “We are a very poor rural county and I think the requirement is good, but there are definitely financial and logistical barriers.” Id. at 21.

The judges even found a way to voice concerns over the requirement of treatment for rural and poor defendants.

Additionally, a few of the judges pointed out that rural communities do not have sufficient DUI counseling centers or programs. This makes it very difficult for DUI offenders to comply with their treatment requirements. The end result is that warrants can be issued for those who do not attend their review hearings (where an offender is required to provide proof of counseling) and additional, costly jail time may be imposed. Id. at 21.

It seems that many of the judges were skeptical of the efficacy of the law and its implementation even after they have been required to use “blow to go” devices for over  seven years.

Despite the availability of information and extant training opportunities, several of the judges pointed to information gaps where they would like additional information about ignition interlock programs. Specifically, judges were interested in knowing more about:

  • What are the costs involved for installation and the monthly rates?
  • How do the ignition interlock devices work and function in practice?
  • What is the efficacy of the device? How easy or hard is it to tamper with the device?
  • What is the availability of local providers and how challenging is it for defendants to obtain the ignition interlock device in their jurisdiction?
  • Are ignition interlock devices effective as a deterrent? What studies are available that documents the effectiveness in reducing recidivism?
  • What are the rates of compliance? (Since the sanction is an administrative matter of the Motor Vehicle Department, judges would like to know how the ignition interlock requirements are being monitored and enforced).
  • Are there other areas where the technology could be used (e.g., underage drinking)?

The authors also did an interesting look into whether or not the law is resulting in more drunk driving cases being reduced.  Not surprisingly, “[t]here is clearly a general trend of increasing charge reductions in most counties, including rural counties.” Id. at 24-25.  Although they offer this caveat: “[t]his trend began well before the implementation of the 2007 legislation and does not appear to be related to it.”  Which raises the question is the harshness of the law causing prosecutors and judges to realize the crushing burdens placed on first time offenders.  In the conclusion section of the report the authors note: “Our analyses revealed that there has been a general and longstanding trend of increasing rates of charge reductions for convicted DUI offenders that began well before implementation of the 2007 legislation.” Id. at 28.

The authors, recognizing the trend toward reducing drunk driving charges, make the following recommendation. “Recommendation: Any state implementing legislation that changes penalties for DUI should investigate whether sentencing behavior (particularly charge reductions) changes in response to the legislation, to ensure fidelity of implementation.” Id. at 29. With regard to the implementation issues they make the following recommendation. “Recommendation: Any state considering requiring ignition interlock for all convicted DUI offenders should develop plans and contingencies well in advance of implementation of such a policy to ensure that citizens from rural jurisdictions, as well as from urban jurisdictions, have ready access to ignition interlock services.”

It is my hope that our legislators are looking at the costs of implementing and monitoring the law.  I hope that they take a step back and review how amazingly harsh the penalties are for first-time offenders and how many poor people are disproportionally impacted by these laws.  The vast majority of individuals charged with a first OVI do not come back into the system – this is good.  So why pass laws that will create more crime and not make the streets any safer?  I am holding out hope that Ohio will have men and women who will take the hard stance against MADD’s agenda.

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 on ignition interlock devices check these city-specific sites at the following links:
FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Are You Fat? Old? A Woman? Then The DUI Laws Are Biased Against You

June 5th, 2014

DUI lawsDid you know that the DUI laws are inherently biased against most of us?

Alcohol loves water and will move into spaces where water is the most prevalent.  Fatty portions of the body have a low water content and absorb little of the alcohol, while muscular portions of the body have a high water content and absorb much alcohol.  As it is carried to all parts of the body by the blood, the alcohol distributes itself in proportion to the water content of the various parts of the body.  It is the presumed relationship between the amount of alcohol in the blood at a given time and the amount of alcohol which will be present in the breath which is it he basis for the theory that we can test breath and infer a BAC result.

So we can conclude that the fatter the person, the more alcohol will remain in the bloodstream which will result in a higher BAC result.  The better a person’s physical fitness level, the more alcohol will be taken up by the rest of the body, the less which will be left in the blood, which results in a lower BAC.  This may upset the traditional assumption that the bigger the person (i.e. the size of the container) the more alcohol that the person can consume and the lower the BAC.  The “lean” to “fat” ratio, however, is an important factor.

Women have, on average, a higher percentage of body fat.  Older people have, on average, a higher percentage of body fat.  Does this mean that the breath tests are biased against older people and women.  Based on the science the answer is, yes!  The higher the percentage of body fat, the more alcohol will stay in the bloodstream, the higher the BAC which will result from the alcohol consumed, as opposed to the same amount consumed by a lean, muscular person of the same weight.  Do the DUI laws take this into account – NO! It is up to your attorney to provide the jury with a context to understand how applying the law is unfair to you.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio and fighting for fairness in the DUI laws and their application.  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 Ohio DUI laws check these city-specific sites at the following links:
FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville