Posts Tagged ‘OVI lawyer’

Methods for Obtaining A Test Under Ohio’s Implied Consent Law

July 28th, 2014

 

implied consent law

 

When you drive on Ohio’s roadways you are assumed to have consented to a search of your blood, breath, plasma or urine if you are arrested pursuant to the Ohio Drunk Driving statute, R.C. 4511.19(A) or R.C. 4511.19(B). Ohio Revised Code 4511.191(A)(2) is Ohio’s Implied Consent Law. It states, in pertinent part,

 

“Any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance.”

 

The first of three methods officer’s use to obtain a test is submission by a defendant. This is a typical scenario wherein a person is observed driving and arrested for OVI. At the station the officer reads the warnings on the SR-2255 form and requests that the defendant take a chemical test. The statutory authority for this method of obtaining a test is set forth at R.C. 4511.19(A)(2). It is necessary that a defendant be placed under arrest prior to the officer’s request to submit.

 

Section 4511.191(A)(4) applies the implied consent statute to persons who are dead or unconscious at the time a blood breath or urine sample is requested. It states,

 

“Any person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented as provided in division (A)(2) of this section, and the test or tests may be administered, subject to sections 313.12 to 313.16 of the Revised Code.”

 

Issues over this method of obtaining a test are often invoked in serious accident cases. Questions of fact about whether the person was semi-conscious, fully conscious or able to give consent are common. Due to the unusual circumstances of this type of case, an arrest is not necessary prior to the chemical test.

 

The third method for obtaining a chemical test under the implied consent provisions of Ohio law is the controversial forced blood draw.  Ohio adopted a “no refusal” forced blood draw statue at R.C. 4511.191, which states, “if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” [emphasis added]. Obviously, the McNeeley decision places this law in jeopardy.  When a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained.  In State v. Hollis, 2013-Ohio-2586, the Fifth Appellate District was faced with an appeal of a decision from the Richland County Common Pleas Court. The case was the first forced blood draw decision following the United States Supreme Court ruling in Missouri v. McNeeley, which held “that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  The decision of the court used the previous rules for exigent circumstancesas set forth in Schmerber v. California and does not address or rely upon the McNeeley ruling.  Instead, the court (relying on Schmerber) finds that exigent circumstances existed justifying the blood draw. Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant.

 

 

 

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 Ohio’s Implied Consent law contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

 

 

 

Tell Your Ohio OVI Attorney That You Are ADD/ADHD

July 15th, 2014

OVI attorneyIf you are afflicted with adult ADD/ADHD make sure to raise the issue with your OVI Attorney.

To be diagnosed with ADD/ADHD, a person has to demonstrate an inability to complete divided-attention testing.  In 2009, the Centers for Disease Control reported that 9.5 percent of children in the United States had ADHD, up from the previous survey.  The trend has not gone unnoticed amongst the insurance industry who reported at the 162 annual meeting of theAmerican Psychiatric Association in May 2009 that:

  • 28 percent of adult drivers with ADHD reported receiving a citation withing the prior twelve months.
  • 34 percent reported being in an auto collision.
  • 44 percent reported either a citation or a collision.

The standardized field sobriety tests are divided-attention tests.  Given these statistics, is there any doubt that persons with ADD/ADHD have been improperly categorized by law enforcement after the administration of the standardized field sobriety tests.  If it is impossible for a person to complete a divided attention test in a non-stressed clinical environment, how much more difficult would that test be on the roadside under the threat of incarceration.

Officers are not trained to look for extraneous reasons that could account for a person’s failure of their divided-attention tests and no special training is provided to look for signs of ADD/ADHD.  The result is that many officers note the failures as clues of impairment.  The clues are used in determining probable cause for arrest and innocent people are accused of drunk driving. See Citron, MD, JD Applying the Scientific Method in DUI Cases as cited inUnderstanding DUI Scientific Evidence, 2011 Ed., Aspatore.  Make sure you talk to your attorney about this and any other medical condition that you suffer from as this may aid in your defense.

Dayton OVI AttorneyCharles 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 OVI attorney 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 an OVI attorney 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 OVI attorney Charles M. Rowland  check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgHuber 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

How Do I Find A Good OVI Attorney?

June 2nd, 2014

ovi attorneyI offer this common-sense guide to helping you find the right OVI attorney because I believe that with a good game plan and realistic expectations you can win your case.   Since the inception of my practice I have provided the accused drunk driver with access to information about Ohio’s toughdrunk driving laws.  I believe that information is the key to overcoming fear and empowering you to make good decisions.  Don’t be afraid to ask tough questions and demand straight answers in order to make an informed decision.  Here are 10 questions that you should use to interview potential OVI attorneys.

Question One: Do You Limit Your Practice to OVI?

All web sites (even this one) are marketing tools set up to highlight the best aspects of an attorney’s practice.  As one web development company tag line puts it, “NO ONE LOOKS BAD ON THE WEB.”  Often, a firm will have multiple pages dedicated to each area of law that they practice, implying that they are “dedicated” to one or another particular practice area when in fact OVI defense is a small part of their practice. You don’t want a lawyer who “dabbles” in OVI.  ASK THE QUESTION: “Is your practice limited to representing the accused drunk driver?”

OVI defense is a complex area of law involving forensic science, specialized knowledge and litigation techniques specific to OVI.  Successful practitioners will have access to information, arguments, experts and materials that come from being exposed to multiple DUI cases.  DUI attorneys will have blogs, websites, materials, scientific studies, and books specific to the field.  Ask your potential attorney what OVI-specific organizations he belongs to, what legal education conferences he has spoken at or attended. Ask your potential attorney to hand you his or her copy of the NHTSA Student Manual that he will use in court.  Does the attorney have one?  Is it up to date?  Thanks to the internet you can find out all you need to know by looking at other sites that the attorney is featured on.  On www.AVVO.com attorney profiles have a breakdown of the lawyer’s practice areas that are self-reported by the attorney.

 Charlie says, “All I Do Is OVI.”

Question Two: What Kind of OVI Credentials Do You Have?

Credentials are earned through hard work and dedication to the cause of drunk driving defense.  Often, OVI attorneys receive specialized training and certification on the breath testing machines in their jurisdictions.  These certifications are invaluable in understanding how a machine could malfunction or give a falsely high reading.  Dedicated OVI counsel can also receive specialized training in the Standardized Field Sobriety Testing by becoming certified to administer and evaluate the field tests.  Having worked both sides of the OVI issue can also be an important credential.  Has the attorney ever worked as a prosecuting attorney?  Has the attorney ever prosecuted a OVI case?  Has the attorney ever lectured or written on OVI topics for journals, newspapers or bar associations?  The truth is that the internet has many directories or referral services where an attorney can be listed as a “OVI” attorney with little or no OVI experience whatsoever.  Yellow page advertisements, which often have OVI listed among many other practice areas, can also be misleading as to OVI credentials.  It is up to you to dig deeper and demand that the attorney demonstrate a depth of knowledge in OVI defense.

See the “About Me” section above to learn about my OVI credentials.  I am very proud of my credentials.  I believe myself to be amongst the most qualified and credentialed OVI attorneys in the country.  What is more, I am constantly trying to learn and improve.  You deserve nothing less.

Question Three: What Is Your OVI Experience?

You should walk out of your attorney’s office confident in the knowledge that you have spoken to someone who has real experience defending OVI cases.  Ask the following and, if you don’t get straight answers, get up and leave: Have you ever tried a OVI case to a jury?  Have you ever tried a felony OVI case?  Have you ever tried a “test” case (a case where the person blew into a breath machine)?  Have you ever tried a “refusal” case (a case where the person refused to blow into a breath test machine)?  Have you ever tried a OVI case in federal court?   Have you ever argued cases involving dentures?  Have you ever argued a case involving AMBIEN sleep medication?  Have you ever represented doctors? Dentists? Pilots? Paramedics? Athletes? Military Personnel?  How many OVI Motions to Suppress have you done?  Have you ever done a motion or trial in the court where I will appear?

Some firms add up the years of practice of each person in the office and say things like, “our firm has over thirty years of representing clients,”  This is not experience, this is mathematics.  If you were having heart surgery would you care how many years of experience some other doctor had, or would you want the most experience heart surgeon you could get.

 Charlie says, “I have tried each of the “types” of cases described above. See the following ARTICLE on my Aggravated Vehicular Homicide case in the Greene County Common Pleas Ct.”

Question Four: Will You Or Someone Else Represent Me?

One of the most important questions to ask is “who will be representing me in court.”  If you meet with a highly qualified, experienced OVI attorney make sure that he or she will be beside you in court.  Having the attorney answer this question by referring to a “team approach” may be a way of saying that you will be shuffled off to an associate once we get your money.  Another evasion is for the firm to say, “all of our attorneys are involved in your case.”  If you hire Michael Jordan make sure you don’t get someone who attended the Michael Jordan basketball camp.  Your case is the most important case in the world to you! You are not a commodity to be managed, but a client to receive the best the attorney has to offer.

 When you hire Charles M. Rowland II, you get Charles M. Rowland II at every stage of your OVI case.

Question Five: What Do Other Attorneys (and Real People) Think of You?

The legal profession requires a high degree of collaboration and cooperation with others in the legal community.  Often, successful attorneys will be an active member of their local or state bar associations.  Like jury trials, serving on boards, taking on leadership positions and having valuable “real-life” experiences demonstrate that the attorney has the ability to represent your interest.  You can also see your attorney’s rankings and endorsements on www.AVVO.com.  Use this information to form your own opinion.  There is nothing like sitting down and having a conversation with someone to learn about that person.  Trust your instincts!  If something about the attorney seems off-putting in his office, imagine how nervous you will be when that attorney goes into a room to talk about your life without you there.  The DUI experience is traumatic and you are very vulnerable, so consider bringing someone you trust to interview the attorney with you.  At DaytonDUI we have developed a vibrant online community atwww.Facebook.com/daytondui.  Join us to get an idea about my insights and my passion for my clients.

 See the “About Me” section above to learn about my credentials beyond the courtroom.

Question Six: Have You Ever Been Disciplined by the State Bar?

It goes without saying that a lawyer who has been disciplined in the past should receive extra scrutiny.  You should also look for things like gaps in the attorney’s resume, dramatic job shifts or traveling from job to job.  Thanks to the internet you can find out a great deal of information about a potential attorney.  Usually, a good face-to-face interview will reveal the attorney’s character and personality and will give you a good read about the person. Ask direct questions and demand straight answers.

 I have never been disciplined by the State Bar.  This can be verified at www.Avvo.com (search Charles M. Rowland II) or at the Ohio Supreme Court web site (www.sconet.state.oh.us/).

Question Seven: What Is The Court Process?

Have the attorney explain in detail what each step in the OVI court process will be like.  Have your attorney explain what he or she will be doing at each stage and what will be required of you at each stage.  This is also a good way of determining what level of communication you can expect from your attorney and how your attorney approaches the problems in your case.  Have the attorney explain what possible defenses he or she will raise.  Ask how the attorney what his or her philosophy is regarding pre-trial hearings.  Ask what his or her negotiation philosophy is based upon, what books they have read about negotiation and how they will approach the negotiation in your case.  Ask how the decision to go forward on a motion to suppress will be made.  If the attorney won’t (or can’t) explain things easily to you, why should you expect them to communicate well with a jury.

Please click HERE for a video of me explaining the OVI court process.  You can also find multiple articles I have written in the “DUI Court Process” section of this blog.

Question Eight: Who Do You Work With?

OVI attorneys often rely on expert witnesses in defending cases.  Experts can prove vital to raising defenses to chemical tests and challenging the officer’s interpretations at the scene.  Other experts can include optometrists, accident reconstruction experts, psychologists, private investigators, forensic toxicologists, doctors and forensic scientists.  Experienced OVI counsel will have worked with top-of-the-line experts in court and will know how to use them to your advantage.  Another benefit of hiring experienced counsel rests in knowing when not to rely upon an expert.  Ask for names, and case references and don’t be afraid to demand an interview with the expert prior to hiring them.  Remember the attorney works for you – you don’t work for the attorney.

See the following ARTICLE in which I used expert witnesses to earn a not guilty verdict.  I have cultivated relationships with the best experts in the world.

Question Nine: What Will This Cost Me?

I always say, “If you know how somebody gets paid you’ll never get ripped off.”  Here are some common-sense questions to determine what you will be charged for:

  • Will you be charged a flat fee or will you pay a retainer fee and have an open-ended bill?
  • Will your attorney be incentivized to keep the case going on longer?
  • Will your attorney be incentivized to take any plea just to end the case?
  • Will you be charged copy fees, filing fees, paralegal fees, or any other fees on top of your bill?
  • Will you be billed monthly, weekly or all at once?
  • Does the fee include the costs of a trial?
  • Does the fee include the costs of an appeal?
  • Does the fee include representation on case-related issues after the case is over (driver’s license issues)?

Again, if the attorney won’t give straight answers to these questions be prepared to leave without hiring that attorney.

Warning: If you are shopping based on price alone, you probably won’t hire me.  I am not “cheap” and I don’t want to be.  In my opinion, hiring an attorney based solely on price is as senseless as representing yourself.  Do not expect answers to fee questions over the telephone.  I cannot give you a realistic price unless I know all the information about you and your case.  It is inconceivable to me that a dedicated and ethical attorney could, or would, quote a fee without a thorough investigation of your case.  Asking for a quote over the phone is like asking the question, “what will I pay for a used car?”

BE CAREFUL!  If you get a letter in the mail offering a flat fee for OVI services – be careful.  If you find an attorney who will charge considerably less than any other attorney you consult with – be careful.  If you talk to, or visit a web page that tries to scare you – be careful.  If you talk to an attorney that puts down public defenders – be careful.  If you meet with an attorney who stresses his friendship with the Judge or Prosecutor – be careful.  If you talk with a referral service rather than an attorney – be careful.  If you meet with an attorney who puts other attorneys down – be careful.  If you meet with an attorney that pressures you into making a decision right away – be careful.  If you get treated rudely on the phone by the attorney, staff, or anyone associated with him or her – be careful.  If you meet with an attorney that guarantees an outcome or makes an outcome seem a foregone conclusion – be careful.  Let common-sense be your guide.

Question Ten: Can You Help Me?

Do not hire an attorney that promises outcomes or implies that they are the only lawyer who could handle your case.  You know better!  All that ethical counsel can promise is their best effort at defending you.  Some lawyers, through hard work, may be in a better position to recognize issues in your OVI case.   No lawyer will win all their cases, but you can’t win issues you don’t know exist.  Hire the person who is best situated to be your guide. As the old cowboys used to say, “he’ll do to ride the river with.”  Like all relationships, you will know when it is right. Rely on your judgment and experience and trust your instincts.  You will know whether or not you have made a good decision.  Thank you for considering me to be your attorney.

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

To learn more about OVI Attorney Charles Rowland,  contact me or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

DUI Blitz Planned Along I-75 Corridor

February 21st, 2014

DUIDUI Blitz – If you are driving along 1-75 this weekend, be prepared for an enhanced police presence.  The 6-State Trooper Project includes the Ohio State Highway Patrol, Kentucky State Police, Indiana State Police, Pennsylvania State Police, West Virginia State Police and the Michigan State Police.

The Ohio State Highway Patrol will be joining forces with other members of the 6-State Trooper Project to focus on crash causing violations.  Troopers will be targeting safety belt, aggressive driving, and OVI related violations along the Interstate 75 corridor.  The initiative will take place from February 21, at 12:01 a.m. through February 23, at 11:59 p.m.  This high-visibility enforcement effort will include the Michigan State Police, Kentucky State Police and the Ohio State Highway Patrol.

 

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 Hotline at (937) 776-2671.  You can have us at your fingertips by downloading the DaytonOVI smart phone app or have OVI information sent directly to your mobile device by texting DaytonDUI to the following number: 50500.  Follow us 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.

DUI information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville