Posts Tagged ‘springboro ovi’

Snow: What is the Law in Ohio? (by DaytonDUI)

December 9th, 2013

English: Trees covered by snow in Boreal, Cali...

With the return of winter weather, we have received some questions about what constitutes a snow emergency and under what authority a snow emergency can be deemed to exist.  We have also counseled clients who wanted to know what law would circumscribe their behavior during a snow event.  Here is what we learned:

A county sheriff may, pursuant to Ohio Revised Code sections 311.07 and 311.08, declare a snow emergency and temporarily close the state roads and municipal streets within his/her jurisdiction when such action is reasonably necessary for the preservation of the public peace. Ohio Attorney General’s Opinion 97-015, issued April 1, 1997, concluded that this authority includes state roads, county and township roads and municipal streets.

Ohio law provides for three levels of snow emergency.

Snow Emergency Classifications

LEVEL 1: Roadways are hazardous with blowing and drifting snow. Roads may also be icy. Motorists are urged to drive very cautiously.

LEVEL 2: Roadways are hazardous with blowing and drifting snow. Roads may also be very icy. Only those who feel it is necessary to drive should be out on the roads. Contact your employer to see if you should report to work. Motorists should use extreme caution.

LEVEL 3: All roadways are closed to non-emergency personnel. No one should be driving during these conditions unless it is absolutely necessary to travel or a personal emergency exists. All employees should contact their employer to see if they should report to work. Those traveling on the roads may subject themselves to arrest.

Ohio Revised Code 2917.13 sets forth the crime of “Misconduct at an Emergency.”  Any person who knowingly hampers or fails to obey a lawful order of the sheriff declaring a snow emergency and temporarily closing highways, roads and/or streets within his/her jurisdiction may be subject to criminal prosecution under Ohio Revised Code Section 2917.13, “Misconduct at an emergency” or other applicable law or ordinance. A violation under that section is a misdemeanor of the fourth degree, punishable by a jail sentence not to exceed 30 days and/or a fine not to exceed $250. If the misconduct creates a risk of physical harm to persons or property, it is a misdemeanor of the first degree, punishable by a jail sentence not to exceed 180 days and/or a fine not to exceed $1,000.  Below is the full text of the statute.

ORC 2917.13. Misconduct at emergency.

(A) No person shall knowingly do any of the following:

  • 1. Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person’s duties at the scene of a fire, accident, disaster, riot or emergency of any kind;
  • 2. Hamper the lawful activities of any emergency facility person who is engaged in the person’s duties in an emergency facility;
  • 3. Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer’s duties at the scene of or in connection with a fire, accident, disaster or emergency of any kind.

(B) Nothing in this section shall be construed to limit access or deny information to any news media representative in the lawful exercise of the news media representative’s duties.

(C) Whoever violates this section is guilty of misconduct at an emergency. Except as otherwise provided in this division, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree.

(D) As used in this section:

  • 1. “Emergency medical services person” is the singular of “emergency medical services personnel” as defined in section 2133.21 of the Revised Code.
  • 2. “Emergency facility person” is the singular of “emergency facility personnel” as defined in section 2909.04 of the Revised Code.
  • 3. “Emergency facility” has the same meaning as in section 2909.04 of the Revised Code.

Effective Date: 03-22-2004

To view the state’s weather-related road closures and restrictions, visit the Ohio Department of Transportation’s traffic Web site at www.buckeyetraffic.org.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (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 @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”

Warren County/Springboro OVI Checkpoint (August 9, 2013)

August 9th, 2013

There will be an OVI checkpoint in Warren County tonight!  sobriety checkpoint ahead

The checkpoint will be held on SR 741, which is just north of W. Lytle Five Points Road in Warren County from 8:00 p.m. until 11:00 p.m.  The checkpoint will be accompanied by aggressive saturation patrols.  If you want to receive updated information on OVI checkpoints,  enhanced traffic enforcement, saturation patrols and other important developments that affect you, sign up for text alerts on the main page of this blog.  Text alerts will be sent directly to your mobile device/smartphone in the location you choose in the Miami Valley.  In the past month we have alerted our followers to the State Route 35 traffic initiative and three local sobriety checkpoints.  You should also know that we respect your trust and we will never send you irrelevant information and/or advertisements.  This service is free and available to the general public.

You can also put DaytonDUI on your Android Smart phone via the DaytonDUI app.  The app helps you know your rights and know yourself by providing a drink tally so that you do not overindulge.  You can send safe drinking tips to friends or use the app to find the nearest taxi for a safe trip home.  The app brings you the best of DaytonDUI’s video and audio content and gives you a chance to take pictures and record memories so that you can aid in your own defense.  Our sincere desire is to make our roads a safer place.

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.  Immediate help is available by filling out this CONTACT form.  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.

What Is Wrong With The HGN? (by DaytonDUI)

June 13th, 2013

My eye

The horizontal gaze nystagmus test is an eye test approved by the National Highway Traffic Safety Administration(hereinafter NHTSA) as a tool to detect clues of impairment in drivers.  The HGNtest is one of three psychomotor tests approved as part of the standardized field sobriety testing protocol employed by law enforcement officers throughout the United States and used here in Ohio.

When an officer asks you to follow his pen, he is performing the horizontal gaze nystagmus test.  Nystagmus is defined as the oscillation of the eyeball that occurs when there is a disturbance of the vestibular system or the oculomotor control of the eye.  The nystagmus the officer is looking for is an involuntary motion.  A person is usually unaware of the presence of a nystagmus and cannot control it. Forkiotis, C.J. Optometric Exercise: The Scientific Basis for Alcohol Gaze Nystagmus. 59 Curriculum II, No. 7 at 9 (April 1987); Good, Gregory W.  & Augsburger, Arol R. Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing. 63 Am. J. of Optometry & Physiological Optics 467, 469 (1986); Stapleton, June M. et al. Effects of Alcohol and Other Psychotropic Drugs on Eye Movements: Relevance to Traffic Safety. 47 Q.J. Stud. on Alcohol 426, 430 (1986).  The officer is looking for a type of nystagmus wherein the eye moves slowly in one direction and then returns rapidly, sometimes referred to as a jerk or jerking nystagmus. Adams, Raymond D. & Victor, Maurice. Disorders of Ocular Movement and Pupillary Function.  Principles of Neurology.  Ch.13, 117 (4th ed. 1991).

A major weakness in relying on the horizontal gaze nystagmus test in the criminal justice arena is that there are multiple causes of nystagmus that have been observed.  Syndromes such as influenza, vertigo, epilepsy, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, streptococcus infections, and other psychogenic disorders all have been shown to produce nystagmus. Additionally, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. Pangman. Horizontal Gaze Nystagmus: Voodoo Science. 2 DWI J. 1, 3-4 (1987).  Caffeine, nicotine and aspirin (alone or in combination with alcohol) can also lead to a nystagmus which mimics a nystagmus attributable to alcohol consumption. Id. at 3-4.  Scientific literature also points to a person’s circadian rhythms or biorhythms as having an affect on nystagmus readings as the body reacts differently to alcohol at different times in the day and even fatigue nystagmus can be found in an individual, and the list, according to critics, goes on.   Id. at 3-4; Booker, J.L.  End-position nystagmus as an indicator of ethanol intoxication. Sci Justice.  41(2):113-116. (April – June, 2001).

The horizontal gaze nystagmus test is not present in marijuana impairment cases. In State v. Dixon, 2007-Ohio-5189 (Ohio Ct. App. 12th Dist. Clermont County 2007), the court addressed the issue of standardized field sobriety tests and marijuana impairment.  Relying upon the NHTSA standards, the court concluded that observations as to performance on the walk & turn test and the one-leg stand test were indicative of impairment, thus allowing those to be used against a suspected marijuana user.  The HGN test, however, is not indicative of marijuana impairment.  According to NHTSA nystagmus would not be present due to marijuana and, as such, it was plain error to admit evidence of the HGN against the defendant accused of marijuana impairment.

Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests insubstantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

In my practice we have seen a trend to manipulating the “substantial compliance” standard into a de facto prejudice standard.  The burden is being subtly shifted to the defendant to demonstrate that he or she was somehow prejudiced by the officer’s failure to comply with the NHTSA standards.  For example; if the officer does not articulate that he advised the suspect not to raise his or her arms, the Court says that he substantially complied by merely mentioning that he was trained in NHTSA protocols.  If, however, the defense points out that the officer did not give the proper instruction and still scored the test in a way negative to the defendant, the court may consider excluding some portion or all of the test.  Case law can be helpful on this point.

In State v. Clay, 34 Ohio St. 2d 250, 298 N.E.2d 137 (1973) the court ruled, “[h]owever, if by cross examination or otherwise, the defense places such compliance at issue, it then is incumbent upon the State, in order to maintain its burden of proof, to offer the methods and regulations into evidence and prove compliance.”  Some courts may try to take Judicial Notice of the manual (See Evid. R 201) when no manual was introduced.  In State v. Wells 2005-Ohio-5008 (Ohio Ct. App. 2d Dist., Montgomery County) held that the court cannot assume judicial notice when the record does not demonstrate a request for judicial notice or a reference to the manual by the trial court.  The 9th District Court of Appeals issued a great decision on the issue of substantial compliance.  Specifically, the issue involved giving the HGN test while the Defendant was seated in the car.  The Court found that this was not substantial compliance. (State v. Haneberg 5/29/2007, 2007-Ohio-2561, 9th District Court of Appeals).

The validity of Standardized Field Sobriety Tests results is dependent upon law enforcement practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manual states that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (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 @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Arrested for OVI in Dayton, Ohio? (by DaytonDUI)

June 4th, 2013

dayton courtsIf you are arrested for drunk driving in the City of Dayton, your misdemeanor DUI case will be heard in the Dayton Municipal Court.  The Dayton Municipal Court is located at 301 West Third Street Dayton, Ohio 45402.  You can visit the Dayton Municipal Court’s website at: www.DaytonMunicipalCourt.org. Office hours for the Clerk of Court are 8:00am to 4:30pm, Monday through Friday, excluding holidays, for the acceptance of case filings and payments. Parking, Traffic and Criminal payments can also be paid online at www.PayMyFine.org.  A full list of contact numbers is available on the Court’s website and the Clerk can be reached at (937) 333-4300.

Five full-time elected judges, selected on a nonpartisan ballot to serve for a six-year term, serve the Dayton Municipal Court.  Currently the serving judges are: The Honorable Chris Roberts, The Honorable John S. Pickrel, The Honorable Daniel Gehres, The Honorable Carl S. Henderson and The Honorable Dierdre Logan. Two full-time Magistrates who hear certain civil cases, small claims cases, eviction procedures and initial appearances for defendants summoned in for arraignment also serve the court. They also preside over traffic and criminal cases.

The Dayton Municipal Court has been serving the citizens of Dayton since its creation in 1913.  The jurisdiction of the Court includes everything within the boundaries of the City of Dayton. The court has jurisdiction over a violation of any ordinance of the City of Dayton; any state of Ohio statutory misdemeanor or traffic violation committed in Dayton; and jurisdiction to preside over preliminary hearings for felony cases that occur in the City of Dayton. Civil law jurisdiction includes cases when the amount in dispute is $15,000 or less and for small claims cases when the amount in dispute is $3,000 or less.

According to its 2010 Annual Report the Court “experienced an overall decrease in new case filings in Traffic, Criminal and Civil divisions. Traffic cases decreased by 15%, Criminal by 15%, Civil by 7%, and Small Claims increased by 6.5%.”  There were 24 jury trials heard in the Court and 2010 saw 526 new DUI cases brought in the Dayton Municipal Court.  Charles M. Rowland II (DaytonDUI) saw an increase in the number of Dayton Municipal Court DUI cases that he took in 2010.

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (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@DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404.  DaytonDUI is also available on Facebook, www.facebook.com/daytondui.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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Motorcycle DUI – NHTSA Targets Motorcyclists for DUI Enforcement

June 3rd, 2013

NHTSA Devotes Time And Dollars To Study Motorcycle DUI

I liked this one

It is summer time and the perfect time to get out on the road.  If you ride a motorcycle, you may notice that law enforcement is paying you a a lot of attention. According to the National Highway Traffic Safety Administration (NHTSA), motorcyclists involved in fatal crashes are 2.5 times more likely to have consumed alcohol than passenger vehicle drivers.  In 2007, the number of alcohol-impaired motorcyclists in fatal crashes increased by 10 percent while the number of alcohol-impaired drivers of passenger cars declined 6 percent.  (NHTSA defines “alcohol impaired” for vehicle operators over 21 with Blood Alcohol Content (BAC) measured over the 50-state legal limit of 0.08 grams/deciliter.)  Because of these statistics, NHTSA and law enforcement  have singled out the riding community for targeted DUI enforcement efforts.  Each year brings a more concentrated effort to detect impaired motorcyclists.

In the mid-90s, NHTSA conducted focus groups of 70 men and 15 women who admitted they drank and rode motorcycles.  Judge for yourself if NHTSA was fair in its representation of motorcyclists.  For example, one motorcyclist from Denver said a little alcohol improved his riding.  “I know that when I ride and I have a beer it feels better riding. It loosens you up – it relieves tension,” he said, “It feels more exciting riding. You enjoy your ride better if you have one beer.”  ”If you don’t fall down within the first few feet, you’re going to be okay,” said the rider from Denver, “I’ve seen guys do that. There’s something about being on a motorcycle – you focus yourself. When you get on your motorcycle and hit the road, the wind and the air just seem to go, “Boom, I’m okay now.”  Another rider from Boston concurred.  “If they’re totally wasted, then you worry about their safety,” he said, “If they’re just a little bit wasted then it’s, ‘Watch out for the cops.’”

The National Highway Transportation Safety Administration (NHTSA) has also developed a guide specific to motorcycle operators.  The basis of this motorcycle guide are based on a 1993 study, The Detection of DWI Motorcyclists, DOT HS 807 839, March 1993; Jack W. Stuster, Anacapa Sciences Inc., wherein police reports were used to identify “cues” of impaired drivers.  Over 100 “cues” were narrowed down to 14.  NHTSA lables 7 of these “cues” as “excellent” predictors of impairment and 7 are considered “good” predictors of impairment.  According to NHTSA “excellent” is defined as having a greater than 50% predictive capability.  ”Good” means that the tests are 30-50% predictive (much less than a coin toss).

The “cues” that police officers look for when investigating impaired motorcycle operators are:

Excellent Cues (50% or greater probability)

  • Drifting during a turn or curve
  • Trouble with a dismount
  • Trouble with balance at a stop
  • Turning problems (unsteady, sudden corrections, late breaking, improper lean angle)
  • Inattentive to surroundings
  • Inappropriate or unusual behavior (carrying or dropping and object, urinating at roadside, disorderly conduct)
  • Weaving
Good Cues (30-49% probability)
  • Erratic movement while going straight
  • Operating without lights at night
  • Recklessness
  • Following too closely
  • Running stop light or sign
  • Evasion
  • Wrong way
The guide does not tie the cues to any correlated BAC.  Instead it simply uses the cues to say that a driver is “DWI” without defining what that means in terms of BAC or impairment.  Another glaring problem with the study is the fact that experienced police officers do not think it is valid.  At page three the guide states, “…some officers, even those with many years of experience reported they believe there are no cues that can be used to distinguish DWI from unimpaired motorcycle operation.”

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (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 @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.