Posts Tagged ‘trial attorney’
If you tell your friends that you were arrested for punching someone in the face, their overwhelming reaction will be, “Wow, what happened?” If, however, you tell them that you were arrested for DUI, those same friends will say, “Oh, I’m so sorry.” What is the difference? When a person is facing a DUI charge, guilt is assumed. How in the world did this happen? How did our presumption of innocence, so valued in the American tradition of law, become so cheapened? Perhaps we can look to the politically charged nature of the crime of drunk driving. We can blame the media who gleefully report on the drunk driving charge, but often treat a reduction or dismissal as “winning on a technicality.” Should accuse advocacy groups like MADD that have lead a decades long propaganda campaign against our core values? Whatever the source, we have seen the diminishment of our rights to the point that the public believes that anyone accused of a DUI is assumed to be guilty.
In America you are presumed innocent until proven guilty beyond a reasonable doubt. ”Presumption of innocence” serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof. This presumption is ancient, dating back to the Old Testament. In Genesis 18:23-32, it states, “Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? What if ten are found there? The Lord said, “I will not destroy it for the ten’s sake.” Latin legal principle provided that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies). Relying on this tradition Maimonides, a twelfth-century legal theorist looked to Exodus 23:7, “the innocent and righteous slay thou not” and argued against the use of presumptive evidence, concluding, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” In the De Laudibus Legum Angliae, c. 1470, Sir John Fortescue argues that “one would much rather that twenty guilty person should escape the punishment of death, than that one innocent person should be condemned and suffer capitally.” In 1678, Lord Hale says that , ”In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.” He further observes: “And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris.” The principle and the concomitant prosecutor’s duty was referred to in the English Common Law and the “golden thread” by Lord Sankey, who wrote in Woomington v. DPP  AC 462, “throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject to any statutory exception…”
The principle of presumed innocence was accepted in America even before we were a county. On Ocotber 3, 1692, Increase Mather relied upon Fortescue to decry the Salem Witch Trials writing, “It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned.” Benjamin Franklin, writing in a letter of 1785 stated it as, “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. The words “Innocent Until Proven Guilty” do not appear in the United States Constitution but many provisions rely upon the proposition. The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury and the 14th Amendment. The presumption of innocence principle supports the practice of releasing criminal defendants from jail prior to trial. Based upon this premise, the Eighth Amendment to the U.S. Constitution states that excessive bail shall not be required, but it is widely accepted that governments have the right to detain through trial a defendant of a serious crime who is a flight risk or poses a danger to the public. In such cases the presumption of innocence is largely theoretical but deserving of, and receiving, special constitutional protection.
In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, to Deuteronomy. The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution’s burden of proof–that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt–but also must instruct on the presumption of innocence–by informing the jury that a defendant is presumed innocent. The Court stated, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Much later in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), the United States Supreme Court described the presumption of the innocence of a criminal defendant as an assumption of innocence that is indulged in the absence of contrary evidence. It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence. The Supreme Court has required, under some circumstances, a court should issue jury instructions on the presumption of innocence in addition to instructions on the requirement of proof beyond a reasonable doubt. Id. A presumption of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case.
The rights associated with the presumption of innocence have become a staple of modern democratic ideals and have been included in several important international legal codes and constitutions, including:
- The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course. Nevertheless, this assertion is iterated verbatim in Article 48 of the Charter of Fundamental Rights of the European Union.
- In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.
- In the South African Constitution, section 35(3)(h) of the Bill of Rights states: “Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings.”
- In France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says “Everyone is supposed innocent until having been declared guilty.” and the preliminary article of the code of criminal procedure says “any suspected or prosecuted person is presumed to be innocent until their guilt has been established”. The jurors’ oath reiterates this assertion.
- Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. See also Coffin v. United States and In re Winship.
- In the 1988 Brazilian constitution, article 5, section LVII states that “no one shall be considered guilty before the issuing of a final and unappealable penal sentence”.
- The Constitution of Russia, in article 49, states that “Everyone charged with a crime shall be considered not guilty until his or her guilt has been proven in conformity with the federal law and has been established by the valid sentence of a court of law”. It also states that “The defendant shall not be obliged to prove his or her innocence” and “Any reasonable doubt shall be interpreted in favor of the defendant”.
- The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence. (from Wikipedia, original link HERE).
[T]o interpret the effectiveness of the ALS to be dependent on the Registrar receiving a sworn report is not only contrary to the express statutory language but would also serve to make the suspension process inefficient and impractical. If the ALS does not take effect immediately upon refusal to submit to the chemical test or upon the chemical test indicating a prohibited concentration of alcohol, then presumably a person’s driver’s license would remain effective until the Registrar processed the form.
Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in R.C. 4511.191. The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state ofOhio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, “no impermissible coercion is involved when the suspect refuses to submit to take the test.” Neville, 459 U.S. at 562.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in 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 to40404. 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”
Ohio law provides two affirmative defenses to the crime of driving under suspension. Ohio Revised Code section 4510.04, Affirmative defenses to driving under suspension or cancellation, provides in pertinent part,
It is an affirmative defense to any prosecution brought under section 4510.11, 4510.14, 4510.16, or 4510.21 of the Revised Code or under any substantially equivalent municipal ordinance that the alleged offender drove under suspension, without a valid permit or driver’s or commercial driver’s license, or in violation of a restriction because of a substantial emergency, and because no other person was reasonably available to drive in response to the emergency.
It is an affirmative defense to any prosecution brought under section 4510.16 of the Revised Code that the order of suspension resulted from the failure of the alleged offender to respond to a financial responsibility random verification request under division (A)(3)(c) of section 4509.101 of the Revised Code and that, at the time of the initial financial responsibility random verification request, the alleged offender was in compliance with division (A)(1) of section 4509.101 of the Revised Code as shown by proof of financial responsibility that was in effect at the time of that request.
Driving Under Suspension can be charged as a first degree misdemeanor or as an unclassified misdemeanor. It is a serious crime. It is also a crime that is treated very differently depending on the jurisdiction wherein your charge takes place. Be sure to hire an attorney who knows the court where you will appear and is familiar with how the prosecutor and judge will approach your particular facts. At DaytonDUS, we have been representing clients for over 16 years in courts throughout the Miami Valley. As a former prosecutor, Charles M. Rowland II will aggressively advocate to keep you out of jail. He will go the extra mile to get you valid. This is not a time to gamble. Call someone who has a track record of winning for his clients. (937) 318-1DUS.
- Classes of License Suspensions in Ohio (daytondui.com)
- Limited Driving Privileges (daytondui.com)
- What Happens If I Can’t Show Proof of Insurance? (daytondui.com)
The Standardized Field Sobriety Tests (SFST) are a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help law enforcement officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through the International Association of Chiefs of Police (IACP). The three tests of the SFST are:
- Horizontal Gaze Nystagmus (HGN),
- Walk-and-Turn (WAT),
- and One-Leg Stand (OLS).
These tests are administered systematically and are evaluated according to measured responses of the suspect. 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:
- By clear and convincing evidence.
- The Officer administered the tests insubstantial compliance.
- The testing standards for any reliable, credible, and generally accepted test.
- 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.
The validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manualstates 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. Perhaps the most important statement about standardization can be found at VIII-19 which states:
IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:
- THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARDIZED MANNER
- THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE
- THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE
IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED THE VALIDITY IS COMPROMISED.
I have not added capitalization or bold to emphasize the importance of this warning. The manual itself uses these indicia of importance at VIII-19. Use this portion of the manual in conjunction with the State’s burden of proof (The State must demonstrate substantial compliance with the NHTSA manual by clear and convincing evidence) and you have some compelling arguments to make to the trier of fact.
THE ONE-LEG STAND TEST
In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998). As stated above, the validity One-Leg Stand results are dependent upon law enforcement officers following the established, standardized procedures for test administration and scoring. The criteria to establish a proper One-Leg Stand test are set forth in the NHTSA manaual as follows:
- Requirement of a reasonably dry, hard, level, and non-slippery surface.
- Is the individual over 65 years of age? Did officer question whether individual was over 65 years of age?
- Did officer ask the individual whether he or she has any back, leg or middle ear problems?
- Did the officer check to see whether the suspect was overweight by 50 or more pounds?
- Did the officer check to see whether individual is wearing heels more than 2” high and if so, did he give them the opportunity to remove their shoes?
- “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate)
- “Do not start to perform the test until I tell you to do so.”
- “Do you understand the instructions so far? (Make sure suspect indicates understanding).”
- “When I tell you to start, raise one leg, either leg, with the foot approximately 6 inches off the ground, keeping your raised foot parallel to the ground.” (Demonstrate one-leg stance.)
- “You must keep both legs straight, arms at your side.”
- “While holding that position, count out loud in the following manner: one thousand and one, one thousand and two, one thousand and three, until told to stop.”
- Demonstrate a count as follows: one thousand and one, one thousand and two, one thousand and three, etc.
- “Officer should not look at his foot when conducting the demonstration” – OFFICER SAFETY
- “Keep you arms at your sides at all times and keep watching the raised foot.”
- “Do you understand?” (Make sure the suspect indicates understanding.)
- “Go ahead and perform the test.”
- “Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.”
- Observe the suspect from a safe distance.
- “If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground.”
- “If the suspect counts very slowly, terminate the test after 30 seconds.”
- “Observe the suspect from a safe distance and remain as motionless as possible during the test so as not to interfere.”
Information obtained from www.nhtsa.gov and is considered public information provided at www.ohiopd.com
SO WHAT’S THE PROBLEM?
Recall the one-leg stand test’s four indicators of impairment:
- swaying while balancing,
- using arms to balance,
- hopping to maintain balance, and
- putting the foot down.
The One-leg stand test requires your body to something unnatural; maintain a rigid body structure while precariously balanced. The most natural reaction to being on one foot is to sway to find your center of gravity while lifting your arms like a tightrope walker. Why do humans do this? This technique provides several advantages. It distributes mass away from the pivot point and moves the center of mass out. This reduces angular velocity because her center of mass is now swinging through a longer arc. It takes longer to sweep out the same angle because the center of mass has a longer distance to go. The result is less tipping. Millions of years of evolution have designed complex vestibular systems and wired our brains to act this way. Unfortunately, swaying and holding your arms out will be counted as indicators of impairment according to the government. As any skipping child will tell you, hopping is an instinctive way to quickly correct the body when attempting to locate the center of gravity. Again law enforcement uses natrual and instinctive behavior to allege intoxication. As documented in other articles on this blog, overweight people, older people, arthritic people and the simply uncoordinated may have trouble immediately finding and maintaining balance under ideal and fair conditions. However law enforcement will unfairly count putting a foot down as an indicator of impairment. It is up to your attorney to make a compelling defense against the use of this biased and unfair test to demonstrate that you were impaired.
Not only does the one-leg stand test require y0u to behave in an unnatural way, understanding its defects requires a jury to act in a unnatural way. For example, if you see me trip over a crack in the sidewalk, you would consider me to be clumsy or uncoordinated. If, however, you trip over a crack in the sidewalk you are much more likely to blame the crack. The same is true for most people. This discrepancy is called the actor–observer bias. In social psychology, thefundamental attribution error (also known as correspondence bias or attribution effect) describes the tendency to over-value dispositional or personality-based explanations for the observed behaviors of others while under-valuing situational explanations for those behaviors. The fundamental attribution error is most visible when people explain the behavior of others. It does not explain interpretations of one’s own behavior—where situational factors are often taken into consideration. This bias can be devastating in a DUI trial when jurors are asked to consider your performance on field sobriety tests. They will view the actions with a “bias” that they do not know they have. Furthermore, they use this error to exclude factors of vital importance to both the scientific validity of the tests and your factual innocence. For instance, jurors may under-value situational factors such as anxiety, lack of sleep, inherent lack of coordination, passing cars, environmental factors etc. When we look at some of the underlying assumptions of the fundamental attribution error, we see some scary stuff that we, as advocates, must point out and overcome.
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 to40404. 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”
- Are the Standardized Field Sobriety Tests Fair to Fatter People? (daytondui.com)
- Admissibility of the Standardized Field Sobriety Tests (daytondui.com)
- Ohio OVI: Standardized Field Sobriety Tests & Marijuana (daytondui.com)
- The Prescription Drug Defense (daytondui.com)
- Who Is Charles M. Rowland II? (daytondui.com)
- The Horizontal Gaze Nystagmus Test is Biased Against Women (daytondui.com)
- The 47 Types & 38 Causes of Nystagmus; (It’s Not Just Caused by Alcohol) (daytondui.com)