I am a DUI/OVI attorney, representing the accused drunk driver throughout Ohio. It is my hope that some of the postings will answer your questions and help you fight your case! As with my websites and other published material, I want you to be empowered. Get your life back!
Visit www.DaytonDUI.com for additional information or to contact me immediately. You can also follow the Dayton DUI/OVI blog on Twitter (search for @DaytonDUI). I can be reached 24/7 on my DUI HOTLINE: 937-776-2671, or by email at : CharlesRowland@CharlesRowland.com.
Please also visit my web sites for court-specific information:
You can win your DUI/OVI case. Call now for a FREE consultation!
937-879-9542 or 888-ROWLAND, DUI Hotline: 937-776-2671.
LEGAL NOTICE: The articles contained in this blog are the property of Charles M. Rowland II and any copying, distribution and/or dissemination is strictly prohibited without the prior written consent of Charles M. Rowland II, 2190 Gateway Dr., Fairborn, Ohio 45324 (937) 879-9542
Welcome to the Ohio Divorce Blog, here you will find information on Ohio's divorce, custody, dissolution, legal separation, child support and adoption laws. I dedicate my practice to representing people who are terminating their marriage. If you find yourself in need of compassionate, experience and dedicated legal counsel, contact me today at 937-879-9542, or visit me on-line at www.OhioDivorceAttorney.com.
The Combined Agency OVI Task Force of Montgomery County announced that
they will operate a sobriety checkpoint this weekend. As is their
custom, they will not reveal the location of this checkpoint until later
in the week. If you find yourself in need of an attorney who has
experience handling checkpoint cases, contact attorney Charles Rowland
at (937) 318-1DUI or visit www.DaytonDUI.com for more information.
One afternoon at Cheers, Cliff Clavin was explaining the Buffalo Theory to his buddy Norm. Here's how it went:
"Well ya see, Norm, it's like this... A herd of buffalo can only move as fast as the slowest buffalo. And when the herd is hunted, it is the slowest and weakest ones at the back that are killed first. This natural selection is good for the herd as a whole, because the general speed and health of the whole group keeps improving by the regular killing of the weakest members. In much the same way, the human brain can only operate as fast as the slowest brain cells. Excessive intake of alcohol, as we know, kills brain cells. But naturally, it attacks the slowest and weakest brain cells first. In this way, regular consumption of beer eliminates the weaker brain cells, making the brain a faster and more efficient machine. That's why you always feel smarter after a few beers."
May 14 Checkpoint
Update: Our sources reveal no DUI checkpoints this weekend in the Miami
Valley. We have heard reports, unconfirmed at this point, of
checkpoints in Shelby County and Butler County. Please be safe and
designate a driver.
When you hear a DUI/OVI attorney decrying "junk science" that is used in court, they are most likely referring to the fact that the air blown into the breath test machine for purposes of testing cannot be the same air that is exchanged with the deep lung alveolar sacs. It is impossible to limit the breath test to limit itself to deep lung alveolar air. The theory breaks down because: IF THE MAJORITY OF AIR BEING MEASURED HAS NOTHING TO DO WITH THE BLOOD EXCHANGE THEN THE TEST IS NOT MEASURING THE AMOUNT OF ALCOHOL IN THE BLOOD. The machine does not an cannot discriminate in its air sample. It will measure and analyze the 1.5 liter of breath that it is given. The problems with the theory is that the breath machine has to assume a similar lung volume amongst the population. Common sense dictates that a 21 year old, 6 foot male in perfect health blowing 7 liters of airIS DIFFERENT than an 65 year old, 5 foot 2 inch woman who may only blow 1.5 liters.
The major injustice in DUI/OVI law in Ohio is that attorneys are prevented from attacking the "junk science" of breath tests machines due to the decision in State v. Vega. As amazing as it seems, Ohio has decided that if the government says the science is good enough, then attorneys cannot challenge it. Imagine if the same philosophy were used in other areas of criminal law. What if the Ohio legislature decided that eye-witnesses were inherently reliable and an attorney could not challenge them at trial. What is to stop them from saying that police officers are inherently reliable and they too are free from cross examination.
Our American values suggest that when the government accuses you of a crime you have the right (and your attorney the duty) to challenge the evidence against you. If attorneys vigorously fight, the police are trained to do a better job. Judges who hold the state to a higher standard protect the citizens from tyranny. Being pro-law enforcement should not ever mean we give them a pass, but that we hold them to such a standard that even in the most difficult case we trust the system. The maxim that 10 guilty should go free rather than one innocent be punished express the highest esteem for law enforcement and for our system. Allowing junk science in DUI cases has an opposite and corrosive effect to our American values.
A marked lanes charge is often a companion charge to a DUI/OVI offense. It is also a "cue" that the officer may look for based on his/her National Highway Transportation Safety Administration training. Many people believe that weaving, in an of itself, is both a crime and an indication of drunk driving. This article will demonstrate the Ohio law on these matters as they are most frequently charged (marked lanes; lanes of travel). Check your ticket and see if you have violated this law.
Ohio Revised Code sec. 4511.25 Lanes of travel upon roadways of sufficient width.
(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction, or when making a left turn under the rules governing such movements;
(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
(3) When driving upon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon;
(4) When driving upon a roadway designated and posted with signs for one-way traffic;
(5) When otherwise directed by a police officer or traffic control device.
(B) Upon all roadways any vehicle or trackless trolley proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle or trackless trolley proceeding in the same direction or when preparing for a left turn.
(C) Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle or trackless trolley shall be driven to the left of the center line of the roadway, except when authorized by official traffic control devices designating certain lanes to the left of the center of the roadway for use by traffic not otherwise permitted to use the lanes, or except as permitted under division (A)(2) of this section.
This division shall not be construed as prohibiting the crossing of the center line in making a left turn into or from an alley, private road, or driveway.
(D) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
4511.33 Driving in marked lanes.
(A) Whenever any roadway has been divided into
two or more clearly marked lanes for traffic, or wherever within
municipal corporations traffic is lawfully moving in two or more
substantially continuous lines in the same direction, the following
rules apply:
(1) A vehicle or trackless trolley shall be
driven, as nearly as is practicable, entirely within a single lane or
line of traffic and shall not be moved from such lane or line until the
driver has first ascertained that such movement can be made with safety.
(2) Upon a roadway which is divided into three
lanes and provides for two-way movement of traffic, a vehicle or
trackless trolley shall not be driven in the center lane except when
overtaking and passing another vehicle or trackless trolley where the
roadway is clearly visible and such center lane is clear of traffic
within a safe distance, or when preparing for a left turn, or where such
center lane is at the time allocated exclusively to traffic moving in
the direction the vehicle or trackless trolley is proceeding and is
posted with signs to give notice of such allocation.
(3) Official signs may be erected directing
specified traffic to use a designated lane or designating those lanes to
be used by traffic moving in a particular direction regardless of the
center of the roadway, or restricting the use of a particular lane to
only buses during certain hours or during all hours, and drivers of
vehicles and trackless trolleys shall obey the directions of such signs.
(4) Official traffic control devices may be
installed prohibiting the changing of lanes on sections of roadway and
drivers of vehicles shall obey the directions of every such device.
(B) Except as otherwise provided in this
division, whoever violates this section is guilty of a minor
misdemeanor. If, within one year of the offense, the offender previously
has been convicted of or pleaded guilty to one predicate motor vehicle
or traffic offense, whoever violates this section is guilty of a
misdemeanor of the fourth degree. If, within one year of the offense,
the offender previously has been convicted of two or more predicate
motor vehicle or traffic offenses, whoever violates this section is
guilty of a misdemeanor of the third degree.
Drunk driving fines may be imposed
without proof that the accused ever drove, the West Virginia Supreme
Court ruled.
State officials can
punish an individual for driving under the influence of alcohol (DUI),
even if they are unable to prove the accused was ever behind the wheel,
the West Virginia Supreme Court ruled Thursday. The decision came in the
case of Eric R. Cain who was found lying passed out on in front of his
car on Route 19 by Marion County Sheriff's Deputy Todd Cole at around
2:30am on June 2, 2007. The car had been safely parked and there was no
key in the ignition.
Cole arrested Cain for DUI after a breath
test estimated Cain's blood alcohol level at .15. Six days later, the
state filed an order revoking Cain's driver's license for a full year.
In addition, Cain was ordered to pay a number of fees, including the
costs an alcohol education program. Cain appealed the administrative
order, and a Department of Motor Vehicles (DMV) employee found him
guilty. Cain appealed that judgment to circuit court Judge David Janes
who overturned the DMV decision because the state could not prove Cain
did not get drunk after he parked his car. The high court disagreed with
Janes, asserting that state law allows police officers to impose
certain forms of punishment based solely on reasonable suspicion that a
crime may have taken place.
"All that is required to seek a
license revocation under West Virginia Code Section 17C-5A-2 is that the
arresting officer have 'reasonable grounds to believe' that the
defendant committed the offense of DUI," Justice Thomas E. McHugh wrote
for the court. "Rather than requiring an arresting officer to witness a
motor vehicle in the process of being driven, the statute requires only
that the observations of the arresting officer establish a reasonable
basis for concluding that the defendant had operated a motor vehicle
upon a public street in an intoxicated state."
Judge Janes had
ruled that the arresting officer was obligated to identify specific
facts and evidence that give rise to a reasonable suspicion that a crime
was committed. Cain did not testify in his own defense at the
administrative hearing, leaving no direct evidence that Cain had been
driving while drunk. The supreme court ruled that the burden was
properly on Cain to prove his innocence.
"The record is devoid of
any factual basis for the arresting officer to believe that Mr. Cain
consumed the alcohol he acknowledged drinking only after he parked the
vehicle," Justice McHugh wrote. "The applicable burden of proof at a
license revocation proceeding is 'proof by a preponderance of the
evidence.' By citing the fact that Mr. Cain did not testify or present
evidence on his behalf, the hearing examiner was not wrongly shifting
the burden of proof to the appellee. Instead, the examiner was merely
recognizing that the only evidence before him was the testimonial
evidence of the arresting officer and the documentary evidence provided
through the DUI Information sheet."
The supreme court reversed
the circuit court ruling. A copy of the decision is available in a 70k
PDF file at the source link below.
Source:Cain v. West Virginia DMV
(Supreme Court, State of West Virginia, 5/6/2010) This article appears at
www.TheNewspaper.com (a great site)
We have checked with all of our regular sources and there are no planned DUI/OVI sobriety checkpoints this weekend. Please be safe and designate a driver. If you find yourself in need of an attorney contact Charles M. Rowland II on his 24/7 DUI Hotline at 937-776-2671 or visit www.DaytonDUI.com. You can stay aware of DUI news by following Twitter.com/DaytonDUI and if you need immediate help, text DaytonDUI (one word) to 50500.
Happy Cinco de Mayo from Charles Rowland and Brown, Rowland, Babb & Campbell. If you are in need of a DUI/OV attorney in the Miami Valley contact Charles Rowland at 937-879-9542 or 1-888-ROWLAND. You can also text DaytonDUI (one word) to 50500 or visit www.DaytonDUI.com or follow us on www.Twitter.com/DaytonDUI or on Facebook at Dayton DUI/OVI defense.
Dealing with the Ohio Bureau of Motor Vehicles
can be a nightmare. So, you will want to avoid problems before they
rear their ugly heads. Don't worry! You can make this as painless as
possible by following these simple rules.
1. Make sure the BMV knows how to
reach you. The burden is upon you to notify them of any address change.
Courts will accept their statement that they sent you information at
your last known address as valid even if you did not get it. You can
apply for an address change on line at https://www.dps.state.oh.us/bmv/VehSetID.aspx.
2.
Make sure the court knows how to reach you. As with the BMV, the court
will send valid notices to your last known address. Not keeping this
information current can be disastrous. If your probation officer
cannot reach you, he/she may issue a warrant for your arrest.
3. Follow the rules! If you are
required to attend a weekend intervention program and/or sign up for
treatment, please do so. Not attending a program and/or missing a
schedule evaluation usually results in a letter being sent to the
court. The court, in turn, schedules a hearing on why you have
disobeyed. The hard work of your attorney can be undone. It is also
important to realize that most weekend intervention programs run on a
tight schedule. They can and will lock you out of the program for being late.
4. Follow all
the rules! It is much easier for your attorney to obtain a new driving
privilege order than to defend you for driving under suspension.
Please drive only on valid privileges. If your job and/or hours change,
make sure the changes are reflected on your order. You should also
only drive at the time and to the location provided for in your order.
5. Show proof of insurance to everyone,
all the time, every where…at least twice. The police officer can mark
proof of insurance. Your attorney can show proof of insurance prior to
the disposition of your case. The judge can mark proof of insurance on
the file and the proof can be maintained in the file. However, the BMV
should be sent a separate notice of proof at least two weeks prior to
filing for reinstatement.
6. Pay your reinstatement fee. At
least two weeks prior to the end of your suspension arrive at the BMV
with your proof of insurance and your reinstatement fee. I have
abandoned giving the advice to mail it in. Suck it up and go to the
BMV in person. You are likely to have proof that day and all issues
will be solved. You are not valid until the reinstatement fee is paid.
7. Pay your court fees and costs on
time. Failure to do so may result in jail time, driving suspensions
and/or monetary fines. The failure to pay fines may also impact your
probation.
8. Renew your license on time even if
you are under suspension. Many times people will avoid paying the
renewal during a suspension. This is not a good idea. To be valid at
the end of your suspension, you must have a valid license.
Unwittingly, you may put yourself in the awful position of having to
re-test.
9. If you need identification during a
DUI case, please contact the BMV for a "temporary" i.d. Do not under
any circumstances get a state issued identification because this will
cancel your license and you will be required to re-test.
Friday DUI
Checkpoint Update: Our sources say no checkpoints this weekend in the
Miami Valley.
Who do we check with? WHIO News, Beavercreek PD, Ohio
State Highway Patrol in Greene, Montgomery and Clark, Clark &
Montgomery Sheriff, and DUI Taskforce.
Under Ohio DUI Law, it is a serious crime to drive any
vehicle while your ability to drive is impaired by alcohol or drugs. While the
most common acronym for impaired driving in Ohio
is DUI (driving under the influence), it is also referred to as OVI (operating
a vehicle while intoxicated), and OMVI (operating a motor vehicle while
under the influence). No matter what acronym you refer to it as, it all
describes the same crime and statute. The
penalties for DUI in Ohio are
extremely strict, and all involve exposure to jail or prison time. In addition
to imprisonment, you also face the potential of lengthy license suspensions,
fines, alcohol education or intervention programs and a required ignition
interlock device, the costs of which you would be responsible to cover. If you
drive for a living or hold a CDL, the consequences of an Ohio DUI could devastate
your career.Although the laws and
science of DUI cases are the same throughout the state, each county may apply
and interpret the laws slightly differently. There are local rules, procedures
and customs that all persons involved in the case must be aware of. For this
reason, it is essential to be represented by an attorney with experience in the
county and court where your case will be heard.
Get
your free consultation with Charles M. Rowland II
Charles Rowland will talk with you for free about your case.
The free initial consultation is designed to give you the best possible
information and resources with which you will make the right decision about
which attorney to hire. There is never an obligation and you have a lot to
gain. To get started, contact attorney Charles M. Rowland II today at
937-318-1DUI or 1-888-ROWLAND, text DaytonDUI (one word) to 50500, become a
follower on Twitter.com/DaytonDUI or on facebook, Dayton DUI/OVI Defense or
visit Dayton’s best source for DUI/OVI information, www.DaytonDUI.com.
In 1990, the New
Jersey courts declared that the science was settled, the debate was
over: breath analysis is a reliable and accurate means by which to
determine blood alcohol content (BAC). This proclamation is known as the
“Downie decision.”
The lead witness, who held the most sway in the court’s opinion, was
Dr. Dubowski, a forensic scientist with a history of research experience
dealing with Breathalyzers and alcohol breath analysis. A study he
published in 1985 was considered the pre-eminent work in this field.
The Downie case revolved around the accuracy of breath analysis in
terms of serving as a surrogate for actual BAC. One aspect would be of
particular importance from the defendant’s perspective; how often does
the alcohol breath analysis regimen overstate actual BAC?
Dr. Dubowski testified that his research determined that in only 2.3
percent of the tests did the breath reading overstate the actual BAC.
This was the first time this number was made publicly available; it had
not been presented in his 1985 report.
Another witness in the Downie case, Dr. Gerald Simpson, a physical
chemist also testified, and attempted to describe the variables that
could render a Breathalyzer reading inaccurate. The court largely
disregarded his testimony in favor of the assured endorsement of breath
analysis offered by Dr. Dubowski.
The court determined that the use of breath alcohol was
scientifically valid for the purpose of determining BAC. Was that the
end of the story? Not quite.
After the Downie trial, Dr. Simpson obtained the actual data from Dr.
Dubowski’s 1985 report. In applying the same analysis to the data that
Dr. Dubowski used, Dr. Simpson discovered a major error. The incidences
when breath analysis overstated actual BAC were not 2.3 percent
of the tests, as Dr. Dubowski had testified to in the Downie case, but
rather 23 percent of the tests – a wandering decimal
point!
Dr. Simpson then published his findings in a respected scientific
journal. They were never rebutted and Dr. Dubowski remained silent on
the subject.
Recent research proves that measuring breath to determine actual BAC
is a horrendously flawed concept. Errors can approach 50 percent! Still,
even 15 years ago it was known and could be proven that in almost one
quarter of Breathalyzer tests the readings were higher than the actual
BAC.
How many thousands of people had their lives turned upside down,
suffered major financial losses, lost jobs, and had their reputations
destroyed by a system that used junk science to push its agenda?
We have checked with our usual sources and there is no report of a DUI checkpoint in the Miami Valley this weekend. (April 23, 2010)
To stay informed please follow me on www.Twitter.com/daytondui. Become a fan on the DAYTON DUI/OVI DEFENSE page on Facebook. If you are stopped and need immediate assistance call my 24/7 DUI hot-line at 937-776-2671. You can also contact us at 1-888-ROWLAND (1-888-769-5263) or at 1-800-KICK-DUI (1-800-542-5384). You can also visit us at www.DaytonDUI.com or www.OhioDUIdefense.com.
I am proud to announce that our page on Facebook, Dayton DUI/OVI Defense has been upgraded to a "CAUSE" page. This will allow you to become a fan. In the first week we have had a tremendous amount of traffic and have garnered much support. Thank you facebook friends. Become a part of the Dayton DUI/OVI Defense "CAUSE" today.
You can also follow me on Twitter at www.Twitter.com/DaytonDUI.
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion about whether a lawyer’s notes must be turned over to a client when requested.
Opinion 2010-2 addresses the following question: “Are a lawyer’s notes of an interview with a current or former client considered client papers to which the current or former client is entitled upon request?”
The opinion finds that it depends upon whether “the notes are items reasonably necessary to the client’s representation” pursuant to Prof. Cond. Rule 1.16(d), which requires the lawyer to exercise his or her professional judgment.
For example, the opinion states that: “A lawyer’s notes to himself or herself regarding passing thoughts, ideas, impression, or questions will probably not be items reasonably necessary to a client’s representation. … But, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation.”
The opinion also states that a lawyer may ethically redact portions from the note not reasonably necessary or prepare a note for the client that contains only the necessary items needed for representation.
Mitchell Stephens: People immediately assume we're greedy, that it's
money we're after, people call us proctologists of the profession, and,
yes, there's lots of those. But the truth is, the good ones, we'd make
the same moves for a single shekel as for a ten-million-dollar
settlement.
Because it's anger that drives us and delivers us. It's not any kind of
love, either -- love for the underdog or the victim, or whatever you
want
to call them. Some litigators like to claim that. The losers.
No, what it is, we're permanently pissed off, the winners, and
practicing
law is a way to be socially useful at the same time, that's all.
Acting Chief Justice Paul E. Pfeifer responded on behalf of the Supreme Court of Ohio today to the announcement by Gov. Ted Strickland that he has selected Franklin County Probate Judge Eric Brown to serve out the unexpired term of the late Chief Justice Thomas J. Moyer. The governor’s appointment is effective May 3.
“Gov. Strickland has fulfilled his constitutional duty, and we will do everything in our power to make this a smooth transition,” Justice Pfeifer said. “Judge Brown will be welcomed to the Court, and we will work to assist him in getting settled in.”
Justice Pfeifer added: “We remain in mourning for our friend and colleague, Chief Justice Tom Moyer, and at the same time we are focused on ensuring that the business of the Court continues.”
Chief Justice Moyer died unexpectedly on Friday, April 2. His funeral was Saturday. A public memorial ceremony in honor of Chief Justice Moyer will be held on Law Day, May 1, at a venue to be announced.
Undetected, raw, unabsorbed alcohol in the
mouth may falsely elevate the results of a breath test. This residual
mouth alcohol (RMA) can come from items ingested just prior to the
test, from regurgitated (burped) air from the stomach, or from
gastroesophogeal reflux. Ohio testing protocol attempts to guard
against this testing flaw by requiring officers to observe the defendant
for twenty minutes prior to the test. They look for burping, vomiting
or any ingestion of items into the mouth. Lazy observation by the
police officer can result in a contamination of the test.
The BAC DataMaster and the Intoxilyzer 8000, Ohio's most common breath testing
instruments, further guard against this type of problem with "slope
detectors" which look at the air coming into the machine. If the air is
too heavily laden with alcohol it changes the shape of the curve and
should result in the machine kicking out an "INVALID SAMPLE" reading.
This reading requires the officer to start the observation period over
again. Good DUI/OVI attorneys will know the science
behind the "slope detector" and its operation and can effectively
explain this to a jury. Charles M. Rowland II is a certified operator
of the BAC DataMaster and the Intoxilyzer 8000.
Then we will no longer be infants, tossed back and forth by the waves, and blown here and there by every wind of teaching and by the cunning and craftiness of men in their deceitful scheming.
This blog has taken a position that the deterrent effect of a sobriety checkpoint is not worth the harm caused by abandoning the "probable cause" standard that is a cornerstone of American jurisprudence. What is all the more outrageous is that the checkpoints are not as effective as saturation patrols which safeguard the probable cause standards set forth in our Constitution. Sobriety checkpoints generally have arrest rates of around 1% of all drivers detained. No one is in favor of drunk driving and even one death from drunk driving is tragic. What we cannot justify, however, is a policy that undermines our values (in theory) and fails to achieve its purpose (in practice).
In State v. Bryson, 142 Ohio App.3d 397, 755 N.E.2d 964 (8th Dist. Cuyahoga County 2001), the Eight District Court of Appeals ruled that making a legal turn to avoid a sobriety roadblock would not constitute reasonable and articulable suspicion to justify the police in making an investigatory stop. Here, the police saw someone turn around rather than go through their checkpoint. They dispatched an officer to pull him over. The court found that the officer was not justified in taking such an action. Among the justifiable reasons that a person may wish to avoid the roadblock included a) fear of police/authority; b) a desire to avoid the waste of time and "hassle" of a roadblock and c) resentment of the roadblock itself.
I was sitting in a busy court one day waiting for my client's case to be called when an old man was called to approach. The Bailiff read the charge. " Case No. 00-TCR-0000, theft from the Kroger meat counter." The victim advocate and the Prosecutor stand and give their appearance for the court, then the court says to the old man, "Are you the defendant?" The old man replies, "No sir, I'm the man who stole the meat." That is why you should always hire an attorney.
Below is an update from Ian Friedman for all OACDL (Ohio Academy of Criminal Defense Lawyers) members regarding the "open discovery" process currently before the Ohio Supreme Court. Thanks to the attorneys of the OACDL things are improving for all attorneys who practice in Ohio.
Today was an important day in the process toward open discovery. I was advised
by a representative of the Supreme Court of Ohio that the rule was approved
by the court's Commission on the Rules of Practice and Procedure this
past Friday. The rule will now go back to the Court for the final approval
which should be in April. There has been no objection either at the
Court or in the General Assembly so this will be in effect July 1st. Once
I get a formatted version of the rule, I will distribute it to everyone.
You will see that it has evolved since the first proposal was shared
more than two years ago. There will be plenty of seminars across the state
prior to the effective date of the rule so that there is a full and uniform
understanding of how it will work. It is a good day.
One of the most frequently asked questions to my staff involve the issue of POINTS on an Ohio driver's license. "Points" under Ohio law are set forth at O.R.C. 4510.036(C). The statute lists the following as 6-point violations:
6 Point Violations -Aggravated Vehicular Homicide -Vehicular Homicide -Vehicular Manslaughter -Aggravated Vehicular Assault -Willful Fleeing and Eluding, -Failure to Stop and Disclose Identity at Accident -Street Racing -Driving Under Suspension -OVI (drunk driving) -Unauthorized Use of a Motor Vehicle -Any felony motor vehicle violation or any felony committed with motor vehicle
Four Point Violations -Operation of a Vehicle After Underage Consumption -Operation in Willful or Wanton Disregard of Safety (a reckless operation offense) -Exceeding the Speed Limit by greater than 30 mph.
Two Point Violations -Exceeding the Speed Limit of 55 by at least 10 but less than 30 mph -Exceeding the Speed Limit less than 55 by at least 5 but less than 30 mph. -Operating a motor vehicle in violation of a restriction imposed by the BMV -Most other moving violations including operating a vehicle w/o a license.
NOTE: If you are nearing the requisite 12 points that will result in a separate license suspension you can attend a TWO POINT CREDIT COURSE as set forth at R.C. 4510.037(C). For a more detailed explanation of the credit course or to consult with an attorney about your charge, contact Charles M. Rowland II or Mark Babb at 937-879-9542.
In Ohio, driving under the influence includes driving while intoxicated with too much alcohol, or driving under the influence of a drug of abuse. The traditional offense is "driving under the influence of alcohol" (DUI). Ohiohas also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (.08%). In Ohio, BOTH offenses are usually charged.
A jury instruction which is given at every D.U.I. trial states,
UNDER THE INFLUENCE. "Under the influence means that the defendant consumed some (alcohol)(drug of abuse)(alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and appreciably impaired the defendant's actions, reactions, or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself which he 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 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 an appreciable degree, his ability to operate the vehicle, then the defendant was under the influence.
Driving with a prohibited concentration of alcohol in your blood breath or urine is a separate offense under Ohio law. If you have ever heard anyone refer to "blowing above a .08" they are referring to the most common test administered by law enforcement today, the breath test. Revised Code section 4511.19 sets forth the elements of Ohio’s tough DUI law (Note: The Ohio legislature has changed the universally understood “DUI” with the acronym “OVI). In Ohio, the legal limit for persons 21 and over is any of the following:
.08 or more by weight of alcohol in blood;
.08 of one gram or more by weight of alcohol per two hundred ten liters of breath;
.11 of one gram or more by weight of alcohol per one hundred milliliters of urine;
.17 of one per cent or more by weight of alcohol in the person’s blood:
.17 of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath:
.238 of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.
The .17 threshold is used to enhance the penalties for “higher test” offenders, doubling the jail time at each tier of the sentencing.
As can be seen from the definition provided to the jury, some subjectivity does come into play. A skillful prosecutor will attempt to narrow this definition. It will be up to your attorney to demonstrate to the jury that your ability to drive was not impaired at the time of arrest. It is important to understand that you can be in violation of the law by simply being under the influence. The officer does not need to test your blood breath or urine if he/she believes that sufficient evidence exists for your arrest. Current Ohio law makes driving with above a .08% concentration of alcohol a separate offense for which you can be convicted. The law prevents "operation" of a "vehicle, streetcar, or trackless trolley" "anywhere in the state." "Operation" of the vehicle can include pulling over to the side of the road to "sleep it off" while the car is running and can include simply sitting behind the wheel of the vehicle with the motor off and the key in the ignition. Besides a car, truck or van a person can be found guilty of D.U.I. in Ohio by "operating" a bicycle, a snowmobile, or a golf cart. Unlike other laws which require operation of the vehicle on public highways or areas open to the public, DUI. convictions can come "anywhere in the state." Convictions have been upheld for operation on a private shopping center parking lot, a private driveway or your own property.
In 1990, the New
Jersey courts declared that the science was settled, the debate was
over: breath analysis is a reliable and accurate means by which to
determine blood alcohol content (BAC). This proclamation is known as the
“Downie decision.”
