The United State Supreme Court decided a very important case that impacts directly upon DUI trials.In Melendez-Diaz v. Massachusetts, the Court held that lab reports which are used as evidence in trial are “testimonial” as defined by Crawford v. Washington and Davis v. Alaska.What this means for prosecutors is that the witness must be called as a witness and be subject to cross-examination.The majority consisted of Justices Scalia, Stevens, Souter, Thomas and Ginsburg.Justice Kennedy wrote the dissent and was joined by Justices Alito, Roberts and Breyer.
The dissent attempts to create a new category of “neutral scientific witnesses” who could not possibly have the biases of normal witnesses.Justice Scalia skewers this argument,
“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”
The opinion gives the states the option of either 1) having the experts available at every case, or 2) giving notice of their intention to use the expert thereby giving the defendant a chance to object.The rule is simple: If the prosecutor wants the evidence they must produce the witness.
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.
Under 14 CFR 61.15, all pilots must send a Notification Letter(MS Word) to FAA’s Security and Investigations Division within 60 calendar days of the effective date of an alcohol-related conviction or administrative action. In 14 CFR 61.15(c), alcohol-related convictions or administrative actions refer to motor vehicle actions (MVA).
Notification Letters
Note: Each event, conviction, or administrative action, requires a separate Notification Letter. For example, an airman’s driver license may be suspended at the time of arrest for driving under the influence of alcohol for either:
Failing a blood/breath test
Refusing to test
The airman must send a Notification Letter for the suspension, then send a second Notification Letter if the alcohol related offense results in a conviction. Even though the airman sent two notification letters, FAA views the suspension and conviction as one alcohol-related incident.
Send Notification Letters to:
Federal Aviation Administration Security and Investigations Division (AMC-700) P.O. Box 25810 Oklahoma City, OK 73125 or Fax to: (405) 954-4989
To speed processing, the letter must contain the following information:
Name, Address, Date of Birth, Certificate Number, Telephone Number
Type of Violation (conviction and/or administrative action)
Date(s) of Action(s)
State Holding the Record
Driver License Number or State ID Number (if not licensed)
Statement whether this relates to a Previously Reported MVA
History
The DUI/DWI compliance program began in November 1990 by Congressional act. The final rule published in the Federal Register on August 1, 1990, is Federal Aviation Regulation 14 CFR Parts 61 and 67.
This is an excellent article that appears on Nursing Law & Order, a blog from RN-JD LaTonia Denise Wright. Her web site is www.Nursing-Jurisprudence.com. NURSES BE WARNED.
"Its just a DUI." Its nursing license renewal time in Ohio, Kentucky, and Indiana and this blog is popping up in searches related to DUI and nurses and criminal convictions and license renewal for Ohio, Kentucky, and Indiana.
Don't be offended but I have to keep it real on this blog; nurse license renewal time is like Christmas time without the snow at my law firm. This isn't legal advice but consider it an early Christmas present.
Each State Nursing Board looks at "just a DUI" differently because each State Nursing Board is different. There isn't an "Across the State Nursing Board" rule for OVI, DUI, and DWI convictions.
For example, I practice law in Ohio, Kentucky, and Indiana and each State Nursing Board in the states where I practice look at DUIs,OVIs, and DWIs differently based on the State Nurse Practice Act, Board of Nursing regulations, and Nursing Board investigation and discipline policies.
Some Boards don't have the authority under the Nurse Practice Act to propose discipline on "just a DUI" while other State Nursing Boards have the authority to propose discipline on "just a DUI."
How do you know how your State Nursing Board looks at DUIs? You can contact:
1. Your State Nursing Board;
2. Your State Nurses Association; or
3. An administrative law, nursing law attorney, or nurse license defense attorney in your state.
If you call my office and want to schedule a consultation to discuss a DUI, I need to see the court documents, traffic ticket, and other records because sometimes "its just a DUI."
Sometimes its more than "just a DUI" and its a litany of charges and convictions with the DUI like possession of marijuana, possession of drug paraphernalia, resisting arrest, disorderly conduct, possession of crack cocaine, child endangerment, etc.
I actually have nurses schedule and pay for meetings (phone or in-person) with me related to DUI charges and convictions and their nursing license in Ohio, Kentucky, and/or Indiana and don't provide me with any of the requested documents to review and evaluate their situation. Okay?
Some attorneys may be willing to say "Oh its just a DUI (without reviewing docs), and it means this for your license...." but not the kid.
C-O-U-R-T D-O-C-U-M-E-N-T-S and
C-O-N-S-U-L-T-A-T-I-O-N
In other cases it is a felony DUI charge because of past DUIs.
In other cases it is one of two or three pending DUI charges and alcohol related offenses in a more than one county or state.
In other cases it is a pending DUI and other issues and circumstances involving a nurse's practice that make it more than "just a DUI."
In other cases it is "just a DUI" but the nurse is participating in a State Nursing Board Alternative to Discipline program for Chemical Dependency. Is it "just a DUI" in this situation?
In other cases it is "just a DUI" for a nurse in recovery who signed a Return to Work agreement or Last Chance Agreement with a healthcare employer. Is it "just a DUI" in this situation?
In other cases it is "just a DUI" and the nurse is on probation with the State Nursing Board?
In other cases it is "just a DUI" and the nurse is on criminal probation for something else and the judge requires a self-report to the State Nursing Board?
Then sometimes just sometimes "it is just a DUI." Do you get my point?
Look for changes coming to DaytonDUI.com and the entire Charles M. Rowland family of websites. Updated and more user-friendly to provide the accused drunk driver with timely and complete information on how to fight your DUI/OVI charge.
Chris Dickerson of the Cincinnati Reds and Jack Cassel of the Cleveland Indians are teaming up to save the environment. They have started www.weplaygreen.org to provide ways to make the world a cleaner place. “I feel like I am at that point in my life where it is time to do something positive, not for myself, not for a select group of people but rather try my hand at the global community. This isn’t the result of an overnight epiphany of self guilt as to where I am in my life and what good I have done for the world as of late but I feel like this should be a general concern for all of us," says Dickerson. Their message: we can do alot together.
We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people.
One of my favorite shows EVER is Penn & Teller's Bullshit on Showtime. In a recent show, they came to the conclusion that the polygraph is...bullshit. Here is a previous post dealing with just that issue.
In 1983 Congress' Office of Technology Assessment evaluated all available studies on the reliability of polygraphs and concluded that " '[o]verall, the cumulative research evidence suggests that when used in criminal investigations, the polygraph test detects deception better than chance, but with error rates that could be considered significant.' " (quoting U. S. Congress, Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation-A Technical Memorandum 5 (OTA-TM-H-15, Nov. 1983)).
Until quite recently, federal and state courts were uniform in categorically ruling polygraph evidence inadmissible under the test set forth in Frye v. United States , 293 F. 1013 (CADC 1923), which held that scientific evidence must gain the general acceptance of the relevant expert community to be admissible. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that Frye had been superseded by the Federal Rules of Evidence and that expert testimony could be admitted if the district court deemed it both relevant and reliable. Prior to Daubert , neither federal nor state courts found any Sixth Amendment obstacle to the categorical rule. See , e.g., Bashor v . Risley , 730 F. 2d 1228, 1238 (CA9), cert. denied, 469 U.S. 838 (1984); People v . Price , 1 Cal. 4th 324, 419-420, 821 P. 2d 610, 663 (1991), cert. denied, 50 S. 851 (1992). Nothing in Daubert foreclosed, as a constitutional matter, per se exclusionary rules for certain types of expert or scientific evidence. It would be an odd inversion of our hierarchy of laws if altering or interpreting a rule of evidence worked a corresponding change in the meaning of the Constitution.
(A) No person shall stop or operate a vehicle, trackless trolley, or street car at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.
(B) Whenever the director of transportation or local authorities determine on the basis of an engineering and traffic investigation that slow speeds on any part of a controlled-access highway, expressway, or freeway consistently impede the normal and reasonable movement of traffic, the director or such local authority may declare a minimum speed limit below which no person shall operate a motor vehicle, trackless trolley, or street car except when necessary for safe operation or in compliance with law. No minimum speed limit established hereunder shall be less than thirty miles per hour, greater than fifty miles per hour, nor effective until the provisions of section 4511.21 of the Revised Code, relating to appropriate signs, have been fulfilled and local authorities have obtained the approval of the director.
(C) 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.
House Bill 2 changed the traffic laws of Ohio dramatically. Here is a summary which can be found at the Ohio Department of Public Safety's website: http://publicsafety.ohio.gov/. Three of the major legal changes are listed below.
1. Increase in speed limits for motor vehicles weighing in excess of eight thousand pounds empty weight or a noncommercial bus from the current 55 to 65 mph. The new uniform limit would apply on certain interstate highways. Citations for such vehicle violations will be issues as a violation of O.R.C. 4511.21D2.
2. Requires vehicle headlights to be on at any time when the windsheild wipers of the vehicle are in use because of precipitation on the windsheild. Warnings will be issued until January 1, 2010. Charges will be pursuant to O.R.C. 4513.03.
3. New provisions of O.R.C. 4511.213 (the move over or slow down law) add emergency vehicles and road service vehicles to the law.
The Beavercreek/Fairborn Municipal Court is located at 1148 Kauffman Ave., Fairborn, Ohio 45324. The Honorable Beth Root presides over the jurisdictions of Fairborn, Bath Township, Beavercreek and Beavercreek Township. The court is open from 7:30 am to 4 pm Monday through Friday and can be reached by calling (937) 754-3040 or on the web at http://ci.fairborn.oh.us/court.htm.
I was saddened to hear of Walter Cronkite’s death at the age of 92. Among other accomplishments, he was known for his coverage of the Vietnam War. He understood the futility of that conflict and his voice rang loud and clear against it. In response, President Lyndon Johnson was reported to have said, "If I've lost Cronkite, I've lost Middle America."
However, this was not the only war that Cronkite realized was unwinnable. On March 1st, 2006, he wrote, “And I cannot help but wonder how many more lives, and how much more money, will be wasted before another Robert McNamara admits what is plain for all to see: the war on drugs is a failure.”
Walter Cronkite was also a supporter of Law Enforcement Against Prohibition. LEAP is an international organization of current and former law enforcement officers who seek to minimize death, disease, crime and addiction by gradually legalizing and regulating drugs. As a member of LEAP, I am proud to share this small connection with a great man. His wisdom, integrity and judgement will be missed.
My dad hated lawyers. ... You might think I became a lawyer just to piss him off. But you'd be wrong. I've wanted to be a lawyer ever since I read about the civil rights lawyers in the 50s and 60s and the amazing uses they found for the law. They did what a lot of people thought was impossible. They gave lawyers a good name. So I went to law school.
This video appeared on youtube.com and was referred by www.ragingalcoholic.com. The site states that this video is public domain, please contact if it is copyright protected and we will remove it promptly.
Follow Charlie on Twitter...http://twitter.com/CharlieRowland. I will give updates on roadside checkpoints, saturation patrols, DUI/OVI and traffic statistics and other pertinent information.
To obtain authenticated driver record from BMV send a subpoena duces tecum to: Ohio BMV, P.O. Box 16583, Columbus, Ohio, 43216. You can accomplish the same result by filing a records request filing BMV form 1173. What are the current license and registration fees? Current driver's license fees, I.D. fees and vehicle registration fees can be found here: http://www.bmv.ohio.gov/misc/fees.htm
If you are convicted three or more times within the preceding three year period of a drunk driving offense your license will be suspended. In order to reinstate your license you will be required to attend a rehabilitation program approved by the Alcohol and Drug Addiction Services Board. The program must attest to a continuous 6 months of sobriety and must contain a statement from a licensed physician, a licensed psychiatrist or a certified (CCDC2 or CCDC3) alcoholism counselor attesting that the above requirements have been met. If a person receives a subsequent conviction within one year of restoration, the previous suspension will be reimposed.
When you are arrested on a criminal case, you may find yourself in front of a magistrate instead of a judge. This is common, but may cause confusion if you are asked to give your consent to allow the magistrate to hear your case. Set forth below is a cursory examination of the authority given to criminal magistrates in Ohio.
Criminal Rule 19 governs the authority of magistrates in the municipal courts. A court can refer to the magistrate any of the following: (1) Initial appearances and preliminary hearings conducted under Criminal Rule 5. (2) Arraignments (Crim. R. 10). (3) Proceedings at which the plea may be entered (Crim. R. 11) with the limitations that the matter must be a misdemeanor and all parties unanimously agree on the record or in writing that the magistrate may hear the case. (4) Pretrial conferences (Crim. R. 17.1). (5) Proceedings to establish bail (Crim. R. 46). (6) Proceedings for the issuance of a temporary protection order. (7) Trial of any misdemeanor case where the parties unanimously agree to magistrate jurisdiction. Once a magistrate issues a decision, a party has fourteen days to file an objection to the decision (see Crim. R. 19 for specifics).
A great web site for travelers is www.BuckeyeTraffic.org. The site is run by the Ohio Department of Transportation and gives updates on weather, traffic, construction and other driver-relevant information. If you want to know more about traffic laws within the State of Ohio, please contact traffic attorney Charles M. Rowland II at 937-879-9542.
If you are traveling from space and need to know the exact coordinates for Brown, Rowland, Babb & Campbell they are: Latitude: 39.7809, Longitude: -84.0014. Please park your craft out back as the Fairborn Police discourage parking on the street.
Ohio law has reached a consensus on who bears the burden of going forward in DUI/OVI motions to suppress when this issues involve an illegal stop and arrest. In Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, the court ruled that the state had the burden of going forward and the burden of proof to justify a seizure once it has been shown that the seizure was made without a warrant. Therefore, if your motion to suppress is based on a refusal or pre-arrest decisions, the state must carry the water.
Much less clear to judges and practitioners is the burden of going forward with challenges based on violations of the testing protocols. As Judge Painter points out in his classic OHIO DRIVING UNDER THE INFLUENCE LAW, 2007-2008 ed., sec. 8:17 at 163, the Supreme Court has not addressed the issue, but has rulings that support "the position that the state must initially go forward and present evidence to support admission of the test results regardless of the timing of the determination." At trial the burden certainly rests with the state. Aurora v. Keply (1979), 60 Ohio St.2d 73, 397 N.E.2d 400 and City of Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 330 N.E.2d 908. This requirement is not as great as it may seem. In State v. Brown (9th Dist. Lorain 1975), 49 Ohio St.2d 104, 259 N.E.2d 706, the court required only general testimony that all pertinent rules and regulations had been followed in conducting the defendant's test. This is the same burden that the state bears at trial.
What this blog warns against is the not-so-subtle attempts by courts to shift the burden to the defendant by requiring that the defendant present proof of non-compliance prior to going forward on the motion. This can be done by limiting the time available for motions, by requiring written explanations as to why the defense is challenging the evidence, or by overtly challenging and/or criticizing an attorney who files what the court considers too broad a motion. In essense, the courts may be taking the position that by not satisfying the court then the court will allow the test in by default. This is bad because the test is given such inviolable status (see my rants against State v. Vega) that its admission amounts to admittting an element of the offense. "[I]t would be inherently unfair and a potential violation of due process to require the defendant to go forward in a motion to suppress and initially negate the propriety of the test results." (Painter at 164).
Our system triumphs the ideal that the defendant is entitled to hold the government to its burden. "Therefore, if called on to do so by means of a written motion to suppress, the state should be prepared in a hearing pursuant to the motion to present an entire foundation necessary to admit the test results into evidence." (Painter at 164 yea!). In no other area of law would we require a defendant to specifiy a defect or risk having the results admitted. This is another area where DUI/OVI law is drifting away from cherished American principles and needs to have a radical paradigm shift.
The Dayton Daily News is reporting that there were no fatal crashes this weekend amongst the four state higway patrol posts covering the Miami Valley. The local posts were responsible for 64 DUI arrests and report that over 80% of their personnel were "on the road."
Throughout the state the OSP is reporting five fatalities, two attributable to an ATV accident and one motorcycle death. Based on information available on the OSP web site, none of the deaths are "alcohol related." The OSP is reporting 556 arrests for OVI state-wide over the weekend. The weekend is a vast improvement over last year's 15 deaths and proves to be the safest 4th of July in 11 years.
One of the courts that I visit most often is the Clark County Municipal Court located at 50 East Columbia Street in downtown Springfield, Ohio. The court handles all misdemeanor cases occurring in Clark County. The Court is open Monday through Friday from 8am to 5pm and can be reached by calling (937) 328-3726 or toll free at (800) 544-1694.
If you consume too much to drive this weekend and you are in Montgomery County your ride is free. Operaton Arrive Safe, a program sponsored by the Montgomery County Prosecuting Attorney's Office and the Ohio State Highway Patrol will pay for a cab to give you a lift. This program, which was started in Christmas 2007, has provided over 800 cab rides to prevent drunk driving. If you need a cab call (937) 449-9999. Charles M. Rowland II provides a 24 hour DUI/OVI Hotline if you find yourself in trouble: (937) 776-2671.
The OVI check-point conducted by the Montgomery County Sheriff's Department in conjunction with the Trotwood Police along West Third Street on June 20th resulted in one arrest for suspicion of drunk driving. Police did, however, hand out tickets for improper child restraint, seat belts and other traffic violations. It is the opinion of this blog that check-points are an unconstitutional intrusion that violates the long-held principle that law enforcement must have probable cause to suspect you of a violation before initiating contact. Everyone agrees that drunk driving is a preventable and all-to-often tragic crime, but are we willing to give up our cherished freedoms to address this problem? Contact attorney Charles M. Rowland II at 937-879-9542. He is a committed advocate for citizens accused of drunk driving (called OVI, DUI, OMVI or DWI) and can represent you in federal, common pleas or municipal court.
