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 air IS 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.

All lawyer referral information services (LRIS) must be registered with the Supreme Court of Ohio.

To view the current listing ...   more »

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)

It is hard to believe that a man is telling the truth when you know that you would lie if you were in his place.
-H.L. Mencken_

Losing an illusion makes you wiser than finding a truth.
-Ludwig Borne-

Indifference....is not only a sin; it is a punishment.
-Elie Wiesel-

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.

Pavlov: Creating Hate. (It's not about dogs anymore): Attempts by government and special interest groups to influence our thinking is not ...   more »