BASIC OHIO OVI LAW ROBIN L. JINDRA, ESQ. ZACKS LAW GROUP LLC 33 SOUTH JAMES ROAD, 3 RD FL. COLUMBUS, OHIO

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1 BASIC OHIO OVI LAW ROBIN L. JINDRA, ESQ. ZACKS LAW GROUP LLC 33 SOUTH JAMES ROAD, 3 RD FL. COLUMBUS, OHIO RJINDRA@ZLGLAW.COM Page 1 of 27

2 BASIC OHIO OVI LAW AN (DUI/OMVI/OVI IS ALL THE SAME THING-OHIO NOW REFERS TO IT AS OVI) AN OVI IS A TRAFFIC VIOLATION BUT A PLEA OR CONVICTION OF OVI CARRIES PENALTIES THAT INCLUDE LICENSE SUSPENSION, FINES AND THE POSSIBILITY OF BEING PLACED IN JAIL FROM 3 DAYS TO IN SOME CASES, 5 YEARS. An OVI charge in Ohio carries severe penalties. Many of these are mandatory, while others are optional. Some judges have their own set of "mandatory" penalties, which include a variety of sentencing options from the "optional penalties" list below. 1st Offense Jail - A minimum of 72 consecutive hours in jail or a driver's intervention program (DUI school). Fine - A minimum of $375 plus court costs. Court License Suspension - A minimum of six months, with limited privileges only after the "hard time" waiting period. A "high-end" test, or a refusal with a prior in the previous 20 years, doubles the mandatory jail time to six days jail (or three days jail and three days in the driver's intervention program). It also makes the restricted plates mandatory. 2nd Offense Jail - A minimum of ten consecutive days. Fine - A minimum of $525 plus court costs. Court License Suspension - A minimum of one year with a minimum "hard time" period with no driving privileges for thirty days. Mandatory restricted license plates (yellow with red numbers). Mandatory 90 days immobilization of the vehicle used if titled to the defendant when the offense was committed. A "high-end" test, or a refusal with a prior in the previous 20 years, doubles the mandatory jail time to twenty days. Page 2 of 27

3 3rd Offense Jail - A minimum of 30 consecutive days. Fine - A minimum of $850 plus court costs. Court License Suspension - a minimum of two years, with a "hard time" waiting period of six months and a required ignition disabling device for days 181 to 365. Mandatory restricted plates (yellow with red numbers). Mandatory forfeiture of the vehicle used if titled to the defendant when the offense is committed. Subsequent DUI Offenses A fourth or fifth offense in six years, or a sixth offense in twenty years, constitutes a felony DUI. Once you have a Felony DUI on your record, all future DUI charges are felonies. Felony DUI offenses carry mandatory jail and/or prison sentences, minimum fines of $850 plus court costs, mandatory license suspensions of 3 years to life, mandatory restricted plates (yellow with red numbers) vehicle forfeiture and treatment programs. These are just some of the ways an OVI / DUI conviction might affect your life: Employment Many employers perform criminal background checks before hiring someone. If a potential employer sees an OVI / DUI in your history, you may not be offered the job, especially if it involves driving at all. Even if you already have a job, when there s any driving done for the job some employers regularly check employees driving records and have internal policies about suspending or terminating someone for an OVI / DUI conviction even when your offense happened on your personal time and in your personal vehicle. Housing People who own or manage rental properties may perform criminal background checks prior to renting to a possible tenant. An OVI / DUI conviction could be a barrier to renting an apartment or a house. College Admissions College applications often will ask whether the applicant has any criminal history. A criminal OVI / DUI conviction may be the difference between an acceptance or a denial in a competitive applicant pool. Military Enlistment If you were planning to join the military, an OVI / DUI conviction may prevent you from enlisting or being inducted. Security Clearances If you are trying to get a government job or contract that requires a security clearance, you may be denied when the background check turns up your OVI / DUI conviction. The conviction could be deemed evidence that you lack sound judgment and can t be trusted with sensitive or classified material. Professional Licenses A criminal background check is part of the process for many types of professional licensing applications. A conviction on your record could prevent Page 3 of 27

4 you from being approved for a license to practice law, medicine, nursing, or other professions. Immigration An OVI / DUI by itself may not affect your immigration status, but when coupled with another charge such as driving under suspension, or a vehicular assault or homicide, you could find yourself facing problems with your green card, resident status, or citizenship application. Custody An OVI / DUI conviction and/or the associated driver s license suspension could cause issues for you if you re separated or divorced and in the midst of custody proceedings, especially if your children were in the car when you got pulled over. Travel You could have problems trying to travel internationally with an OVI / DUI on your record. Some countries won t allow you in if you have a criminal conviction, including for an OVI / DUI. Increased Insurance Rates Every insurance company has its own internal policies about setting rates, but you may find that your insurance company raises your rates or even decides to drop you as too high a risk after an OVI / DUI conviction. You also may need an SR-22 insurance bond after a conviction, which is much more costly than regular insurance. A. INITIAL CLIENT MEETING: What is the pertinent information you must get from your client at the initial meeting? A checklist/client intake form is contained within your materials. Some pertinent things to obtain from your client: 1) Any prior OVI arrests? 2) Was the driver s license valid at the time of the stop? 3) Any pending traffic violations? 4) Did the client submit to a chemical test? 5) If so, what were the results? 6) Did the client submit to a breath test? 7) Did the client ask to speak with a lawyer prior to submitting/refusing a chemical test? Page 4 of 27

5 8) Did the vehicle have any defects? 9) When was the last time the client slept prior to stop and how long did the client sleep? 10) Was the client on any medications? 11) Was the client under the care of a doctor? 12) Were corrective lenses used/required? An OVI is considered to be a traffic matter but an OVI conviction has a greater exposure for punishment than almost any criminal misdemeanor. Specifically, OVI carries minimum sentences of incarceration, fines, and/or court ordered treatment programs in addition to a driver s license suspension. When you have an OVI client, it is imperative to explain the potential legal ramifications of a conviction or a guilty plea. With this being said, it is important to obtain all facts surrounding the incident from you client; it is often helpful for the client to draft a timeline of the events and as counsel, you may later recognize potential violations of your client s constitutional rights, as explained later in more detail. An OVI pairs down to impaired driving. How does one determine this?? The factors that support a finding are found within State v. Evans, (1998), 127 Ohio App. 3d 56 and are: 1) The time and day of the stop (Friday or Saturday night as opposed to a Wednesday morning) 2) The location of the stop (are you near a bar/restaurant?) 3) Any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, waiving, unusual braking) 4) A report that the driver may be intoxicated 5) The condition of the driver s eyes (glassy, bloodshot, glazed) 6) Impairment of the subject s ability to speak (slurred) 7) The odor of alcohol from the car or the person 8) The intensity of the odor Page 5 of 27

6 9) The suspect s demeanor (Belligerent, mouthy) 10) Any behavior by the suspect after the stop that might indicate lack of coordination (falling over, stumbling) 11) The suspect s admission of alcohol consumption, admissions of drinking by the suspect B. FIELD SOBRIETY TESTS: In addition to the factors listed in State v. Evans, Ohio recognized three standardized field sobriety tests. These three are: 1) Horizontal Gaze Nystagamus (HGN) 2) Walk-and-turn 3) One-Leg Stand WHEN ARE POLICE PERMITTED TO GIVE FIELD SOBRIETY TESTS? by Shawn R. Dominy Imagine you are driving home on a central Ohio freeway after a late dinner and you are pulled over by a police officer. The officer says you were stopped for failing to use your turn signal when you changed lanes. The officer announces he smells the odor of alcohol and asks if you have been drinking. You did have a glass of wine with dinner. The officer then asks you to get out of the car for some field sobriety tests to make sure you re okay to drive. Under what circumstances is the officer justified in doing this? This entry is a follow-up to the last entry in this blog, which discussed the case of Rodriguez v. United States. Rodriguez involved a motorist stopped for a minor traffic violation and detained for a drug dog to arrive. The United States Supreme Court concluded the duration of the stop must not exceed the time necessary to address the traffic violation. The rule clarified in the Rodriguez case is this: any further detention is unlawful unless the officer has a reasonable suspicion the motorist is violating the law. Page 6 of 27

7 The rule clarified in Rodriguez is followed in Ohio DUI/OVI cases. If an officer stops a driver for a traffic violation, further detention of the driver for field sobriety testing is unlawful unless the officer has a reasonable suspicion the driver is under the influence. The issue often litigated is what constitutes a reasonable suspicion. What constitutes a reasonable suspicion is based on the totality of the circumstances. Many Ohio appellate court opinions address this issue, and the opinions are not entirely consistent. One of the leading Ohio cases, State v. Evans, lists 11 factors for courts to consider when determining if an officer had a reasonable suspicion. The reality is there are many more than 11 factors, and the analysis of reasonable suspicion is very much case-specific because no two cases have exactly the same set of facts. With the set of facts in the first paragraph, was the officer justified in detaining you for field sobriety tests? Based on the information provided, the answer appears to be no. The officer merely observed a minor traffic violation and the odor of alcohol: the officer did not detect any other evidence you were under the influence. If, however, the officer observed additional evidence such as slurred speech, difficulty answering the officer s questions, or coordination problems, most courts would agree the officer had a reasonable suspicion you were under the influence. If an officer stops a driver and observes the odor of alcohol, that driver is almost certainly going to be removed from the car for field sobriety tests. While the officer may say it s to, make sure you re okay to drive, it s also to obtain evidence to prosecute the driver for OVI. If the driver is prosecuted, an effective DUI/OVI lawyer should review the evidence closely to determine whether the continued detention for field sobriety testing was justified. Posted in: DUI/OVI Constitutional issues and DUI/OVI field sobriety tests Tagged: DUI/OVI, Field Sobriety Testing In Ohio DUI/OVI Cases and traffic stops in DUI/OVI cases The purpose of the field sobriety tests is for the officer to look for certain behaviors which could indicate a certain level of blood alcohol content. If the suspect performs poorly on one or more of these tests, then this could give the officer probable cause to make an arrest and could impact a later conviction at trial. If there were field sobriety tests, the manner which they were administrated can easily be challenged because they need to be administered in compliance with National Highway Traffic Safety Administration procedures (NHTSA) or they cannot be considered by the court. In fact, they are often administered incorrectly so this can be addressed on cross-examination of the officer at either a motion hearing or a trial. Page 7 of 27

8 The Walk and Turn Test is one of the field sobriety tests that law enforcement might have you take in order to determine impairment. It is a divided attention test that consists of two stages: instructions and walking. In the instructions stage, the subject must stand with their feet in heel-to-toe position, keep their arms at their sides, and listen to the instructions. The instructions stage divides the subject s attention between a balancing task (standing while maintaining the heel-to-toe position) and an information processing task (listening and remembering instructions). In the walking stage, the subject takes nine heel-to-toe steps, turn in a prescribed manner and take nine heel-to-toe steps back, while counting the steps out loud, while watching their feet. During the turn, the subject keeps their front foot on the line, turn in a prescribed manner, and use the other foot to take several small steps to complete the turn. The walking stage divides the subject s attention among a balancing task (walking heel-to-toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions). The Walk and Turn Test is administered and interpreted in a standardized manner, i.e., the same way every time. Officer s administering the Walk and Turn Test observe the subject s performance for eight clues. Walk and Turn Test Clues Can t balance during instructions Starts too soon Stops while walking Doesn t touch heel to toe Steps off line Uses arms to balance Loses balance on turn or turns incorrectly Takes the wrong number of steps Inability to complete the Walk and Turn Test occurs when the subject: Steps off the line three or more times Is in danger of falling Cannot do the test Original research shows that if a subject exhibit two or more of the clues, or cannot complete the test, the subject s blood alcohol content (BAC) is likely to be above.10. This criterion has been shown to be accurate 68 percent of the time. Page 8 of 27

9 One Leg Stand Test The One Leg Stand Test is a field sobriety test that law enforcement may have you take in order to determine whether or not you are impaired. It is a divided attention test consisting of two stages: the instructions stage and the balance and counting stage. In the instructions stage, the subject must stand with both feet together, keep arms at their sides and listen to instructions. This divides the subject s attention between a balancing task (maintaining a stance) and an information processing task (listening to and remembering instructions). In the balance and counting stage, the subject must raise one leg, either leg, with the foot approximately six inches off the ground, keeping raised foot parallel to the ground. While looking at the elevated foot, count out loud in the following manner: one thousand and one, one thousand and two, and one thousand and three until told to stop. This divides the subject s attention between balancing (standing on one foot) and small muscle control (counting out loud). The timing for a thirty-second period is an important part of the One Leg Stand Test. Original research showed that many impaired subjects are able to stand on one leg for up to 25 seconds, but few can do so for 30 seconds. The One Leg Stand Test is administered and interpreted in a standardized manner, i.e., the same way every time. Officers carefully observe the suspect s performance and look for four specific clues. One Leg Stand Test Clues Sways while balancing Uses arms to balance Hops Puts foot down Inability to complete the One Leg Stand Test occurs when the person either puts his or her foot down three or more times during the 30 second period or cannot do the test. Original research shows that if a subject exhibits two or more of the clues, or cannot complete the test, the subject s blood alcohol content (BAC) is likely to be above.10. This criterion has been shown to be accurate 68 percent of the time. For example, the HGN test, which is common used, is said to have a 77% accuracy level. This test is commonly used, and it is where a stimulus, such as a pen, is used to observe the smoothness of the eye. If the officer doesn t observe a certain smoothness, then he may assume the defendant is impaired. This test has to be administered a certain distance and angles, with the defendant s head still. There are numerous other reasons, however, for a lack of what is known of smooth pursuit of the eye, and the officer should be cross-examined on this. Page 9 of 27

10 For instance, Officer, you were also informed that many prescription drugs can affect the HGN test results, correct. Could caffeine contribute to Nystagmus? Could aspirin contribute to Nystagmus? Could fatigue contribute to Nystagmus? Could influenza contribute to Nystagmus? Could hypertension contribute to Nystagmus? Could contact lenses affect Nystagmus? Was the Defendant wearing contact lenses? Does nicotine contribute to Nystagmus? Do you know, did the Defendant have caffeine earlier that evening? Did she have a cigarette prior to the traffic stop? Was the Defendant around people earlier who were smoking? Did you smell smoke coming from Ms. Bonner s vehicle? Is it true, will eye muscle fatigue present itself as nystagmus? With any of the field sobriety tests, there can be reasons aside from intoxication, for a poor performance. A bad sense of balance, medical condition, nervousness, being tired, etc. can all contribute. C. CHEMICAL TESTS: (d): Chemical Tests: Bodily substance to be taken within three hours of arrest. Breath, blood and urine testing is often evidence in OVI cases in Ohio. The breath testing is usually done with a specific devise that has maintenance and calibration requirements, which can be challenged and the equipment can fail just like any other piece of equipment can. In 2009, the Ohio Page 10 of 27

11 Department of Health approved a new breath test machine called the Intoxilyer This same machine is being challenged in other states. There have been instances with the machine where it reads an invalid sample and the officer naturally blames the defendant, by stating the defendant is doing it wrong. However, an invalid sample provides the defense with an argument that the defendant did not refuse the breath test and there was perhaps a problem with the machine. If this happens, best to challenge it. If a motorist refuses a breath test, he can have his blood drawn, even against his will; the police officer can get a search warrant from a judge to get the blood test. Also, if a motorist has 2 or more prior OVI convictions, a police officer can use any reasonable means to take a blood sample from a motorist. A urine sample must be taken within three hours of the alleged violation and if collected later than this, is not considered valid. If a breath tests is performed, the results can sometimes be obtained immediately and the results may be found on the citation or police report. Sometimes you will have to obtain this yourself through discovery. If the defendant submitted to a blood or urine test for alcohol, it could take several weeks to even obtain the results. There are always challenges that can be made to chemical tests and some of these are fact dependent. For instance, did the defendant have bleeding gums? Could interfereing substances cause an incorrect test result? Could there be a sample collection error? Did the government destroy or lose evidence which should have been given to the defense in discovery? Was the machine calibrated correctly? If you took a breath test, there are additional evidentiary issues that need to be looked into, including: Whether you were asked to take the breath test within two hours of the time you were stopped Whether you took the breath test within three hours of the time you were stopped Whether you were observed simultaneously for 20 minutes prior to taking the test Whether the officer conducting the test is properly certified to do so Whether a calibration check was done on the machine you tested on with seven days or 192 hours prior to and after you taking your test Whether the officer conducting the calibration check is properly certified to do so Whether there were issues or inconsistencies with the calibration check Page 11 of 27

12 These are some things to think about and finding out whether this is even possible would be contingent upon client details and eventually through discovery. It is typically unlikely that the test results will come back below the prohibited level but either way, until the tests results are certain, it would be best to not enter into a guilty plea just be make sure. It should be pointed out that regardless of the outcome of the test results, even if the results are not favorable to the client, THE RESULTS MUCH BE ADMITTED INTO EVIDENCE before they would even have a chance to impact the case. For instance, there is a difference between the validity of the results and whether the prosecution can prove the validity. See ORC (D). WHAT IS THE IRONY OF URINE TESTING IN OHIO DUI/OVI CASES? by Shawn R. Dominy Most states acknowledge urine testing is not an accurate way to measure blood alcohol concentration, and Ohio is one of the few states which still uses urine alcohol testing for DUI/OVI cases. Ohio law makes urine tests admissible in court so long as law enforcement agencies follow state regulations. Some of those regulations address scientific reliability, and some of those regulations address administrative issues. As a result, urine tests are often inadmissible, not because they are scientifically unreliable, but because the government did not follow its own rules. Ohio law makes urine tests admissible in DUI/OVI cases. Ohio Revised Code section (D) states urine tests may be admitted as evidence if the urine sample is analyzed in accordance with regulations approved by the Ohio Director Of Health. The regulations approved by the Director Of Health (DOH) are found in chapter of the Ohio Administrative Code. Page 12 of 27

13 Some Ohio regulations for urine testing promote reliable test results. For example, the regulations establish what testing methods are acceptable (e.g., gas chromatography and immunoassay) and require confirmatory testing by an additional method. The regulations also require that testing methods have documented sensitivity, specificity, accuracy, precision and linearity. Some Ohio regulations for urine testing are more administrative in nature. For example, the regulations require that urine specimens are collected in a certain type of container with a certain type of lid. The regulations further require that the container have a label which contains certain information. The regulations also contain requirements for record keeping, laboratory accreditation, and laboratory personnel permits. For a urine test to be admissible as evidence in a DUI/OVI trial, law enforcement must comply with the DOH regulations. If a defendant files a motion to suppress the urine test based on the regulations, the prosecution has the burden of proving substantial compliance with the regulations. A recent case of mine is a good illustration of how this plays out in court. My client was arrested for OVI, submitted a urine sample, and the result was reported as.123. We filed a motion to suppress the urine test, and the laboratory technician who performed the urine test was subpoenaed to court for our motion hearing. The prosecutor and I met with the lab tech before the hearing started. The lab tech opened the bag containing the urine sample [insert dramatic music here] the label on the jar did not contain the name of the suspect or the date and time the specimen was collected. The prosecutor agreed the urine test would be suppressed, and the OVI charge was reduced to a lesser offense. This case demonstrates the irony inherent in Ohio s urine testing system. The truth is my client s urine test shouldn t be used against him because it has doubtful accuracy, and we don t want to convict people based on inaccurate tests. The lack of accuracy, however, is not what made the urine test inadmissible. Instead, the urine test was going to be inadmissible because the officer overlooked writing some basic information on a label. I think most people would say my client got off on a technicality : the reality is this was the right result, but probably for the wrong reason. Posted in: DUI/OVI blood/breath/urine tests and DUI/OVI lawyering Comments are closed. October 5, 2014 D. REFUSAL TO SUBMIT TO TESTING: When the defendant refuses to submit to alcohol and/or drug testing the advantage is: there is no direct evidence of the alcohol in his or her blood, breath or urine. With that, there can be no charge of a prohibited alcohol charge pursuant to ORC (A) S.B. 17: requires offenders who have two prior OVI convictions within the six-year look back to submit on request to a chemical test. Page 13 of 27

14 R.C (A)(5): (after two convictions in the past 6 years); This requires the OVI suspect to submit to a chemical test, and on the suspect s refusal, authorizes the arresting officer to use whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person s whole blood or blood serum or plasma. Note that the legislation provides immunity from criminal and civil liability to the officer requiring administration of the chemical test, unless the officer acted with malicious purpose, bad faith, or in a wanton and reckless manner. This was challenged on the basis of constitutionality in State v. States, 2011 WL and the constitutionality was upheld and the Ohio Supreme Court did not allow an appeal of this decision. E. VIDEOTAPES: Always view the tape! Most police cars now have video camcorders and more often than not, are not favorable to the defense of an OVI charge. One of the benefits of video is that the conditions of the scene could possibly lend credence to the suspect s portrayal of conditions. For instance, if the suspect claims it was foggy, rainy and visibility was dramatically impaired due to the weather, then the view of the video could corroborate these statements. In State v. Foster, 2004 WL , the prosecution introduced a videotape at the suppression hearing which showed the traffic stop and the defendant s performance of some roadside intoxication tests. The prosecution did not introduce any further evidence. The court of appeals held that the videotape itself did not establish the proper foundation as to the actual techniques used in administering the tests and the appellate court found that there was no probable cause to arrest and the defendant s conviction was reversed. If you view the video and portions appear to be missing or in poor quality, defense counsel may object to the admissibility of the remaining portions on the basis of Ohio Rule of Evidence 403(A): (evidence, although relevant, is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues). F. DISCOVERY: Only after discovery is obtained can the defense counsel be in a position to fully evaluate the case. Defendant can request a bill of (Criminal Rule 7(E)) Defendant can request notice as to what evidence the state intends to use in its case-in-chief at trial (Traffic Rule 11(D)) The most significant rule for the criminal defendant is Ohio Criminal Rule 16. Page 14 of 27

15 This rule was amended by the Ohio Supreme Court in 2010 to reflect open discovery. As such, the defendant can request: 1) written or recorded statements of the defendant or co-defendant; 2) criminal records of the defendant and records of prior convictions; 3) laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places; 4) results of physical or mental examinations, experiments or scientific tests; 5) any evidence favorable to the defendant and material to guilt or punishment; 6) reports from peace officers, Ohio State Highway Patrol, and federal law enforcement agents, and 7) written or recorded statements by a witness that the state anticipates it is calling. Criminal rule 16(c) permits the prosecutor to designate certain material subject to disclosure as counsel only entailing restrictions on the reproduction of the material. Each party has a duty to provide opposing counsel with a written list of any witnesses it intends to call in its case-in-chief or that it reasonably anticipates to be called in rebuttal or surrebuttal. Also, an expert for either side is required to prepare a written report summarizing the witness s testimony as well as the other elements set forth in the Rule including a summary of the expert s qualifications. TIME FOR DISCOVERY Defendant shall make his demand for discovery within 21 days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable later time as the court may permit. Most of the evidence in OVI cases is typical: For instance, police officer s observations, statements of the defendant, coordination tests, alcohol/drug tests. I recommend that a discovery response be requested in writing to avoid a later dispute as to what evidence was disclosed. Also, it is advisable to visit the police department to review records. This helps minimize inconvenience to the prosecutor s office too. Most OVI cases do not involve third-party witnesses and the documents obtained in discovery are often standard. A good checklist to use is as follows: Page 15 of 27

16 1) Traffic citation/ticket 2) BMV 2255 Form 3) Police Report, witness statements 4) Hospital Records 5) Defendant s prior criminal record, including traffic violations 6) Drug/Alcohol test results 7) Records for alcohol testing equipment 8) Record of testing equipment maintenance and/or repair 9) Field sobriety testing procedures 10) Videotape of traffic stop G. ARRAINGMENT: MORE ABOUT WHAT HAPPENS AT COURT What happens at an arraignment/first initial appearance? This is when a defendant first appears before the court to enter a plea of no contest, guilty or not guilty. To try to fight the charges at all, it is necessary to do a not-guilty plea at this time. Typically, an attorney can do the not-guilty plea on a defendant s behalf and sometimes an appearance isn t even required. If there was no fingerprinted done earlier, than often the defendant has to go to get fingerprinted at this time and the plea of not-guilty cannot be accepted until that is done. Waiver of Speedy Trial Time. A defendant is entitled to a trial within 30 days. This can be waived and extended out to six months. It is often favorable to waive to ensure you can complete any necessary discovery (D)(2): Five-day hearing requirement; Arraignments are scheduled shortly after the date of the offense; This leaves little opportunity for the accused to obtain counsel, let alone discuss the matter with counsel so often, not much is accomplished in this time frame. The arraignments are governed by Ohio Traf. R. 8 which states that the proceedings are to be conducted in open court and consist of either reading the complaint to the defendant or stating the substance of the charge and obtaining the defendant s plea. The defendant may waive the reading in open court. This is fairly common, especially when counsel is present. A sample of a Not-Guilty Form is contained within your materials. PRETRIAL HEARING Page 16 of 27

17 ABOUT 2-4 WEEKS AFTER THE ARRAIGNMETN, A PRE=TRIAL HEARING WILL BE SCHEDULED. THIS IS A COURT APPERANCE PRIOR TO ANY MOTION HEARINGS OR TRIALS AND IS AN OPPORTUNITY FOR THE ATTORNEY TO SPEAK DIRECTLYW TIH THE PROSECUTOR AND MAYBE PROVIDE SOME ARGUMENTS AND ALSO GET AN IDEA OF THE PROSECUTOR S EVIDENCE AND POSITION. In Franklin County, the prosecutors are very busy; may only have a few minutes of their time. It isn t uncommon for an OVI charge to be set for than one pretrial. There are plenty of times that a pretrial can be fairly uneventful. Sometimes the prosecutor handling the file is on vacation nor not in court that day so the person taking his place my not have much knowledge on the file or even be able to make an offer. H. MOTION PRACTICE What types of Motions are filed in the OMVI case? MOTION TO SUPPRESS GROUNDS FOR MOTION TO SUPPRESS, SUCH AS 4 TH AMENDEMENT VIOLATION Motions to Suppress are the more common types of motions for the OVI case and in fact, is often very important in the defense of an OVI case. The outcome of the Motion to Suppress can dispose of the entire case or at least impact the outcome of the case because if successful, can impact what evidence the prosecutor can admit at the trial. One of the primary reasons for the defendant to file a motion to suppress is to determine the admissibility of evidence and to evaluate the strength of the state s case. Practically speaking, when a defendant files a motion to suppress, it sends a message to the prosecutor and to the judge that you, as counsel, are prepared; in some cases, this may later influence the prosecutor to possibly dismiss the OVI charge or reduce the charge without the need for a trial. As you probably know, the burden of proving that the defendant is guilty of an OVI charge is beyond a reasonable doubt and this burden is on the prosecutor; the prosecutor s success of a guilty conviction is solid evidence, which is sometimes the confession by the defendant and also, the prosecutor s success rests upon the admissibility of blood, breach or urine tests results. If the tests results are admitted, then the tests results can often amplify the prosecutor s success of a conviction of your client. Also, for instance, your client may state, I m drunk or I drank 5 martinis upon the arrest. If these statements are admitted into evidence, the chances of an acquittal are reduced. You may recall from Evidence that admissions by a party are admissible. For these reasons, it strongly is advised to file a Motion to Suppress. Page 17 of 27

18 The Requirements of a Motion to Suppress are provided in Traffic Rule 11(B) and essentially are motions challenging evidence which was illegally obtained. I. WHAT IS ILLEGALLY OBTAINED EVIDENCE? Illegally obtained evidence is simply, evidence obtained in violation of a defendant s constitutional rights and subject to exclusion in Weeks v. US, 232 US 383 and made applicable to states in Mapp v. Ohio, 367 US 643. The motion to suppress is specifically a method to challenge admissibility of evidence obtained by 1) Fourth Amendment illegal searches and seizures 2) Fifth Amendment violations relative to improperly obtained statements or confessions 3) Sixth Amendment violations of right to counsel. J. HOW TO RECOGNIZE A POTENTIAL 4 TH AMENDMENT VIOLATION Again, it is stressed that you need to obtain all facts possible from your client first and/or any other witnesses, and again through discovery to determine a possible 4 th Amendment violation. Fourth Amendment search and seizure and Fourteenth Amendment due process claims 1) Improper stop, detention and/or arrest; 2) Evidence improperly obtained form the defendant without consent, actual or implied consent, through coercion or duress. Fifth and Sixth Amendment violations 1) Miranda warnings not given and/or 2) Statements improperly obtained subsequent to Miranda warnings and/or in violation of the defendant s right to counsel. TRAFFIC STOPS Traffic stops implicate the Fourth and Fourteenth Amendment because stopping an automobile and detaining its occupants constitutes a seizure within the meaning of those Amendments. A stop curtails the freedom of action of the driver/passengers, thus triggering these Amendments. Page 18 of 27

19 In Mapp v. Ohio, 367 US 643, the rule is that evidence derived from an illegal arrest, search or seizure in violation of the Fourth Amendment mandates the exclusion of evidence from the state trial and the evidence is suppressed as fruit of the poisonous tree. ROADBLOCKS AND CHECKPOINTS Temporary roadblocks and checkpoints are used for checking driver sobriety and licensing. The Second District has adopted a test for evaluating sobriety checkpoints in State v. Goines, 16 Ohio App. 3d 168, which was established by the Iowa Supreme Court. The test is: 1) a checkpoint or roadblock location selected for its safety and visibility to oncoming motorist; 2) adequate advance warning signs, illuminated at night, timely informing approaching motorist of the nature of the impending intrusion; 3) uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community; and 4) a predetermination by policy-making administrative officers of the roadblock location, time, and procedures to be employed, pursuant to carefully formulated standards and neutral criteria. K. PROBABLE CAUSE AS TO THE OVI ARREST To be constitutionally valid, a warrantless arrest must be based upon probable cause. When analyzing probable cause for an OVI arrest, a court must consider 1) whether at the moment of arrest 2) the police had sufficient information 3) derived from a reasonably trustworthy source of facts and circumstances 4) sufficient to cause a prudent person to believe 5) that the suspect was driving under the influence. State v. Homan, 2000, 89 Ohio St. 3d 421. The court must look at the totality of the facts and circumstances surrounding the arrest. Simply, look at the facts leading up to arrest, decide whether these facts, from an objective officer viewpoint, amounts to probable cause. Probable cause is more than bare suspicion. L. ADMINSTRIATIVE LICENSE SUSPENSIONS An administrative license suspension (ALS) is a pretrial suspension imposed by the Bureau of Motor Vehicles at the time of a persona s arrest for an OVI or physical control offense. There are two types of suspensions: 1) suspension imposed for a person s refusal to submit to a chemical test. Page 19 of 27

20 2) suspension imposed in an OCI case where the defendant submits to a chemical test and has a failing result. A failing result is when the person has a concentration of alcohol in excess of the amount specified for low-end blood alcohol content. For instance, when the accused refuses to take a test or tests, or tests above the prohibited level, the officer seizes the driver s license and then immediately sends it to the BMV. The officer must also serve a notice of suspension to the defendant on behalf of the BMV and the license is suspended immediately. When the license is suspended, the driver can file and appeal of the suspension and/or request limited driving privileges. This appeal must occur within 30 days of the initial appearance/arraignment. Administrative License Suspension (A.L.S.) If your breath, blood or urine test is over the legal limit, or you refused the test, the officer will take your driver's license on the spot and place you under an Administrative License Suspension. The form provided to you by the officer indicates the action taken. The A.L.S. lasts for a period of 90 days to 5 years, depending on previous offenses or refusals. There is a "hard-time" waiting period with absolutely no driving privileges whatsoever. This period lasts at least 15 days or more depending on previous offenses or refusals. Some judges will allow a "stay" of the A.L.S., which effectively puts the A.L.S. "on hold" until a later date. Many courts will not allow a stay of the A.L.S. Some judges will require it to be filed in writing or by an attorney. The A.L.S. is independent of the DUI charge itself, which usually carries a longer, mandatory license suspension. Even if you overcome the DUI charge, the A.L.S. remains in most cases. At the end of the A.L.S., you must pay a $ reinstatement fee to the B.M.V. to get your driver's license back. Otherwise, you will continue to be suspended indefinitely. See: ORC ORC : Establishes the implied consent law ORC : Setting forth the arresting officer s duties Page 20 of 27

21 ORC : Setting forth provisions for the appeal of the suspension and limited driving privileges. Often, the defendant can get Limited Driving Privileges which are restricted to driving to and from work, work related travel, and for education and medical purposes. If granted, the defendant needs to carry a certified copy while he drives. It is usually recommended to get from the state a Temporary State ID Card for identification purposes until the defendant can get a new driver s license. They can be obtained at the BMV. It should be noted to get a Temporary State ID Card because a permanent State ID card will cancel an Ohio driver s license. M. TIME AND LENGTH OF SUSPENSION: The length of the administrative license suspension depends upon whether the person refuses the test or has a failing result, and on how many prior convictions and/or how many prior refusals/convictions the individual has had in the six years preceding the current offense. (Chart containing this information is contained in your materials). Suspension for Test Refusal: If the defendant refuses to conduct chemical test pursuant to ORC (B): Class C: One year for a First Refusal Class B: Two years for a prior refusal or OVI Convictions with six years Class A: Three years for two prior OVI refusals and/or convictions within the six-year look back and a Five-year suspension for three or more refusals and/or convictions within the six-year period. Class C: Can get driving privileges after 30 days Suspension for Failing Test: ORC (B) sets forth the following suspensions for failing a test: Class E: 90 days Class C: One year for a prior OVI conviction with the six-year look back period Class B: Two years for two prior OVI convictions within the six-year look back period Class A: Three years for conviction of more than two OVI convictions within the six-year look back period Class E can get driving privileges after 15 days Page 21 of 27

22 JUDGE CAN SIGN AN ENTRY GRANTING YOUR CLIENT DRIVING PRIVELEGES FOR WORK/SCHOOL. A copy of a Driving Privileges Entry is contained within your materials. Duties of the Arresting Officer: Before requesting that the suspect arrested for OVI or physical control to submit to a chemical test, the officer must advise the suspect of the consequences for refusal and of the consequences for taking the test if the prohibited level of alcohol is detected. Also, if the person is being arrested for a third OVI within 6 years or a felony OVI, the officer must advise the person that if he refuses to submit to chemical testing, the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person s whole blood or blood serum or plasma. The person must agree to submit to the test or tests within two hours of the time of the alleged violation and the failure to do so automatically constitutes a refusal. The specific factors of advisement are set forth in (B). The advice must be in written form, shown and read to the suspect by the arresting officer. In Bryan v. Henderson, (1997) 77 Ohio St. 3d 376, the Ohio Supreme Court ruled that for the purposes of establishing a valid consent or refusal of a breath test in the context of an ALS suspension, the notice requirement is satisfied by reading the arrestee the statutory advisement as contained on the top portion of the BMV Form 225. Note: BMV Form 225 contained in your materials. N. ALS APPEAL: COURT HEARING: A person charged with OVI is brought to court within five days of the arrest or citation and typically this is part of the initial arraignment as explained above. Note: Five days means five working days, excluding the date of the event. The hearing can be continued at the discretion of the court. When it is time for the arraignment, the defendant s license has usually been suspended pursuant to the ALS provisions. The defendant may appeal the suspension at the arraignment or within 30 days after the arraignment. Time frame for ALS Appeal: ORC (A). The Grounds for an ALS Appeal: 1) Whether the law enforcement officer had reasonable ground to believe the arrested person was operating a vehicle on a highway our public or private property used by the public for vehicular travel, or was in physical control of the same, while under the influence of alcohol, drugs or both and whether the person was placed under arrest; Page 22 of 27

23 2) Whether the officer requested the arrested person to submit to the chemical test; 3) Whether the officer informed the person of the consequences of taking or refusing the test; 4) If a test refusal suspension was imposed, whether the person refused to submit to test requested by the officer or if a failed test suspension was imposed, whether the bodily substance tested contained a prohibited concentration of alcohol or a listed controlled substance. Note: The ALS Appeal is civil in nature which means the Defendant has the burden of going forward and proving, by a preponderance of the evidence, that one or more of the above conditions has not been met. The completed BMV Form 2255 that was discussed earlier shall be admitted into evidence in the ALS Appeal. If the court finds that the appeal is not well-taken, the suspension shall continue until the time period is up or the matter is adjudicated on the merits or terminated. If the court finds that one or more of the conditions have not been met, and the appeal is welltaken, the court shall terminate the suspension, notify the BMV of its decision, and order the BMV to return the license to the defendant. IF the license has been destroyed by the BMV, the court shall permit the Defendant to obtain a replacement license and the Defendant can have 10 days of driving privileges until he gets the license back or gets a new license. O. DISPOSITION OF THE OMVI CASE Disposition on an OVI case can include dismissal; plea bargain; trial. Dismissal is the best option but very rare. An instance where this could happen is an illness or a medical condition which gives the appearance of impairment where the person was not impaired. I found some statistics; seems right to me; about 1% of OVI cases are dismissed; 8% go to trial and the rest are plea bargained. A lot of clients do not want to do a trial. A trial usually last 1-3 days and typically would be a jury trial; a defendant can waive the jury trial and elect to do a bench trial, but with when 8 people have to find you guilty as opposed to 1, your chances are increased. The last step in the court process on any OVI / DUI case is trial. Trials to the judge or jury are the two options. Unless there is a technical issue of law, the great majority of trials in OVI / DUI cases are trials by jury. Page 23 of 27

24 In your jury trial, a jury will first be selected. An opening statement will be given by the prosecutor and by us. The state then begins its case. The arresting officer and any other witnesses would testify and then be cross examined. The state would then rest its case. After the state rests its case, we always make a motion to the judge for a Rule 29 directed verdict. This means that the state has put on evidence that is insufficient to sustain a conviction. If the judge grants our motion, your case will be dismissed. If the judge denies our motion, we will then move forward with your defense. Usually in an OVI /DUI case, there is only one potential witness who can testify for the defense, you. The decision on whether to call you to testify on your own behalf is a strategic one that is based on the individual facts in your case and whether the benefits outweigh the risks. The defense will then rest its case. A trial concludes with both the prosecutor and us giving a closing argument. This is the time to set in the jury s mind why the prosecutor has failed to meet its burden of proof and why you should be acquitted. The jury will then retire to deliberate and return when it has reached a verdict or not guilty, guilty or it cannot reach a verdict, resulting in a hung jury. If a jury is hung, the prosecutor will have to decide whether it wants to re-try the case or offer a reduction to a lesser offense, such as a reckless operation or physical control instead. - PLEA DEALS/NEGOTIATIONS WITH PROSECUTOR -SENTENCING PLEA BARGAINS: VERY COMMON IN OVI CASES; TIMES, DEPENDING ON CIRCUMSTANCES, CAN EVEN GET THE OVI CHARGE REDUCED TO A DIFFERENT, EVEN LESSER CHARGE. Typically is something like this is offered, it may in the defendant s best interest to accept the plea but each circumstance is different. If the defendant decides to accept the plea, the judge must determine at sentencing whether the defendant is making the plea voluntarily, with the understanding of the nature of the charges, the maximum penalty involved. If the Judge accepts the plea of guilty, then the judge can proceed with sentencing. This is almost always worked out with the prosecutor before the defendant takes the plea. Often, if there is a plea deal, and depending upon the prior record, the prosecutor a lot of times recommends the minimum sentencing, which the minimal fine and the 3-day sentence which can be served in jail or the 3-day program such as Mary Haven. Also, the judge has the ultimate decision on sentencing but typically will go along with the prosecutor s recommendation; I have never had a situation where that didn t happen but it can. So, at the time the defendant pleas, and this is likely the only time the OVI client will have to speak in court, the Judge must ask the defendant whether he is waiving his rights to a jury trial, confronting witnesses against him, obtaining witnesses in his favor, requiring the state to prove Page 24 of 27

25 beyond a reasonable doubt the defendant s guilt at a trial, which the defendant cannot be compelled to testify against himself. There is a waiver of these rights which the defendant signs and dates, which the Judge must ask the defendant if the form is being signed voluntarily. In Franklin County, the forms are usually available in the courtrooms; you don t need to draft your own. Usually sentencing occurs at this time too; there is usually no reason to change that to another date unless the defendant knows he needs to go the program and wants to do that first. The Defendant states yes and the Judge will then ask the Defendant if there is anything he would like to say; that is up to them. Then the judge asks counsel if there are any mitigating factors and usually I say a few positive things about the defendant. ORC governs sentencing for an OVI and involves, minimally: -A minimum and maximum period of incarceration and/or alternative driver intention programs, house arrest, continuous alcohol monitoring; -A minimum and maximum fine; -Imposition of court costs; -A mandatory driver s license suspension including a period which no driving privileges can be granted; -License reinstatement fees to the BMV; -Six points on the driving record. Note that this is a permanent record that cannot by erased or expunged unless pardoned by the Governor of Ohio or the President. It is a first-degree misdemeanor. Sometimes probation is required; this is discretionary with the Judges; it is not mandatory for a first OVI but some Judges do require it. UNAMIMOUS SUPREME COURT REINFORCES DEFENDANT S RIGHT TO CHALLENGE BREATH TEST RESULTS IN OHIO DUI/OVI CASES For three decades, lawyers and judges have been misinterpreting the case of State v. Vega. In Vega, the Ohio Supreme Court held defendants in DUI/OVI cases may not attack the general reliability of breath-testing machines. Some lawyers and judges interpret Vega as if it says defendants are not permitted to make any challenge to the breath test result. This misinterpretation of the Vega decision may exist in part because most people have not actually read the decision. It s like the telephone game where the statement made by the first person in the game is modified drastically by the time the statement is repeated by the last person in the game. A few days ago, the Ohio Supreme Court clarified the holding of Vega in a case which will hopefully end the abuse of defendants rights resulting from the misinterpretation of Vega. Page 25 of 27

26 The recent case is Cincinnati v. Ilg. City of Cincinnati v. Ilg, 141 Ohio St. 3d 22. Vega is 12 Ohio St. 3d. 185 City of Cincinnati v. Ilg, 141 Ohio St. 3d 22, 2014-Ohio-4258, 21 N.E.3d 278, 2014 Ohio LEXIS 2501 (Ohio 2014) In Ilg, the defendant took a breath test on an Intoxilyzer 8000, blew over.080, and was charged with OVI. The defense attorney filed a Demand For Discovery requesting that the prosecution provide records for the specific Intoxilyzer 8000 used for his client s breath test. When the prosecution did not provide the records, the defense subpoenaed the records from the Ohio Department of Health, the agency responsible for maintaining those records. The program administrator for the Department of Health s alcohol and drug testing program told the Court the Department of Health did not have the personnel or technology to provide the requested records. The records were not provided. The trial court excluded the breath test results from evidence, concluding the defendant had the right to challenge the reliability of his breath test and could not do so without the requested records. The prosecution appealed to the First District Court of Appeals, and the appellate court affirmed the decision of the trial court. The prosecution then appealed to the Ohio Supreme Court. The prosecution s primary argument was this: a defendant cannot compel the State to produce information that is to be used for the purpose of attacking the reliability of the breath-testing instrument because State v. Vega prohibits defendants from making attacks on the reliability of breath-testing instruments. The Ohio Supreme Court framed the issue this way: whether an accused defending a charge that he operated a motor vehicle with a prohibited level of alcohol in his breath is precluded from attacking the reliability of the specific breath-testing machine. The Court concluded that, although a defendant may not challenge the general reliability of approved breath-testing instruments, a Page 26 of 27