Riddell Law LLC https://www.riddelllaw.com Riddell Law LLC | Columbus DUI Lawyers | OH Criminal Defense Attorneys Sat, 19 Aug 2017 02:11:43 +0000 en-US hourly 1 https://wordpress.org/?v=4.8.1 If You are Found Guilty of OVI, Can the Police Permanently Seize Your Car (Forfeiture)? https://www.riddelllaw.com/car-vehicle-forfeiture-third-ovi/ Sat, 19 Aug 2017 02:10:17 +0000 https://www.riddelllaw.com/?p=6123 AFTER A THIRD OVI CONVICTION IN TEN YEARS, POLICE CAN PERMANENTLY SEIZE YOUR CAR  The Ohio Court of Appeals clarified the procedure by which the State must follow before a defendant must surrender his or her car following an OVI conviction. State v. Cremeans, 2017-Ohio-4400 In Cremeans, the Defendant was found guilty of his third […]

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AFTER A THIRD OVI CONVICTION IN TEN YEARS, POLICE CAN PERMANENTLY SEIZE YOUR CAR

 The Ohio Court of Appeals clarified the procedure by which the State must follow before a defendant must surrender his or her car following an OVI conviction. State v. Cremeans, 2017-Ohio-4400

In Cremeans, the Defendant was found guilty of his third OVI (Operating a Vehicle under the Influence of drugs or alcohol) within the last six years. Under Ohio Revised Code Section 4511.19(G)(1)(c)(v), a defendant who is found guilty of his or her third OVI offense in the last ten years must be ordered to surrender the vehicle if the vehicle is owned by the defendant.

PROCESS FOR FORFEITURE OF A CAR OR TRUCK

If a defendant is facing the possibility of having his or her car or truck seized following an OVI conviction, the state of Ohio must follow certain procedures before they may take possession of the vehicle (Ohio Revised Code Section 4503.234):

  • The defendant must be given a chance to speak regarding the forfeiture prior to the state taking possession of the vehicle.
  • “The prosecuting attorney shall give the offender written notice of the possibility of forfeiture … not less than seven days prior to the date of issuance of the forfeiture order.”
  • The Defendant must either plead or be found guilty of a third offense OVI.

In Creameans, the Defendant was found guilty of his third OVI in the last ten years, and the Court found the state of Ohio and the trial court complied with all of the requirements of Ohio Revised Code Section 4503.234. As a result, the Defendant’s car was ordered to be forfeited to the state.

The possibility of having a vehicle that you own turned over to the state of Ohio is a frightening proposition to consider. That is why it is important to contact an attorney who is knowledgeable about all possible defenses available to you. The right attorney can guide you through the criminal process and advise you of all potential penalties you may face, including the forfeiture of your vehicle. If you have questions about your Columbus alcohol related criminal or traffic charges, talk to our defense attorneys at 614-361-2804.

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Can You Be Charged with OVI For Driving After Taking the Prescription Medication Zoloft With No Alcohol? https://www.riddelllaw.com/prescription-medication-ovi-zoloft/ Thu, 20 Jul 2017 18:51:59 +0000 https://www.riddelllaw.com/?p=6119 CAN YOU BE FOUND GUILTY OF OVI FOR DRIVING AFTER TAKING PRESCRIPTION MEDICATION (ZOLOFT) DESPITE NOT DRINKING ALCOHOL?  The Court of Appeals near Delaware, Ohio has recently held that a driver can be convicted of OVI for taking prescription medication without any expert testimony at trial about the effects of that particular medication.   State v. […]

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CAN YOU BE FOUND GUILTY OF OVI FOR DRIVING AFTER TAKING PRESCRIPTION MEDICATION (ZOLOFT) DESPITE NOT DRINKING ALCOHOL?

 The Court of Appeals near Delaware, Ohio has recently held that a driver can be convicted of OVI for taking prescription medication without any expert testimony at trial about the effects of that particular medication.   State v. Curtis, 2017 Ohio 4283 (Appeal from Delaware Municipal Court).  

Unlike other courts in Ohio, the Delaware court found that expert testimony is not required to establish a nexus between the prescription medication and impairment.  Rather, the Delaware Municipal Court and Delaware-area Court of Appeals found that an officer can himself opine as to whether a particular prescription medication could cause impairment – without any expertise in the specific medication at issue. 

Unsafe Lane Change Leads to Traffic Stop by Ohio State Highway Patrol Trooper

An Ohio State Highway Patrol Trooper was in uniform in a patrol cruiser when he received a dispatch about a reckless driver. The Trooper was told that the driver had trouble staying within the lane and had almost hit a guardrail and vehicles head-on.  TheTrooper testified that he located a vehicle matching the description and that the vehicle made an unsafe lane change in front of a semi-truck without using a turn signal.

The Trooper pulled the driver over.  While he was talking with the driver, he noticed that the driver was speaking rapidly and became “pretty defensive towards me.”  The driver’s pupils were dilated and his eyes were glassy and bloodshot.  The Trooper testified that based on his training, dilated eyes could be an indicator of impairment by a drug or a narcotic. The Trooper also noted that the driver further had trouble following simple instructions.

The driver told the officer he was on an antidepressant Sertraline (Zoloft), which can cause tiredness and drowsiness.  

Field Sobriety Tests

Horizontal Gaze Nystagmus (Eye Test) – The driver told the Trooper he had a medical condition with one of his eyes.  The Trooper observed three out of three clues on appellant’s good eye.

Walk and Turn – The Trooper  testified that he observed eight out of eight possible clues on the walk-and-turn test.  The driver forgot what to do after the turn, which the Trooper indicated was a possible sign of impairment.

One Leg Stand – The Trooper observed three out of four clues on such test.

The driver was then arrested and refused a urine test. 

Officer Testifies That He Believes Driver was Under the Influence of Prescription Medication

At trial, the officer testified that he believed the driver was impaired based on his reckless driving, that he was having trouble staying in his lane, that he almost hit a guardrail, that he almost hit a car head-on, that he failed field sobriety tests, his speech was rapid and that his pupils were dilated.  

Officer Connects Reckless Driving, Drowsiness with Taking Prescription Medication 

In order to prove a prescription medication OVI, there must be a sufficient evidence establishing a nexus between the driver’s ingestion of Sertraline (Zoloft) and its impairment of his driving.

Other prescription medication OVI cases in Ohio  have found that the prosecution must present either (1) expert testimony about the drug (Zoloft) or (2) the testimony of a person who had observed the effect of the particular drug (Zoloft in this case) on the driver.  Neither of those things happened here. 

However, this particular appellate court found that the testimony of an experiences police officer’s testimony that the defendant appeared to be under the influence of pain medication was also sufficient to support the OVI conviction and no expert testimony or friend testimony was necessary.

Here,  the Trooper testified that he had training on determining if a driver is impaired from a drug of abuse and had investigated many prescription drug-related OVIs that involved a drug of abuse. He testified that based on his training and experience, he believed that the driver was under the influence of his prescription medicine.  For example, the driver acknowledged that he felt drowsy and that drowsiness was a side effect of Zoloft. 

Interestingly, other courts have come to different conclusions finding the driver not guilty or dismissing the OVI charges where there is no expert or lay testimony connecting the impairment to that particular prescription medication:

Additional Defenses to Prescription Medication OVIs

 

As previously discussed, there are several potential defenses available to those who have been cited for prescription drug OVI charges.

It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether your prescription medication did not impair your ability to operate a car.. If you have questions about your Columbus prescription medication-related OVI, talk to our DUI / OVI defense attorneys at 614-361-2804.

 

 

 

 

 

 

 

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Smell of Marijuana in the Car and Admitting to Smoking Marijuana is Not Alone Enough to Arrest for OVI in Ohio https://www.riddelllaw.com/marijuana-smell-arrest-ovi-dui/ Fri, 14 Jul 2017 19:33:49 +0000 https://www.riddelllaw.com/?p=6114 SMELL OF MARIJUANA AND ADMITTING TO SMOKING MARIJUANA IS NOT ALONE ENOUGH TO ARREST FOR OVI    The Court of Appeals for the State of Ohio recently delivered an opinion stating that the admission of using marijuana prior to driving, coupled with little other evidence, is not enough to convict a defendant for Operating a […]

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SMELL OF MARIJUANA AND ADMITTING TO SMOKING MARIJUANA IS NOT ALONE ENOUGH TO ARREST FOR OVI  

 The Court of Appeals for the State of Ohio recently delivered an opinion stating that the admission of using marijuana prior to driving, coupled with little other evidence, is not enough to convict a defendant for Operating a Vehicle under the Influence of drugs or alcohol (OVI). State v. Kopp, 2017-Ohio-4428

DRIVER PULLED OVER FOR EXPIRED LICENSE, OFFICER SMELLS MARIJUANA, ARRESTS DRIVER AFTER FIELD SOBRIETY TESTS

In Kopp, the Defendant was pulled over when the arresting officer ran the license plate of the vehicle the Defendant was driving, and the report came back to an individual with an expired license. The officer made no other indication of another traffic violation prior to pulling the Defendant over.

The Defendant presented a valid license to the officer. The officer then noted a smell of marijuana, and the Defendant admitted to smoking marijuana “earlier.”

The officer then asked the Defendant to exit the car to perform field sobriety tests. He began with “standardized” field sobriety tests (the only tests that are admissible in court). If a driver shows four or more “clues” on any one standardized field sobriety test, it is considered a “fail.”

HGN (eye test) – The officer observed the driver’s pupils were dilated and observed two clues in the driver’s left eye.  The officer acknowledged, however, that the driver “passed” the HGN test.

Walk-and-turn test – The officer observed three clues: the driver moved his feet to keep balance, stopped at one point, and turned incorrectly.

One-leg stand test – The officer observed two clues: the driver swayed while balancing and put his foot down.

He was considered to have “passed” the field sobriety tests because he showed less than four clues.

The officer then administered several non-standardized field sobriety tests.

While checking the driver’s eyes, the officer performed a “lack of convergence test” in which the driver was instructed to follow the tip of the stimulus (pen) with his eyes. The officer testified he watched whether the subject maintained eye contact with the stimulus and whether the eyes converged, or moved inward together, as the stimulus was moved counterclockwise inward toward the subject’s nose. The lack-of-convergence test is intended to provide clues if the subject is impaired due to marijuana.  The officer believed the driver failed because his right eye did not converge and drifted out to the right twice.

Finally, the driver was able to correctly say the alphabet and to count backward from 69 to 57.

After completing all of these tests, the driver was arrested appellee for O.V.I.

In court, he filed  a motion to suppress then evidence of the traffic stop.

NO PROBABLE CAUSE TO ARREST WHERE DRIVER PASSED STANDARDIZED FIELD SOBRIETY TESTS

A court must determine if a police officer had probable cause to arrest a devier for O.V.I. The court must determine that the officer had enough information, which would lead a reasonable person to believe that the driver was under the influence. State v. Homan, 89 Ohio St.3d 421

In Kopp, the Court stated, “the trial court concluded the [officer] had no probable cause to make the arrest.” The Defendant performed very well on field sobriety tests, and “exhibited no impaired driving; spoke to the officer calmly, politely, and intelligibly, exited the truck without incident.”

SMELL AND ADMISSION OF MARIJUANA USE CREATES REASONABLE SUSPICION FOR FIELD SOBRIETY TESTS; IS NOT ALONE ENOUGH TO CREATE PROBABLE CAUSE TO ARREST FOR OVI

The Prosecutor in Kopp argued that the smell of marijuana, the Defendant’s admission to smoking marijuana, and the Defendant’s failure of a non-standardized sobriety test (the lack of convergence marijuana test) should have been enough to create probable cause for the officer to arrest the Defendant for OVI.

The Court disagreed and made a distinction. The Court noted the smell and admission of marijuana created a reasonable suspicion of impaired driving, and authorized the officer to investigate further (i.e. search the car or ask him to perform field sobriety tests).

However, the smell of marijuana alone did not rise to the level of probable cause for arrest for OVI based on the fact that the driver did well on the standardized field sobriety tests, was calm and lucid in his interactions with the officer, and there was no traffic violation.

The Court explained that the Defendant

“was cooperative, respectful and provided a lucid explanation of the fact that his driver’s license was no longer suspended. While the totality of the circumstances does support a finding that the trooper had a reasonable, articulable suspicion upon which to base the administration of the field sobriety tests, [the driver] passed said tests and therefore we agree with the trial court that no probable cause existed as to the OVI.” State v. Kopp, 2017-Ohio-4428 citing State v. Cook, 5th Dist. Fairfield No. 06-CA-20, 2007-Ohio- 707.

OVI and Alcohol related offenses vary from case to case and there can be difficulty understanding what defenses may be available to you. It is important to contact an attorney who is knowledgeable about all possible defenses available to you, including whether the officer lacked probable cause to arrest you.

If you have questions about your Columbus DUI charges, talk to our Columbus DUI attorneys at 614-361-2804.

 

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What Does an Officer Have to See (Bloodshot Eyes, Smell of Alcohol, Etc.) To Create Reasonable Suspicion to Ask a Driver to Perform Field Sobriety Tests? https://www.riddelllaw.com/field-sobriety-tests-reasonable-suspicion-ohio/ Mon, 10 Jul 2017 03:24:44 +0000 https://www.riddelllaw.com/?p=6106 WHAT MUST AN OFFICER SEE BEFORE ASKING A DRIVER TO COMPLETE FIELD SOBRIETY TESTS? The Ohio Court of Appeals has held that a police officer must observe certain factors before he or she may ask a driver to complete field sobriety tests. The Court also found that a minor traffic violation, coupled with a moderate […]

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WHAT MUST AN OFFICER SEE BEFORE ASKING A DRIVER TO COMPLETE FIELD SOBRIETY TESTS?

The Ohio Court of Appeals has held that a police officer must observe certain factors before he or she may ask a driver to complete field sobriety tests. The Court also found that a minor traffic violation, coupled with a moderate smell of alcohol and bloodshot eyes, does not create the “reasonable, articulable suspicion” necessary for an officer to ask a driver to perform field sobriety tests. State v. Nelson, 2017-Ohio-2884.

DRIVER ARRESTED FOR OVI AFTER DRIVING IN MARKED LANES, PERFORMS FIELD SOBRIETY TESTS AND HAS A BAC OVER LEGAL LIMIT

In Nelson, the arresting officer testified that on the evening of the arrest, he witnessed driver’s side tires drift to the left twice, crossing over the painted line markings on the left side of the lane by two tire widths each time.  After the second time, the car “drifted” back into its lane and then to the right, nearly striking the right curb. There was no line on the right side of the lane.

The officer initiated a traffic stop and the defendant pulled over right away.  The officer approached her vehicle and requested her driver’s license and insurance information.   She did not show any problems with dexterity as she looked through her purse.

When the officer returned to her car after a license check, he noticed that her eyes were “bloodshot” and “somewhat watery.”  He also detected a “moderate odor of an alcoholic beverage being emitted from her inside the vehicle.”

He testified that the odor was not strong, but that it “seemed to intensify as [she] spoke.” When the officer asked her if she had been drinking, she stated that she “had been drinking last night.” It was unclear whether she meant the previous evening or just earlier that day.  The officer believed she showed some confusion that it was Saturday.

Based on these observations, the officer decided to investigate whether she was impaired; he asked her to exit the vehicle, and her behavior when she exited the car and walked to the sidewalk was not noteworthy. She performed several field sobriety tests, which the officer believed she failed.  She was arrested for OVI, took a breath test and her BAC was over the legal limit. 

REASONABLE ARTICULABLE SUSPICION 

“A police officer may stop and detain a motorist when he or she has a reasonable, articulable suspicion that the motorist has committed, is committing, or is about to commit any criminal offense, including a traffic offense.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. Reasonable, articulable suspicion is determined by the officer considering the “totality of the circumstances” of each criminal investigation. State v. Nelson, 2017-Ohio-2884,

PRIOR OHIO CASES DISCUSSING REASONABLE SUSPICION IN OVI CASES

Several cases similar to Nelson show that the observations witnessed by the officer, does not create a reasonable articulable suspicion of impaired driving requiring the need for field sobriety tests.

  • An officer pulled a car over for failing to signal a left turn. The officer observed that the driver’s eyes were glassy and bloodshot and was able to smell alcohol. The Court held the evidence was insufficient to establish that the officer had a reasonable, articulable suspicion of driving under the influence. State v. Swartz, 2d Dist. Miami No. 2008 CA 31, 2009-Ohio-902
  • A police officer stopped the driver’s car for a window tint violation. The officer also observed glassy, bloodshot eyes and an odor of alcohol. The driver also admitted that he had consumed one or two beers. The Court held that the odor, coupled with the defendant’s admission that he had had one or two beers, or his bloodshot, glassy eyes, established a reasonable, articulable suspicion justifying the field sobriety tests. State v. Dixon, 2d Dist. Greene No. 2000-CA-30, 2000 WL 1760664 (Dec. 1, 2000)

DEFENDANT’S ATTORNEY FILES A MOTION TO SUPPRESS ARGUING NO REASONABLE SUSPICION TO CONDUCT FIELD SOBRIETY TESTS

The Defendant’s motion to suppress did not dispute that there was justification for the traffic stop. She did in fact drive in marked lanes.  Rather, she argued that there was no reasonable, articulable suspicion for the officer to conduct field sobriety tests.  The motion sought to suppress the field sobriety tests, the chemical tests, and any observations by the officer made during the field sobriety tests.

The trial court agreed. It found that she had not admitted to drinking the evening of the stop, that her traffic violation had been “de minimis,” and that her speech was not impaired. The court also found that neither Nelson’s movement when she exited the car nor her demeanor indicated any impairment, that there had been no complaints from third parties about her driving, and that it was not particularly late at the time of the traffic stop.

The trial court concluded that Nelson’s traffic violation (marked lanes) was not a “substantial violation” and that, while it may have supported a “hunch” on the officer’s part that she was impaired, it did not rise to the level of reasonable, articulable suspicion.

The court further concluded that the “moderate” smell of alcohol was not entitled to “much weight,” “because drinking before driving is not illegal in Ohio unless it rises to a level that impairs one’s ability to drive.”  The court found that she had not admitted to drinking on the night of the traffic stop.

The trial court did not find the officer’s observations about her eyes to be significant, noting that her eyes were not described as “glassy.” The court also found Nelson’s alleged confusion about the day of the week to be insignificant, because the officer had decided to conduct field sobriety tests before this part of the their conversation.

The Court of Appeals agreed.  However, the appeals court in Nelson did state that each case is a close call, and each case will vary based on the unique circumstances of each instance. “These cases are often close calls based on the totality of the circumstances, the trial court’s weighing of the evidence, and its determinations of credibility.” State v. Nelson, 2017-Ohio-2884.

OVIs and other alcohol related driving offenses can vary from case to case and there can be difficulty understanding what defenses may be available to you. It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether the arresting officer had a reasonable and articulable suspicion to continue his or her investigation. If you have questions about your Columbus OVI charges, talk to our Columbus OVI attorneys at 614-361-2804.

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Can a Court Suspend Your License After a Hit Skip (Failure to Stop After an Accident) Conviction? https://www.riddelllaw.com/suspension-license-failure-stop-accident-hit-skip/ Tue, 20 Jun 2017 02:26:57 +0000 https://www.riddelllaw.com/?p=6093 CAN A COURT SUSPEND YOUR DRIVER’S LICENSE AFTER A “HIT AND SKIP” (FAILURE TO STOP AFTER AN ACCIDENT)?” Answer: It depends.  The two most commonly charged hit skip code sections involving failure to stop after an accident on public or nonpublic roadways do carry a mandatory license suspension.  However, failing to stop after an accident […]

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CAN A COURT SUSPEND YOUR DRIVER’S LICENSE AFTER A “HIT AND SKIP” (FAILURE TO STOP AFTER AN ACCIDENT)?”

Answer: It depends.  The two most commonly charged hit skip code sections involving failure to stop after an accident on public or nonpublic roadways do carry a mandatory license suspension.  However, failing to stop after an accident involving only damage or realty or personal property attached to real property (O.R.C. 4549.03) does not carry any license suspension.

The Ohio Court of Appeals delivered a decision stating that trial courts may not suspend a driver’s license for violating Ohio Revised Code Section 4549.03, informally known as “Hit and Skip.” The trial court may impose alternative punishments, but the language in the Ohio Revised Code does not allow for the suspension of a drivers license. State v. Sellers, 2017-Ohio-4020

Driver Hit Parked Car on Private Property, Pleaded to Amended Charge of Failing to Stop After an Accident Involving Damage to Realty or Personal Property Attached to Real Property

In Sellers, the Defendant was backing out of a parking space when she hit another parked car.  The Defendant left the scene but a bystander was able to record her information and deliver it to the local police. The Defendant was charged with leaving the scene of an accident on private property in violation of R.C. 4549.021.

She challenged the case and plead no contest to the amended charge of “Stopping after accident involving damage to realty or personal property attached to real property,” a violation of O.R.C. 4549.03.  The judge ordered her to pay a $400 fine, attend a six-day Driver Intervention Program, be placed under house arrest for three days, and her license was suspended for one year.

Most Hit Skip Code Convictions Do Carry a Mandatory License Suspension

A sentence imposed by a trial court can be overturned if the Court of Appeals finds that the trial court “abused its discretion” when delivering a sentence to a defendant. City of Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-Ohio-2265

Generally speaking, a trial court may suspend someone’s drivers license, but only if the Ohio Revised Code Section the defendant is charged under authorizes a driver’s license suspension.

The Court in Sellers describes certain instances of “Hit and Skip” for which a trial court is required to suspend the defendant’s drivers license:

  • A conviction for a “Hit and Skip” that occurs on a public road or a public highway (O.R.C. 4549.02) requires a minimum six month license suspension (max 3 years)
  • A conviction for a “Hit and Skip” that causes an accident somewhere other than public roads or highways (O.R.C. 4549.021) requires a minimum six month license suspension (max 3 years)

Hit Skip Involving Damage or Realty or Personal Property Attached to Realty Under O.R.C. 4549.03 Does Not Carry a License Suspension

But the Court in Sellers took note of the different language contained in O.R.C. 4549.03 and found that the language contained in this section, though is very similar to 4549.02 and 4549.021, did not authorize the trial court to suspend the Defendant’s license.

The Court in Sellers held, “a license suspension for misdemeanors is allowed if authorized by law, we find that a license suspension for a violation of R.C. 4549.03(A) is not authorized.”

“We agree with [the Defendant] that the trial court did not possess the authority to suspend her driver’s license upon its acceptance of her plea for failure to stop under Ohio Revised Code Section 4549.03. Accordingly, the court abused its discretion in suspending appellant’s license.”

It is important to contact an Ohio hit skip (hit and run) attorney who is knowledgeable about all possible defenses available to you including whether you face the possibility of a license suspension. If you have questions about your Columbus failure to stop after an accident (hit skip) charges, talk to our defense attorneys at 614-361-2804.

 

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Sitting Instead of Standing During HGN (Eye Test) May Reduce Accuracy of Test https://www.riddelllaw.com/sitting-hgn-accuracy-ovi-eye-test/ Wed, 07 Jun 2017 17:48:07 +0000 https://www.riddelllaw.com/?p=6087 SITTING RATHER THAN STANDING DURING HGN (EYE TEST) CAN CAUSE FALSE POSITIVES DURING AN OVI STOP When a defendant is pulled over by an officer on a suspicion of Operating a Vehicle while Impaired (OVI), officers will generally ask the defendant to perform what are known as standardized field sobriety tests. (FSTs) Performance on FSTs often […]

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SITTING RATHER THAN STANDING DURING HGN (EYE TEST) CAN CAUSE FALSE POSITIVES DURING AN OVI STOP

When a defendant is pulled over by an officer on a suspicion of Operating a Vehicle while Impaired (OVI), officers will generally ask the defendant to perform what are known as standardized field sobriety tests. (FSTs) Performance on FSTs often forms the basis of an officer’s decision to arrest a defendant for OVI.

One of the FSTs officers generally conduct is a Horizontal Gaze Nystagmus (HGN) test, or the “eye test.” In this test, the officer will use a pen or his finger and track the movement of the eyes. The officer will look for involuntary fluttering of the eye (nystagmus) which, if present, is a possible indicator of impairment.

According to the National Highway Traffic Safety Administration (NHTSA), “Courts have accepted arguments that variations from standard procedures in HGN administration may affect its validity and as a result render HGN testimony inadmissible.” NHTSA attempted to seek a definitive answer as to whether variations in posture or position can lead to a false positive on an HGN test, and conducted a study at the Southern California Research Institute.

The study examined the effect of a suspect’s position during an HGN test. “The standard HGN examination is conducted with a suspect standing, feet together, and arms at the sides.” If the individual was involved in an accident standing may be impossible when administering an HGN test, and the test is therefore administered with the suspect sitting or lying down. In the study, dosed participants received an HGN examination standing, sitting, and lying down.

The results of the study showed that officers who conducted an HGN test on individuals who were standing, correctly identified whether the individual was impaired or not 91.9% of the time. However, officers who conducted an HGN test individuals who were sitting were only able to accurately determine impairment 87.7% of the time. A 4% may seem like an insignificant number, but consider the implications of the 4%. If an officer is 4% more likely to incorrectly determine whether a driver is impaired when sitting, then drivers who are sitting in the cruiser, have been in car accidents, or for whatever reason are unable to stand for the test have an increased chance of failing the HGN test.

Charges of Operating a Vehicle while Intoxicated (OVIs) can vary from case to case and there can be difficulty understanding what defenses may be available to you. It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether you may have an issue related to the field sobriety tests administered to you. If you have questions about your Columbus alcohol related criminal charges, talk to our defense attorneys at 614-361-2804.

Source: National Highway Traffic Safety Administration. “The Robustness of the Horizontal Gaze Nystagmus Test in Standardized Field Sobriety Tests.”  Traffic Safety Facts, Traffic Tech – Technology Transfer Series ser.

Authored by Anthony Iori, Riddell Law Associate

 

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New Annie’s Law’s Ignition Interlock Requirements Face Unique Challenges in Rural Ohio https://www.riddelllaw.com/annies-law-interlock-rural-ohio/ Wed, 24 May 2017 02:16:59 +0000 https://www.riddelllaw.com/?p=6080 IGNITION INTERLOCK CREATES UNFORSEEN ISSUES FOR RESIDENTS OF OHIO’S RURAL COUNTIES Ohio has recently changed its OVI law, which governs operating a vehicle while under the influence of alcohol or drugs.  Under “Annie’s Law”, Ohio’s OVI penalties puts much more reliance on ignition interlock devices. These machines monitor the levels of alcohol in a person’s […]

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IGNITION INTERLOCK CREATES UNFORSEEN ISSUES FOR RESIDENTS OF OHIO’S RURAL COUNTIES

Ohio has recently changed its OVI law, which governs operating a vehicle while under the influence of alcohol or drugs. 

Under “Annie’s Law”, Ohio’s OVI penalties puts much more reliance on ignition interlock devices. These machines monitor the levels of alcohol in a person’s system by requiring the driver of a vehicle blow into the device before the car will start.

Lawmakers in Ohio hope that the new law will reduce the prevalence of drunk driving in the state, but may have overlooked potential serious burdens the new law will place on those living in poorer and more remote rural counties.

ACCESSIBILITY OF INTERLOCK

Ignition interlock has been studied in rural counties elsewhere with mixed success.

In one study of judges in rural Arizona, many judges interviewed indicated that it is difficult for those who have been cited with DUI / OVI to have ignition interlock devices installed in their vehicles. Many rural counties and towns do not have an easily accessible vendor who can easily place an ignition interlock on the vehicle. The vendors are typically third party private companies who maintain the ignition interlock devices for the courts. Private companies will not operate in low-density communities where it is not economically viable for their business.

It is likely that drivers convicted of OVI in rural Ohio will be forced to commute to cities such as Columbus, Cincinnati, or Cleveland to have the ignition interlock installed and maintained on their vehicle. For those who cannot make the monthly commute from their rural home to maintain the interlock, this is potentially not an option, which could lead to drivers opting to not have the interlock installed, and take the chance of driving without the interlock.

COST OF INTERLOCK

OVI is a serious offense in Ohio that carries the potential for high fines and court costs that can be difficult for the average person to readily pay. In addition to the known installation and monitoring costs, there are other costs the come with the Ohio’s enhanced reliance on ignition interlock.

Ohio requires that anyone found guilty of OVI must pay for the installation and maintenance of the ignition interlock. For many in rural counties and communities in the state of Ohio, this is an added cost at the end of a very expensive ordeal they simply do not have the money to spend on. As a result, drivers may take the risk of operating a car without the interlock and choose to drive on a restricted license.

Annie’s Law’s reliance on ignition interlock devices is new and many do not yet fully realize what impact it will have on those who have been cited with OVI, especially those in rural communities.

It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether you will be required to have an ignition interlock device installed on your vehicle after facing an OVI charge.

If you have questions about your Columbus OVI or interlock violation charges, talk to our Columbus DUI attorneys at 614-361-2804.

Source: National Highway Traffic Safety Administration. “Ignition Interlock: An Investigation Into Rural Arizona Judges’ Perceptions.” TRAFFIC TECH, Technology Transfer Series ser.

 

 

 

 

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Ohio ALS Suspension Terminated in OVI Case Due to Police Officer Error https://www.riddelllaw.com/administrative-license-suspension-als-ohio/ Tue, 16 May 2017 18:12:22 +0000 https://www.riddelllaw.com/?p=6053 CAN AN OHIO ALS SUSPENSION (ADMINISTRATIVE LICENSE SUSPENSION) BE TERMINATED DUE TO A POLICE ERROR? The Ohio Court of Appeals recently held that if a police officer doesn’t follow statutory procedure when putting a driver on an Ohio ALS suspension (Administrative License Suspension), the driver is entitled to an immediate termination of the license suspension. Toledo v. […]

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CAN AN OHIO ALS SUSPENSION (ADMINISTRATIVE LICENSE SUSPENSION) BE TERMINATED DUE TO A POLICE ERROR?

The Ohio Court of Appeals recently held that if a police officer doesn’t follow statutory procedure when putting a driver on an Ohio ALS suspension (Administrative License Suspension), the driver is entitled to an immediate termination of the license suspension. Toledo v. Ferguson, 2017-Ohio-1394

In Ohio, an Administrative License Suspension (ALS) is a driver’s license suspension that can be imposed, before being found guilty of any crime, on individuals charged with Operating a Vehicle while Impaired (OVI). 

In Ferguson, the Defendant was charged with OVI (DUI / Operating a Vehicle while Impaired). The officer filed a report to the Ohio Bureau of Motor Vehicles (BMV) indicating the Defendant had blood shot eyes, smelled of alcohol, and showed signs of impairment based on a field sobriety test.

However, the officer filed the report with the court six days after the Defendant was cited for OVI. The Defendant appealed the ALS, and a hearing was held to determine whether the ALS should be terminated.

OHIO REVISED CODE SECTION 4511.197: REQUIRED ALS SUSPENSION WHEN CHARGED WITH OVI 

Ohio Revised Code Section 4511.192 describes the notice requirement officers must follow when placing an individual under an ALS.

A driver who has been charged with OVI and placed under an ALS suspension will have his or her license suspended immediately, but may appeal the ALS suspension within 5 days of being arrested for OVI.

The Court in Ferguson found that the arresting officer did not allow for the Defendant to appeal his ALS within 5 days as his initial court appearance was held 6 days after being arrested for OVI.

In addition to allowing for an appeal of the ALS within 5 days, the officer must also send a certified copy of his report within 48 hours to the BMV and the court that will have jurisdiction over the case. Ohio Revised Code Section 4511.192(D)(1)(d) and (E)

The Court in Ferguson held that the purpose of the 48 hour rule is to, “provide an aggrieved licensee with a means of obtaining prompt, post-suspension review of an ALS.”

Similar cases to Ferguson have upheld the termination of the ALS due to the arresting officer failing to adhere to the notice requirement of 4511.192:

  • An officer failed to send the report to the court. The court stated that “sending a copy of the sworn report to the court is a mandatory requirement” for an ALS. State v. Frame, 5th Dist. Morrow No. CA-881, 1999 Ohio App. LEXIS 2498
  • An officer filed the report in the wrong court, and as a result, the case was dismissed and refiled beyond 5 days after the arrest or citation. The Court stated that notice to the court is intended to allow the offender to “begin the process of judicial review’ of a police officer’s actions, and the delay was a violation of the defendant’s Due Process. Meadows v. Ohio BMV, 71 Ohio Misc.2d 3, 4, 653 N.E.2d 757

In Ferguson, the arresting officer failed to file the report with the court within 48 hours or the earliest possible date. “As a result, appellant did not have appropriate opportunity to review the notarized, sworn report and prepare written appeal for his initial appearance.” Toledo v. Ferguson, 2017-Ohio-1394

ANY ERROR ON BEHALF OF THE BMV MAY RESULT IN TERMINATION OF OHIO ALS SUSPENSION

The Court in Ferguson held that for purposes of an ALS, the officer is an agent of the BMV, and any action taken by the officer in error can result in the termination of an ALS. Toledo v. Ferguson, 2017-Ohio-1394 citing Triguba v. Registrar, 10th Dist. Franklin No. 95APG11-1416, 1996 Ohio App. LEXIS 2771.

The State of Ohio cannot set forth the guidelines for determining how the ALS is to be administered, not follow the guidelines, and still hope to enforce the ALS.  This is particularly true where the defendant is not given the opportunity to review the documents in a timely fashion.

Administrative License Suspension can vary from case to case and there can be difficulty understanding what defenses may be available to you.

It is important to contact a Columbus OVI attorney who is knowledgeable about the ins and outs of defending against the ALS suspension, including whether the arresting officer gave proper notice of the ALS.

If you have questions about your Columbus DUI or related charges, talk to our Columbus DUI attorneys at 614-361-2804.

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Ignition Interlock Devices: New Penalties & False Positives https://www.riddelllaw.com/ignition-interlock-false-positives-violations/ Sun, 23 Apr 2017 11:37:36 +0000 https://www.riddelllaw.com/?p=6011 IGNITION INTERLOCK DEVICES: OHIO’S NEW INTERLOCK PENALTIES & INTERLOCK FALSE POSITIVES  Ohio has recently changed its OVI law, which governs operating a vehicle while under the influence of alcohol or drugs. Under the new language of the law, Ohio puts much more reliance on ignition interlock devices. These machines monitor the levels of alcohol in […]

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IGNITION INTERLOCK DEVICES: OHIO’S NEW INTERLOCK PENALTIES & INTERLOCK FALSE POSITIVES 

Ohio has recently changed its OVI law, which governs operating a vehicle while under the influence of alcohol or drugs.

Under the new language of the law, Ohio puts much more reliance on ignition interlock devices. These machines monitor the levels of alcohol in a person’s system by requiring the driver of a vehicle blow into the device before the car will start.

Lawmakers insist interlock devices will reduce the amount of drivers on the road that are under the influence of alcohol, but the heavy reliance creates new potential hardships and legal issues that must be addressed.

POTENTIAL PENALTIES FROM AN IGNITION INTERLOCK VIOLATION 

Someone who is required to use an interlock device must blow into the device each time he or she attempts to start the vehicle. If the device detects alcohol, it will send a notification a company tasked with monitoring the interlock device. Ohio Revised Code Section 4510.13(A)(8) details then penalties associated with an interlock violation:

  • The Court may require the violator to submit to continuous alcohol monitoring by way of a device fastened one’s ankle. (Any second violation of the interlock requires mandatory continuous monitoring)
  • The court may double the license suspension originally imposed.
  • A violation may constitute driving under a suspended license, which carries a mandatory jail sentence under the new law.

CAN AN INTERLOCK DEVICE INCORRECTLY REPORT A VIOLATION (A FALSE POSITIVE)?

 As with all technology, it is possible that the machine could produce incorrect information. Two of the main manufacturers and monitoring agencies of interlock devices warn on their respective websites to avoid certain types of food prior to operating a motor vehicle. Some of the things these companies instruct drivers to avoid are:

  • Foods that are prepared with alcohol in the cooking process
  • Baked goods that combine sugar and yeast
  • Breath mints that contain menthol

For these items, interlock companies advise rinsing your mouth thoroughly and waiting several minutes before attempting to blow into the device.

The interlock device creates unintended consequences by limiting the types of foods drivers can consume before driving, and can have substantial legal repercussions for many who have not actually violated the interlock drinking alcohol.

WHAT TO DO IF THE INTERLOCK DEVICE REPORTS A VIOLATION 

The court must give notice to the alleged violator if the court intends to impose penalties as a result of an interlock violation. The alleged violator is entitled to a hearing as to whether the violation was a legitimate violation or not. However, the state must only show that the violation was more probable than not in order to impose penalties as a result of an interlock violation.

Interlock devices vary from case to case and there can be difficulty understanding what defenses may be available to you. It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether the machine malfunctioned or if there was a false positive. If you have questions about your Columbus OVI or interlock violation charges, talk to our Columbus defense attorneys at 614-361-2804.

Written by Anthony M. Iori, Riddell Law Associate

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Should You Plead No Contest to an OVI (DUI) Charge? https://www.riddelllaw.com/plead-no-contest-ovi-dui-charge-columbus/ Sat, 01 Apr 2017 15:01:52 +0000 https://www.riddelllaw.com/?p=5968 SHOULD YOU PLEAD NO CONTEST WHEN CHARGED WITH AN OVI IN OHIO? Pleading “no contest” is often misunderstood.  Many people confuse “no contest” with “not guilty” but the two pleas are not at all the same.  In fact, pleading “no contest” is essentially a guilty plea.  If you plead “no contest,” you have no opportunity to […]

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SHOULD YOU PLEAD NO CONTEST WHEN CHARGED WITH AN OVI IN OHIO?

Pleading “no contest” is often misunderstood.  Many people confuse “no contest” with “not guilty” but the two pleas are not at all the same.  In fact, pleading “no contest” is essentially a guilty plea.  If you plead “no contest,” you have no opportunity to explain your version of what happened to the judge. “No contest” means that you are agreeing with the prosecutor about all of the facts in the police report. 

If you are facing an OVI charge, you should definitely talk to an attorney before doing any pleas in court – especially a no contest plea.  OVI charges stay with you forever (they can never be expunged in Ohio) so you want to make sure you are fully aware of what your plea means before you go to court. 

NO CONTEST PLEAS

For more discussion of no contest pleas read this post

A defendant pleads “no contest” in court when he or she will not contest (challenge) the facts underlying a particular crime.  Although a “no contest” plea is technically not an admission of guilt for commission of the crime, the judge will treat a plea of “no contest” as an admission and will almost every time go ahead and find the defendant guilty as charged.  

Generally, a “no contest” plea is beneficial arises in cases where there is also a possible lawsuit for damages by a person injured by the criminal conduct.

Before entering a no contest plea (or a guilty plea), the court must personally address a defendant and inform him or her of the effects of the plea and ensure that the plea is being entered voluntarily. Cleveland v. Catchings-El, 2017-Ohio-189 citing Cleveland Hts. v. Brisbane, 8th Dist. Cuyahoga No. 103459, 2016-Ohio-4564

In Cleveland v. Catchings-El, 2017-Ohio-189, the Defendant was charged with an OVI, and during negotiations, the prosecuting attorney and the Defendant came to an agreement where the Defendant would plead “no contest” to the charge of OVI and would consent to the finding of guilt. During the plea hearing the trial court asked the Defendant if he understood what was happening regarding the plea agreement and the Defendant responded that he did.

But on appeal, the appeals court in Catchings-El found that the Defendant did not understand the effects of the no contest plea and did not understand that he was admitting to the truth of the facts in the complaint since he protested to the court that he “didn’t do a urine sample.”  Therefore, the no contest plea was thrown out and the case was sent back to the trial court. 

CONSULTING WITH LEGAL COUNSEL BEFORE A PLEA OF NO CONTEST

A defendant should always consult with counsel before entering a “no contest” plea. This plea is not an expedited trial and a defendant is given no chance to defend against the charges. Once a person accepts the charges, whether or not he or she is guilty or innocent, the trial court will move to sentencing.

A “no contest” plea is not a statement of guilt or innocence, but it shows that a defendant is not opposed to be charged as though guilty. If you want a chance to defend yourself in court, you should consult with legal counsel before entering into a plea bargain with a prosecuting attorney.

If you have been charged with OVI or any type of related offenses and have questions about defenses related to your legal rights (including possible plea scenarios available to you), talk to one of our Columbus DUI Attorneys about your case at 614-361-2804.

 

 

 

 

 

 

 

 

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