A Physical Control Conviction Is Not A Prior Offense

A physical control conviction does not count as a “prior offense” for purposes of enhancement.  This principle is spelled out in case law and in statute.  R.C. 4511.181 sets forth the offenses that count as prior convictions.  It does not list a violation of physical control (R.C. 4511.194) as a predicate offense.  It does not matter if the prior conviction  was charged under R.C. 4511.194 or as a violation of a municipal ordinance. This is set forth at R.C. 4511.182(A) and in State v. Schultz, 2008-Ohio-4325 (Ohio Ct. App. 8th Dist. Cuyahoga County 2008).

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your physical control or DUI case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

Fairborn, Dayton, Springfield,Kettering,Vandalia,Xenia, Miamisburg,Huber Heights, Springboro, Oakwood,Beavercreek, Centerville

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Mayors DUIs and Drugs - out of control

Posted On: November 28, 2013 by Bruce M. Robinson

I thought I had heard it all when the mayor in Toronto- Rob Ford admitted to partying and smoking crack! Funny, but not really. You can almost look at the man and see crack written all over him so since you elected him shame on you. Now you can't get rid of him. However, if you use Washington DC as an example, Mayor Barry, well heck it's almost a right of passage. Not to mention that he was re-elected after this miraculous concession of smoking crack!

Having said that, the purpose of this article is to shed some light on the attractive Grafton, Cleveland Mayor Megan Flanigan. She allegedly was driving drunk when she struck a fire hydrant very close to her house. It is unclear to me what happened next but the article seems to indicate that she was on scene when the cops arrived, possibly still in the vehicle. I don't know if she left or could have left the scene and returned when the police arrived. The cops smelled alcohol on her breath and requested she perform the normal field sobriety tests (mistake #1) which apparently did not go well and she was arrested and taken to the station. The article did not indicate what if any number she blew at the station (mistake #2) if she did blow.

The article did continue on however that after she left the police cruiser evidently they found some illegal pill of some kind in the back seat which they are attempting to charge the mayor with. This of course will not stick because the police failed to do their job correctly, but that does not stop them from attempting to stick the pill on the drunken mayor.

At the outset, the mayor in this case hit a fire hydrant, it's not clear if her airbags deployed thereby hitting her in and about the face and chest area with great force. Either way, deployment or not, following an accident, the field tests are a dumb idea! These damn tests are bad enough for a sober person to perform in the dark and under the stress of an arrest. Factor in an accident of any significance, compounded by an airbag explosion and they become the most ridiculous display of physical acumen that one can ask for. The cops however don't give a damn, nor should they. They are after the ever elusive conviction just like the prosecutor's office. Thus, any evidence that supports their contention that a driver was drunk will work nicely for them. It therefore becomes incumbent on the motorist to recognize the insanity they are being asked to take part in and say "no freaking way am I doing roadside gymnastic tests following an accident." Frankly, one should say that same line under any circumstance accident or not because the stupid tests are strictly voluntary and since they are designed and offered under circumstances which all but guarantee failure, it's a bad idea.

Now, regarding the pill in the car, give me a break! If the cops failed to search this woman at the time of arrest for whatever reason, that is on the cops. Anything you find in the car after that is too damn bad. No way to prove beyond a reasonable that something that small was not left there by the previous guest in the car. If the cops are unable or unwilling to search their collar as per procedure, what makes anybody think they are able to properly search and clean their own car?

Indeed it's unfortunate to have another mayor fall under such dubious circumstances but this case sounds a little anemic to me.

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Actual Physical Control in Orlando DUI Accident Cases

The state may establish actual physical control in an Orlando DUI case through circumstantial evidence, including expert witness testimony.

In every Orlando DUI case, the government must prove that

The defendant drove, or was in actual physical control of a vehicle, andWas under the influence of either alcohol beverages or controlled substances to the extent that the driver’s normal faculties are impaired, or had a BAC over .08

See Standard jury instructions in Orlando DUI cases (Word version)

In most Orlando DUI cases, the State can prove that a defendant was the driver of the vehicle because, well, the police officer sees the person driving the car. Easy. No problems at all.

But if the DUI case arises out of an accident, proof of actual physical control isn’t as easy to establish.

When the DUI investigators from the Orange County Sheriff, Florida Highway Patrol, or Orlando Police are investigating a DUI accident, they usually don’t arrive on scene contemporaneously with the accident. Depending on other issues in the area, it may be 20 minutes, 30 minutes, even hours before the DUI investigators arrive.

By the time they arrive, the drivers of the vehicles involved have usually gotten out of their cars to inspect the damage or to exchange information.

Unless civilian witnesses are available to testify that they saw the defendant driving, there may not be any direct evidence placing the defendant behind the wheel (and in actual physical control) of an operable vehicle.

Without direct testimony, the State must rely upon circumstantial proof to establish that the Defendant actually drove the vehicle. However, the state may prove this through expert testimony, as they did in West v. State, 745 So.2d 414 (Fla. 5th DCA 1999)

Orlando-DUI-circumstantial-evidence-of-driving-West-v-State-745_So2d_414-Fla-5th-DCA-1999

photo credit: Jean Henrique Wichinoski via photopin cc

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Albemarle Police Increase Traffic Enforcement During Holiday Travels

In the midst of the busy Thanksgiving travel week, the Albemarle County Police Department is participating in the national Click-It-or-Ticket campaign.
The nationwide campaign is currently underway and will conclude on Thursday, November 27th.
Additional ACPD officers will be on the roadway enforcing traffic laws with a strong emphasis on speeding, seatbelt usage and child safety seat usage. Wearing a seatbelt is the single most effective way to save your life while on the road. We ask that all citizens obey the posted speed limits, always have everyone in the vehicle buckle-up and always have a sober driver.
As the holiday season continues, we also want to remind people about the dangers of drinking and driving. December is National Drunk and Drugged Driving Prevention Month.
During the month of December, the ACPD will be conducting extra enforcement for DUI and drugged driving. As you plan for holiday parties and events, plan ahead with a sober driver.
Traffic safety and enforcement remains a top priority for the Albemarle County Police Department. Our goal through the Click-It-or-Ticket campaign and DUI enforcement is to enforce the law in order to save more lives.
Drive safe, drive sober and make it home for the holidays.

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Broward DUI Lawyer on Actual Physical Control of a Vehicle

Driving under the influence, as the name implies, usually actually involves driving. But Fort Lauderdale DUI lawyer Moore says that literal driving is not a requirement for the state to prove the a DUI charge. The Florida law that governs drunk driving, Fl. Stat. Section 316.193, requires only that the driver be in "actual physical control" of the vehicle. Most states have a similar or identical standard, which has tended to be construed rather broadly.

Surprisingly, Broward DUI lawyer Moore says that actual physical control may include just simply sitting in the driver’s seat in some instances. The car does not necessarily even need to be turned on. If the keys are in the ignition or even within reach, such as within the pocket of the person sitting in the driver’s seat, as well as other circumstances, law enforcement agents and the courts may consider the defendant to have been in actual physical control of the vehicle.

A driver -- or “driver,” as the case may be -- also does not need to necessarily be out on the road in order to be charged with DUI. Sitting in a car in a driveway, on private property, can still potentially subject the individual to a charge of driver under the influence so long as the law enforcement officer had a reason to investigate the situation. For example, if police were called to the home to sort out allegations of a domestic altercation, the situation could arise where one partner goes to the car to cool off. The police might also initiate an investigation if they see suspicious activity that warrants their attention, says Fort Lauderdale DUI lawyer, such as a person passed out in a car who may need medical attention.

View the original article here

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