Top 10 Defenses to an Ohio OVI

When people need an Ohio OVI Attorney, the biggest challenge is knowing whether or not an attorney truly has the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win drunk driving cases. Countless attorneys handle impaired driving cases,  but only a very small percentage have the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win cases. Unfortunately for the public, even attorneys who have been practicing law for many years and devote a significant portion of their practice to OVI law, often don’t have the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win DUI cases. Make sure your attorney is  familiar with these “TOP 10” defenses to an Ohio OVI.

1. Hire The Best DUI Attorney: The most important decision that you can make in defending your case is hiring the right OVI defense attorney.  OVI defense involves understanding Ohio’s complex impaired driving  laws, the Ohio Administrative Code, the breath test device, standardized field sobriety testing (administration and interpretation) and all manners of science which may affect your case. Defense begins with an attorney who has the experience to fight your case, the scientific knowledge to attack in the right places, and the skill to negotiate with the prosecuting attorney to secure the best outcome.  We have written “How To Hire An Ohio OVI Attorney” to help you understand some issues you may not consider.

2. Illegal Police Stop: If the officer lacked proper cause to initiate a traffic stop, your case may be dismissed.  The Fourth Amendment requires an officer have a reasonable suspicion that a crime is being committed or about to be committed before making a traffic stop. Reasonable suspicion may consist of any minor traffic offense, such as speeding, weaving, an accident, expired plates, or a failure to activate headlights.  Upon being stopped the officer must establish an articulable reason to continue your detention to do an alcohol/drunk driving investigation.

3. Improper Administration of Standardized Field Sobriety Tests: If an officer improperly administers the field tests, gives faulty instructions, misunderstands how to administer the tests or holds the accused to impossible standards, then the botched tests amount to nothing more than “Stupid Human Tricks.”  Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine the level of intoxication of a driver without chemical testing. When an OVI suspect refuses a chemical test, the tests can be substantial evidence of intoxication.  The NHTSA has guidelines as to how the standardized field sobriety tests must be given. If the arresting officer fails to substantially comply with the guidelines established by the NHTSA, then the results of the tests are not admissible as evidence against the defendant. Your Ohio DUI defense attorney will be familiar with the standardized tests, the NHTSA manual and have experience cross-examining an arresting officer.

4. Faulty Interpretation of the Standardized Field Sobriety Tests: The officer may say all of the right things to get a valid field sobriety test, and still improperly interpret what he or she is seeing.  Your Ohio DUI defense attorney will review any video of the stop to make sure that your fields tests were fairly administered and properly scored.  Arresting officers can (and do) misinterpret the performance of the SFST’s, and determine the performance to be a failure. The dashboard video and aggressive cross examination of the arresting officers will determine whether a DUI defendant actually failed the SFST’s, or if the officer made a mistake. If the defendant did not fail the SFST’s, the results will serve as evidence that the defendant was not intoxicated.

5. Unlawful Arrest Not Supported By Probable Cause:  Assuming the officer has made a valid traffic stop, he or she must continue the investigation until probable cause exists for an OVI arrest.  Often, an officer intending to determine whether probable cause exists for an OVI arrest will make the arrest before this determination is made. When this happens, the officer has made an unlawful arrest, and all evidence obtained after the arrest may be deemed inadmissible in court.  Placing a suspect in a patrol car or ordering a suspect to follow directions before determining a suspect’s sobriety may constitute an unlawful arrest. If so, any evidence obtained regarding intoxication may be deemed inadmissible in court.

6. Officer Error Prior To Chemical Testing: If any statements are made after the accused is in custody, they may excluded unless a proper Miranda warning was given.  The officer must also satisfy a 20 minute observation period prior to administering an evidential breath test.  The breath test must be given within three hours of operation.  The officer must make sure that the testing conditions are free from radio frequency interference and that the testing location is not otherwise compromised.  Prior to requesting a suspect to submit to a chemical test, the arresting officer is required inform the driver of the consequences of submitting to the test, the driver’s right to refuse to submit to the test and the consequences for so refusing. If the driver submits to the test, he may be providing the State with evidence of intoxication. Failure of the arresting officer to advise the suspect of the above may render the results of the test, or the refusal inadmissible, and may fail to justify a license suspension.  Your Ohio DUI defense attorney should have a firm understanding of the Ohio Administrative Code and its requirements for a proper chemical test.

7. Bad Breath: A Flawed Breath Machine: Above we discussed defenses that arise prior to the administration of the chemical test.  There are also potential defenses present in the administration of the test. You Ohio DUI defense attorney will be familiar with the Ohio Administrative Code requirements regarding calibration and officer performance.  You should ask your Ohio DUI defense attorney to show you the “guts” of the tests that are available at the Ohio Department of Health website.  What is more, you should only hire an attorney who has become certified on the breath test machine or attended sufficient specialized training so that he or she can spot any issues with the results.  Machines, despite what some may say, are far from perfect and often a keen eye will result in a “Not Guilty.”

8. Discovery, Discovery, Discovery: Your Ohio DUI defense attorney cannot defend you against an issue he or she does not know exists.  An experienced DUI defense attorney will get proper discovery to explore every possible defense.  Filing motions for discovery, motions to preserve evidence and expeditiously obtaining the evidence is a good start.  In every DUI case, I submit a comprehensive discovery request for every type of evidence possible.   I contact the law enforcement agency directly to place it on notice to preserve evidence, such as dashboard videos and booking videos. These videos must be requested before they are destroyed. These videos can be indispensable in establishing exactly how a field test was administered, how a driver performed, and can also establish whether a driver’s speech was slurred. Often, these videos contradict an officer’s allegations and exonerate the driver.

9. Credibility Is King:  The coin of the realm in all plea negotiations is the credibility, experience and knowledge.  Credibility comes from presenting your case in a way that makes the prosecutor understand your arguments.  Experience is knowing when and where to be persuasive.  Most prosecutors distain whiners, bullies and bullshit artists, so don’t do it.  I always strive to earn the respect of every prosecutor I come into contact with.  Knowledge about Ohio DUI defense comes from being dedicated to learning as much as you can.  We once had a slogan that said, “Is your attorney thinking of DUI defense right now? If not call DaytonDUI.”  I have practiced DUI defense since 1995 and have practice DUI defense exclusively for many of those years.  I continue to try to establish myself as one of the best DUI attorneys in Ohio.

10. Noting Matters If You Won’t Fight: You can have the best defenses in the world, but they won’t matter unless you pursue them.  A good attorney will not only pursue the best possible plea, but will prepare for trial.  Your attorney should provide context and give you enough information to make a good decision.  Your attorney has an obligation to give you information and abide by your decision.  If you think you have a good chance of winning, make sure you hire an attorney who can execute and try your case.  In our office we say “good things happen at trial.”

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 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

Continue Reading...

DUI Criminal Defense and Jury Trials- Clients and Defenses

In the last post I discussed the difficulty in DUI jury trials and why I enjoy DUI and criminal defense. In this blog entry, I will discuss clients and defenses. The two go hand in hand for a number of different reasons that will be explained. The last blog post in this series will examine the "cost-benefit" analysis which involves what is given up in the decision to go trial.

First, the mentality of the client is very important. Some clients go into an initial client meeting and the first thing they say is they want to plead guilty- they want to accept responsibility and all this over. On the other side of the spectrum, clients want a jury trial. For the first type, the advice is to wait- that the People's case must be examined prior to pleading guilty. Further, this is exactly the type of person that is least likely to be a risk to society- they recognize that their behavior must change- and can change their behavior on their own regardless of punishment. Personal responsibility is separate than the People's duty to prove their case beyond a reasonable doubt.

The client may also have to testify. This involves public speaking, which can terrify a person. I have taken the testimony of many civilians in criminal and civil proceedings, and can usually help a client work through their fears to give good testimony. It is also important to answer the question, and not go off on tangents. I've won jury trials where a witness spoke too much, and proved their own defense to be a sham. The witness must be credible, efficient, and confident. Or, again, they may be giving the prosecution a guilty verdict.

Second, is the defenses involved. There are a number of defenses I list in my mailings. However, for many defenses, the facts must fit the defense. Attempting to shoe-horn facts into a defense will not pass the common sense test- and common sense is the cornerstone of jury trials. For instance, a rising defense with a .15% BAC, necessity defenses where other options are obvious, driving defense in the middle of a lighted, populated area with witnesses, GERD defense with no medical history, etc.

Criminal defense attorneys sometimes lose sight of common sense and work themselves up into a righteous ignorance. A defense may exist that would score extra points in law school, but does not work in the real world. And jurors live in the real world. The defense must fit facts, albeit with room to squeeze some, but otherwise the client is headed straight towards a guilty verdict.

Finally, the client must be present for the jury trial. For misdemeanors, through Penal Code 977, defendants do not need to be present. But if the client/defendant is not taking the time to be present for their jury trial, the message to the jury is that it isn't worth their time either. The defense theory itself is compromised. The presence of a defendant humanizes the experience, and grounds the full weight of "beyond a reasonable doubt" which our land demands of criminal prosecution. If not present, the prejudicial effect of DUIs is magnified, and it is quite easy for the jury to convict.

Continue Reading...

Ambien Sleep Driving: Suggested Defenses

Voluntary intoxication is not a defense. However, in most jurisdictions involuntary intoxication is a defense to most offenses. In some jurisdictions, involuntary intoxication is treated as an affirmative defense, which means that the prosecution must disprove it beyond a reasonable doubt. In other places, it is simply not available as a defense to a DUI.

A Texas appeals court has which held that involuntary intoxication is not a defense in a DWI case involving both alcohol and Ambien. This same appellate court approved a defense that would be characterized as involuntary intoxication in most jurisdictions in a case of the mistaken pill. The Defendant meant to take Soma and Ultram in the morning. He had taken Ultram for about seven years, and in order to encourage him to take his medication his wife put out the pills for him. On the date of his arrest she apparently put out an Ambien, and he took it believing it to be something else.

The trial court rejected the defense of accident or involuntary intoxication, and the court of appeals agreed. However, the judges found that the defense of “involuntary act” was available if the Defendant introduced evidence that an independent event, such as the conduct of a third party, that could have precipitated the incident. If, for example, a third party slips a “mickie” in a drink or forces a person to consume an intoxicant and get behind the wheel, then the voluntary conduct defense is available. Although the Defendant voluntarily took the pills his wife laid out for him, he involuntarily took the Ambien because of his wife’s act.

Many courts have concluded that the most difficult cases to decide involve those where a defendant knowingly ingested a prescription drug. There is an Illinois case that stands for the proposition that the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is involuntary. California also has case law holding that intoxication caused by knowingly ingesting prescription medication can be either voluntary or involuntary, depending on whether the defendant had reason to know he/she would become intoxicated.

The best known Georgia case involving Ambien sleep driving is Myers v. State, 302 Ga. App. 753 (2010). In this case the lady had taken two Ambien, her regular daily dose of Xanax, and had a couple of glasses of wine before bedtime. The jury charge instructed the jury that, “The criminal intent element …is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself. Consequently, to the extent that the defendant here argues inability to form an intent to commit the crime for which she is charged, it is immaterial, which means it should not be considered. While proof of criminal intent is required to convict the defendant of the crimes with which she is prosecuted, the state is not required to prove that the defendant intended to drive under the influence of alcohol in violation of the law or on the wrong side of the road. Rather, it is required to prove beyond a reasonable doubt only that while intoxicated she drove and drove crossing over…the right line, intending such acts.”

Relying on earlier Georgia case law, the Court of Appeals upheld the conviction. Those older cases had held that the criminal intent required for a conviction is simply the intention to commit the act which results in the violation of the law, not the intent to commit the crime itself. In other words, the Court relied on language that is included in most jury instructions in Georgia DUI cases, which basically instructs the jury that DUI is a crime of general intent and not specific intent. Therefore, and the record is not clear, perhaps trial counsel should have argued that his client lacked the intent to drive as opposed to the intent to commit the crime. Both the jury instruction approved in this case and the older cases do require the intent to drive; however, in this decision the Court of Appeals seemed to emphasize that the Appellant had intentionally ingested Xanax, Ambien, and alcohol, and then drove in an intoxicated state. What is overlooked (or perhaps assumed) is the language from several older cases and the jury instruction in this case - “that she intended to drive.” Therefore, even when faced with a generally hostile jury instruction, the lack of general intent may still be argued.

Despite some slivers of hope and some very narrow openings the courts have left us when considering, and usually rejecting, other defenses, there is really a dearth of case law regarding actus reus in the context of Ambien sleep driving defenses. Georgia has a number of criminal cases stating that it is a requirement but not defining the term. Nevertheless, even the Texas appeals court has recognized that a voluntary act (actus reus) is required, and that may be the best approach of all.

A state may make an offense a “strict liability” offense or a crime of general intent, thus eliminating the need to prove mens rea (intention to commit a crime). But the State must still prove that there was a voluntary act - the actus reus. Sleep driving by its very nature is not a conscious, much less voluntary, act.

The Model Penal Code Section 2.01 lends support to this position.

1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.

2) The following are not voluntary acts within the meaning of this Section:

a) a reflex or convulsion.

b) a bodily movement during unconsciousness or sleep.

Similarly, in Colorado the applicable statute, C.R.S. 18-1-502 provides that, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” If a culpable mental state is not required, Colorado law characterizes the offense as a “strict liability” offense. Nevertheless, a voluntary act or actus reus is still necessary to obtain a conviction.

In a non-DUI case the Washington Court of Appeals has held that, although the legislature has the authority to create a crime without a mens rea element, a minimal mental element is required to establish the actus reus, and that is the element of volition. State v. Deer, 244 P.3d 965 (Wn. App. 2010). As a matter of Federal constitutional law the State bears the burden of proving beyond a reasonable doubt that a defendant committed a volitional act. This argument should certainly be made in any case where a judge is not inclined to recognize the actus reus requirement; if is not merely common law in origin but has become Constitutionally mandated by virtue of the 14th Amendment. While we understand that there are genuine cases of otherwise innocent people sleep driving, we can expect continued hostility from prosecutors (one of whom recently characterized the defense as a “fad”) and skepticism from thebench. Nevertheless, thorough research of the legal precedents applicable in a particular case, and in the event they are sparse, from around the country should yield at least one viable defense theory that even the worst judge will not reject, or face reversal.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

View the original article here

Continue Reading...