While somewhat off the topic of OVI, a recent Ohio case is significant relating to the supervision of child drinking underage.  The case, State v. Wise, 2010 Ohio 2040, involved the underage drinking by a 19 year old and subsequent arrest for violating Ohio underage drinking law, R.C. 4301.69(E)(1).

The law makes it illegal for anyone under the age of 21 to consume an alcoholic beverage nor be under the influence in public.  An exception to the statute occurs when the child consumes alcohol with the permission of and under the supervision of an adult.  In this case, the 19 year old consumed three beers at his mother’s home and then left with friends.  He met several other friends and was walking down a street at 1:00 am, when a police officer stopped the group when he recognized a 16 year old with the group.  The curfew for anyone under the age of 18 was 11:00 pm.  The officer smelled alcohol emanating from the Defendant and charged him with underage drinking.

The crux of the case involved an interpretation of the statute.  The lower court stated:

“Clearly, as long as defendant was in his mother’s home and she knew where he was, defendant was being supervised by his parent. However, when she granted him permission to leave, she could no longer ‘oversee’ or ‘direct’ the defendant. One could argue that defendant was done consuming alcohol, so he no longer needed to be supervised. However, this would seem to defeat the purpose of the supervision, as anyone knows the effects of alcohol take time to start and time to end. If the officer could detect that defendant was drinking, then he should still have been under the direction and oversight of his parent. He was not.”

The lower court found the defendant guilty of underage consumption, R.C. 4301.69(E)(1).

The appellate court disagreed.  The court distinguished between the Defendant’s consumption of alcohol and his being intoxicated in a public place.  In its decision the court stated,

“…the evidence is insufficient to support a conviction under the statute for consuming alcohol. It is undisputed that at the time appellant consumed the alcohol, he was supervised by a parent. At the point in time where appellant leaves the house, the issue no longer is his consumption of the alcohol under R.C. 4301.69(E)(1), but whether he is under the influence of alcohol in a public place.”

At that point the court applied the evidentiary rule in  State v. Taylor (1981), 3 Ohio App.3d 197, 3 Ohio B. 224, 444 N.E.2d 481 where the court stated, “A mere odor of alcohol is not enough by itself to provide probable cause to arrest for driving under the influence of alcohol.”  Applying this rule to the present case, the court pointed out there was no evidence presented that the defendant was under the influence at the time of his arrest.  Therefore, there was insufficient evidence to support his conviction under R.C. 4301.69(E)(1) as no evidence was presented that the defendant was “under the influence” in a public place.

The first question from all of my professional clients charged with an OVI is “Can I lose my license if found guilty of OVI?”  In past blogs, I’ve discussed the effect of an OVI conviction if you have a Commercial Driver’s License (CDL) and the effect of an OVI conviction on your employment.  But, can an OVI conviction result in losing your professional license?

The Ohio Revised Code details over 45 separate occupations and professions that are subject to the provisions of Ohio law.  They range from accounting O.R.C. Chapter 4701) to Orthodists, Prosthestics and  Pedorthists (O.R.C. Chapter 4779).  A number of these statutes specifically state under what circumstances one’s licensee can be subject to discipline (Accountants, Nurses, Social Workers, and Pharmacists, for example).  Others statutes leave it up the governing body of that profession to deal with censure (Attorneys).

Most of theses statutes and codes of responsibility call for the possible censure of any member of the profession performing their occupations while under the influence of drugs or alcohol.  For example, dentists may be disciplined when it is shown they have “…an inability to practice under accepted standards of the profession because of …, dependence on alcohol or other drugs, or excessive use of alcohol or other drugs,” O.R.C. 4715(A)(8).  Nurses can be sanctioned for “Habitual indulgence in the use of controlled substances, other habit-forming drugs, or alcohol or other chemical substances to an extent that impairs ability to practice,” O.R.C.4723.28(B)(9).

Broad latitude is given the governing boards to deal with those in violation.  Reprimands and suspensions, in the most serious cases, are often used to police individual professions.  In recent years, many professions have taken enlightened steps to deal with the use of drugs and alcohol.  For example, the Ohio Supreme Court has established the Ohio Lawyers Assistance Program, a comprehensive program to deal with members of the profession suffering from alcoholism or substance abuse. The program is given broad powers to deal with and attempt to end the addiction.

But an habitual offender must deal with another consequence brought on by recent changes to Ohio’s OVI law.  Under the law, anyone found guilty of OVI for more than 3 times in the past 6 years (or 20 years if the defendant refuses to submit to a chemical test) faces a possible conviction for a 4th degree felony (3rd degree if convicted of a second OVI 4th degree felony during their lifetime).

This presents an entirely new set of circumstances that could call for much more serious sanctions including a suspension of one’s license.  The reason is most occupational statutes or professional codes call for serious sanctions for those convicted of a felony.  A recent Ohio case illustrates the possibility of serious sanctions being imposed in that event.  The case, Disciplinary Counsel v. Landis, 124 Ohio St. 3d 508 involved the suspension of any attorney’s license for his conviction of his 4th OVI within a 6 year period.  While the discipline was extreme, it shows the clear possibility of license suspension or outright revocation when a licensee is convicted of multiple OVI offenses.

What can be learned from this example?  First, if you are a professional practicing pursuant to statute, you should have a complete understanding of the basis by which you can be disciplined.  Second, if you find yourself having problems with alcohol or controlled substances, immediately contact your professional association to see if there are programs available so the issue can be resolved before the problem becomes habitual and subjects you to serious disciplinary action.  Finally, if you find yourself in a situation where you are facing serious disciplinary action, immediately seek advice of competent attorney who is knowledgeable about Ohio’s OVI law and has had experience dealing with defendants with multiple offenses.