Ohio Dui - Cleveland Attorney Avery H. Fromet » DUI/OVI Law

Probable Cause to Arrest for Underage Drinking

afromet — Sat, 26 Nov 2011 16:48:49 +0000

Readers of this blog should be familiar with several articles I’ve written regarding probable cause to arrest. Basically the term is defined as follows: “Probable cause to arrest without a warrant exists where, based on the totality of the circumstances, an officer possesses sufficient information to cause a reasonable and prudent person to believe that a suspect is committing or has committed a criminal offense, Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L. Ed. 2d 502; Illinois v. Gates (1983), 462 U.S. 213, 230-232, 103 S.Ct. 2317, 76 L. Ed. 2d 527.

But what if the alleged offender is less than 21. According to the First Appellate District (Hamilton County), probable cause to arrest requires less evidence of impairment. In the case, State v. Carroll, 2008 Ohio 6832, the defendant, who was 18, was stopped for speeding. While addressing the defendant, the officer smelled alcohol on the defendant’s breath, and observed that his eyes were glassy and bloodshot. The defendant admitted consuming beers earlier. The officer had the defendant exit his vehicle and perform field sobriety tests. The defendant passed all three tests.

The lower court granted the defendant’s motion to suppress stating that the officer lacked probable cause to arrest the defendant as there was no evidence of impairment. The appellate court argued impairment is not relevant and reversed and remanded the case.

The court’s analysis of the case began with a citation of R.C. 4511.19(B)(3) which prohibits anyone under 21 years old from driving with a blood alcohol content (BAC) of.02 or higher, “regardless of actual impairment.”

The court went on to say “Field sobriety tests can reveal physical impairment that sometimes accompanies a higher BAC...In determining what constitutes probable cause to arrest for an underage driving under the influence of alcohol (DUI) offense, an officer must look for less obvious indicators of alcohol consumption when assessing an underage drinking driver because these indicators are naturally more subtle than the indicators in a per se offense with a higher prohibited blood alcohol content level. Common sense can and should play a role in an arresting officer's probable-cause determination in an underage DUI case, given that the prohibited per se limit is so minimal. However, an officer should not look for "slight indicators of impairment" when deciding whether to arrest for a violation of R.C. 4511.19(B)(3), since impairment is not at issue.” Therefore, the fact that the defendant passed all three field sobriety tests was irrelevant.

The appellate court quoted the lower court and, in relevant part, found that 18-year-old had been speeding, that he had smelled of alcohol, that he had glassy and bloodshot eyes, and that he had admitted to drinking a couple of beers a few hours earlier. Under the circumstances, the court found that the office had probable cause to arrest the defendant therefore, stating that the results of field sobriety tests has no relevance in determining probable cause to arrest a minor for OVI.

The Affect of an OVI Conviction on Out-of-State Licences

afromet — Wed, 19 Oct 2011 13:28:05 +0000

Many readers have asked me the consequence of an OVI conviction on their out-of-state drivers licenses. Whether an Ohio driver or a person convicted in Ohio from another state, the “interstate compact” has an impact on your driving privileges in your native state. Only four states, Georgia, Massachusetts, Michigan, Wisconsin, and Tennessee, do not belong to the compact.

Basically, the compact requires all states to report any OVI/DUI conviction to all members of the compact. Upon receipt, that state will communicate the fact to the licensee and sanction them as if convicted in that state.

For example, lets assume you are convicted in Texas for OVI and that conviction is communicated to the Ohio BMV. Pursuant to the compact the Ohio BMV will notify the offender and sanction them as if the conviction occurred in Ohio. For a first offender, their license would be suspended for a minimum period of six months, etc. Of course, they do have the right to an appeal as prescribed by the notice and should be undertaken in order to obtain limited driving privileges as prescribed by law. Remember if you file your appeal late, you risk losing ANY driving privileges in Ohio for a minimum of six months!

Now, the obvious question - How sure am I that the conviction will be reported? This, of course, depends upon the administrative capabilities of the states’ BMVs. Some states are notoriously lax in their reporting. Ohio, for example, has the reputation of being very hit and miss.

If you possess an out-of-state license, I strongly recommend you contact an OVI specialist in your state to advise you of the consequences of any conviction in Ohio before entering any plea. If you are an Ohio licensee, contact an Ohio OVI attorney before pleading in the state you are charged.

The “Senior Operator”

afromet — Wed, 21 Sep 2011 15:31:41 +0000

If you are a regular reader of this blog, you will remember my discussion of mandatory record keeping relating to breath testing equipment, as required by the Ohio Administrative Code (OAC) and The Ohio Department of Health (ODH).

One of the requirements relate to standard periodic testing required of the breath testing devise and those qualified to administer a breath test using a certified devise. This testing must be performed by an individual designated as a “Senior Operator” by the Ohio Administrative Code. The qualifying criteria for a senior operator is as follows:

1. Must be a high school graduate or taken a General Education Development Test“ (GED), and
2. Be a certified law enforcement officer sworn to enforce section 4511.19...of the Ohio Revised code or equivalent statute or ordinance, and
3. Demonstrate a competency to maintain or care for and perform instrument checks by successfully completing a basic senior operator, upgrade or conversion training course for the approved instrument for they are seeking the permit.

The ODC further requires a yearly renewal of that permit by successfully completing an in-service course for the applicable device, including review of self-study materials furnished by the ODH.

A recent lower case decision relating to these requirements demonstrates the necessity to be thorough in the investigation of any per se violation. The case, State of Ohio v. O’Dell, 164 Ohio Misc.2d 36proves the fallacy inherent in thinking that the institutions of government always to their job.

The defendant filed a Motion to Suppress arguing that the state failed to substantially comply with the OAC in the maintenance of the breath testing device. The officer who testified was the arresting officer and claimed he was a senior operator which qualified him to administer a breath test using the BAC Datamaster. During his testimony, the trooper testified the director of the ODH did not give him any self-study materials prior to his most recent renewal. The trooper further testified that had not taken any refresher course relating to the BAC Datamaster.

The court, in its opinion, outlined the various requirements set forth by the OAC relating to the requirements prior to the renewal of a Senior Operator’s Permit and the failure to comply with these requirements. The court concluded its discussion by stating:

“Words and phrases in laws and rules must have meaning. Even if the director of health chose to ignore his own rules by not requiring [the trooper] to complete an in-service course and review self-study materials provided by the director, the court cannot ignore the rules, which was not followed in this case.”

The reader is cautioned that this cases arises from the Franklin County Municipal Court and, while this court is highly respected in the state, its opinion only influences cases within the jurisdiction of that court. While American jurisprudence evolves from historical court opinion, other local or appellate courts may not agree with the opinion expressed by the Franklin County Municipal Court. But, having knowledge of this decision may impact on any OVI per se case.

Specificity in Court Ordered Limited Driving Privileges

afromet — Tue, 13 Sep 2011 15:05:32 +0000

Ohio’s statutes are replete with driving limitations for violations of 4511.19 (DUI/OMVI), driving under suspension violations, certain drug convictions under Ohio’s criminal statute, Title 29, and other miscellaneous statutory violations. Some limitations are greater than others, some statutes calling for an absolute ban on any privileges for a period of time, others granting limited privileges based upon factors such as prior violations of the same statute.

But, issues can arise regarding a court’s description of those privileges. R.C. 4510.021(A) requires a court, when granting limited driving privileges, to "specify the purposes, times, and places of the privileges...”

An issue relating to this statute arose in Warren County (12th Appellate District). The case, State v. Butler, 2011 Ohio 4565, involved a defendant’s violation of Ohio drug law. The defendant incurred a three year suspension of his driving privileges. After the three year suspension expired, the defendant made his application for limited privileges. The lower court granted privileges permitting the defendant to drive between 6:00 a.m. and 7:00 p.m., Monday through Saturday. The entry further prohibited the defendant from consuming alcohol while driving or in the 12 hours preceding his driving, and from operating a vehicle while under the influence of any drug of abuse.

The state appealed claiming the court failed to comply with R.C. 4510.021(A) as it failed to specify the purpose, times and places of the privileges. The appellate court agreed with the state and remanded the case back to the lower court for further proceedings to correct the entry.

Therefore, it is vitally important that the court properly comply with the statute to save everyone time and expense. To properly comply the entry should:

1. State the times and days the applicant may drive, and
2. State the purpose or purposes for which the privileges are being granted, and
3. State where the applicant may drive.

A typical entry by most court’s may read as follows: “The defendant may drive between the hours of _____ am to ____pm for work, medical, and religious purposes and to comply with court and probation orders and  appearances.”  Is this specific enough to comply with R.C. 4510.021(A)?  Only time and jurisprudence will tell.

Is the Results of a Breathalyzer Subject to Suppression if Form 2255 Misinforms the Accused of the Length of Suspension

afromet — Sat, 11 Jun 2011 02:18:42 +0000

If you are reader of this blog, you already know that Ohio law requires that the accused be informed of the consequences of their failure to submit to a chemical test prior to taking the actual test. This “disclosure” is codified in ORC 4511.192 and is contained on the reverse side of Form 2255 that is read to the accused prior to testing. The disclosure states:

“You now are under arrest for ….. If you refuse to take any chemical test required by law, your Ohio driving privileges will be suspended immediately, and you will have to pay a fee to have the privileges reinstated. If you have a prior of OVI, OVUAC, or operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance conviction under state or municipal law within the preceding twenty years, you now are under arrest for state OVI, and, if you refuse to take a chemical test, you will face increased penalties if you subsequently are convicted of the state OVI. If you take a chemical test, you may have an independent chemical test taken at your own expense.”

What if Form 2255 contains inaccurate information regarding the length of suspension? What, if after reading the required language, the officer reads the inaccurate information contained on the form? Does this supply grounds for suppressing the results of any chemical test?

One court in Ohio has weighted in one aspect of this issue. In the case of State v. Noster, 2011 Ohio 2730, the First Appellate District Court (Hamilton County) reversed the decision of a lower court who suppressed the results due to the accused being provided incorrect information on the bottom of Form 2255 regarding her length of suspension. In its opinion the court said:

“The fact that BMV Form 2255 contained incorrect information regarding length of suspension in a different section placed lower on the form that was not read aloud to Noster is of no effect and does not detract from the adequacy of the information provided to Noster concerning the consequences of refusal. In Bryan v. Hudson, [77 Ohio St.3d 376, 380, 1997 Ohio 261, 674 N.E.2d 678], the Ohio Supreme Court clearly held that, when informing an arrestee of the consequences of refusing to submit to a chemical test, an officer need not inform the arrestee of the exact length of the ALS faced.”

The court went on, “We hold that the arresting officer was not required to inform Noster of the exact length of her potential ALS, and that the officer complied with the requirements of R.C. 4511.192(B) by reading the top portion of BMV Form 2255. Noster was adequately informed of the consequences of refusing to submit to a breath test and the trial court erred in concluding otherwise.”

In this instance the officer did not read the information contained at the bottom of the form and, therefore, that did not enter into the court’s decision. But, what if the officer HAD read the misinformation, or better yet, volunteered misinformation?

The Noster court carefully avoided responding to that consequence.
We will wait for another time and another court to respond to that issue.

Beating a DUI charge does NOT automatically result in an ALS termination

afromet — Fri, 15 Apr 2011 14:31:48 +0000

A number of readers and attorneys make the assumption if a DUI charge is dismissed or results in a not guilty verdict, the ALS suspension is automatically terminated. This is not necessarily true.

To give the reader some background, if certain criteria are met, the police officer is required to immediately confiscate the driver’s license of the offender when charged with OVI. This is known as an “Administrative License Suspension.” Thereafter, if the offender pleads guilty or is found guilty, any subsequent suspension is considered a “judicial suspension” – one imposed by the court based upon the parameters set forth in the OVI statute.

In the case of State v. Hayes, 2007 WL 2994219, 2007 Ohio 5517 (Fifth Appellate District), the court argued a not guilty finding in a DUI case terminates the ALS in a per se violation but not in an OVI case. Based upon the courts review, it reasoned that a not guilty finding for driving while having unlawful level of alcohol or drugs in your system does automatically end the ALS but the same can not be said for a not guilty finding for driving while impaired. This reasoning was also followed in State v. Tweddell, 2010 Ohio 4927, a Second Appellate District case.

A more recent case from the First Appellate District, State v. Lewis, 187 Ohio App. 3d 701, discussed the termination of an ALS for refusing to take a chemical test. In its opinion, the court stated, “…an ALS imposed for the refusal to submit to a chemical test remains in effect even if a defendant is found not guilty of the charge resulting in the request for the chemical test…”

If I can suggest some reasoning behind these decisions, an ALS is an administrative suspension based upon specific criteria. Charges of DUI (OVI in Ohio) are judicial in nature and arise out of specific statutes and the subsequent suspension is determined within the judicial process. Therefore, they are mutually exclusive and since an ALS suspension can only be terminated based upon specific grounds, if these criteria are not addressed when defending the OVI charge, the ALS remains in effect. Therefore, in the Hayes case, since one of the criteria for termination of the ALS is the per se reading in breath, blood or urine, any not guilty finding in that regard will consequently result in the termination of the ALS since the defense, in itself, sustained one of the criteria for termination. But, if the offender is found not guilty in an OVI case only, the ALS does not terminate because that defense does not incorporate any of the criteria for termination of the ALS.

In the Lewis case, the ALS suspension was based upon the defendant’s refusal to submit to a chemical test. Since the defendant’s not guilty verdict had no application to his refusal, the ALS stayed in effect.

Therefore, if one is seeking termination of an ALS, they must be sure their trial defense includes addressing one of the grounds for ALS termination.

Why was I charged Twice for OVI?

afromet — Tue, 22 Feb 2011 20:13:23 +0000

A number of clients have asked why they were charged twice on the same ticket for OVI. The answer lies in the Ohio statutes. In Ohio, there are two separate and distinct types of OVI. The types of OVI violations are defined in O.R.C. 4519.

The first is found in ORC 4511.19(A)(1) and is defined as follows:

“No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:…

(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.”

This defines the classic OVI arrest based upon the police officer’s observations resulting from his scrutiny of the driver during the arrest and the results of tests given to determine his physical and mental dexterity. The arrest and ultimate conviction is based upon the witnesses’ observation and expertise.

The second, OVI offense is defined in ORC 4511.19(B) and states:

“(B) No person under twenty-one years of age shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

(1) The person has a concentration of at least two-hundredths of one per cent but less than eight-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.

(2) The person has a concentration of at least three-hundredths of one per cent but less than ninety-six-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.

(3) The person has a concentration of at least two-hundredths of one gram but less than eight-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.

(4) The person has a concentration of at least twenty-eight one-thousandths of one gram but less than eleven-hundredths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.”

This is what is known as a “per se” violation as the prosecutor need only show is that defendants’s blood, breath or urine exceeded that set forth in the statute. The prosecution need not present any physical evidence or any observations by the arresting officer. The findings of a breath, blood or urine test that are properly admitted into evidence is the only proof needed for conviction.

So, while it might appear that the driver is being cited for OVI twice, in fact, they are being charged with two separate and distinct offenses.

Refusal to Take a Chemical Test can Result in Continuation of Administrative License Suspension (ALS) even if Found Not Guilty of DUI

afromet — Mon, 28 Jun 2010 19:39:56 +0000

A recent Ohio case illustrates a very important aspect of Ohio’s OVI law. The case of State v. Lewis, 2010 Ohio 2872, exemplifies an additional consequence of one’s refusal to submit to a chemical test.

The case involved a defendant’s arrest for OVI. The defendant refused to submit to a chemical test. But, based upon personal observations, the accused’s traffic violations and field sobriety tests, the defendant was charged with OVI. The defendant was eventually found not guilty of OVI and the court terminated the Administrative License Suspension.

The City of Cincinnati appealed the termination of the ALS claiming the court was wrong in terminating the ALS due to R.C. 4511.191(B) that provides for an automatic license suspension following the refusal to submit to a chemical test. R.C. 4511.191(D)(1) specifically states that “[a]ny subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of this section does not affect the suspension.”

The appellate court agreed with the city citing the case of State v. Kurtz (Dec. 31, 1997), 2nd Dist. No. 97-CA-25. In that case Kurtz had been stopped and refused to submit to a chemical test resulting in an ALS. Kurtz eventually pled no-contest to a lesser charge, but the court continued to ALS citing the above statute.

So, in refusing a chemical test the violator should be aware of this additional consequence of their refusal – a continuation of the ALS even if found not guilty of OVI.

Can I Lose My Professional License if Found Guilty of OVI?

afromet — Sun, 02 May 2010 23:57:00 +0000

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.

The Consequences of Refusing a Chemical Test

afromet — Sun, 24 Jan 2010 07:32:00 +0000

Recently, I received my new telephone books and glued to the front of the book was an advertisement from a local attorney with his “Advise When Stopped for a DUI.” One of his prominent pieces of advise was “Never….Never Agree to take a Breathalyzer Test.” Is this blanket advise sound? In some instances yes. In most instances no. Like most advise, the surrounding circumstances play a major role in the decision. This blog discusses the consequences of one’s refusal.

First, one’s refusal to agree to take a test is a violation of Ohio’s “implied consent” statute. That statute, O.R.C. 4511.191, sets forth the law that the right to drive in Ohio implies the driver’s agreement to submit to a chemical test when requested. They may refuse, but that refusal will result in a one year suspension of their driving privileges in Ohio.

In addition to one’s violation of the implied consent statute, that refusal will trigger the new twenty year “look back” rule. Ordinarily, the enhancement provisions of Ohio’s OVI laws depend upon the number of OVI convictions within the prior six years. As a result of a refusal, the enhancement provision are triggered for any prior OVI violations in the last TWENTY years.

Finally, a recent Ohio Supreme Court decisions permitted courts to increase a violator’s penalties for refusing a chemical test. Historically, Ohio courts held to the rule that while a person’s refusal to take a test violated Ohio’s implied consent law, that person did have a constitutional right to refuse. As such, courts rarely increased a person’s penalties for their refusal to take a test. The Ohio Supreme court’s ruling changed that. The court ruled that the right to drive in Ohio is a privilege and not an inherent constitutional right. Therefore, a court is permitted to increase penalties for refusing without violating the person’s constitutional rights.

Allow me to provide you an example of the hornet’s nest that can result from one’s refusal to take a test. This was true case. My client was driving home from his girlfriend’s house where they were watching a football game. While watching the game, they had a pizza and a “couple of beers.” At one time my client was a heavy drinker and had several violations for OVI earlier in his life. But he had reformed and had no violations for OVI in the last six years. On the way home, he crossed the center line and was stopped by the local police. When asked to take a test, he refused.

Let’s assume he had taken the breathalyzer and been convicted. As a first time offender in six years, he would have faced a first degree misdemeanor carrying the following possible sentence:

Three days in jail or a three day driver’s intervention program, a $375-$1075 fine, a license suspension for six months to one year, and the right to request limited driving privileges for work, medical, etc after fifteen days.

So what were the consequences of his refusal?

First, he received a suspension of his driving privileges for one year. But, that wasn’t the worst of it. His refusal triggered the twenty year look back rule. While he had no violations in the last six years. He had five others in the prior twenty years. Therefore, under Ohio law, he faced a forth degree felony OVI conviction as it was his sixth violation in twenty years. He faced the following penalties: Actual incarceration for a minimum of 120 days (four months) up to 1 year, a $1350-$10,500 fine, a mandatory alcohol addiction program, license suspension for three years to life with no privileges for three years, an alcohol interlock on any car he drove, and a forfeiture of his car to the State of Ohio (he had just purchased, for cash, a new Jeep Cherokee).

So should he have agreed to take the breathalyzer? Of course. Even if convicted, the consequences were minimal compared to what he faced as a result of his refusal.

Knowing the accused’s background is critical in properly advising them. Offering blanket advise against submitting to a test can have dire consequences.