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Archive for the ‘DUI/OVI Law’ Category

Apr
15
Beating a DUI charge does NOT automatically result in an ALS termination

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.

Posted in DUI/OVI Law, Refusal to Take a Test, Sentencing | No Comments »

Feb
22
Why was I charged Twice for OVI?
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.

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Jun
28
Refusal to Take a Chemical Test can Result in Continuation of Administrative License Suspension (ALS) even if Found Not Guilty of DUI
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.

Posted in DUI/OVI Law, Issues on Appeal, Refusal to Take a Test | 1 Comment »

May
2
Can I Lose My Professional License if Found Guilty of OVI?
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.

Posted in DUI/OVI Law, Evidence/Trial Practice | 6 Comments »

Jan
24
The Consequences of Refusing a Chemical Test
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.
To contact Avery Fromet:
Telephone: 216-595-8222
Email: afromet@roadrunner.com

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