Ohio Dui - Cleveland Attorney Avery H. Fromet

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.

Two Bites at the Apple

admin — Mon, 14 Jun 2010 14:55:38 +0000

A recent Ohio case demonstrates to what length some jurisdictions will go in their attempt to prosecute violators of Ohio’s OVI laws. In the case, State v. Willig, 2010 Ohio 2560, the state attempted to retry a Defendant on a case dismissed by the Franklin County Municipal Court by indicting the Defendant on more serious felony charges arising out of the same events giving rise to the lower court case.

The facts are as follows: In July of 2008, the defendant was involved in an accident wherein he was driving a truck that struck and injured a pedestrian. The Defendant was subsequently charged with four misdemeanor charges, OVI, driving with a prohibited level of drugs in the system (“Per Se”), Failure to Control and Reckless Driving.

The Defendant filed a motion to suppress based upon the fact that the officers failed to have probable cause to arrest. The Defendant also filed a motion to dismiss under Ohio’s speedy trial statute. The court dismisses the pre se violation due to the state’s failure to bring the Defendant to trial within the statutory period. The state then asked the court to dismiss the remaining charges.

Some months later the state indicted the Defendant on the charges of vehicular assault and driving under the influence. The Defendant filed a motion to dismiss the indictment, asserting the violation of his statutory speedy trial rights in the second case required the indictment be dismissed pursuant to R.C. 2945.73(D). According to defendant, the municipal court’s decision dismissing the per se violation barred prosecuting defendant for any offenses arising out of the events of the automobile accident.

The common pleas court granted the Defendant’s motion as to the OVI charges and denied the motion relating to the vehicular assault charge. The state appealed. The state asserted in its appeal that because the municipal court dismissed the per se case at the state’s request, and not because of a statutory speedy trial violation, those charges were not “discharged.” Relying on State v. Flowers, 2d Dist. No. 22751, 2009 Ohio 1945, the state contended R.C. 2945.73(D) required discharge from all criminal liability in order to bar further criminal proceedings based on the same conduct. The court was not persuaded by saying, “Nowhere does Flowers define “discharge” in R.C. 2945.73(D) to mean discharge from all criminal liability rather than discharge of any single pending charge based on the same conduct.”

Defendant, on the other hand, focused on the meaning of “based on the same conduct” in R.C. 2945.73(D). Because the municipal court “discharged” the per se violation against defendant for a violation of R.C. 2945.71, Defendant asserts R.C. 2945.73(D) bars prosecuting Defendant based on the events and circumstances of the automobile accident, regardless of the state’s voluntary dismissal of the charges in the per se case.

In its opinion, the court said, “Defendant correctly contends that since the charges in the second case and in the subsequent felony indictment arose from the same automobile accident, the interpretation and meaning of “based on the same conduct” in R.C. 2945.73(D) determines whether, or to what extent, the state is able to pursue any future charges against defendant premised on the … automobile accident.”

The court added, “ In State v. Smith (June 22, 1978), 10th Dist. No. 77AP-960, 1978 Ohio App. LEXIS 10715 this court explained “[t]he word ‘conduct’ as used in R.C. 2945.73(D) is broader than merely that relating to the essential elements of the charge involved and includes the surrounding circumstances and evidence which would naturally be introduced in support of the charge… The [common pleas] court properly interpreted the phrase “based on the same conduct” from R.C. 2945.73(D) to refer to the conduct underlying the charged offenses rather than the specific elements of the offenses…Because the parties do not dispute defendant was involved in only one automobile accident …, the common pleas court properly concluded on the facts present here that all of the charges stem from the same conduct, a conclusion that caused it correctly to invoke the R.C. 2945.73(D) bar to further prosecution for offenses based on the same conduct.”

What can be drawn from this case? When a court reviews a decision based upon R.C. 2945.73(D), “based upon the same conduct” means the totality of the events giving rise to the action NOT the elements of the crime itself.

The Evidence Needed to Prove Underage Drinking

afromet — Wed, 12 May 2010 17:12:15 +0000

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.

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.

Can I Withdraw My Plea?

afromet — Thu, 29 Apr 2010 13:34:39 +0000

From time to time I receive a call from an individual seeking to withdraw their previously entered plea of guilty or no contest. Unfortunately, Ohio law is extremely restrictive when it comes to the right of an individual to withdraw their plea after sentencing. A recent Ninth Appellate District case illustrates the restrictive nature of such a request.

The case, State v. Simone, 2010 Ohio 1824, involved a multiple DUI offender who plead guilty and was sentenced to nine months in prison (his fourth conviction of DUI in five years). The defendant served his six months and ten years later filed a motion to withdraw his plea. The basis of the motion was the defendant’s claim that one of his prior pleas was uncounseled.

In its opinion, the court cited Crim R 32.1 that states:

“A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

The court went on to say:

“It is the defendant’s burden to prove that a manifest injustice exists. State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The trial court should grant the motion only in extraordinary cases. Id. A trial court’s decision to grant or deny a motion to withdraw a guilty plea will not be reversed on appeal absent an abuse of discretion. State v. Brown, 9th Dist. No. 23455, 2007 Ohio 2885, at P9, [**9] quoting State v. Atkinson, 9th Dist. No. 05CA0079-M, 2006 Ohio 5806, at P10, citing Smith, 49 Ohio St.2d at 264. An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140.”

The court then defined “abuse of discretion” as follows:

“A trial court does not abuse its discretion in denying a motion to withdraw a plea where three elements are met. First, the defendant must have been represented by competent counsel; second the court must provide the defendant a full hearing prior to accepting the original guilty plea; and, finally, the court must provide a full hearing to the defendant, considering all the arguments in favor of withdrawal of his plea, before rendering a decision on the motion.” (Internal citations and quotations omitted). Brown at P10.”

So, if we summarize the court’s opinion, the following is obvious:

1. A motion to withdraw a plea must be filed prior to sentencing in nearly all cases.

2. The court will only entertain such a motion AFTER sentencing to cure some manifest injustice.

3. It is the defendant’s burden to prove the existence of the injustice.

4. The motion will granted only in extraordinary circumstances (which means rarely).

5. A lower court’s failure to grant such a motion will only be overturned if the court abused its discretion.

6. Abuse of discretion will not be granted when:

a. The defendant was represented by a competent attorney.

b. A full hearing was had prior to the court’s acceptance of the defendant’s original plea.

c. The court provided a full hearing on the defendant’s motion.

As one can see, the burden on the defendant is great. Not only must the defendant present overwhelming evidence of some patent injustice, but a higher court will not reverse or remand a lower court’s decision absent some showing of the lower court’s abuse of discretion – a very high standard indeed.

The lesson to be learned is be sure you have a full understanding of the consequences of your plea. Be sure you retain competent counsel who is fully versed on the law and the possible sentences that could result from your plea. If there is any issue regarding your plea, be sure your attorney enters an exception on the record. Finally, don’t sit on your rights. Timely filing is always an issue.

The Futility of Appeal

afromet — Mon, 19 Apr 2010 10:34:00 +0000

A recent Ohio Supreme Court case demonstrates the futility felt by many Defendants and their attorneys even when the higher court sustains the Defendant’s motion to suppress evidence that is fundamental to the prosecution of one accused of OVI in Ohio.

The case, O’Neill v. Mayberry, 2010 Ohio 1707, involved a defendant charged with (1) aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony; (2) failure to stop after an accident in violation of R.C. 4549.02(A) and (B), a third degree felony; (3) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree felony; (4) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; and (5) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f), a first degree misdemeanor. A conviction of the more serious charges had to be predicated on a successful prosecution of one of the charges under R.C. 4511.19.

The trial court denied O’Neill’s motion to suppress the results of his blood alcohol tests performed after his arrest. Pursuant to a negotiated plea agreement, O’Neill entered pleas of no contest to Counts 1, 2, 3, and 5, Count 5 being the OVI charge. In exchange, the state dismissed Count 4, the per se violation, and O’Neill was sentenced on his no contest pleas. The Defendant appealed his convictions and the Supreme Court sustained his motion to suppress. resulting in the dismissal of the per se violation. It is important to note that the court in its opinion stated that “…O’Neill’s convictions for aggravated vehicular homicide and aggravated vehicular assault depended upon a violation of R.C. 4511.19.”

Nonetheless, the state re-instituted prosecution of O’Neill on the original charges. O’Neill attempted to have these charges dismissed by filing a Writ of Prohibition with the Supreme Court claiming the lower court no longer had jurisdiction to try the charges.

The Ohio Supreme Court disagreed saying, “[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal,” State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429…Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred…Accordingly, when we remanded the case to the trial court following our determination that the trial court should have granted the motion to suppress, respondent was required to proceed from the point at which the error occurred, that is, after he denied the motion to suppress but before the plea agreement in which the state dismissed the general DUI charge.”

So, while the per se violation was dismissed, the state was permitted to go forward on the OVI charge, thus predicating a conviction of the more serious offenses based upon a conviction of that OVI case.

Searches Incident to Arrest

afromet — Fri, 19 Mar 2010 11:00:00 +0000

The Gant decision may be a bit afield of the issue of DUI, but it is important that anyone being arrested for a traffic offense be aware of their rights against illegal searches. To summarize Gant, the US Supreme Court limited an arresting officer’s right to search the vehicle when 1) the occupants are outside the vehicle and no longer have access to the vehicle and 2) there is no indication that the search was initiated to preserve evidence of the offense for which the offender was arrested.

A recent Ohio decision used the Gant decision in determining an officer’s right to search even if the subject of the arrest was other than a traffic violation. The case, State v. Gilbert, 184 Ohio App.3d 642 involved the arrest of the driver and his passengers. The automobile was stopped for a traffic offense. A warrant search found that the driver was driving under a suspended license and the front-seat passenger had an outstanding warrant for robbery. All three occupants were vacated from the car and the arresting officer proceeded to make a search of the vehicle.

The syllabus stated the following:

“Police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

The court’s opinion expanded on this point by stating:

“…the search is not justified under either branch of the standard established in Gant. When the search occurred…and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle’s passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued.”

A major debate is raging in Ohio relative to the right of an officer to search the vehicle after an arrest as a result of the Gant decision. The Gilbert case, I believe, further defines the limits of a police office’s right to search a vehicle for ANY reason. It appears Gilbert estops the officer from conducting an “inventory” search subsequent to arrest. Unless the search can be justified in furtherance of a search to accumulate evidence of the crime for which the accused is being charged, a search warrant must be obtained prior to any search.

Your Constitutional Right Against Self-Incrimination Now has a 14 Day Warranty!

afromet — Sat, 27 Feb 2010 08:19:00 +0000

A recent US Supreme Court case dealt a serious blow to your right against self-incrimination. Historically, “Miranda” rights included the rule that once the police were aware the accused was represented by counsel, they could not interrogate the accused without having the accused’s attorney present. This rule applied to any interrogation whether during initial or subsequent interviews of the accused.

The case, Maryland v. Shatzer, 2010 U.S. LEXIS 1899, established new, more lenient rules for police when interrogating an accused for a second time after the accused has invoked their “Miranda” right to counsel. The court ruled that confessions are admissible when there is a “break in custody” between the first and second interrogation.

The opinion, written by Justice Scalia, stated that the right against self-incrimination should not act as an “eternal” bar against further interrogation. To produce a clear definition of “break in custody,” Justice Scalia said that a 14-day separation between interrogations is sufficient before the police may question the accused again without fear of any resulting confession being inadmissible.

Therefore, if you are stopped and interrogated relating to a possible OVI investigation and invoke your right to counsel, the police may interrogate you 14 days later in an attempt to extract incriminating statements without fear of these statements will be suppressed even though they know you are represented by counsel.

So, although the US Constitution specifically guarantees you the right against self-incrimination, this “guarantee” only has a 14-day limited warranty.

The Intoxilyzer 8000 – Your Tax Dollars at Work

afromet — Wed, 10 Feb 2010 08:29:00 +0000

In December, 2008, the State of Ohio used a federal grant of $7 million for the purchase of 710 portable breath test (PBT) machines in spite of warnings that the machines were unreliable and subject to legal challenge.

The machines have proven to be vulnerable to errors based on environmental factors including heat and cold, as well as variable such as the length of time a suspect blows into the device.

Undaunted, The Ohio Department of Health began distributing the machines to rural counties hoping to avoid legal challenges by having the machines used in areas of Ohio having less than 3% of the state’s population.

Lawyers in several other states have gotten thousands of convictions thrown out because the manufacturer of the machine, CMI, Inc. of Kentucky refuses to turn over details of the machine’s operations.

But in Ohio, it appears the device will need to be challenged on other grounds due to the fact that a 1984 ruling by the Ohio Supreme Court barred defendants from attacking the reliability of breath tests once they’ve been certified by The Ohio Department of Health. On the other hand, no device may be used in Ohio unless it appears on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices. PBT’s are generally not on the list.

Meanwhile the state continues to put more instruments in the field – slowly. Just 17 out the of 714 original purchased have been used.

Stay tuned!

Can Political Subdivisions be Liable When the Actions of Their Police Officers Permit an OVI Offender to Drive?

afromet — Sat, 30 Jan 2010 14:44:00 +0000

A recent Ohio Supreme Court case has opened a Pandora’s box. In the case of Estate of Graves v. City of Circleville, 2010 Ohio 168, the court let stand a lawsuit filed against a city and its police officers resulting from the death of an individual killed by a drunk driver.

In the case, a multiple OVI offender names Copley was arrested, once again, for OVI. The next afternoon Copley was released. Finding no “hold” on the vehicle, the police released the vehicle to Copley. The next morning Copley drove his vehicle while intoxicated and caused a collision killing both he and Graves.

The estate filed suit against the officers, alleging that they had breached their duty to Graves by failing to remove Copley’s license plates from his vehicle and by releasing the vehicle to him. More specifically, the estate claimed that (1) R.C. 4507.38 required that Copley’s vehicle be held until his initial court appearance because he had been charged with driving on a suspended license and (2) R.C. 4511.195 required that Copley’s vehicle remain impounded because he had been convicted of operating a motor vehicle under the influence of alcohol (“OMVI”) within the prior six-year period. The estate alleged that the officers were aware that Copley was a recidivist drunk driver who was driving on a suspended license and that the officers violated the law by allowing Copley to obtain his vehicle from the impound lot. The estate further alleged that the officers acted wantonly, recklessly, and with complete disregard for the foreseeable consequences of their actions.

The city and officers defended themselves based upon Ohio’s Sovereign Immunity Statute contained in O.R.C. Chapter 2744. That statute bars any suit against any political subdivision of the state and/or its employees in the performance of their duties. However, the one exception is when the employee acts in a wanton and reckless manner (O.R.C. 2744.03(A)(6)(b)). The city asked the lower court to dismiss the case on that basis.

In its ruling, the court acknowledged the sovereign immunity statute but alluded to the Plaintiff’s claim of wanton and reckless behavior. Therefore, it remanded the case back to the lower court to determine the culpability of the officer’s behavior.