November 2015

For three decades, lawyers and judges have been misinterpreting the case of State v. Vega. In Vega, the Ohio Supreme Court held defendants in DUI/OVI cases may not attack the general reliability of breath-testing machines. Some lawyers and judges interpret Vega as if it says defendants are not permitted to make anychallenge to the breath test result. This misinterpretation of the Vega decision may exist in part because most people have not actually read the decision. It’s like the telephone game where the statement made by the first person in the game is modified drastically by the time the statement is repeated by the last person in the game. A few days ago, the Ohio Supreme Court clarified the holding of Vega in a case which will hopefully end the abuse of defendants’ rights resulting from the misinterpretation of Vega.

The recent case is Cincinnati v. Ilg. In Ilg, the defendant took a breath test on an Intoxilyzer 8000, blew over .080, and was charged with OVI. The defense attorney filed a Demand For Discovery requesting that the prosecution provide records for the specific Intoxilyzer 8000 used for his client’s breath test. When the prosecution did not provide the records, the defense subpoenaed the records from the Ohio Department of Health, the agency responsible for maintaining those records. The program administrator for the Department of Health’s alcohol and drug testing program told the Court the Department of Health did not have the personnel or technology to provide the requested records. The records were not provided.

The trial court excluded the breath test results from evidence, concluding the defendant had the right to challenge the reliability of his breath test and could not do so without the requested records. The prosecution appealed to the First District Court of Appeals, and the appellate court affirmed the decision of the trial court. The prosecution then appealed to the Ohio Supreme Court. The prosecution’s primary argument was this: a defendant cannot compel the State to produce information that is to be used for the purpose of attacking the reliability of the breath-testing instrument because State v. Vega prohibits defendants from making attacks on the reliability of breath-testing instruments.

The Ohio Supreme Court framed the issue this way: “whether an accused defending a charge that he operated a motor vehicle with a prohibited level of alcohol in his breath is precluded from attacking the reliability of the specific breath-testing machine”. The Court concluded that, although a defendant may not challenge thegeneral reliability of approved breath-testing instruments, a defendant may challenge the accuracy of his specific test results. The Court stated a defendant may challenge, “the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results at issue in a pending case.”

In reaching this conclusion, the court cited several previous Ohio Supreme Court decisions reaching the same conclusion. That’s because the Ilg decision is paradoxically a landmark case which doesn’t really say anything new. The interpretation of Vega ‘announced’ by Ilg is actually what Vega itself said 30 years ago. The need for the ‘new interpretation’ of Vega only existed because of the telephone game problem. Some lawyers and judges told some other lawyers and judges about the ‘Vega rule’, those lawyers and judges told some other lawyers and judges, and so on, and so on. Eventually, it was ‘common knowledge’ in the legal community that defendants cannot challenge breath test results, even though that’s not at all what Vega said.

As Judge Teresa Liston said in State v. Lancster, “Because this Court is bound to apply the rule of Vega as articulated by the Vega court itself, and not the ostensible or purported rule of Vega, a close reading of Vega is appropriate, and indeed required.” Indeed! Now that a unanimous Ohio Supreme Court has reinforced the true holding of Vega, motorists in Ohio will finally be able to defend themselves against OVI charges based on inaccurate breath test results.

n the last couple weeks, two school bus drivers were suspected of being under the influence while driving a bus full of students. Both drivers were arrested for DUI, and both drivers now face serious consequences. These incidents raise the question of what happens if a school bus driver is convicted of DUI/OVI in Ohio.

The first incident, reported by the Associated Press, involves a school bus driver in Utah. The suspect was driving elementary school students for a field trip. Two people, one motorist and one parent on the bus, called 911 to report the bus was swerving erratically and nearly hit a car on the highway. An officer stopped the bus and conducted a DUI investigation. The bus driver was arrested for DUI, and prescription muscle relaxers were found in the bus driver’s purse. The students were driven to the field trip by another, presumably sober, bus driver.

The second incident, reported by the Boston Globe, involves a school bus driver in Massachusetts. The suspect was driving a high school cross country team from a meet to their high school. Witnesses reported the bus driver smelled of alcohol, ran a red light, took the wrong exit, failed to use turn signals, hit rumble strips, and drove at fluctuating speeds. Police stopped the bus in the school parking lot and administered field sobriety tests to the driver. The bus driver was arrested for DUI and was held without bail. The bus driver reportedly had two prior DUI convictions.

In Ohio, school bus drivers face serious consequences for DUI/OVI convictions. Schools are required by Ohio Administrative Code section 3301-83-06 to complete semi-annual record checks for school bus drivers. If a driver was convicted of DUI/OVI in the last six years, that driver is disqualified from operating a school bus. In addition, schools are required by Ohio Administrative Code section 3301-83-23 to terminate the employment of any school bus driver convicted of DUI/OVI. In a nutshell, if a school bus driver is convicted of DUI/OVI in Ohio, that driver’s employment will be quickly terminated, and that driver will not be eligible to drive a school bus for six years. These regulations apply if the DUI/OVI occurred while driving a school bus, and they also apply if the DUI/OVI occurred in a personal vehicle.

I represented a school bus driver charged with DUI/OVI in a personal vehicle. My client was stopped because an officer believed my client was doing donuts in a school parking lot. The officer observed signs consistent with impairment and arrested my client. The officer performed a Drug Recognition Evaluation and concluded my client was under the influence of a narcotic analgesic. The officer charged my client with OVI and Reckless Operation. My client was in a difficult position because the employment termination and six-year disqualification for DUI/OVI convictions also apply to Reckless Operation convictions. In court, the judge concluded the initial stop of my client was not justified because the officer did not actually see my client doing donuts; he only saw headlight movements consistent with donuts. As a result, all evidence obtained after the initial stop was suppressed (excluded), and both charges were dismissed.

My client was fortunate there was no conviction. The consequences for school bus drivers convicted of DUI/OVI in Ohio are severe. The severity of the consequences is probably appropriate, as school bus drivers are carrying some very precious cargo.

Somewhere between ten percent and twenty percent of Americans have GERD: Gastro Esophageal Reflux Disease. While the advertisements by pharmaceutical companies have made GERD common knowledge, it is no so commonly known that this medical condition can inflate the result of an alcohol breath test. When the defendant in an OVI case has GERD, lawyers and judges find themselves at the intersection of law and science.

Science was not my best academic subject. In high school, I was one of only two people in the chemistry class not invited to the take physics. In college, I was required to take a few science courses, and I studied diligently…to find out which courses were the easiest! As a criminal defense lawyer, I was not thrilled to realize that developing expertise in DUI/OVI defense requires at least some comprehension of anatomy, physiology, chemistry, and pharmacokinetics. Although I am far from being a scientist, I have learned enough about the scientific aspect of DUI/OVI cases that I was recently asked to speak at a seminar on the topic of “Presenting A GERD Defense: Law And Science”.

Recognizing how GERD affects alcohol breath tests requires understanding how alcohol reaches human breath. Alcohol is absorbed into the bloodstream, mostly in the intestines and some in the stomach. Blood carries the alcohol to different parts of the body, including the lungs. In the lungs, small blood vessels wrap around the ends of the bronchial trees; the alveolar sacs. At the alveolar sacs, gases from the blood, including alcohol, go into the lungs. Those gases, including alcohol, are then exhaled. If a person is taking a breath test, those gases are exhaled into the mouthpiece of a breath-testing machine.

The breath-testing machine is supposed to measure alcohol from the lungs only. For people with GERD, however, alcohol from their stomach is getting added to the alcohol from their lungs. At the bottom of the esophagus, there is muscle tissue, the lower esophageal sphincter, which prevents stomach contents from going back up the esophagus. For people with GERD, the lower esophageal sphincter does not close all the way, and gases (as well as liquids) from the stomach leak up the esophagus. Those gases include alcohol.

Alcohol vapors from the stomach go up the esophagus, meet with alcohol vapors from the lungs, and both are exhaled together into the breath-testing machine. The machine doesn’t know where the vapors came from; it just measures the alcohol exhaled into the mouthpiece. Consequently, what should be a measurement of alcohol from the lungs is falsely elevated by alcohol from the stomach.

Although the impact of GERD on the breath test is understood, it’s not always accepted by lawyers and judges. Based on the 30-year-old case of State v. Vega, some lawyers and judges believe a defendant may not question the accuracy of the defendant’s breath test. What Vega really says is the defendant may not attack the general reliability of the breath-testing machine. Vega does not prohibit evidence showing the specific breath test in the defendant’s case yielded an inaccurate result.

Thankfully, this was clarified in the recent case of Cincinnati v. Ilg. In Ilg, the Ohio Supreme Court stated a defendant is permitted to challenge “the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results….”

It should now be clear that a person charged with OVI is permitted to demonstrate the result generated by the breath-testing machine does not accurately reflect his or her true breath alcohol concentration. A trial is intended to be a search for the truth, and the truth is GERD can falsely inflate a breath test result. It is not an issue in every case, but for the ten to twenty percent of people with GERD, it’s a viable defense.

Most states acknowledge urine testing is not an accurate way to measure blood alcohol concentration, and Ohio is one of the few states which still uses urine alcohol testing for DUI/OVI cases. Ohio law makes urine tests admissible in court so long as law enforcement agencies follow state regulations. Some of those regulations address scientific reliability, and some of those regulations address administrative issues. As a result, urine tests are often inadmissible, not because they are scientifically unreliable, but because the government did not follow its own rules.

Ohio law makes urine tests admissible in DUI/OVI cases. Ohio Revised Code section 4511.19(D) states urine tests may be admitted as evidence if the urine sample is analyzed in accordance with regulations approved by the Ohio Director Of Health. The regulations approved by the Director Of Health (DOH) are found in chapter 3701-53 of the Ohio Administrative Code.

Some Ohio regulations for urine testing promote reliable test results. For example, the regulations establish what testing methods are acceptable (e.g., gas chromatography and immunoassay) and require confirmatory testing by an additional method. The regulations also require that testing methods have documented sensitivity, specificity, accuracy, precision and linearity.

Some Ohio regulations for urine testing are more administrative in nature. For example, the regulations require that urine specimens are collected in a certain type of container with a certain type of lid. The regulations further require that the container have a label which contains certain information. The regulations also contain requirements for record keeping, laboratory accreditation, and laboratory personnel permits.

For a urine test to be admissible as evidence in a DUI/OVI trial, law enforcement must comply with the DOH regulations. If a defendant files a motion to suppress the urine test based on the regulations, the prosecution has the burden of proving substantial compliance with the regulations. A recent case of mine is a good illustration of how this plays out in court.

My client was arrested for OVI, submitted a urine sample, and the result was reported as .123. We filed a motion to suppress the urine test, and the laboratory technician who performed the urine test was subpoenaed to court for our motion hearing. The prosecutor and I met with the lab tech before the hearing started. The lab tech opened the bag containing the urine sample…[insert dramatic music here]…the label on the jar did not contain the name of the suspect or the date and time the specimen was collected. The prosecutor agreed the urine test would be suppressed, and the OVI charge was reduced to a lesser offense.

This case demonstrates the irony inherent in Ohio’s urine testing system. The truth is my client’s urine test shouldn’t be used against him because it has doubtful accuracy, and we don’t want to convict people based on inaccurate tests. The lack of accuracy, however, is not what made the urine test inadmissible. Instead, the urine test was going to be inadmissible because the officer overlooked writing some basic information on a label. I think most people would say my client ‘got off on a technicality’: the reality is this was the right result, but probably for the wrong reason.

Suppose an officer detains a person for violating a traffic law and it turns out the person really didn’t violate the law: the officer was simply mistaken about what the law says. Until recently, one would expect that any evidence obtained after the mistaken detention would be thrown out. In a recent case, however, the U.S. Supreme Court concluded any evidence obtained after the officer mistakenly detained the person is not excluded from trial, so long as the officer’s mistaken belief about the law was reasonable.

The case is Heien v. North Carolina. A police officer was watching traffic on a road in North Carolina when the officer observed Heien’s Ford Escort pass by. The car was being driven by Maynor Javier Vasquez, and Heien was a passenger. The driver was not driving recklessly, was not speeding, and was not violating the law in any way. The officer followed the car because the driver looked “very stiff and nervous”, then stopped the car for what the officer believed was a brake light violation. The car only had one working brake light, and the officer did not know that North Carolina law only requires one working brake light.

As the officer was issuing a warning ticket for the broken brake light, the officer became suspicious because the driver and passenger gave inconsistent answers to his questions regarding their destination. The officer asked Heien if the officer could search the vehicle. Heien consented. The officer found cocaine in the vehicle, and Heien was ultimately charged with and convicted of Attempted Drug Trafficking.

Heien’s conviction was reversed by the North Carolina Court of Appeals, but that decision was reversed by the North Carolina Supreme Court. Heien appealed to the United States Supreme Court. The U.S. Supreme Court accepted the case to answer this question: can an officer’s mistake of law give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment?

The U.S. Supreme Court answers that question in the affirmative. In an opinion written by Chief Justice Roberts, the Court concludes that, if an officer stops a vehicle based on the officer’s mistake of law, and if that mistake is reasonable, the stop is justified under the Fourth Amendment. The Court reasons that people, including law enforcement officers, make mistakes, and an officer’s mistaken belief should only result in evidence being excluded if the officer’s mistaken belief was unreasonable. The Court supports this reasoning with citations to cases from the 1800s. Those cases did not involve the scope of the Fourth Amendment, and the Court’s opinion admits the cases are not on-point. The Court also compares officers’ mistakes of law with officers’ mistakes of fact. There are cases holding a detention may be justified even if an officer made a mistake of fact.

The Court’s comparison of mistakes of fact and mistakes of law is not compelling. The Court gives this example:

An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover, upon approaching the car that two children are slumped over in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment.

In the Court’s example, we would not expect an officer to know there were additional passengers in the car, so the officer’s detention of the car and its occupants is reasonable. We do, however, expect officers to know what is illegal and what is not. Suppose the officer knows there are two children in the car and mistakenly believed the law required four people in a vehicle for travel in the high-occupancy lane. I think stopping the vehicle based on the officer’s mistake of law would be unreasonable. The U.S. Supreme Court may disagree.

The Court seems to bend over backward to find a way to justify stopping vehicles. The real reason the officer stopped the car is the driver was a minority and appeared “very stiff and nervous” (and he was driving a Ford Escort!). The suspected brake light violation was really just an excuse to stop the car; what the law calls a pretextual stop. The Court held in Whren v. United States that pretextual stops are permitted so long as they are justified by some violation of the law. Now the court goes even further to say there really doesn’t need to be a violation of the law for a pretextual stop, as long as the officer reasonably says he thought there was a violation of the law.

The Court’s decision in Heien is another incremental erosion of Fourth Amendment protections. I’m not suggesting the officer should be punished, or even criticized, for not knowing every intricacy of the state’s vehicle equipment law. I’m only suggesting that, if the officer was wrong, and there really was no violation of the law, the officer really did not have justification to stop the car. Therefore, the stop was an unreasonable seizure, and evidence obtained after the unreasonable seizure should be suppressed. I’m sure the Heien case will be cited in future litigation of DUI/OVI cases in Cleveland and Central Ohio.

If marijuana use is legalized in Ohio, more drivers will face charges of operating a vehicle under the influence of marijuana.  Ohio’s OVI-marijuana laws raise many questions:  How long does a marijuana high last?  Does marijuana impair driving ability?  Do blood and urine test results correlate with impaired driving ability?  Are Ohio’s OVI-marijuana laws Constitutional?  This article addresses the first question by discussing the duration of marijuana effects.

The psychoactive ingredient in marijuana is THC (tetrahydrocannabinol).  THC is what makes a person ‘high’.  Whether smoked or eaten, when THC enters the body, it is broken down (metabolized) quickly, either in lungs or stomach.  When this metabolism occurs, metabolites are produced.  A metabolite is any substance produced during metabolism:  what remains after a drug is ‘broken down’.

As marijuana is metabolized when it enters the body, it is laughable that Ohio law prohibits operating a vehicle with a prohibited concentration of “marihuana”.  There will never be Ohio OVI cases with blood or urine tests showing a concentration of “marijuana” because blood and urine tests do not identify or measure “marijuana”.  Instead, they identify and measure THC metabolites.

Two THC metabolites are measured in the context of DUI/OVI cases. One metabolite of THC is 11-OH-THC, known as Hydroxy THC. Another metabolite of THC is THC-COOH, known as Carboxy THC. THC metabolism occurs sequentially: from THC to Hyrdoxy THC to Carboxy THC. Hydroxy THC is commonly called the ‘active’ metabolite, and Carboxy THC is commonly called the ‘inactive’ metabolite. The following analogy explains why.

In terms of being psychoactive, THC and its metabolites can be compared to a campfire. THC is like the burning fire: just like the campfire produces heat, THC produces mind-altering effects. Hydroxy THC is like the lightly glowing embers at the end of the campfire’s existence: just as those embers give off a little heat, Hydroxy THC gives a little high. Carboxy THC is like the ashes of a campfire: all we can say from the presence of Carboxy THC is ‘there was a fire here in the past’.

There is a distinction between the duration of a marijuana high and the length of time THC metabolites are detectable. There are varying conclusions about the average length of a marijuana high. The National Highway Traffic Safety Administration (NHTSA) marijuana fact sheet reports a range of two hours and five hours.

Although the effects of marijuana last only two to five hours, THC and its metabolites are detectable for much longer. There are varying conclusions on detectability in scientific literature, so what is reported here is subject to debate. In blood, Hydroxy THC is detectable for up to eight hours, and Carboxy THC is detectable for up to 12 hours. In urine, Carboxy THC is detectable for up to five weeks.

The distinction between duration of detectability and duration of effects is problematic. Even if marijuana impairs driving ability, it’s only for two to five hours. Tests, however, will reveal THC metabolites in blood for up to 12 hours and in urine for up to five weeks. That means a person could be charged with OVI-marijuana hours, days, or weeks after it stops affecting them. This provokes the question posed at the beginning of this article regarding whether Ohio’s OVI-marijuana laws are Constitutional. That issue will be addressed in a subsequent article in this blog.

*Although the wisdom of passing Issue 3 is not the subject of this article, I do have an opinion on the matter. Regardless of whether marijuana legalization is a good public policy, it should not be accomplished by means of a Constitutional amendment. The purpose of the Ohio Constitution is to provide a framework for the state government and should not be modified to encompass narrow public policies like marijuana legalization. Those policies should be addressed in legislation, not the Constitution.

If an officer’s testimony about a traffic stop is not corroborated by the officer’s cruiser video, how do judges rule on the justification for a traffic stop? Once a judge makes a ruling, under what circumstances might that ruling be overturned by an appellate court?  A recent case decided by the Tenth District Court of Appeals in Columbus, Ohio illustrates the discretion judges are given regarding evidentiary issues in OVI motion hearings.

The case of State v. Comer was decided in December of 2014. In Comer, the defendant was charged with OVI and filed a motion to suppress evidence. The motion claimed all evidence obtained after the stop of the defendant’s vehicle should be suppressed because the traffic stop was unconstitutional. At the motion hearing, the officer testified she observed the defendant’s vehicle “weaving and crossing the lines” and “almost hit the concrete divider”.

The video from the officer’s cruiser did not clearly show the defendant’s vehicle crossing the lane line. The defendant argued the video undermined the credibility of the officer, so the judge should find there was no marked lanes violation and therefore no justification for the stop. The prosecution argued the video was inconclusive regarding the marked lanes violation (due to the glare from streetlights and the distance between the cruiser and the defendant’s vehicle), and the officer’s testimony alone was sufficient evidence the defendant crossed the lane line.

The trial judge found, based on the officer’s testimony, there was a marked lanes violation justifying the traffic stop. The defendant plead No Contest and appealed the trial court’s decision to the Tenth District Court of Appeals.

The Court of Appeals affirmed the decision of the trial court. The Court’s written opinion characterizes the video as unclear and inconclusive as to whether the defendant’s vehicle crossed the lane line. The opinion then cites previous cases in which trial court decisions were affirmed when traffic violations reportedly observed by officers were not visible on cruiser videos. The opinion explains the trial court was in the best position to determine the officer’s credibility, and the trial court found “no evidence submitted to call into question the truthfulness of the trooper”.

Other appellate courts have reached different conclusions in similar cases in the past few years. In State v. Jarosz, the court of appeals concluded the traffic stop was not justified when the cruiser video disputed the officer’s testimony about pacing the defendant’s vehicle to measure its speed. In State v. Ali, the appellate court concluded the defendant’s motion to suppress was properly granted when the cruiser video showed no marked lanes violation. In State v. Larrick, the court of appeals overturned the defendant’s conviction for OVI because the cruiser video contradicted the officer’s claims regarding marked lanes violations.

Why are the outcomes different in these cases which appear to be very similar? First, the outcome often depends on which party is appealing. On appeal, the appellate court accepts the trial court’s factual findings so long as they are supported by competent, credible evidence. In Jarosz and Ali, the prosecution was appealing the trial judge’s decision, and the appellate courts simply concluded the trial judge’s findings (no marked lanes or speeding) were supported by some evidence. In Comer and the cases its opinion cites, the defendant was appealing, and the appellate courts simply concluded the trial court’s factual finding (there was a traffic violation) was supported by some evidence (the officer’s testimony).

Second, the outcome may depend on whether the cruiser video actually contradicts the officer’s testimony or merely fails to corroborate the officer’s testimony. In most of the cases addressing this issue, including Comer, the video was inconclusive. Larrick is the rare case where the video actually contradicted the officer’s testimony. As a result, the appellate court in Larrick reached the unusual conclusion that the trial court’s findings were not supported by competent, credible evidence.

As these cases demonstrate, trial judges have a great deal of discretion when making findings of fact in OVI motion hearings. Their rulings in this regard will only be disturbed if they abuse that discretion by making findings that have essentially no evidentiary support.

Mothers Against Drunk Driving (MADD) recently released its “2015 Report To The Nation”. The report rates the efforts of each of the 50 states to prevent drunk driving. In the report, MADD uses a five-star system of measures which can be undertaken to prevent drunk driving fatalities. Ohio receives four stars.

1. Ignition Interlock Devices. MADD recommends the use of ignition interlock devices (IID). If a vehicle is equipped with an IID, the driver must blow into the IID before starting the car, and the car will only start if the alcohol concentration in the driver’s breath is below a predetermined limit. The MADD report indicates “Ohio has the opportunity to stop drunk driving. In 2014, Annie’s Law requiring ignition interlocks for all convicted drunk drivers was introduced. The legislation ran out of time and faced opposition from a fringe group of judges.” Although Ohio does not have mandatory ignition interlocks for all convicted drunk drivers, Ohio does use ignition interlock devices in two ways. First, ignition interlock may be required as a condition of limited driving privileges on an Administrative License Suspension, and its use is mandatory on a third or subsequent offense. Second, ignition interlock may be required as part of a defendant’s sentence on a first conviction and is a mandatory part of the sentence on a second or subsequent conviction.

2. License Revocation. MADD endorses the implementation of the administrative license suspension: “a swift punishment for drunk driving through the immediate confiscation of an offender’s driver’s license by the arresting officer.” Ohio imposes immediateadministrative license suspensions whenever an OVI suspect refuses a chemical test or submits to a chemical test and produces a result over .08. Administrative license suspensions for a first offender are 90 days (test over limit) or one year (test refusal). For subsequent administrative license suspensions, the duration of the suspension increases, up to five years.

3. Child Endangerment Laws. MADD suggests legislation crating child endangerment laws and views drunk driving with a child passenger as a form of child abuse. Ohio’s child endangerment law makes it illegal to operate a vehicle under the influence or over the limit with a child under 18 in the vehicle. That Ohio law is punishable by up to six months in jail and a license suspension for up to one year. If violation of that law results in serious physical harm to the child, or if the offender has a prior OVI conviction, violation of the law is a felony.

4. No-Refusal Events. MADD encourages states to sponsor no-refusal events. The report states, “No refusal activities have proven to be successful in reducing the number of offenders who refuse testing by allowing law enforcement to easily and quickly obtain a warrant to test the suspected offender.” In Ohio, many counties have “no refusal weekends”. During those weekends, judges make themselves available to sign search warrants for the blood of suspected drunk drivers who refuse chemical tests.

5. Sobriety Checkpoints. MADD is of the opinion that sobriety checkpoints are extremely effective. In the report, MADD states, “we know that ignition interlocks and sobriety checkpoints are the two most effective ways to dramatically reduce fatalities and injuries.” I disagree. Although it is not possible to measure the deterrent effect of sobriety checkpoints, the numbers of persons charged with OVI at sobriety checkpoints is public record. In Ohio, a typical sobriety checkpoint results in hundreds of people being inconvenienced and only a few people being charged with OVI. In a recent checkpoint case I handled, over 400 motorists were stopped, and only one was charged with OVI.

With the exception of sobriety checkpoints, the measures recommended by MADD are effective means of combating drunk driving. MADD seeks to establish a blueprint for a nation without drunk driving. If that happens, I will gladly find another line of work. In the meantime, someone needs to ensure Constitutional rights are protected, including the rights of individuals accused of drunk driving.

In September of 2014, CW was driving his motorcycle in northwestern New York and collided with another motorcycle. A police officer responded to the accident scene and reportedly noticed the odor of alcohol on CW. The officer asked CW to take a breath test, and CW refused. The officer ultimately obtained a blood sample from CW and charged him with DWI (known as OVI in Ohio). The officer then sent the blood sample to be tested. The test revealed a blood alcohol content of 0.00. Last week, five months after CW was charged with DWI, the case was finally dismissed, as reported by the Genesee Sun.

If this case occurred in Ohio, it would have likely gone through the same process. When an officer in Ohio suspects a driver is under the influence, the officer requests a breath test, blood test, orurine test. In cases where a blood test or urine test is used, the results of the test are not immediately known to the officer. Despite not having the test results, officers routinely charge people with OVI immediately after the blood or urine sample is obtained. The blood or urine sample is then sent to a laboratory for analysis, and the analysis typically is not completed until weeks or months after the person is charged.

In cases involving blood/urine tests, there are two types of OVI charges which may be filed. First, the suspect is charged with OVI ‘impaired’. The ‘impaired’ charge accuses the suspect of operating a vehicle with driving ability impaired by alcohol and/or drugs. The ‘impaired’ charge is not dependent on the results of a blood/urine/breath test. Second, if the test results show an alcohol or drug level at or above the prohibited concentration (the ‘legal limit’), the suspect is charged with OVI ‘per se’. The ‘per se’ charge accuses the suspect of operating a vehicle with a prohibited alcohol or drug level. The ‘per se’ charge does not depend on whether suspect’s ability to drive was impaired.

In the case of CW, the officer likely charged CW with DWI ‘impaired’ on the day of the accident. If the blood test revealed an alcohol level above .080, CW would have also been charged with DWI ‘per se’. As the blood test revealed there was no alcohol in CW’s blood, CW was never charged with DWI ‘per se’.

It was appropriate for the prosecutor to dismiss the ‘impaired’ charge. I suppose the prosecutor could have maintained the charge and tried to prove CW’s ability to drive was impaired by alcohol. Doing so could end badly for the prosecutor, as rules of professionalism require a prosecutor to seek the truth and only pursue a charge when the charge is supported by probable cause.

Probable cause is also the standard for an officer to file charges. The blood test result makes me wonder what evidence the officer observed before charging CW with DWI. The report by the Genesee Sun references the odor of alcohol but does not mention any evidence indicating CW was under the influence. It does mention his refusal of the breath test, but that is not necessarily evidence he was under the influence: it may be evidence he was justifiably indignant about the officer’s request.

Charging people with OVI without test results can have unfortunate consequences, as it did for CW. Hopefully he will have the case sealed so there is no public record he was even charged with DWI. Having the public records sealed, however, does not undo the embarrassment he experienced when he was arrested or the anxiety he experienced for five months while the case was pending.

Ohio has several variations of what is commonly known as vehicular homicide. Generally, vehicular homicide is causing the death of another person while operating a vehicle. In the Ohio Revised Code, there are actually three separate offenses: (1) Aggravated Vehicular Homicide; (2) Vehicular Homicide; and (3) Vehicular Manslaughter. The offenses defined in the Ohio Revised Code are distinguished by the driver’s conduct (actus reus) and the driver’s state of mind (mens rea). The particular offense with which a defendant is convicted makes a substantial difference in the sentence imposed by the court.

Aggravated Vehicular Homicide can be committed in one of three ways. The first way is causing the death of another person as a result of operating a vehicle under the influence of alcohol or drugs. The second way is causing the death of another person as a result of operating a vehicle recklessly. The third way is causing the death of another person as a result of committing a Reckless Operation offense in a construction zone.

The sentence for Aggravated Vehicular Homicide in Ohio depends on how the offense is committed. If a person is under the influence of alcohol or drugs, the offense is a second degree felony carrying a mandatory prison sentence of up to eight years and a mandatory lifetime driver’s license suspension. If a person is reckless or commits a Reckless Operation offense in a construction zone, the offense is a third degree felony carrying up to five years in prison and a driver’s license suspension from three years to life. If certain factors exist, the offense level and potential sentence are increased.

Vehicular Homicide can be committed in two ways. The first way is causing the death of another personnegligently. The second way is causing the death of another person as a result of committing a Speeding offense in a construction zone. Vehicular Manslaughter is committed by causing the death of another person as a result of committing a minor misdemeanor traffic offense.

The sentences for Vehicular Homicide and Vehicular Manslaughter depend on how the offense is committed. If a person is negligent or speeds in a construction zone, the offense of Vehicular Homicide is a first degree misdemeanor carrying up to six months in jail and a driver’s license suspension for one to five years. If a person commits a minor misdemeanor traffic offense, the offense of Vehicular Manslaughter is a second degree misdemeanor carrying up to 90 days in jail and a driver’s license suspension for six months to three years. If certain criteria are present, the offense level and potential sentence are increased.

I recently finished a jury trial which illustrates the significant differences in vehicular homicide offenses. My client was charged with Aggravated Vehicular Homicide based on recklessness and Vehicular Homicide based on negligence. Ohio law defines recklessness with a subjective standard: did that driver know there was a risk his or her driving would likely cause a collision, and did that driver perversely disregard that known risk with heedless indifference to the consequences? On the other hand, Ohio law defines negligence with an objectivestandard: did the driver fail to perceive or avoid a risk that his or her driving may cause a collision because of a substantial lapse of due care? Due care is the amount of care which a reasonably prudent person is accustomed to use under the same or similar circumstances.

The jury concluded my client was not reckless but was negligent: my client was found not guilty of Aggravated Vehicular Homicide but guilty of Vehicular Homicide. As a result, the potential incarceration was up to six months in jail rather than five years in prison. While this may be considered a trial ‘victory’, there are no real winners in this type of case.