@dmin24

When authorities found Donna Wardell in her Chevrolet Impala, the car was upside-down, held in the air by part of the utility pole she just hit (see the story at app.com).  Medics pulled her out of the car through the windshield and rushed her to the hospital.  The medical team determined the crash was the result of a seizure caused by a brain tumor.  Wardell did not know about the tumor:  she learned of it in the hospital.  She later learned something else:  she was being charged with DWI because, when the medics removed Wardell from her car, they observed the odor of alcohol.

The odor of alcohol.  Based on that evidence alone, a police officer charged Wardell with DWI (called OVI in Ohio).  It was the only evidence suggesting Wardell might be under the influence of alcohol.  Upon closer examination, however, the odor of alcohol really is not evidence she was under the influence.  At most, it’s evidence she consumed alcohol.  There is no way to tell from the odor how much alcohol she consumed and whether that alcohol was affecting her ability to drive.

Her ability to drive was not affected by alcohol, as there was essentially no alcohol in her blood.  A toxicology report showed her blood alcohol concentration was .001.  At that level, the alcohol did not cause the crash.  Another hospital record concluded the crash was the result of a medical accident:  a seizure caused by the tumor.

This situation demonstrates the important distinction between “drinking and driving” and “driving under the influence”. It is not illegal to drive after drinking alcohol. What’s illegal, and unsafe, is driving under the influence of alcohol: when the alcohol impairs driving ability.

A representative of the police department which charged Wardell said the DWI could be dismissed if Wardell can prove the crash was caused by a medical accident. He said, “If evidence is presented in court which shows that alcohol or any other substance were not contributing factors to this crash…the matter will be handled appropriately in the municipal court.”

The officer misunderstands the burden of proof. Wardell should not have to prove her innocence: she is presumed innocent. The government has the obligation to prove her guilt in court. The government does not have evidence to prove her guilt beyond a reasonable doubt.

The government didn’t even have probable cause to believe she was driving under the influence. She should have never been charged in the first place. Now, although the government is aware of the blood alcohol level and the seizure-causing tumor, the government is not immediately dismissing the case. Instead, the prosecution is requiring Wardell to go to court while she is undergoing cancer treatment. Nice.

Donna Wardell’s ordeal illustrates the importance of our judicial system and the crucial role played by the presumption of innocence. When we hear a defendant is charged with DUI, we naturally conclude the defendant must be guilty or she would not have been charged. I’m not criticizing people for reaching that conclusion; it’s the natural way our minds work.

Because assuming guilt comes so naturally, a defendant can only receive a fair trial in an OVI case if the jury is required to presume the defendant was not under the influence. An individual can only receive a fair trial when the jury is required to find the defendant not guilty unless the government’s proof is so strong there is no (reasonable) doubt the defendant was under the influence. Hopefully, Donna Wardell will not have to get to the point of having a trial before she is treated fairly and her charges are dismissed.

DUI/OVI cases are litigated within a framework of rules. Some of those rules regulate the exchange of evidence between the prosecution and the defense. That exchange of evidence is the ‘discovery’ process. The rules for discovery are found in state and federal law, and the intricacies of the rules are fleshed-out in court decisions interpreting the rules. A prosecutorial violation of the discovery rules may significantly impact a DUI/OVI case.

An example of a prosecutorial discovery violation comes from a New Jersey police officer’s drunk driving case. In that case, the off-duty officer was charged with driving under the influence after crashing through the wall of a store, according to NJ.com. His attorney requested discovery from the prosecutor, including a copy of the manual for the blood-testing procedure and audio recordings of police communications related to the case.

Seven months after the discovery request was made, the prosecution had not provided the manual or the audio recordings. The defense attorney filed a motion to dismiss the case, and the judge gave the prosecution one month to provide the requested materials. Three months later, the prosecution had not given the materials to the defense attorney, and the judge dismissed the case. Although the case occurred in New Jersey, I would expect a similar result in Ohio.

In Ohio OVI cases, the prosecution’s failure to timely provide evidence may be a discovery issue or a due process issue, depending on whether the evidence is still available. If the evidence is still available but simply has not been provided, it’s a discovery issue. In that situation, I file a motion for a discovery sanction. The sanction imposed is the least severe action available to correct the violation. Typically, that means the judge gives the prosecution additional time to provide the missing evidence. If, however, the evidence is not turned over by the deadline, the case may ultimately be dismissed.

If the evidence is no longer available, it’s a due process issue. The defendant has the Constitutional right to due process of law (fair proceedings), and the destruction of evidence may violate that Constitutional right. If the destroyed evidence was ‘materially exculpatory’, or if the destroyed evidence was ‘potentially useful’ and destroyed in bad faith, the destruction of the evidence may result in the case being dismissed.

Two of my cases from earlier this year illustrate how discovery issues play out in Ohio DUI/OVI cases. In the first case, I requested video of my client at the jail and a recording of the 911 call regarding my client. Both pieces of evidence were destroyed, and the OVI charge was completely dismissed. In the second case, the prosecution did not timely provide the result of my client’s blood test. The blood test result showed-up in court on the day of the hearing on my motions to dismiss the case: seven months after my client’s arrest. The outcome of the hearing was uncertain, so the prosecution and defense agreed to resolve the case with a lesser charge.

Evidence destruction and serious discovery violations are somewhat rare in Ohio DUI/OVI cases. A defendant in an OVI case should not pin her hopes on beating the case on a discovery issue. On the other hand, these situations do arise, so defense counsel needs to have the knowledge of the applicable law and the skill to properly litigate the issue to achieve favorable client outcomes.

One of the most frequently asked questions for criminal defense attorneys is about the impact of Miranda warnings. A previous article in this blog explained the holding of the Miranda case. After the publication of that article, the United States Supreme Court decided a Miranda-related case which affects investigations in Ohio DUI/OVI cases.

The case of Salinas v. Texas came in a bit under the radar. This Supreme Court decision regarding the protection against self-incrimination did not receive much media attention, and I did not hear it discussed much among lawyers at the courthouses. Although it was not widely publicized, Salinas could have an impact in Ohio DUI/OVI cases.

To understand the significance of Salinas, one must first understand Miranda v. Arizona. The holding of theMiranda case seems to be one of the most misunderstood aspects of American criminal justice. As explained in this blog’s 2012 article (“But The Officer Never Read Me My Rights”), the holding of the Miranda case is this: if a suspect is questioned while in custody, the suspect’s statements are not admissible in court unless the officer gives Miranda warnings. Another result of Miranda is this: if a suspect chooses to remain silent, the prosecution cannot comment on the defendant’s silence at trial.

The Salinas case addresses the part about the prosecution commenting on the defendant’s silence. Salinas was charged with murder. When he was questioned by police officers about the murder weapon, Salinas remained silent. At the trial, the prosecutor argued to the jury Salinas must be guilty because an innocent person would have answered the questions about the murder weapon. Salinas was found guilty and appealed his conviction all the way to the United States Supreme Court.

The Supreme Court concluded it was appropriate for the prosecution to comment on the defendant’s silence. The Court found Salinas was not in custody and was not given Miranda warnings. A plurality of the Court reasoned a suspect in those circumstances must invoke his right to remain silent by communicating to the officers he is claiming the right. Merely remaining silent is insufficient to invoke the right to remain silent.

The Salinas decision is important for Ohio DUI/OVI cases because drivers are often questioned when they are not in custody and not given Miranda warnings. After making a traffic stop, an officer may ask a driver questions like, “have you been drinking?”, “how much alcohol did you drink?”, or “do you feel like you’re under the influence?”. If the driver answers, the answer can be used in court. According to the Salinas decision, if the driver remains silent, the driver’s silence may also be used in court. Only if the driver clearly communicates to the officer the driver’s intention to invoke the Fifth Amendment will the driver’s silence be excluded from evidence at trial.

The irony of this situation is the driver must talk if he wants to remain silent. All of America knows the warning: “You have the right to remain silent”. The truth is, you don’t always. If you’re questioned and not in custody, you cannot be compelled to incriminate yourself, but you don’t really have the right to remain silent. In fact, if you choose to remain silent, the prosecutor will use your silence to make you look guilty at trial. Maybe those warnings need to be changed.

I’m traveling to another state for a seminar next week. It just so happens the state is Nevada, and the seminar is in Las Vegas. For me, there is no risk of being convicted of DUI in Nevada because the trip is all about education! Sometimes, however, an Ohio driver comes home with the unwanted souvenir of an out-of-state DUI conviction. When it comes to DUI, what happens in Vegas does not stay in Vegas: there are consequences in Ohio for a DUI conviction in another state.

The consequence in Ohio for an out-of-state DUI conviction is suspension of the person’s Ohio driver license. Another state cannot suspend an Ohio driver’s license. Instead, if that state is part of the Interstate Driver License Compact, that state transmits to the Ohio Bureau of Motor Vehicles (BMV) information that the Ohio driver was convicted of DUI in the other state. The Ohio BMV then takes action against the person’s Ohio driver’s license according to Ohio law.

Ohio law instructs the Ohio BMV to impose a license suspension on any person who is convicted of DUI in another state. Ohio Revised Code 4510.17 states the suspension shall be a ‘Class D’ suspension, which means the suspension is six months. When the BMV receives the report from the other state, the BMV sends a notice to the driver indicating his or her driver license will be suspended beginning 21 days after the day the notice was issued.

An Ohio driver can appeal the suspension (with or without the help of an Ohio DUI/OVI lawyer).  If a driver receives the 21-day notice and wants to appeal, the driver must file a notice of appeal before the license suspension is scheduled to begin.  When the notice of appeal is filed, the BMV registrar is required to hold a hearing within 40 days of when the notice of appeal was filed.

At the appeal hearing, the Ohio driver can seek to have the suspension terminated, can seek to reduce the duration of the suspension, and can seek to obtain limited driving privileges.  To have the suspension terminated, the Ohio driver must prove he or she was not actually convicted of DUI or the other state’s DUI offense is not substantially similar to Ohio’s OVI offense.  To have the suspension duration reduced, the Ohio driver must prove the other state imposed a driving rights suspension, and that suspension ends before the Ohio suspension ends.  Limited driving privileges may be granted for occupational, educational, vocational, and medical purposes, as well as taking the driver’s license examination and attending court-ordered treatment.

The Ohio BMV’s suspension of a person’s Ohio driver license is in addition to whatever sentence was imposed by the court in the other state.  For example, if a court in Nevada sentences an Ohio driver to three days in jail, 20 hours of community service, and a $700 fine, the Ohio driver must serve that sentence and also deal with the license suspension imposed by the Ohio BMV.  So if a person is convicted of DUI in Las Vegas, it truly does not stay in Vegas.  Nevada, by the way, was the first state to adopt the Interstate Driver License Compact in 1960.