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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.

Sometimes rules are not made to be broken. When it comes to cases of alleged driving under the influence, there are rules for drivers, and there are rules for the government. When a driver breaks the rules, there are consequences. There are also consequences when the government breaks the rules. When the broken rules relate to blood tests, the blood tests cannot be used as evidence.

The rules for DUI/OVI blood testing are found in the Ohio Revised Code and the Ohio Administrative Code. Section 4511.19 of the Ohio Revised Code states blood tests must be analyzed in accordance with methods approved by the Department of Health. The methods approved by the Department of Health, the ‘rules’, are regulations in chapter 3701-53 of the Ohio Administrative Code. For a blood test to be admissible, law enforcement must substantially comply with the Department of Health regulations. Two recent appellate cases illustrate law enforcement’s failure to comply with the regulations.

The first case is State v. McCall. The regulation at issue in McCall requires blood specimens to be collected in a container which contains a solid anticoagulant. The arresting officer checked a box on a checklist indicating the container had a solid anticoagulant. When questioned, however, the officer admitted he did not know if there was anything in the container. In addition, the phlebotomist who performed the blood draw testified she did not observe anything in the container and just assumed there was an anticoagulant in it. The trial court suppressed the blood test, and the court’s decision was upheld by the Court of Appeals because the prosecution failed to prove substantial compliance with the regulation requiring a solid anticoagulant.

In the second case, State v. Dukes, there were two regulations at issue. The first regulation requires blood specimens to be sealed in a manner such that tampering can be detected. The nurse labeled the blood specimens but did not place the label over the top of the tube so tampering could be detected. The second regulation requires blood specimens to be refrigerated when not in transit, and there was simply no proof the blood specimen was refrigerated. Although the crime lab technician testified it was the laboratory’s policy to refrigerate blood specimens, there was no testimony the particular blood specimen from Dukes was actually refrigerated. The trial court overruled Dukes’ motion to suppress the blood test, but the Court of Appeals held the blood test is inadmissible due to the lack of compliance with the regulations regarding sealing and refrigerating the blood specimen.

It is often assumed that, if a DUI/OVI case involves a blood test over the prohibited level, the defendant will certainly be found guilty. These cases demonstrate that isn’t necessarily true. A good DUI/OVI lawyer should investigate all the evidence surrounding the blood test to determine whether the Department of Health regulations have been followed. If the lawyer discovers the government broke the rules, the result may be a more favorable outcome for the client.

Steven Anderson was drunk when he passed out on a rural highway. He was wearing dark clothing and went to sleep on the dark road around 1:00 am. There were no street lights in the area, and he was lying where there is a bend in the road. Darryl Saunders was drunk when he came driving around that bend. When he finally saw Anderson lying in the road, Saunders swerved to avoid him, but it was too late. He ran over Anderson, and Anderson died. Saunders’ blood alcohol concentration was tested at .150. Is Saunders criminally responsible for killing Anderson?

No, according to the judge who heard this case in Manitoba, Canada. The prosecutor argued Saunders could have avoided the collision if he were sober, so his intoxication was a significant cause of Anderson’s death. In addition, the prosecutor claimed, police testified it was not uncommon for intoxicated people to pass out on the street, so Saunders should have been on guard for drunks sleeping on the road.

The judge disagreed. He said, “On the contrary, one can easily imagine a scenario where just such an accident may occur in these circumstances without any impairment of the driver.” The Judge went on to say, “Ultimately, while I believe Mr Saunders’ impairment…likely or probably was a contributing cause to the accident, I cannot conclude beyond a reasonable doubt that it in fact was a contributing cause, let alone a significant cause.” The judge found Saunders not guilty of causing Anderson’s death but convicted Saunders of drunk driving. A report of the case is on the website for the Winnipeg Sun.

This case would be approached a little differently if it occurred in Ohio. In Ohio, Saunders would be charged with Aggravated Vehicular Homicide. For him to be found guilty, the prosecution would have to prove he caused Anderson’s death as the proximate result of operating a vehicle under the influence of alcohol (or operating a vehicle with a prohibited blood alcohol concentration). The concept which appears to distinguish Canadian law from Ohio law is the concept of “causation”.

In the Canadian case, the prosecution had to prove the drunk driving was a “significant cause” of death. Based on the judge’s statement, it appears a “significant cause” is something more than a “contributing cause”.

In Ohio law, a contributing cause is enough. According to the Ohio Jury Instructions, “cause” means: “an act…which in a natural and continuous sequence directly produces the death, and without which it would not have occurred”. The Ohio Jury Instructions also say: “There may be one or more causes of an event. However, if a defendant’s act or failure to act was one cause, then the existence of other causes is not a defense.” Interestingly, the Ohio Jury Instructions do not define “proximate result”.

The Ohio law gives the prosecutor a stronger argument in a case like this. The prosecutor in the Saunders case had to convince the judge Saunders’ intoxication was more than just a contributing cause. In Ohio, being a contributing cause is enough because the fact that Anderson passed out on a dark curvy road is not a defense. Those circumstances are only an issue if the judge or jury is convinced intoxication was not a cause at all.

Should a defendant be found guilty if his conduct is a cause of death but not the only cause? This is a difficult question, and Ohio’s answer is “yes”. Given this answer, Ohio should revise the jury instructions to provide clearer guidance to the jury on the issue of causation. The instructions should define “proximate result” in this way: “but for the defendant’s intoxication, the death would not have occurred”.

If a police officer stops you for a minor traffic violation, how long should the officer be permitted to detain you? Suppose the officer issues you a ticket or a warning for the minor traffic violation and then says he wants you to wait while he has a drug dog sniff your car? What do you say? If you say no, can the officer do it anyway?

These are the questions answered by the United States Supreme Court in the recent case of Rodriguez v. United States. Rodriguez was driving on a Nebraska road when he was stopped by Officer Struble for drifting onto the shoulder of the road for a couple seconds. Officer Struble checked the driver’s license of Rodriguez, then checked the driver’s license of his passenger, then issued a warning for the minor traffic offense. After issuing the warning, Officer Struble asked Rodriguez for permission to walk the police dog around the vehicle. Rodriguez declined.

The Supreme Court held: absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable searches and seizures. The Court reasoned the duration of the detention must by limited to the time necessary to address the traffic violation which warranted the stop. By reaching this conclusion, the court overturned the appellate court’s previous rulings approving prolonged detentions so long as they were ‘de minimis’ extensions of the detention.Officer Struble further detained Rodriguez until a backup officer arrived. Struble then walked his K-9 around the vehicle of Rodriquez, and the dog alerted the presence of drugs in the vehicle. This occurred approximately seven or eight minutes after the officer issued the warning for the traffic violation. The officers searched the vehicle and found methamphetamine. Rodriguez’ motion to suppress that evidence was overruled by the trial court, and the trial court’s decision was upheld by the Eighth Circuit Court of Appeals. Rodriguez appealed to the United States Supreme Court.

The Court’s opinion made clear a traffic stop prolonged beyond the time reasonably required to complete the stop’s initial purpose is unlawful, unless the officer had a reasonable suspicion off criminal activity. The case was remanded to the Court of Appeals for that court to determine whether Officer Struble had a reasonable suspicion of criminal activity.

The decision in Rodriguez, which was split 6-3, is clarifying more than ground-breaking. The Court addressed a very similar issue ten years ago in Illinois v. Caballes. In that case, the Court held a dog sniff during a lawful traffic stop does not violate the Fourth Amendment. Caballes, however, left unresolved questions regarding the boundaries of dog sniffs. Rodriguez clarifies that one limitation on traffic stop dog sniffs is the duration: the dog sniff cannot prolong the detention.

Although Rodriguez does not involve a DUI/OVI allegation, the principles discussed in the Rodriguez opinion are relevant to Ohio DUI/OVI cases. In fact, the next entry in this blog will discuss the issue of continued detention of a motorist for the purpose of conducting a DUI/OVI investigation.

Imagine you are driving home on a central Ohio freeway after a late dinner and you are pulled over by a police officer. The officer says you were stopped for failing to use your turn signal when you changed lanes. The officer announces he smells the odor of alcohol and asks if you have been drinking. You did have a glass of wine with dinner. The officer then asks you to get out of the car for some field sobriety tests to “make sure you’re okay to drive”. Under what circumstances is the officer justified in doing this?

This entry is a follow-up to the last entry in this blog, which discussed the case of Rodriguez v. United States.  Rodriguez involved a motorist stopped for a minor traffic violation and detained for a drug dog to arrive. The United States Supreme Court concluded the duration of the stop must not exceed the time necessary to address the traffic violation. The rule clarified in theRodriguez case is this: any further detention is unlawful unless the officer has a reasonable suspicion the motorist is violating the law.

The rule clarified in Rodriguez is followed in Ohio DUI/OVI cases. If an officer stops a driver for a traffic violation, further detention of the driver for field sobriety testing is unlawful unless the officer has a reasonable suspicion the driver is under the influence. The issue often litigated is what constitutes a “reasonable suspicion”.

What constitutes a reasonable suspicion is based on the “totality of the circumstances”. Many Ohio appellate court opinions address this issue, and the opinions are not entirely consistent. One of the leading Ohio cases, State v. Evans, lists 11 factors for courts to consider when determining if an officer had a reasonable suspicion. The reality is there are many more than 11 factors, and the analysis of reasonable suspicion is very much case-specific because no two cases have exactly the same set of facts.

With the set of facts in the first paragraph, was the officer justified in detaining you for field sobriety tests? Based on the information provided, the answer appears to be “no”. The officer merely observed a minor traffic violation and the odor of alcohol: the officer did not detect any other evidence you were under the influence. If, however, the officer observed additional evidence such as slurred speech, difficulty answering the officer’s questions, or coordination problems, most courts would agree the officer had a reasonable suspicion you were under the influence.

If an officer stops a driver and observes the odor of alcohol, that driver is almost certainly going to be removed from the car for field sobriety tests. While the officer may say it’s to, “make sure you’re okay to drive”, it’s also to obtain evidence to prosecute the driver for OVI.  If the driver is prosecuted, an effective DUI/OVI lawyer should review the evidence closely to determine whether the continued detention for field sobriety testing was justified.

How frustrating would it be if your car won’t start because you recently used mouthwash, put on cologne, or ate a cinnamon roll? That frustration could be real if the federal government ultimately requires alcohol sensors in cars. According to the Columbus Dispatch, federal officials recently announced plans to implement a technological advancement in alcohol-detecting sensors for vehicles. The government anticipates the new alcohol sensors could significantly reduce drunk driving. The sensors may also increase headaches for non-drinking drivers.

There are two ways alcohol sensors could be used in vehicles. First, a vehicle could be equipped with passive breath sensors to detect alcohol in the air inside the car. If the concentration of alcohol in the vehicle’s interior air exceeds a predetermined limit, the vehicle would not start.

Passive breath sensors may suffer from the same problem associated with ignition interlock devices. Those devices require the driver to blow into a tube with alcohol-free breath before the vehicle will start. The problem with interlock devices is false positives: the device prevents the vehicle from starting when the driver consumed no alcohol. Causes of false positives include mouthwash, toothpaste, bread, pastries, spicy foods, and high-protein diets.

The second way in which alcohol sensors could be used in vehicles is touch-sensitive contact points. Those contact points could be located on the vehicle’s controls, like the gearshift or starter button, and would detect alcohol on the driver’s skin. If the alcohol level exceeds a preset limit, the vehicle would not start.

Touch sensors may also have problems with false positives. Courts already use devices which measure alcohol levels on the surface of the skin. Those SCRAM devices (Secure Continuous Remote Alcohol Monitoring) have a reputation for reporting a “drinking event” based on the presence of alcohol in commonly-used substances such as lotion, perfume, cologne, and cleaners.

The National Highway Traffic Safety Administration (NHTSA) does not seem to be concerned about the problems of false positives. Administrator Mark Rosekind said, “The message today is not ‘can we do this?’ but ‘how soon can we do this?’” Rosekind said he will push to get the sensors field-tested and put into use before the five-to-eight years anticipated by researchers.

NHTSA is so focused on the new alcohol sensors because, according to the Dispatch article, Mark Rosekind is “eager to introduce an advance that would rival seat belts or air bags in saving lives.” Making roads safer by reducing drunk driving is a worthy goal. It is questionable, however, whether this country should focus our resources on developments which may cause inconvenience to millions of drivers. At the same time, we permit drivers to use complex navigation systems and cell phones while driving. Hopefully, before we get to the point of mandating vehicular alcohol sensors, NHTSA will take closer look at potential problems with the technology and take a broader view of the big picture of driving safety.

It was Independence Day. We were celebrating our freedom, and celebrating everything which makes the U.S.A. a great nation. One thing which makes this nation great is it’s ultimately governed by laws, not people. The framework for our laws is the Constitution, and the part of the Constitution which guarantees much of the freedom we’re celebrating today is the Bill Of Rights. The founders of this nation put their lives on the line for that freedom. Soldiers in our military protect the country and preserve our freedom from foreign oppression. But who is protecting our freedom from domestic oppression and preserving the liberties promised by the Bill Of Rights?

We enjoy our individual rights. We don’t want law enforcement breaking into our homes and seizing our possessions without a warrant: we want the freedom from unreasonable searches and seizures. We don’t want officers beating suspects until they confess: we want the freedom from self-incrimination. We don’t want the government summarily convicting people of crimes in a one-sided secret proceeding: we want a public trial by jury in which the process is fair.

To deter the government from violating Constitutional rights, we use the exclusionary rule. If officers break into a defendant’s house and seize the murder weapon without a warrant, testimony regarding that murder weapon is excluded from trial. If an officer beats a suspect until he confesses, that confession is excluded from trial. The immediate result may be the defendant whose rights were violated is acquitted of a crime he committed. The long-term result is law enforcement is generally deterred from violating citizens’ individual rights.

Suppose my client, “Tom”, is suspected of illegally downloading music on the desktop computer at his home. Rather than get a judge’s permission to search Tom’s computer, officers go to Tom’s house, seize the computer without Tom’s consent, and find the illegal downloads. I file a motion to suppress the evidence in which I ask the judge to exclude from trial all evidence regarding what was found on Tom’s computer. The judge grants my motion, and the prosecution cannot prove Tim’s guilt without that evidence. The prosecution appeals to the court of appeals, but the appellate court affirms the decision of the trial judge. Although Tom committed the crime, he walks.

While we as a society may not want Tom to walk, that’s what it takes to preserve our individual rights. William Blackstone said, “It is better that ten guilty persons escape than that one innocent suffer”. It is also better that one guilty man goes unpunished if it means many people will not have their rights violated because the government is deterred from repeating the conduct which led to the guilty man going unpunished.

So who is protecting the Constitution? When it comes to preserving the freedoms guaranteed by the Bill of Rights, criminal defense attorneys play a major role. Perhaps there should be a shift in the public perception of criminal defense attorneys. I’m not suggesting we view criminal defense attorneys as heroes like combat veterans. However, rather than thinking of them as clever advocates who get criminals off on ‘technicalities’, maybe we should view criminal defense lawyers as protectors of the Constitution.

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.