2012-Recent Case Results

DISCLAIMER: The results achieved in past criminal defense cases and drunk driving defense cases is not necessarily indicative of the results that may be achieved in your case because the facts of every case are unique.

DECEMBER, 2012

Second O.V.I. Reduced To Reckless Operation. Officers observed my client allegedly squeal his tires and fail to stop for a red light as he turned right at an intersection. As my client was pulling into his parking garage, cruiser lights came on, but he continued into his garage. Two police officers ran up to him and got him out of his car. The officers noticed the odor of alcohol and probably also noticed his prior O.V.I. conviction. The officers administered field sobriety tests and arrested my client, and he refused the breath test. As a result, he was charged with Test Refusal With Prior Conviction in addition to Red Light, Squealing Tires, and O.V.I. in Franklin County. He was facing a minimum of 20 days in jail. Before the trial, we created a video of the intersection. Based on the light sequence indicated in our video and the light sequence visible in the cruiser video, we were able to prove that my client did not run a red light; he had a green right-turn arrow. From the cruiser video, we were also able to show my client could not have seen the cruiser lights when he pulled into his parking garage, and the video also showed the officer administered the field sobriety tests poorly. Based on all those circumstances, my client ultimately pled guilty to one charge of Reckless Operation, the other charges were dismissed, and my client completed a driver intervention program but no jail time.

Disorderly Conduct Case Dismissed. Police were called to a hotel because my client was allegedly creating a scene and saying offensive things to the front desk clerk. The officers concluded my client was under the influence of alcohol and arrested her. The officers charged my client with Disorderly Conduct, claiming that, “while voluntarily intoxicated, she engaged in conduct likely to be offensive”. In court, we provided the prosecutor with case law indicating my client’s conduct could not be a violation of the law because it did not amount to “fighting words” and was otherwise Constitutionally protected speech. The case was dismissed.

NOVEMBER, 2012

Cross Examination Of Breath Testing Machine Manufacturer. Although this is not a case disposition, it’s an interesting occurrence worth including here. There is currently a case in Marietta, Ohio in which the reliability of the Intoxilyzer 8000 breath-testing machine is being challenged. The prosecution is eliciting testimony of four expert witnesses to prove the machine’s reliability. As part of the Ohio Association for Criminal Defense Lawyers O.V.I. Committee, I was asked to help with the case and cross-examined the manager of engineering for CMI, the manufacturer of the Intoxilyzer 8000. More information about that case can be found in this recent blog post.

Second Offense O.V.I. Reduced. My client was stopped for speeding and already had an O.V.I. conviction within the last six years and another O.V.I. outside the six-year period. Although my client told the officer he had not been drinking, the officer noticed the odor of alcohol coming from my client and a bar stamp on my client’s hand. The officer administered field sobriety tests, and my client did reasonably well on them. The officer, aware of my client’s record, arrested my client and took him to the police station. The officer asked my client if he would submit to a breath test, and my client refused. Because this was a second offense within six years with a test refusal, my client was facing a minimum of 20 days in jail, as well as mandatory yellow license plates and vehicle impoundment. We ended up resolving the case with the O.V.I. charge being treated as a first offense, which meant my client was not ordered to have yellow plates and did not have his vehicle impounded. He did have to serve two weekends in jail as part of the plea agreement, but serving two weekends was manageable with his job, whereas 20 consecutive days in jail would have meant termination of his employment.

OCTOBER, 2012

O.V.I. Charges Completely Dismissed. My client was pulled over for marked lanes and failing to signal. The officer smelled alcohol and observed glassy/bloodshot eyes, so he had my client get out of the car for field sobriety tests. After the field sobriety tests, the officer arrested my client and took him to a police station. There, my client took the breath test, and the result was .163. My client with charged with two O.V.I. charges in the Franklin County Municipal Court; one based on the breath test, and one based on driving impairment. We filed a motion to suppress the breath test and another motion to suppress the field sobriety tests. Regarding the breath test, the judge granted the motion to suppress (threw out the test), because the prosecution did not prove the police department complied with the regulations for maintaining breath –testing machines. The judge also suppressed all three standardized field sobriety tests. Minutes before the jury trial was to begin, the prosecutor dismissed both charges of O.V.I.

High-Test O.V.I. With Accident Reduced. My client rear-ended two vehicles at an intersection. Officers went to the scene and observed that my client was confused and smelled like alcohol. The officers administered field sobriety tests and arrested my client. My client was taken to a police station, and his breath test result was .179. He was charged with two counts of O.V.I.; one for impaired driving ability, and one for a breath alcohol concentration over .170. The high test charge has a mandatory jail sentence, as well as mandatory yellow plates and ignition interlock. His insurance company paid for the damage to the other vehicles, and we challenged the breath test. The high-test charge of O.V.I. was dismissed, so my client avoided the jail sentence, yellow plates, and ignition interlock. He did plead guilty to the ‘impaired’ charge of O.V.I., and the judge imposed the minimum sentence.

Repeat O.V.I. Amended. My client had previously been charged with O.V.I. two times: one case was reduced, and one case was dismissed. In this third case, he was at the Taco Bell for a fourth meal when an officer working special duty there suspected he was under the influence. The special duty officer contacted an on-duty officer, and that officer went to the scene and administered field sobriety tests. The officer concluded that my client performed poorly on the tests and must have been under the influence. The officer arrested my client, and my client refused a breath test. Although the officer concluded my client was under the influence, there was no direct evidence that his ability to drive was impaired. Despite the prior O.V.I. arrests, this O.V.I. was amended to Physical Control, a non-moving violation.

O.V.I. With Accident Reduced. My client caused a three-car accident. Officers came to the scene and noticed that my client looked unsteady on his feet and smelled like alcohol. My client admitted that he consumed several shots of alcohol, but the officers did not administer Miranda warnings, so that admission was like not admissible. My client declined field sobriety tests and a breath test, so his license was suspended for one year. The strength of the evidence was questionable, so the charge of O.V.I. was amended to a charge of Reckless Operation. The officer did not properly advise my client regarding the one-year suspension, so the suspension was terminated.

SEPTEMBER, 2012

Dismissal in Columbus, Ohio O.V.I. Case. My client was stopped for driving too slowly. The officer smelled alcohol on my client and asked my client to perform field sobriety tests. My client declined the tests due to a recent leg injury. The officer charged my client with O.V.I./D.U.I. in the Franklin County Municipal Court. Following a series of court appearances and ongoing negotiation, the O.V.I. charge was completely dismissed.

College Student’s O.V.I. Reduced. My client, a college student under 21, was stopped for speeding, driving out of her lane, and failing to use her turn signal. The officer spoke to my client and noticed the strong odor of alcohol and glassy/bloodshot eyes, so he had her get out of the car. The officer administered field sobriety tests, and my client’s performance on the tests was good but not great. The officer arrested her and took her to the police station. My client decided to take the breath test, and the result was .107. The legal limit for people under 21 is .02. The officer charged my client with two counts O.V.I. in the Franklin County Municipal Court, as well as Marked Lanes and Speed. Based on records from the Ohio Department of Health, the admissibility of the breath test was questionable, and without the breath test, the prosecution’s case was not that strong. On the other hand, my client was not considered a good candidate for a reduced charge because she wasn’t supposed to be drinking alcohol to begin with. Ultimately, the prosecutor reduced the O.V.I. to a charge of O.V.U.A.C. (Operating a Vehicle after Underage Consumption) and dismissed the remaining charges. The reduction meant that there was no mandatory jail sentence, no driver intervention program, and the license suspension was 90 days rather than a minimum of six months, and the fine was lower.

AUGUST, 2012

O.V.I. Marijuana Charge Amended. A police officer observed my client driving an eye-catching luxury vehicle on the freeway and stopped my client for a Marked Lanes violation. The officer noticed what he believed to be a strong odor of marijuana, although he did not find any marijuana on my client or in his car. The officer had my client perform field sobriety tests, and my client did fairly well on them. The officer arrested my client and asked him to take a urine test. My client declined, so he was given a one-year Administrative License Suspension and was also charged with O.V.I. in Columbus, Ohio. I believed there was a good chance we could get a not guilty verdict in a jury trial. However, even if my client were found not guilty, the one-year license suspension would remain, and the length of the license suspension was important to my client. My client ultimately pled guilty to a no-points offense with an agreed six-month license suspension.

Second Offense O.V.I. Reduced. My client was pulled over for erratic driving, and the officer observed the common clues of DUI: odor of alcohol, glassy eyes, and slurred speech. The officer administered field sobriety tests and arrested my client, and my client refused a breath test. My client had a prior conviction in the last six years, so he was charged with a second offense O.V.I., Test Refusal With Prior Conviction, Operation Without Reasonable Control, and Speed. He was facing a minimum of 20 days in jail, a license suspension from one year to five years, mandatory yellow license plates, and pled guilty to a first offense O.V.I. with a license suspension of seven months, three days in jail, no yellow license plates, and no ignition interlock.

O.V.I. Accident Case Resolved Favorably. My client was driving home on a dark rural road when he drifted off the road and damaged his car. He drove home, and his wife called the police to take an accident report. An officer went to my client's home and noticed the strong odor of alcohol coming from my client. The officer took my client to the accident scene and administered field sobriety tests (on wet pavement). The officer drove my client home and charged my client with Failure To Control and O.V.I. On the day before we were scheduled the jury trial, the prosecutor dismissed the charge of Failure To Control and amended the charge of O.V.I. to a non-moving violation with no license suspension and no jail sentence.

JULY, 2012

O.V.I. Refusal Amended To Non-Moving Violation. An officer spots my client walking down the street and suspects my client is under the influence. My client gets in his car, and the officer runs his license plate.Unfortunately, the officer learns my client’s driver’s license is under suspension for not paying a speeding ticket. The officer stops my client, notices the odor of alcohol, and gets him out of the car. My client declines the field sobriety tests and the breath test, and he is charged with O.V.I. and Driving Under Suspension (D.U.S.). Although the evidence against him is not very strong for the O.V.I., the evidence proving the D.U.S. is very strong. We ultimately got the charge of D.U.S. dismissed and the charge of O.V.I. amended to a charge of Physical Control with the agreement that my client would complete the three-day driver intervention program.

Breath Test Problem Leads To O.V.I. Reduction. My client was pulled over for a marked lanes violation on a curvy road. The officer observed the odor of alcohol coming from my client, so the officer had my client get out of the car to administer field sobriety tests.The officer administered the horizontal gaze nystagmus test but did not administer the other two standardized field sobriety tests because there was not a good place nearby for the tests.My client was arrested, took a breath test, and the result was .094.I reviewed the records for the breath testing machine and found the machine actually detected RFI (radio frequency interference) during my client’s test. The machine was not working properly and was taken out of service soon after my client’s test. Based on the lack of an admissible breath test, the lack of field sobriety tests, and a questionable justification for the stop, the charge of O.V.I. was reduced to a minor misdemeanor charge of Reckless Operation, and the Administrative License Suspension was terminated.

JUNE, 2012

Medical Condition Leads To Amendment Of O.V.I. Charge. My client was stopped for speeding, and the officer noticed her eyes were bloodshot and glassy. The officer also noticed the odor of alcohol, and my client acknowledged she had a few drinks. The officer administered the field sobriety tests, arrested my client, and took her to a police station.There, my client took a breath test, and the result was .148.We pled not guilty and obtained the cruiser video.The video showed my client did fairly well on the field sobriety tests and overall did not appear to be under the influence.I obtained my client’s medical records, and the records confirmed she had chronic gastro esophageal reflux disease (GERD). We hired an expert witness who prepared a report explaining that GERD may falsely elevate the results of a breath test, which explained the disconnect between the breath test result and her overall appearance on the cruiser video.Based on the defense regarding her medical condition, one charge of O.V.I. was dismissed, and the other charge was amended to the no-points offense of Physical Control.

High Test O.V.I. Charge Dismissed In Plea Agreement.My client was pulled over for a Marked Lanes violation, and the officer noticed the strong odor of alcohol, slow movements, slurred speech, and glassy/bloodshot eyes. The officer administered field sobriety tests, and my client did not perform so well on the tests.The officer arrested my client, and my client blew a .174 on a breath test.Because the breath test result was over .170, the minimum jail sentence was six days, and he was facing mandatory yellow license plates and ignition interlock.In court, we were able to get the prosecutor to dismiss the high-test charge of O.V.I., and my client pled guilty to the “impaired” charge of O.V.I. He was not able to avoid an O.V.I. conviction, but he did avoid the jail sentence, yellow plates, and ignition interlock.

First Offense O.V.I. Amended. My client started to go the wrong way up a ramp from the interstate.He realized his mistake and backed-up, but there happened to be a police officer behind him.The officer pulled him over and noticed the odor of alcohol.The officer asked my client to perform field sobriety tests, and my client declined.The officer arrested my client, and he declined the breath test also.My client had a prior O.V.I. charge that was amended, and the officer erroneously charged my client with refusing the breath test and having a prior O.V.I. conviction.In court, we were able to demonstrate that, without the field sobriety tests and breath tests, there was not much evidence proving my client was under the influence. The O.V.I. charge was reduced to a non-moving violation.

MAY, 2012

Second Offense O.V.I. Reduced. My client was involved in a one-car accident and taken to the hospital.At the hospital, an officer told my client the consequences of submitting to a blood test or refusing a blood test.My client submitted to the blood test, and the blood alcohol concentration was .209.This was his second offense in six years, so he was facing a mandatory jail sentence of at least 20 days in jail among other unpleasant consequences.It turned out that the officer at the hospital improperly advised my client regarding the consequences of refusing or submitting to the blood test.As a result, the blood test was not going to be admissible at trial.This issue led to the second O.V.I. offense being reduced to the no-points offense of Physical Control.

Felony Drug Possession Reduced And To Be Dismissed. My client was arrested for O.V.I., and we got the charge reduced.Several months later, he was arrested for felony drug possession for drugs that were found in his car on the night of the O.V.I. arrest.After getting him released from jail at his arraignment, we went back to court and got the felony reduced to a misdemeanor drug possession.What's even better for him is that, if he completes a drug and alcohol education program, his case will be completely dismissed.

Resisting Arrest Dismissed In Plea Agreement.The police were called because my client was allegedly drunk, walking in the middle of a downtown street, yelling at drivers and hitting cars with his hands.When the police came to the scene, they handcuffed my client, and he reportedly resisted arrest.He was charged with Disorderly Conduct, Resisting Arrest, and Pedestrian In Roadway.The most serious charge is by far the Resisting Arrest.In court, the prosecutor was at first unwilling to dismiss the resisting arrest.After a second court appearance and further negotiation, the prosecutor changed his mind. The prosecutor dismissed the charges of Resisting Arrest and Pedestrian In Roadway, and my client pled guilty to the charge of Disorderly Conduct. In one year, my client (a young professional) will be eligible to have the record sealed.

Suppressed Evidence Leads To Favorable Plea Agreement.My client was stopped for a Marked Lanes violation, and the officer noticed the odor of alcohol. The officer administered field sobriety tests and arrested my client. My client took the breath test, and the result was .181, so he was charged with high-test O.V.I. We filed a motion to suppress the evidence and a separate motion to suppress the field sobriety tests, and the judge held a hearing on the motions to suppress.The judge ruled that the breath test was inadmissible because an instrument check was not completed within the required time, and the judge ruled that the field sobriety tests were not admissible because the officer did not have justification to detain my client for an O.V.I. investigation. As a result, the charge of O.V.I. was amended to a non-moving violation, no license suspension was imposed, and the Administrative License Suspension (A.L.S.) was terminated.

APRIL, 2012

Student’s O.V.I. Charge Reduced.My client, an O.S.U. student under 21, was pulled over on campus for running a stop sign.As the officer was making the stop, she noticed my client reaching in the passenger seat.The officer then noticed my client smelled like alcohol and spilled something on his pant.The officer had my client get out of the car and administered field sobriety tests. The officer arrested my client and took him to the police station, where his breath test result was .130.In court, we entered a not guilty plea and filed a motion to suppress the breath test.The charge of O.V.I. (a first degree misdemeanor) was reduced to a charge of Operating a Vehicle after Under Age Consumption (O.V.U.A.C., a fourth degree misdemeanor). My client received a 90-day license suspension with driving privileges and was ordered to complete a driver intervention program.

Underage Alcohol Consumption Case Dismissed. My client, a college student, was charged with Underage Alcohol Consumption (Prohibition) after an encounter with local police. He had no criminal record, and he completed an alcohol education program. His case was completely dismissed, and he is now eligible to have the case records sealed.

Reduced Charge For Student's O.V.I. My client, a graduate student, turned too widely at an intersection and hit a parked car. An officer responded to the scene and noticed the odor of alcohol. My client explained that she had a glass of wine with her parents during their New Year’s Eve dinner. The officer had my client do field sobriety tests. Although my client did very well on the Walk and Turn and on the One Leg Stand, the officer said he observed all the possible clues on the Horizontal Gaze Nystagmus test. My client declined to provide a sample of her breath, and the officer charged her with O.V.I. in Columbus, Ohio. The strength of the evidence was questionable, and the O.V.I. charge was reduced to a charge of Reckless Operation.

Nurse’s O.V.I. Reduced. My client, a nurse in Columbus, Ohio, reportedly fell asleep while in the drive-thru line at a fast-food restaurant. Police came to the scene, administered field sobriety test, and arrested my client. They took my client to a police station, where he took a breath test and tested a little under the limit. Despite testing under the limit, the officers charged him with O.V.I. because his ability to drive was allegedly impaired. I wonder if they would charge him for speeding if his speed was measured at 63mph in a 65mph zone? Ultimately, the charge of O.V.I. was reduced to a minor misdemeanor charge of Reckless Operation with no possible jail time, no license suspension, and a small fine.

MARCH, 2012

Not Guilty Verdict In Felonious Assault Case. Two young men got into a fight, and a crowd of people watched. While the loser of the fight was lying on the ground, several people kicked him and cased serious injuries to his head. My client was present when this occurred, and he was one of six people charged with felonious assault. One of the six had his case dismissed, and the other four were convicted. My client was the last of the co-defendants to have a trial. At the trial, two of the eyewitnesses said he didn’t seem to be involved or couldn’t have been involved given his location. Two other eyewitnesses said he did kick the victim, but cross examination of those eyewitnesses revealed their questionable credibility. The jury deliberated for about two hours and returned a verdict of Not Guilty. It was quite a relief for my client (and his family), who had waited for over a year to have his day in court.

O.V.I. First Offense Amended. My client was pulled over for going left of center (directly in front of the courthouse where he would soon make an appearance). The officer administered the horizontal gaze nystagmus test while my client was seated in his vehicle. My client declined to perform the other two standardized field sobriety tests, as the road was uneven and there was no straight line to walk. The officer arrested my client and seized the half-empty bottle of scotch from the car. My client was charged with O.V.I. in a local mayor’s court. The case was ultimately resolved with a plea to a Physical Control, a non-moving violation, and my client was ordered to pay a fine. The confiscated bottle of scotch was not returned.

FEBRUARY, 2012

High-Test O.V.I. Charge Dismissed In Plea Agreement. My client, an O.S.U. student, was pulled over for going left of center. My client did poorly on field sobriety tests and told the officer he had too much to drink. Not surprisingly, the officer arrested him. My client took a breath test, and the result was .202. He was charged with ‘high-test O.V.I.’ and ‘impaired O.V.I.’ A breath test of .170 or higher is considered a ‘high test’, which means the minimum jail sentence is doubled (from three days to six days), and yellow license plates are mandatory. When I reviewed the records for that police department’s breath testing machine, I learned that there was a problem with the breath testing machine close in time to my client’s breath test. It was pretty clear the breath test would be thrown out, so the prosecutor dismissed the high-test O.V.I. charge. My client still pled guilty to the ‘impaired O.V.I.’ charge, but he avoided the increased jail sentence and the requirement of yellow license plates.

Charge Reduced For Second Offense O.V.I. My client was pulled over for Speeding, and the officer noticed the odor of alcohol, so the officer administered field sobriety tests. The officer arrested my client, and my client refused the breath test. This was my client’s second offense within six years. He was charged with O.V.I. and Test Refusal With Prior Conviction (within 20 years). The refusal charge doubles the minimum mandatory jail sentence, so my client was facing a minimum of 20 days in jail. The evidence showed a trial could go either way. On one hand, my client did poorly on field sobriety tests and made a couple incriminating statements. On the other hand, the officer did not observe most of the clues associated with drunk drivers, my client’s statement may be suppressed, and the prior conviction may be nullified on Constitutional grounds. The prosecutor dismissed the test refusal charge and stipulated the O.V.I. charge was a first offense, so my client avoided a jail sentence and instead completed a three-day driver intervention program.

First Offense O.V.I. In Columbus, OH Reduced. My client was pulled over for speeding. The officer reportedly observed the odor of alcohol, glassy and bloodshot eyes, and slurred speech. The officer administered field sobriety tests, and arrested my client. My client refused the breath test because he had been told it’s not reliable, so he was given a one-year Administrative License Suspension and charged with O.V.I. We obtained a copy of the cruiser video, and it revealed my client did not have slurred speech and actually performed well on the field sobriety tests. The charge of O.V.I. was amended to the no-points offense of Physical Control, and one-year Administrative License Suspension was completely terminated.

Third O.V.I. Offense Reduced: My client was charged with high-test O.V.I. (over .170) as a third offense within six years. As a result, he was facing a mandatory minimum of 60 days in jail and mandatory forfeiture of his vehicle, as well as the requirement of yellow plates and an ignition interlock system. We investigated the case and found some evidentiary issues that could weaken the prosecution’s case. The case was resolved with the O.V.I. charge being reduced to a stipulated first offense, so the mandatory minimum jail sentence was reduced to three days, and there was no vehicle forfeiture or mandatory yellow plates and ignition interlock.

JANUARY, 2012

Columbus, Ohio Shoplifting Charge Dismissed. My client was charged with Theft (shoplifting) in the Franklin County Municipal Court. I appeared at my client’s first hearing in her absence so she did not have to miss work. I referred my client to an anti-theft program, which she completed before the second hearing. At the second, hearing, the case was dismissed on the condition that my client pay the court costs. She will now be eligible to have the record of the shoplifting charge sealed.

O.V.I. Charge Amended To Reckless Operation. Police officers were driving to a residence based on a report of the resident getting into a fight at a bar. Just as the officers were pulling up to the residence, my client was leaving the driveway. My client reportedly “backed improperly” and nearly ran into garbage cans, so the officers made a traffic stop. The officers noticed the odor of alcohol and glassy eyes, so they got my client out of the car and administered field sobriety tests. They arrested my client, who then declined the breath test. In court, we challenged the justification for the traffic stop, among other things. The charge of O.V.I. was ultimately amended to a charge of Reckless Operation.

Second O.V.I. Charge Reduced. My client was stopped for driving the wrong way on a one-way street in downtown Columbus. The officer reported that my client seemed disoriented and lost and also had difficulty rolling down the car window. The officer noticed the odor of alcohol and slow, slurred speech. The officer had my client get out of the car for field sobriety tests. The officer administered the horizontal gaze nystagmus test and reportedly observed all six possible “clues”. The officer requested that my client perform a one leg stand test and a walk and turn test, but my client declined because the testing surface was an uneven sloped sidewalk. The officer arrested my client and asked my client to take a breath test. My client declined to take a breath test because she questioned its reliability and offered multiple times to give a blood sample for a blood test. The officers said they were not offering a blood test and marked her response as a refusal of the breath test. The officers charged my client with O.V.I. in Columbus, Ohio. My client had been charged with O.V.I. previously, and the previous charge had been reduced (she had the same attorney then). At the pretrial hearing for this case, the prosecutor reduced the O.V.I. charge to a Reckless Operation charge with the agreement that my client would be on probation for two years and would not refuse any breath tests during that time.

First Offense Columbus O.V.I. Reduced. My client was pulled over for speeding. The officer said that he smelled the odor of alcohol and asked my client to get out of the car. The officer administere field sobriety tests and arrested my client. The officer took my client to a police station, and my client refused the breath test. The officer imposed a one-year license suspension for refusing the test and charged her with O.V.I. in the Franklin County Municipal Court. We obtained the cruiser video, and it showed my client performing the field sobriety tests rather well, in bare feet. The charge of O.V.I. was reduced to a charge of Reckless Operation, and the charge of speeding was dismissed.