2013-Recent Case Results (July - December)

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, 2013

Columbus Shoplifting Case Dismissed. Following a shoplifting incident in a Columbus department store, my client was charged with theft in the Franklin County Municipal Court. We wondered if my client was going to be charged with a criminal offense because the complaint was not filed until a few months after the incident. After the complaint was finally filed, we took steps toward completing the Diversion program but also demanded discovery from the prosecution in case my client was not accepted into Diversion. My client was accepted into Diversion, so the case was completely dismissed, and my client is now eligible to have the records for the case sealed.

Golf Cart DUI / OVI Resolved Favorably. My client was doing work at the Ohio State Fair and staying on the fairgrounds. Late one night, a work-related emergency was brought to her attention, so she drove across the fairgrounds in her golf cart. She was not driving unsafely, but the conduct of a passenger on the golf cart caught the attention of a law enforcement officer. The officer approached my client and observed an open can of beer in the cup holder. My client acknowledged the beer was hers, and the officer observed that my client’s eyes were bloodshot and glassy. The officer called in troopers to conduct a DUI / OVI investigation. The troopers administered field sobriety tests and arrested my client. The troopers used the mobile breath testing unit of the Columbus Division of Police (the ‘BATmobile’) to give my client a breath test, and the result was .169.

The discovery materials from the prosecutor showed some problems with the prosecution’s case. First, the initial law enforcement officer may have lacked evidence to substantiate detaining my client for an OVI investigation. Second, my client did not really perform poorly on the field sobriety tests. Third, there were some unexplained issues with the breath testing machine. A golf cart is a vehicle, so people can be convicted of DUI / OVI on a golf cart in Ohio. However, the fact that it was a golf cart at the fairgrounds and not a car on the freeway, combined with the problems with the case, resulted in my client pleading guilty to a minor misdemeanor with a $150 fine and no license suspension and no jail or driver intervention program.

Third DUI / OVI Reduced To First Offense. My client was pulled over for going the wrong way on a one-way street in downtown Columbus. He tried to explain to the officer that he was distracted by a troubling phone call and mistakenly turned one block too early. The officer, however, observed the odor of alcohol and began a DUI / OVI investigation. At the end of the investigation, the officer arrested my client, and my client refused a breath test. The breath test refusal resulted in a three-year Administrative License Suspension because my client had one prior refusal and one prior conviction. The refusal also lead to my client being charged with ‘Test Refusal With Prior Conviction’, and his conviction was within the last six years, so he was facing a minimum of 20 days in jail.

We obtained discovery from the prosecution, and it was overall favorable to my client. The officer did not observe many of the clues of intoxication that he is taught to look for, and the officer did a poor job of administering the field sobriety tests. At the same time, my client had a lot at stake if he were found guilty. Recognizing that both sides had risks, we reached an agreement with the prosecution. The charge of ‘Test Refusal With Prior Conviction’ was dismissed, and the charge of O.V.I. was stipulated to be a first offense, so there was no actual jail time and no yellow license plates. As part of the agreement, the three-year Administrative License Suspension was replaced with a six-month court suspension.

Mistake In Breath Test Leads To Reduction In High-Test DUI / OVI. A case that seemed very strong for the prosecution turned out to be not-so-strong after all. My client failed to stop at a stop sign, squealed his tires as he sped away from the intersection, and took a long time to pull over after the cruiser lights came on. The officer observed the odor of alcohol, slurred speech, glassy/bloodshot eyes, and obvious intoxication. The officer administered field sobriety tests and arrested my client. The officer took my client to a police station, and my client’s breath test result was .189. My client was charged with OVI ‘high test’, OVI ‘impaired’, and the stop sign violation.

The cruiser video showed the officer quickly concluded my client was drunk and shared that conclusion with the back-up officers even before getting my client out of the car for field sobriety tests. The officer ran through the field sobriety tests, but it appeared the officer was merely going through the motions to confirm what the officer already ‘knew’.

The records for the breath-testing machine showed a significant mistake in the maintenance of the machine. If the test result for the weekly instrument check is not what it should be, the check is supposed to be repeated with a different bottle of check solution. Rather than doing that, the police department repeated the check with the same bottle of check solution and did not change the bottle for a few weeks. The breath test was going to be excluded, and the prosecution’s case without it was questionable, so the stop sign violation was dismissed, one OVI charge was dismissed, and the other OVI charge was amended to the non-moving violation of Physical Control with a driver intervention program but no license suspension.

NOVEMBER, 2013

Stalking Charge Reduced. My client went to the same restaurant nearly every day after work for a couple weeks. He left big tips for the server and gave her a note that said somebody wanted to take her to dinner. The next day, he went to the restaurant, as usual. When he left, he was arrested, taken to jail, and charged with Menacing By Stalking in the Delaware County Municipal Court. After he was released from jail, we entered a plea of Not Guilty and obtained the police reports and witness statements from the prosecutor’s office.

With this type of case, there is often a lot of pressure on the prosecutor’s office not to reduce charges, and the sentence usually includes incarceration. In this case, however, it seemed unlikely to me that the prosecutor could prove that my client “knowingly” caused mental distress to the server. She was distressed, enough to call the police, but nobody told my client that, and he is not a mind reader. So, it seemed unlikely a jury would find him guilty. The prosecutor offered to reduce the charge to Disorderly Conduct, so if my client accepted the offer, he would be admitting that he caused ‘inconvenience or annoyance’ to someone. Although we believed the likelihood of getting a not guilty verdict was high, my client did not necessarily want to take the chance of being found guilty by the jury and being labeled a stalker for the rest of his life. He accepted the plea agreement and he plead guilty to Disorderly Conduct. The sentence did not include jail and instead consisted of a fine and an order to stay away from the server.

Second DUI / OVI Reduced To Reckless Operation. My client was driving on a flat tire and happened to drive past a police officer who was on another traffic stop. The officer offered to help my client change the tire, so my client pulled over. When the officer talked with my client, however, his intentions changed. The officer noticed the odor of alcohol, slurred speech, and bloodshot/glassy eyes. The officer asked my client if she had been drinking, and my client acknowledged that she drank a couple beers at a concert. The officer administered the Horizontal Gaze Nystagmus test (follow the pen with your eyes) but did not administer the other two standardized field sobriety tests because my client had medical issues that required a cane or walker. The officer arrested my client, and she refused the breath test, so the officer charged her with Test Refusal With Prior Conviction and O.V.I. in the Franklin County Municipal Court. The Test Refusal charge doubles the minimum mandatory jail sentence.

We entered a plea of Not Guilty and obtained the evidence from the prosecutor’s file. The cruiser video confirmed that only one field sobriety test was administered, and it was questionable whether it was administered in substantial compliance with the officer’s training manual. We obtained my client’s medical records and provided those to the prosecuting attorney. My client had many medical problems. It was clear that, at trial, there would be a question about whether the symptoms observed by the officer were caused by alcohol, the medical issues, or legitimately prescribed medication. Rather than find out in trial, the prosecutor dismissed the charge of Test Refusal With Prior Conviction and amended the charge of O.V.I. to a charge of Reckless Operation.

Client Granted Diversion For Felony Offenses. My client was charged with two felony criminal offenses in the Franklin County Common Pleas Court: one count of Forgery and one count of Possessing Criminal Tools. The allegation was that my client paid for something at a retail store using counterfeit money. We took the two-part approach that I use in Theft and Fraud cases. First, we investigated the facts of the case so we knew what the evidence would be, what evidence would be admissible, and what would be the likelihood of a jury returning a guilty verdict. Second, we explored the possibility of a diversion program. My client had no criminal record, and there was nothing about her or the circumstances of the case that made her ineligible for the diversion program. We initiated contact with the diversion program, completed the screening process, and my client was ultimately accepted into the program. After my client completes her community service and pays the program fee, her case will be completely dismissed. After the case is dismissed, my client will be eligible immediately to apply to have all the records sealed for her case.

OCTOBER, 2013

Second Offense DUI / OVI Reduced For Out-Of-State Client. My client was visiting the Midwest from California and was driving through Columbus when he pulled over for a Marked Lanes violation and a Turn Signal violation. The officer reported that my client looked confused, had a flushed face and red/glassy eyes, and had a very strong odor of alcohol coming from his breath. The officer administered field sobriety tests, administered a portable breath test and arrested my client. My client took the breath test, and the result was .132. My client was taken to the jail and was not released until a couple days later. My client had a prior D.U.I. conviction in his home state in 2012, so this conviction would be a second offense within six years. That means the minimum jail sentence would be ten days.

My client was faced with the difficult situation of having to defend a DUI / OVI in Ohio from the west coast. We arranged for the pretrial hearings to be held in his absence and obtained a copy of the prosecutor’s file. It appeared there may be some difficulty for the prosecutor in proving the prior conviction. Ultimately, we reached an agreement with the prosecutor. The charge of O.V.I. was stipulated to be a first offense within six years, and my client was given credit for three days served to satisfy the minimum jail sentence of three days. He was also ordered to pay a fine of $400, and his privilege to drive in the state of Ohio was suspended for 180 days (his home state can still suspend his license there for getting an out-of-state D.U.I.). My client found this arrangement acceptable, as he did not have to serve ten days in jail, and he did not have to return for DUI / OVI hearings in Columbus, Ohio because we arranged for the plea and sentencing to be completed in his absence.

Underage Alcohol Consumption Case Dismissed. My 18-year-old client was with four of his friends in the parking lot of the Crew Stadium before a concert. Police officers were working in the parking lot and observed my client and his friends drinking beer. The officers got the five guys out of the car and found alcohol, marijuana and drug paraphernalia in the car. Another passenger admitted the marijuana and drug paraphernalia belonged to him, so my client and the others were charged with Underage Alcohol Possession. Although my client had no adult record, the prosecutor’s office initially did not recommend the Diversion program because the group of guys was disrespectful to the arresting officers. We were able to satisfy the prosecutor that it was not my client individually that was disrespectful, so my client was accepted into the Diversion program. He completed the program, the case was completely dismissed, and he will soon file to have the case records sealed.

SEPTEMBER, 2013

Complete Dismissal Of DUI / OVI In Columbus, Ohio. An officer was patrolling in the area of Sawmill Road and Bethel Road when the officer saw my client pulling out of a parking lot. The officer stopped my client and said my client drove outside of her lane. The officer asked my client how much she had to drink, and my client reportedly said three drinks. The officer administered the three standardized field sobriety tests, and my client’s performance reportedly indicated she was under the influence. The officer arrested my client, and my client refused the breath test, so the officer imposed a one-year Administrative License Suspension. The officer charged my client with O.V.I. and Marked Lanes in the Franklin County Municipal Court.

When we reviewed the video from the officer’s cruiser, there were some discrepancies between the cruiser video and the officer’s report. First, my client wasn’t pulling out of just any parking lot, it was the parking lot of a bar. Although the officer was within her jurisdiction, she was not in the area she would be expected to patrol and was instead poaching in an area with several bars and restaurants. Second, the marked lanes violation was not clearly visible on the video, so there was a question of whether the stop was justified. Third, the officer failed to report that my client actually said she had three drinks in several hours. Fourth, although the officer may have observed technical ‘clues’ on the field sobriety tests, my client overall looked sober. When we got to the motion hearing stage of the court process, the O.V.I. charge was dismissed, the one-year Administrative License Suspension was terminated, and my client plead guilty to the minor misdemeanor Marked Lanes violation.

Domestic Violence Case Resolved Favorably. My client was in the divorce process but still living with his wife. During an argument, my client reportedly grabbed his wife by the neck for a few seconds. His wife called 911, and police officers came to the house. My client was arrested, taken to jail, and charged with Domestic Violence and Assault. He attended his first court appearance from jail, then posted bond and was released. We obtained the police reports, and they included details like ‘no observable injury’ and ‘declined medical attention’. My client was a professional nearing retirement, with absolutely no criminal record, and he was having difficulty coping with the stress of divorce. As part of a plea agreement, my client completed a series of counseling sessions. The charge of Domestic Violence was then dismissed, and the charge of Assault was reduced to a minor misdemeanor charge of Disorderly Conduct.

Charges Reduced For Otterbein Student. My client, a college student at Otterbein University, was pulled over because his license plate light was not working. The officer noticed the odor of alcohol and asked my client to get out of the car. The officer administered field sobriety tests, and my client reportedly performed poorly. The officer arrested my client and took him to a police station. There, my client took a breath test, and the result was .055. Although my client was under the legal limit for people age 21 and over, my client was under 21, so the legal limit for him was .02 rather than .08. The officer charged my client with Operating a Vehicle after Underage Consumption (OVUAC), O.V.I., Underage Consumption of Alcohol, and a license plate light violation in the Westerville Mayor’s Court.

We filed a Demand For Discovery and obtained a copy of the prosecutor’s file. The evidence showed that the officer did not observe many of the clues of intoxication one would expect for a driver who is under the influence. Most notably, the officer did not observe my client to have any problems with divided attention, and driving is a divided attention skill. Following negotiations with the prosecutor, the charges of O.V.I., Underage Alcohol Consumption, and License Plate Light were dismissed, and my client plead guilty to the charge of OVUAC.

Charges Reduced For Former OSU Athlete. My client, a former O.S.U. athlete, was pulled over because he hit a curb. The officer observed the odor of alcohol coming from the vehicle, and my client acknowledged he had a few drinks, so the officer had him get out of the car. The officer administered field sobriety tests, despite my client explaining he had bad knees from playing basketball. The officer then handcuffed my client and told him to get in the cruiser. My client questioned the officer about why he was being arrested. The officer told my client clues were observed that indicated he was under the influence. My client questioned the officer further, and the officer did not answer the question but repeatedly told my client to get in the cruiser. The officer ultimately tased my client twice on his abdomen. As he was getting in the cruiser, the officer tased him on the back. My client declined the breath test. The officer charged my client with O.V.I. and Resisting Arrest. The officer also imposed a one-year Administrative License Suspension for refusal of the breath test.

We obtained the cruiser video of the incident. The video showed that, outside the field sobriety tests, my client did not do anything that made him appear to be under the influence. His balance was good, he walked fine, his speech was clear, and his conversation with the officer was coherent. In the audio portion of the cruiser video, it can be clearly heard that the officer tased my client multiple times, and we submitted photographs of the taser marks on his abdomen and back. When the case was scheduled for a hearing on our motions to suppress evidence, the charge of O.V.I. was reduced to Reckless Operation, the charge of Resisting Arrest was reduced to Disorderly Conduct, and the one-year license suspension was terminated.

AUGUST, 2013

DUI / OVI With Accident And High Test Reduced To Reckless Operation. My client was involved in an accident with a light pole that snapped the light pole in half. Officers came to the scene and observed my client sitting in the vehicle. The officers noticed the air bag was deployed, there was an odor of alcohol coming from the car, and my client spoke quietly. The officers asked my client how drunk he was on a scale of one to ten, and my client said he was a five. The officers administered field sobriety tests, arrested my client, and administered a breath test. The result of the breath test was .171, so my client was charged with O.V.I. (per se, high test), O.V.I. impaired, and Failure To Control.

We obtained discovery materials from the prosecutor’s office, and the case turned out to be much more promising than it sounded. The officers did not obtain the name of the person that reported the accident or the time of the accident. As a result, the prosecution could not prove what time my client last operated the vehicle, and therefore could not prove the breath test was administered within three hours of operation. Accordingly, the breath test would likely be suppressed. Without a breath test, the evidence to prove my client was under the influence was not that strong and could mostly be attributed to trauma from the accident. Just before we were to begin a hearing on our motions to suppress evidence, one O.V.I. charge was reduced to a Reckless Operation, and the other charges were dismissed.

JULY, 2013

Trial: Not Guilty Of DUI / OVI But Guilty Of Lesser Charge. My client was pulled over for Marked Lanes and Speeding. The officer observed the odor of alcohol and, upon receiving my client’s driver’s license, realized that my client was under 21. The officer administered field sobriety tests and arrested my client. The officer took my client to a police station, and my client took a breath test with a result of .046. Because my client was under 21, the ‘legal limit’ is .020, so my client was charged with O.V.I. and the less serious charge of O.V.U.A.C. (Operating a Vehicle after Under Age Consumption).

We plead not guilty and obtained the prosecutor’s evidence, including the police reports and cruiser video. I also inspected the breath-testing machine and its records at the police station. As in most cases, my client was hoping to avoid an O.V.I. conviction. In this case, however, the prosecutor was unwilling to amend the charges to something that is not alcohol-related, so we had a trial. During the trial, we were able to demonstrate: my client’s driving was not what you would expect from someone under the influence, my client’s balance, coordination, and mental faculties were not what you would expect from someone under the influence, and the field sobriety tests gave conflicting results that were essentially meaningless. We also raised doubt (I thought) about the accuracy of the breath test result. The verdict was Not Guilty of O.V.I. but guilty of the less serious charge of O.V.U.A.C.

Second DUI / OVI Charge Completely Dismissed. My client was stopped for speeding, and the officer observed the usual signs of intoxication: odor of alcohol, slurred speech, and bloodshot/glassy eyes. The officer administered field sobriety tests and arrested my client. The officer gave my client a breath test, and the result was .150. My client was charged with O.V.I. (per se, breath) and O.V.I. (impaired) in the Franklin County Municipal Court. This was the second time I represented this client for O.V.I. In his first case, we made a video proving the officer did not have a justification for the traffic stop, and the O.V.I. charge was reduced to minor misdemeanor Reckless Operation with no license suspension.

In this case, however, the evidence showed that the officer did have a justification for the stop and likely had justification for the arrest. There were a couple of issues related to the breath test that we raised in a motion to suppress. We never litigated those issues, however, because the arresting officer twice failed to appear in court for the hearing on our motion to suppress. When the officer failed to appear the second time, the prosecutor’s motion to continue (postpone) the hearing again was denied, and our motion to suppress was granted. As a result, all of the evidence obtained by the officer after the traffic stop was thrown out, so there was no way the prosecutor could go forward with the O.V.I. charge. The O.V.I. charge was dismissed, and my client plead guilty to the speeding charge. The great result was not due to any brilliant legal work on my part, and I would not want to center a defense on the hope that the officer will not appear. Nevertheless, this case illustrates that you never know exactly what will happen, and the only way to have a chance of avoiding an O.V.I. conviction is to contest the charge.

First Offense DUI / OVI Reduced To Reckless Operation. My client was pulled over for driving at 55 mph in a 35 mph zone. The officer reported that my client did not respond quickly to the cruiser lights, the officer had to use his siren, and my client pulled completely off the road into the grass. The officer approached my client’s car, observed the strong odor of alcohol, and asked for my client’s license. My client reportedly handed the officer a debit card and argued with the officer, in slurred speech, that it wasn’t a debit card. The officer administered field sobriety tests, and my client reportedly performed poorly. The officer took my client to a police station. There, my client attempted the breath test twice, but neither test produced a valid test result. The officer concluded that my client was trying to manipulate the test, so the officer indicated that my client refused the breath test. My client was charged with O.V.I. in the Worthington Mayor’s Court, and my client was placed under a one-year Administrative License Suspension for refusing the breath test.

We plead not guilty and obtained the prosecutor’s evidence through discovery. The evidence showed the officer’s report was not an accurate picture of the situation. The officer did not use his siren, my client pulled into the grass because there was no shoulder, my client’s speech was not slurred, my client performed reasonably well on the field sobriety tests, and the two attempts at the breath test resulted in ‘invalid samples’ (not necessarily from manipulating the machine). After meaningful discussions with the prosecuting attorney about the facts of the case, the charge of Speed was dismissed, the charge of O.V.I. was reduced to Reckless Operation, and the one-year license suspension was terminated. This case is a good example of a situation that sounds bad on the surface but turns out to be much better when the allegations are investigated.

Underage Alcohol Consumption Case Dismissed. My client was attending a concert festival in Columbus, Ohio. Undercover police officers approached my client and asked to see his identification. His identification showed that he was under 21. The officers explained they observed my client and his friend drinking from beer cans before approaching, and the cans of beer were still present. My client was charged with Underage Alcohol Consumption/Possession in the Franklin County Municipal Court. We employed the two-part approach of exploring a diversion program and also obtaining and evaluating the evidence. My client was eligible for the diversion program, so we chose that option. He completed the program, paid court costs, and the case was dismissed. He is not eligible to have the records for the case sealed (expunged), so ultimately not even the allegation will be on his record.