2014-Recent Case Results (January-June)

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.

JUNE, 2014

Second Offense DUI/OVI Amended To Reckless Operation. My client was pulled over because the rear license plate on his car was not illuminated. The officer observed that my client had difficulty finding his insurance card, and the officer saw a marijuana seed on the floor near my client’s seat. The officer had my client get out of the car and perform field sobriety tests. My client performed well on some tests, but not-so-well on others. The officer arrested my client and took him to a police station. There, my client submitted to a drug recognition evaluation (DRE). He also took a breath test, and the result was .101; well under the limit of .080. My client submitted a urine sample, and the urine test eventually showed a concentration of 145 nanograms of marijuana metabolite. In Ohio, it is a ‘per se’ O.V.I. offense to operate a vehicle with 35 or more nanograms of marijuana metabolite in one’s urine. My client was charged with O.V.I. ‘per se’ (marijuana metabolite) and O.V.I. ‘impaired’. My client had one prior OVI conviction within the last six years and also had another O.V.I. charge that was reduced to Reckless Operation.

The case had several legal issues to be litigated. There was a question regarding whether the officer was justified in detaining my client for field sobriety tests. It was also questionable whether the officer had probable cause to justify arresting my client. The drug recognition evaluation is fairly new in Central Ohio, and the admissibility of the urine test was also at issue. Rather than litigate all of those issues, the prosecution dismissed one charge of O.V.I. and amended the other charge of O.V.I. to a charge of Reckless Operation.

Missing Evidence Leads To Dismissal Of Drug Charge. My client was leaving a friend’s house when he was followed by an undercover police officer. Officers were apparently conducting surveillance on the friend’s house or a neighbor’s house. The officer claimed to observe a Marked Lanes violation and initiated a traffic stop. My client pulled off the road and got out of his car. The officer observed my client drop a baggy of suspected marijuana, so the officer arrested my client. The officer searched my client’s vehicle and found additional packages containing suspected marijuana. My client was charged with Possessing Marijuana.

We entered a plea of Not Guilty and demanded a speedy trial. We also filed a demand for the testimony of the laboratory personnel that conducted the test of the suspected marijuana. On the day the case was scheduled for a trial, the prosecution had not received the laboratory report for the test of the suspected marijuana. As the time limit for speedy trial was expiring that day, the case was dismissed.

First Offense DUI/OVI Amended To Non-Moving Violation. My client was pulled over for a marked lanes violation, and the officer observed the usual trinity of intoxication signs: odor of alcohol, glassy/bloodshot eyes, and slurred speech. My client performed field sobriety tests but said he wanted to speak with a lawyer before deciding whether to take a breath test. He was given a very short time frame to speak with a lawyer and was unable to reach one. My client decided to take the breath test, and the result was .130. He was charged in the Franklin County Municipal Court with OVI ‘per se’ (breath), OVI ‘impaired’, and Marked Lanes.

We entered a Not Guilty plea and obtained a copy of the prosecutor’s file. Although the evidence did show some signs of impaired ability to drive, there were many symptoms of intoxication that were not present. Ultimately, one charge of OVI was dismissed, and the other charge of OVI was amended to Physical Control, a non-moving violation.

Drug Charges Reduced To Non-Drug Offense. My client went to the store with a friend. While my client was inside the store, the friend drove my client’s car, got into an accident with another car, and fled. While the police officers were investigating the hit-skip, the officers conducted an inventory search of my client’s car. The officers found an old purse in the back of the car. The officers searched the purse, opened two containers inside the purse and found syringes, a metal spoon, and a tie band. My client was charged with two misdemeanor drug offenses: Possessing Drug Abuse Instruments and Possessing Drug Paraphernalia. Both of those charges involve a mandatory license suspension.

We file a motion to suppress the evidence. We argued that the search violated my client’s Fourth Amendment right to be free from unreasonable searches and seizures. Specifically, we argued the search of the closed containers was not conducted in accordance with the police department’s standardized inventory procedures. On the day the case was scheduled for a hearing on our motion to suppress, the charge of Possessing Drug Abuse Instruments was dismissed, and the charge of Possessing Drug Paraphernalia was reduced to a charge of Disorderly Conduct. By pleading guilty to the charge of Disorderly Conduct, my client avoided the mandatory license suspension and also resolved the case without having a drug-related conviction on her record.

MAY, 2014

Interesting Result From DUI/OVI Jury Trial. Officers were dispatched on the report of a male slumped over the steering wheel of his car at an intersection. Officers arrived at the intersection and found my client passed out in the car, with vomit outside the car and inside the car. The car was in gear, and his foot was on the brake. The officers woke my client and observed he was unsteady on his feet. They also observed his eyes were bloodshot and glassy, and they smelled the odor of alcohol. The officers administered field sobriety tests, and my client did not follow the instructions for the tests. The officers arrested my client, and my client’s breath test result was .181. My client was charged with OVI ‘per se’ (high test) and OVI ‘impaired’. The sentence for the ‘high test’ charge includes a minimum of six days in jail, yellow license plates, and an ignition interlock device.

We had a hearing on motions to suppress evidence and a jury trial. At the motion hearing, it was clear the breath test would not be admitted as evidence because there was no proof it was completed within the time limit established by Ohio law. The remaining evidence was admitted. At the trial, the jury ultimately found my client guilty of OVI ‘impaired’. The judge ordered my client to complete a driver intervention program but did not impose jail time, did not require yellow license plates, and did not order the use of an ignition interlock.

Favorable Evidence Leads To Settlement In DUI/OVI Case. My client was pulled over when he was about to enter his subdivision. The officer stopped him because he did not come to a complete stop at the stop sign. The officer observed the odor of alcohol and bloodshot/glassy eyes, and my client acknowledged he drank a few beers. The officer administered field sobriety tests and arrested my client. My client refused a breath test, so the officer imposed a one-year Administrative License Suspension and charged my client with O.V.I.

The evidence, overall, was favorable to my client. There was no erratic driving, he responded appropriately to the cruiser lights, his speech was not slurred, and he had coherent conversation with the officer. Although he technically ‘failed’ two of the field sobriety tests, he did not look obviously drunk on the video. After a few months of litigation, the charge of O.V.I. was amended to a no-points charge of Physical Control, and the one-year license suspension (with no driving privileges for 30 days) was replaced with a 90-day suspension (with driving privileges immediately).

Underage Alcohol Consumption Charge Finally Dismissed. My client, a college student, was arrested for Underage Alcohol Consumption (Prohibition) on The Ohio State University campus and charged for that offense in the Franklin County Municipal Court. We asked the prosecuting attorney to consider my client for a diversion program, and my client met the criteria, so the prosecutor offered to dismiss the case if my client completed a one-day alcohol education program. My client completed the program, but when we returned to court, the judge was unwilling to dismiss the case because the program staff recommended another substance abuse assessment. This is the first time a judge has done this in my 17 years of practicing law. I arranged for my client to complete a substance abuse assessment, and she completed it. We returned to court, and the case was finally dismissed.

APRIL, 2014

High-Test Charge Dismissed In DUI/OVI Plea Agreement. My client was pulled over for driving 74 mph in a 45 mph zone. After the cruiser lights came on, he drove over a curb. The officer noticed the odor of alcohol, slurred speech, and bloodshot glassy eyes. The officer administered field sobriety tests but stopped the testing early because my client fell over and nearly hit his head before another officer caught him. My client took a breath test, and the result was .272. My client was charged with O.V.I.-high test and O.V.I.-impaired.

We entered a plea of Not Guilty and reviewed the evidence. There was a problem with the cruiser video, so we were not able to view it. The evidence was rather strong for the prosecution. In mitigation, we were able to demonstrate with medical records my client had a mental health condition which was not being properly treated and led to him self-medicating with alcohol. My client plead guilty to the charge of O.V.I.-impaired and the charge of O.V.I.-high test was dismissed. As the high-test charge was dismissed, my client avoided jail time and yellow license plates.

DUI / OVI Reduction Avoids Immigration Consequences. My client was pulled over for a Marked Lanes violation on the freeway. My client reportedly performed poorly on field sobriety tests, so the officer arrested my client. My client took a breath test, and the result was .159. My client was charged with two counts of O.V.I., driving with no operator’s license, and Marked Lanes. My client was an immigrant without identification, so the officer took my client to jail, and the Immigration and Customs Enforcement Agency (ICE) detained my client for possible immigration consequences.

My client could not plead guilty to O.V.I. because doing so would likely result in my client’s removal from the country. After several months of litigation, we began a hearing on our motions to suppress evidence. The cruiser video showed that the justification for the traffic stop (the alleged marked lanes violation) was very questionable, so it was apparent that any evidence obtained after the stop (including the field sobriety tests and breath test) may be thrown out. Rather than allow that to happen, the prosecutor amended the O.V.I. to Reckless Operation and dismissed the remaining charges. As a result of the favorable plea agreement, my client no longer faces probable removal from the country.

Inadmissible Breath Test Results In DUI / OVI Reduction. My client’s car ran out of gas on the freeway, and an officer was dispatched on a disabled vehicle. When the officer arrived, he noticed the odor of alcohol and bloodshot/glassy eyes. The officer asked my client about drinking alcohol, and my client acknowledged he had been drinking at a bar. The officer administered field sobriety tests, and my client did reasonably well on the tests. The officer arrested my client, and my client’s breath test result was .131. My client was charged with O.V.I. ‘impaired’.

We entered a plea of Not Guilty and obtained the evidence from the prosecuting attorney. The evidence showed the prosecution would not be able to prove the breath test was administered within the time limit of three hours, and the officer did not charge my client with O.V.I. ‘per se’ on the ticket. When we were about to start a hearing on our motions to suppress evidence, the charge of O.V.I. was reduced to a charge of Reckless Operation with a 90-day license suspension and no jail sentence or driver intervention program.

MARCH, 2014

DUI / OVI Amended In Accident Case. My client was involved in an auto accident. Police and medics responded to the accident scene. The officers observed the odor of alcohol on my client and also observed that my client was somewhat incoherent. There was a significant protrusion where my client’ head hit the windshield, and my client’s airbag deployed. The medics never examined my client, but the police report indicated my client was treated for a head injury at the scene. The officers arrested my client and my client was charged with O.V.I. As my client declined a breath test, he was subjected to a one-year Administrative License Suspension. My client was treated the next day for a concussion.

In court, we provided the prosecuting attorney with photographs of the windshield protrusion, medical records regarding the concussion, and the reality that my client was arrested rather than treated. There was a question regarding whether my client was under the influence or suffering symptoms of a concussion. The charge of O.V.I. was amended to the non-moving violation of Physical Control, and the one-year license suspension was terminated.

Young Professional Avoids DUI / OVI Conviction. My client was pulled over for a Marked Lanes violation on the freeway. The officer approached, and it was clear my client was eating while driving. The officer, however, observed glassy/bloodshot eyes and the odor of alcohol, so the officer had my client get out of the car for field sobriety tests. My client took the horizontal gaze nystagmus test (follow the pen with your eyes) but elected not to perform additional tests without an explanation of what was going to happen. The officer was not willing to provide that explanation and instead arrested my client. The officer asked my client to take a breath test, and my client asked to speak with a lawyer first. Being unable to contact a lawyer, my client decided against taking the breath test.

My client was a recent college graduate concerned about the impact of an OVI conviction on a new career. We plead not guilty and obtained a copy of the cruiser video. Although there were technically marked lanes violations, the video showed they were minor violations, and they could have been due to eating while driving. The video also showed that the only field sobriety test (the HGN test) was administered incorrectly. The prosecution’s ability to prove my client’s guilt with the remaining evidence was questionable, so both sides had something at risk by going to trial. Rather than having a trial, the OVI charge was reduced to Reckless Operation, and the one-year license suspension for refusing the breath test was changed to a six-month suspension.

FEBRUARY, 2014

High-Test DUI / OVI Reduced To Reckless Operation Based On Discovery Issue. My client was charged with OVI in the Dublin, Ohio area. The officer initially stopped my client for speeding then noticed the odor of alcohol and bloodshot eyes. The officer administered field sobriety tests, all of which were reportedly captured on cruiser video. The officer arrested my client and had her take a breath test. The result was .175, so my client was facing a minimum of six days in jail, as well as mandatory yellow license plates.

In court, we filed a Demand For Discovery that included a request for a copy of the cruiser video. We followed-up on that with a letter to the prosecuting attorney requesting a copy of the cruiser video. At the pretrial hearing, the video had not been produced. We filed a motion for the judge to prohibit the prosecution from introducing any evidence which should be on the cruiser video. By the time of the hearing on our motion, the video had not been produced, and there was a significant chance the judge would rule in our favor. Rather than take that chance, the prosecutor reduced the high-test OVI to a charge of Reckless Operation with no jail time and no license suspension.

Criminal Damaging Charge Reduced. My client, a recent college graduate, broke a large window in a pizza place. As a result, he was charged in the Franklin County Municipal Court with Criminal Damaging as a second degree misdemeanor. The potential sentence for an M-2 is up to 90 days in jail, a fine of up to $750, and probation for up to five years. The prosecutor was willing to reduce the charge if my client paid for replacement of the window. The problem was he could not reach an agreement with the restaurant owner regarding the window’s replacement cost. After ongoing negotiation, we reached an agreement, and restitution was paid to the satisfaction of the restaurant owner and my client. The charge was reduced to Disorderly Conduct, and the sentence was a fine of $100. My client paid the fine immediately, so he will be eligible to have the record sealed (expunged) in one year.

JANUARY, 2014

Marijuana Cultivation Case Resolved Favorably. An informant told a detective my client was growing marijuana in his basement, and the detective got a warrant to search my client’s house. The detective found marijuana and equipment for growing and selling marijuana, but did not find any plants growing at the time. The detective also found a shotgun, and my client was not supposed to possess a firearm due to a previous conviction for a felony drug offense in central Ohio. My client was charged with Marijuana Cultivation (with a specification to forfeit his house), Drug Trafficking, Drug Possession, and Having a Weapon Under Disability.

We plead not guilty and reviewed the evidence. The issuance of the search warrant was questionable because the informant was anonymous and had unproven reliability, and the electricity use was inconsistent with a grow operation. In addition, the evidence regarding the cultivation charge was weak because there were no plants growing. At the same time, a guilty verdict would result in my client going to prison and forfeiting his home. We reached a plea agreement by which my client plead guilty to the charge of Having a Weapon Under Disability, and the other charges were dismissed. As part of the agreement, my client forfeited an agreed cash amount instead of his house and was placed on community control (probation) instead of prison.

College Student’s DUI/ OVI Reduced. My client, a college student, was pulled over for failing to signal. The officer noticed the odor of alcohol and also noticed my client’s eyes were bloodshot and glassy. In addition, my client had difficulty putting the car in park and grasping the keys. The officer had my client perform field sobriety tests, and my client’s performance was okay. The officer told my client the consequences of taking or refusing the breath test, and my client decided to take the test. The breath test result was .134, and my client was under 21. The officer charged my client with O.V.I. ‘per se’ and O.V.I. ‘impaired’.

When we reviewed the video from the officer’s cruiser, it was apparent the officer improperly advised my client regarding the consequences of taking or refusing the breath test. As a result, we argued, my client’s consent to the test was coerced, which makes the breath test inadmissible. Just before we were going to start a hearing on our motion to suppress the breath test, one O.V.I. charge was dismissed, and the other O.V.I. charge was reduced to ‘Operating a Vehicle after Underage Alcohol Consumption’ (OVUAC), as though the result of the breath test was over .02 but under .08.

High-Test DUI / OVI Dismissed In Plea Agreement. An officer stopped my client for speeding and a marked lanes violation. The officer observed that my client has glassy eyes, slow speech, and the odor of alcohol. The officer administered field sobriety tests and arrested my client. My client took a breath test, and the result was .217. My client was charged with ‘high test O.V.I.’ and ‘O.V.I. impaired’. In reviewing the records for the breath-testing machine, we discovered that the police department failed to follow one of the regulations regarding weekly maintenance of the machine. That mistake would likely result in the breath test being thrown out. The cruiser video, however, contained evidence of intoxication that cross-examination could not overcome. Given this situation, my client accepted a plea offer by which the charge of ‘high test O.V.I.’ was dismissed (so my client avoided jail and yellow license plates), but my client pled guilty to the charge of ‘O.V.I. impaired’.