2014-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.

NOVEMBER, 2014

Aggravated Burglary Charges Dismissed. My client went to a party on the O.S.U. campus. A group of young men from the party went for a walk and saw another house party in progress. One of the men got into a fight with a person from the other party. Several of the young men then went into the premises of the other house party and caused damage inside. One of the young men had a gun (and had a concealed carry permit). All of them, including my client, were charged with Aggravated Burglary: trespassing in an occupied structure when someone is present, with the purpose to commit a criminal offense, and with a deadly weapon. They were also charged with a firearm specification, making the potential sentence 11 years in prison.

My client maintained from the beginning he did not go inside the house. The investigating detective claimed two eyewitnesses identified my client. Looking more closely at the evidence, it became clear only one person’s statement could have possibly been interpreted as identifying my client, and that person could not actually say for sure my client went inside the residence. My client took a polygraph, told the polygraphist he did not go inside the residence, and the polygraphist said my client was being honest. After having this case hanging over his head for nearly a year, my client finally had his case completely dismissed and is now applying to have all records for the case sealed.

Second Offense Ohio DUI/OVI Reduced. My client was pulled over because a license plate cover made her license plate illegible. The officer, very ambitious and recently trained drug recognition evaluations, observed the odor of alcohol coming from the vehicle. The officer removed my client and two passengers from the car and searched it. Although the officer did not find any marijuana, he found evidence believed to be marijuana paraphernalia. The officer administered field sobriety tests and arrested my client. The officer completed a thorough drug recognition evaluation. My client took a urine test, and the result showed over 1,000 nanograms of marijuana metabolite: the ‘per se’ level in Ohio is 35 nanograms. My client was charged with OVI ‘per se’ and OVI ‘impaired’, and she had a prior conviction within the last six years, so she was facing a mandatory minimum of at least ten days in jail, as well as a license suspension for up to five years.

Reviewing the evidence obtained from the prosecutor was beneficial. The videos from the cruiser and the police station both showed my client did not appear to be under the influence. The report and video from the drug recognition evaluation were also overall favorable to the defense. Although the prosecutor could probably prove my client operated a vehicle with a prohibited concentration of marijuana metabolite (OVI ‘per se’), the prosecutor probably could not prove my client operated a vehicle under the influence of marijuana (OVI ‘impaired’). After having a hearing on our motions to suppress evidence, we reached an agreement. One charge of OVI was dismissed, and the other charge of OVI was amended to Physical Control, a charge which carries no mandatory jail sentence and a maximum license suspension of one year.

First Offense Ohio DUI/OVI Amended. Just because the officer says you were under the influence does not mean the case is hopeless. My client was pulled over because he changed lanes on the freeway and cut-off a police cruiser. Not surprisingly, the cruiser lights came on, and my client pulled over. The officer observed the strong odor of alcohol and also observed my client’s eyes were bloodshot and glassy. My client argued with the officer about whether he cut-off the officer. The officer had my client recite the alphabet from D to W, and my client made some mistakes. The officer administered field sobriety tests, and my client reportedly did very poorly on the tests. The officer arrested my client, and my client refused a breath test. Based on the refusal, my client’s license was suspended for one year. My client was also charged with OVI.

When we obtained the cruiser video from the prosecutor’s office, the evidence was not as bad as it sounded in the officer’s report. My client’s speech was not slurred, his conversation with the officer was coherent, he did not have any trouble walking or standing, and he did not have a general appearance of the being under the influence. My client was argumentative with the officer, but the officer was unprofessional and condescending. Recognizing a jury trial could go either way, the parties reached an agreement. The charge of OVI was amended to a no-points traffic offense, and the one-year suspension was replaced with a six-month suspension.

OCTOBER, 2014

Error In Urine Test Leads To Reduction Of DUI/OVI. An officer happened to be behind my client when my client rolled through a stop sign and did not use his turn signal. The officer pulled-over my client and noticed the odor of marijuana. My client admitted to smoking marijuana and drinking at a bar. The officer searched my client’s car and seized marijuana, as well drug paraphernalia. The officer administered field sobriety tests, and my client performed poorly on the tests. The officer arrested my client and had my client submit a urine sample. My client was charged with OVI ‘impaired’ under the Columbus, Ohio city code. After the urine test was completed, my client was given a second ticket for OVI ‘per se’.

We plead Not Guilty to the OVI charges and filed a motion to suppress the urine test results. For urine test results to be admissible, the prosecution must prove the urine test was completed in substantial compliance with testing regulations written by the Ohio Department of Health. One of the regulations requires officers to label the urine sample in a certain manner. For the hearing on our motion to suppress the urine test, the crime lab technician was subpoenaed to bring the urine sample. When the bottled sample was removed from its packaging, it became clear the sample was not labeled in the manner required by the Ohio regulations. As the urine test was going to be suppressed, the prosecutor dismissed the charge of OVI ‘per se’ and amended the charge of OVI ‘impaired’ to the non-moving violation ‘Physical Control’.

High Test OVI Dismissed In Plea Agreement. A motorist called the police because my client was driving on the wrong side of the street and appeared to be driving on a flat tire. When police officers encountered my client, there was no rubber left on the flat tire. The officers observed the odor of alcohol, bloodshot/watery eyes, and slurred speech, so the officers had my client perform field sobriety tests. My client did not do well on the tests, so she was arrested and taken to a police station. At the station, my client took a breath test, and the result was .239. My client was less than cooperative with the officers. My client was charged with high-test OVI ‘per se’ (over .170), and OVI ‘impaired’ (under the influence).

We obtained the discovery materials from the prosecutor, and I reviewed the records for the breath-testing machine. The discovery materials were not favorable, but the records for the breath-testing machine revealed that the officer who administered the breath test failed to renew his breath testing operator’s permit before it expired. For the breath test to be admissible, the person administering the test must have a valid operator’s permit issued by the Ohio Department of Health. We reached a plea agreement in which my client plead guilty to the OVI ‘impaired’ charge, and the prosecutor dismissed the high-test OVI ‘per se’ charge.

Drug Paraphernalia Case Resolved Favorably. Medics were dispatched to my client’s home due to an apparent drug overdose. When the medics responded to my client’s residence, the police responded also. The police found drug paraphernalia and drug abuse instruments. After the medics treated my client, the police charged my client with Possessing Drug Paraphernalia and Possessing Drug Abuse Instruments. Both charges are misdemeanor drug-related offenses, and both carry a mandatory license suspension and possible jail time. In addition, my client had been charged with these offenses on a previous occasion, so there was no possibility of a diversion program.

In court, we demonstrated the significant efforts my client made to address the underlying drug problem. At the conclusion of our negotiations, one of the charges was dismissed, and the other charge was amended to an attempted possession offense. As my client plead guilty to “Attempt”, the conviction was not for a drug-related offense, so no license suspension was imposed. Following the mitigating evidence we presented the court, no jail sentence was imposed either.

SEPTEMBER, 2014

Jail And Yellow Plates Avoided In High Test Urine OVI. A driver called the police and reported that my client was driving recklessly on the freeway. Two officers responded, and one stopped my client. My client had slurred speech and was unable to articulate where she was coming from or where she was going. My client performed poorly on field sobriety tests and had difficulty following instructions. The officers arrested my client and had her submit a urine sample. The urine test result was .242. This result is considered a high test, so the sentence includes mandatory jail time of at least six days and mandatory restricted (yellow) license plates.

We filed a Demand For Discovery and reviewed the prosecution’s evidence. The police reports and video painted an unfavorable picture for my client. On the other hand, there were some inconsistencies between the officer’s report and the officer’s training, and there was a portable breath test result much lower than the urine test result. When my client was charged with OVI, the ticket only contained the ‘impaired’ charge and not the ‘per se’ high test charge. We reached an agreement with the prosecution by which my client would plead guilty to the ‘impaired’ OVI charge, and the prosecution would not prosecute the high test charge. With that agreement, my client avoided serving jail time and also was not required to use yellow plates.

OVI Reduced In Case Of Driving Wrong Way On Freeway Ramp. An officer happened to be behind my client when my client drove the wrong way on a freeway ramp. Before my client reached the freeway, he pulled over at the same time the cruiser lights came on. The officer observed the odor of alcohol and glassy/bloodshot eyes. In addition, my client fumbled with his wallet and dropped it before handing his license to the officer. The officer administered field sobriety tests and arrested my client. My client took a breath test, and the result was .105. My client was charged with O.V.I. ‘per se’, O.V.I. ‘impaired’, and an offense involving ‘Divided Roadways’.

Our investigation showed the situation was not as bad as it appeared on the surface. The intersection where my client turned onto the freeway ramp was confusing, and the officer admitted this on the cruiser video. The field sobriety tests were essentially worthless because they were not administered properly and because my client had a medical condition which affects his balance. When this evidence was presented to the prosecutor, the charges of O.V.I. ‘impaired’ and ‘Divided Roadways’ were dismissed, and the remaining charge of O.V.I. ‘per se’ was amended to a no-points non-moving violation.

AUGUST, 2014

Charge Reduced In DUI/OVI High-Test Case With Accident. My client was involved in a two-car accident; he rear-ended another car at a stop sign. An officer was dispatched to the scene, and the officer noticed my client smelled like alcohol and had bloodshot/glassy eyes. The officer asked my client if he had been drinking alcohol, and my client admitted he had. The officer administered field sobriety tests and arrested my client. My client submitted to a breath test, and the result was .202, so he was charged with O.V.I. ‘per se’ (high test), O.V.I. ‘impaired’, and Assured Clear Distance Ahead.

We plead not guilty and reviewed the evidence. It turned out that, after the accident, my client went to his residence, then returned to the accident scene. This raised the question of whether my client consumed alcohol after the accident. There was also a question about whether the officer complied with the requirement that he observe my client continuously for 20 minutes prior to the breath test. When we were scheduled to begin a hearing on our motion to suppress the breath test, we reached an agreement with the prosecutor. The charges of O.V.I. ‘per se’ (high test) and Assured Clear Distance Ahead were dismissed, and my client plead guilty to the charge of O.V.I. impaired. By having the high-test charge dismissed, my client avoided mandatory jail time and yellow license plates.

Questionable Evidence Of Intoxication Results In Amendment of DUI/OVI Charge. My client was pulled over because her license plate light was not illuminated. The officer approached my client’s car and noticed the odor of alcohol coming from the vehicle. There were passengers in the car. The officer noticed my client’s eyes were glassy, and my client had some difficulty reciting the alphabet, so the officer had my client perform field sobriety tests. After the tests, the officer arrested my client. My client declined a breath test and was charged with O.V.I.

The evidence provided by the prosecutor showed my client’s intoxication was questionable. Although the officer had a justification to make a traffic stop, the lack of a license plate light, the officer did not observe any problems with driving and did not observe any of the clues of intoxication officers are taught to look for during the vehicle in motion phase of the O.V.I. investigation. Although the officer observed some technical clues on the field sobriety tests, my client did pretty well on the tests overall, and my client’s general balance and coordination was good. Rather than have a trial which involved some risk for both sides, the charge of O.V.I. was reduced to a charge of Reckless Operation.

Question Of Identity~High-Test DUI/OVI Reduced To Non-Moving Violation. Someone called the police from their home in the downtown Columbus area and reported that a driver ran into some planters and got his car stuck. The caller then reported there were two white males in black shirts walking away from the car. The police arrived and talked with the two males, who were both reportedly intoxicated. One of the males, my client, was the registered owner of the vehicle. The other male was my client’s roommate. The roommate told the police my client drove the car and got it stuck after leaving a nearby bar, and my client told the police he did not. The officers arrested my client, and my client submitted to a breath test. The test result was .196, so my client was charged with OVI-high test and OVI-impaired in the Franklin County Municipal Court. Due to the high test result (over .170), he was facing a minimum of six days in jail, as well as mandatory yellow license plates.

In court, the main issue was one of identification. There wasn’t much question about whether my client was under the influence or over the limit. The question was whether the prosecution could prove my client operated the vehicle. The officers did not see my client operate the vehicle, and the officers did not record the names of the eyewitnesses, so nobody could testify they observed my client operate the vehicle. On the other hand, the roommate said my client was driving, and the car was registered to my client. Rather than leaving it to the uncertain outcome of a jury trial, the prosecution and defense compromised. The charge of OVI-high test was dismissed, and the charge of OVI-impaired was amended to a charge of Physical Control. My client avoided jail time and yellow plates, as well as an OVI conviction on his record.

JULY, 2014

Third DUI/OVI Reduced To Lesser DUI/OVI. A bar employee called the police and reported that my client was leaving the bar drunk and getting into his car. Police officers arrived at the parking lot just as my client was leaving. The officers observed typical signs of intoxication, administered field sobriety tests, and arrested my client. My client took a breath test, and the result was .256. As my client had two prior DUI/OVI convictions and this offense was considered a ‘high test’ (over .170), my client was facing a minimum of 60 days in jail and forfeiture of his vehicle. He also had another DUI/OVI arrest which resulted in a plea to a reduced charge.

We entered a plea of Not Guilty, and my client diligently engaged in a treatment plan while the case was pending. He attended AA/NA meetings regularly, he participated in drug/alcohol counseling, and he worked on treating an underlying mental health issue while reducing or eliminating his prescription medication. We resolved his case with the OVI being treated as a second offense. He still had to serve 20 days in jail, but he was able to serve the jail sentence in a private facility. He avoided at least 40 additional days and also avoided forfeiture of his vehicle. Perhaps more importantly, he appears to be at the beginning of a path which will avoid future DUI/OVI charges.

DUI/OVI With Accident Reduced. My client was involved in a two-car accident on the north end of Columbus, Ohio. When police arrived at the accident scene, the other driver told the police he believed my client may be driving drunk. The officers observed my client’s speech was thick-tongued, but my client speaks English as a second language. The officers also observed my client had glassy/bloodshot eyes and the odor of alcohol emitting from him. The officers administered field sobriety tests and arrested my client. My client refused the breath test, so the officer imposed a one-year Administrative License Supension (ALS) and charged my client with DUI/OVI in the Franklin County Municipal Court.

At the first court appearance, we entered a plea of not guilty and obtained a stay of the ALS, so my client was able to drive while the case was pending. We also requested that the prosecution preserve all evidence, including all cruiser video, and provided it to us. By the time the case was resolved a couple months later, one of the two cruiser videos had not been provided. Although an accident is considered an aggravating factor in a DUI/OVI case, the charge of OVI was reduced to a charge of Reckless Operation, and the license suspension was shortened from one year to six months.