2015-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, 2015

Unusual Resolution For Physical Control Case. A neighbor called the police because my client was sitting in his car playing the car stereo loudly. Officers went to the scene and encountered my client. When my client opened the car door, the officers smelled an overwhelming odor of alcohol. They observed my client appeared to be under the influence and was holding what appeared to be an alcoholic beverage. The officers administered field sobriety tests and arrested my client. My client refused a breath test and was charged with Physical Control of a vehicle Under the Influence.

My client was technically guilty of the offense because he was under the influence of alcohol and was in physical control of the vehicle: he was seated in the driver’s position with the key in the ignition. On the other hand, the Physical Control law was not really designed for this situation. The law seems to be designed for the situation where a person drives somewhere, becomes under the influence, and then gets in the vehicle with the ignition key but does not drive. In my conversation with the prosecutor and the arresting officers, they ultimately agreed with this assessment. The charge of Physical Control was amended to a charge of Disorderly Conduct, which means my client caused annoyance to another person by playing his car stereo too loudly. This was an unusual resolution for a Physical Control charge, but it made sense given the circumstances and satisfied everyone involved.

Second Offense DUI/OVI With Hit Skip Resolved Favorably. My client had a prior DUI conviction on his record already when he rear-ended the car in front of him. After the collision, my client left the scene. He was located about 20 minutes later by a police officer. The officer observed signs of intoxication, so he gave my client field sobriety tests and arrested him. My client then refused a breath test. The officer charged my client with Hit-Skip and OVI.

In court, we entered a plea of Not Guilty. The driver of the other vehicle never appeared in court and never responded to the prosecutor’s attempts at communication. The charge of Hit Skip was dismissed, and my client pled guilty to the OVI, which was treated as a first offense.

First Offense Breath Test DUI/OVI Reduced. An officer observed my client drive significantly over the fog line. The officer stopped my client and observed the odor of alcohol and glassy/bloodshot eyes. The officer administered the horizontal gaze nystagmus test (HGN-follow pen with eyes) and other field sobriety tests. The officer then arrested my client. My client took a breath test, and the result was .117. My client was charged with OVI ‘per se’ (breath), OVI ‘impaired’, and Marked Lanes.

We obtained my client’s medical records which confirmed he has a ‘lazy eye’, so the HGN test is invalid for him. The video showed my client performed pretty well on the remaining field sobriety tests and did not look obviously intoxicated. The prosecutor dismissed one charge of OVI, as well as the charge of Marked Lanes. The prosecutor also amended the other charge of OVI to a charge of Physical Control, so my client resolved the case with a non-moving violation on his record rather than an OVI.

MAY, 2015

Underage OVI Resolved Favorably. An officer observed my client stopped at a traffic light and noticed the car was well past the stop bar. The officer stopped my client and approached his car. When the officer reached the car, he observed the odor of alcohol and a beer bottle in the center console. My client was 19. The officer administered field sobriety tests, arrested my client and took him to the police station. At the station, my client’s breath test result was .103. The officer charged my client with OVI ‘impaired’, OVI ‘per se’, disobeying a Traffic Control Device, and Underage Alcohol Consumption.

We obtained discovery from the prosecution, and much of it was favorable to my client. Although the officer observed technical “clues” on the field sobriety tests, my client overall performed well for wearing untied work boots. My client had coherent conversation with the officer and did not slur his speech. Throughout the cruiser video, my client’s balance and coordination were fine, and my client did not appear to be intoxicated. After our negotiations, the prosecution dismissed the charges of Underage Alcohol Consumption, disobeying a Traffic Control Device, and one charge of OVI. The other charge of OVI was reduced to a charge of Reckless Operation, and my client pled guilty to that reduced charge.

APRIL, 2015

Second OVI Reduced In Franklin County. My client was driving on the freeway, well over the speed limit, and cut in front of a police cruiser, without signaling, to get on the exit ramp. My client then straddled the lane on the ramp. Not surprisingly, the officer in the cruiser stopped my client. The officer observed my client had the odor of alcohol and watery eyes. My client acknowledged he drank a few beers. The officer administered field sobriety tests and arrested my client. My client had a prior OVI conviction, so a breath test refusal would have resulted in an additional offense, so my client took a breath test. The result was .143. My client was charged with OVI ‘per se’, OVI ‘impaired’, and Marked Lanes.

We contested the case and obtained the prosecution’s evidence. It turned out the field sobriety tests were given in the rain on a wet road, which would likely make the Walk And Turn test and the One Leg Stand test invalid. In addition, my client had an eye condition which invalidated the remaining test, the Horizontal Gaze Nystagmus test. While the case was pending, my client began alcohol treatment. When the time came for a hearing on our motions to suppress evidence, the existence of these factors and the unavailability of a prosecution witness led to a favorable plea agreement. The charge of Marked Lanes and one charge of OVI were dismissed. The remaining charge of OVI was amended to a charge of Physical Control, a non-moving, no-points offense.

MARCH, 2015

Felony Drug Case To Be Dismissed. My client was set-up by a confidential informant. The informant asked my client to sell him cocaine, and my client agreed. Rather than selling him cocaine, however, my client sold him a bag of baking soda. Unfortunately for my client, selling baking soda under the pretense it is cocaine is a felony drug offense: Trafficking Counterfeit Controlled Substances. My client was charged with that offense and was also charged with felony Drug Trafficking based on an “offer to sell” cocaine.

As my client had no criminal record, we filed a motion requesting Intervention In Lieu of Conviction (IILC). The Ohio Revised Code contains criteria for IILC eligibility, and my client met all of the criteria. The judge granted our motion for IILC and created a treatment plan for my client. When my client completes the treatment plan successfully, the case will be dismissed, and my client will be eligible to have the records for this case sealed (expunged).

Jury Trial: Not Guilty Of Aggravated Vehicular Homicide. My client collided with a bicycle on a rural road, and the bicyclist died. Accident reconstruction showed my client did not get over far enough when passing the bicycle from behind. As a result, my client was charged with Aggravated Vehicular Homicide based on recklessness and Vehicular Homicide based on negligence. The Aggravated Vehicular Homicide charge is a third degree felony carrying up to five years in prison and a lifetime license suspension. The Vehicular Homicide charge is a first degree misdemeanor carrying up to six months in jail and a license suspension for up to five years.

Before the trial, the prosecutor offered to dismiss the misdemeanor charge if my client would plead guilty to the felony charge. Although my client felt responsible for the cyclist’s death, we rejected that offer and explained why we believed my client was not reckless. Following an intense trial, the jury found my client Not Guilty of the felony Aggravated Vehicular Homicide but guilty of the misdemeanor Vehicular Homicide. Although this was a 'victory' in court, nobody really wins in these cases.

Shoplifting Case Dismissed In Franklin County, Ohio. After shoplifting about $40 worth of merchandise at a department store, my client was charged with Theft in the Franklin County Municipal Court. My client had no criminal record, and there were no aggravating circumstances to the case, so it appeared my client should be offered the shoplifting diversion program. With that program, successful completion leads to the case being dismissed. When my client went to court, however, the diversion program was not offered.

My client hired me, and I arranged for her to complete an anti-theft program. I requested the prosecutor reconsider offering diversion, and the request was granted. My client submitted proof of completing the anti-theft program, agreed to pay court costs, and agreed to stay away from the store where the incident occurred. In exchange, the prosecutor dismissed the case. There was no brilliant legal work involved to achieve this result, but sometimes clients just need an attorney to make things happen.

FEBRUARY, 2015

OVI Completely Dismissed In Drugged Driving Case. A motorist called 911 and complained my client was driving recklessly on the freeway. A police officer found and followed my client. Just before my client reached the county line, the officer stopped my client. The officer claimed to smell the odor of marijuana, which he later admitted was coming from outside, not my client’s car. The officer claimed to observe signs of drug use, so the officer administered field sobriety tests. Following the tests, the officer arrested my client, and took my client to jail. At the jail, another officer administered a Drug Recognition Evaluation and concluded my client was under the influence of drugs. The officer reported my client refused a urine test, so my client was subjected to a one-year Administrative License Suspension and charged with OVI.

The case had many problems for the prosecutor. The cruiser video showed the officer followed my client for seven minutes and did not observe any traffic violations. My client disputed the claim of refusing the urine test, and my client took a urine test the day after the incident which showed no illegal drugs in my client’s urine. I requested video from the jail and the recording of the 911 call, and both were apparently destroyed. Faced with those problems, the prosecutor dismissed the OVI charge and agreed to termination of the one-year Administrative License Suspension.

JANUARY, 2015

High-Test DUI/OVI Charge Dismissed In Plea Agreement. A police officer was driving behind my client and noticed my client was weaving as he drove. The officer stopped my client and made the following observations: strong odor of alcohol, bloodshot/glassy eyes, slurred speech. My client acknowledged he was driving home from drinking at a bar. The officer administered field sobriety tests, and my client’s performance on the tests was okay but not great. The officer arrested my client and gave my client a breath test. The result was .196, so my client was charged with high-test OVI ‘per se’, OVI ‘impaired’, and Marked Lanes. The high-test OVI involves mandatory jail time of at least three days (plus the three-day driver intervention program) and mandatory yellow license plates.

We entered a plea of not guilty, requested discovery from the prosecutor, and reviewed the records for the breath-testing machine. The discovery and records contained some bad news and some good news for my client. On one hand, the records showed this particular machine had been maintained in compliance with Ohio regulations, so the breath test was going to be admissible. On the other hand, here were some deficiencies in the officer’s administration of the field sobriety tests, and the Marked Lanes violation was not visible on video. At the end of negotiations with the prosecuting attorney, my client pled guilty to OVI ‘impaired’, and the prosecutor dismissed the high-test OVI (and the Marked Lanes charge), so my client at least avoided yellow license plates and jail time.

DECEMBER, 2014

Discovery Issue Leads To Reduction Of Breath Test DUI/OVI In Columbus, OH. My client was pulled over for Speeding and Marked Lanes in the O.S.U. campus area. The officer observed the odor of alcohol, and my client acknowledged she was driving home from a bar. The officer had my client walk to a sidewalk, and my client reportedly swayed while walking and lost her balance briefly. The officer administered field sobriety tests and observed many clues of intoxication. The officer arrested my client, and my client blew a .126 on a breath test. The officer charged my client with OVI ‘per se’ (breath) and OVI ‘impaired’, as well as Marked Lanes and Speed.

We entered a plea of not guilty and requested discovery from the prosecutor’s office. We specifically requested the cruiser video and the police station video. We followed that request with a letter to the prosecutor requesting the videos. It turned out the cruiser was not equipped with video, and the police station video was destroyed. The video was destroyed in accordance with the police department’s policy, but it was destroyed after we requested it from the prosecutor. We filed a motion to dismiss the case, claiming the destroyed evidence violated my client’s right to due process of law. As the outcome of that motion was unclear, we reached an agreement with the prosecutor. One charge of OVI was reduced to a charge of Reckless Operation, and the other three charges were dismissed.