2015-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, 2015

Wrong-Way DUI/OVI Reduced. My client was pulled over driving the wrong way on a one-way street. An officer approached my client’s car and smelled the odor of alcohol. My client had difficulty providing a driver’s license and had mumbled speech. The officer administered field sobriety tests and reported several clues of intoxication from the tests. The officer found an open bottle of vodka in the car. My client was arrested and refused the breath test. My client was subjected to an immediate one-year Administrative License Suspension (ALS) and charged with OVI.

When we reviewed the evidence, it showed that the above description of the incident was only part of the story. It turns out the place where my client began driving on the one-way street did not have a sign indicating it was one-way. Although the officer may have observed picky, technical clues on the field sobriety tests, my client actually had exceptionally good balance overall. Ultimately, the charge of OVI was reduced to a charge of Reckless Operation, and the one-year license suspension was replaced with a six-month suspension.

Blood Test Issues Lead To Reduction In High-Test DUI/OVI. Following a very dangerous one-car accident, my client was taken to the hospital with serious injuries. A police officer went to the hospital and noticed the odor of alcohol. Based on the accident and the odor of alcohol, the officer decided to obtain a sample of my client’s blood for testing. The officer believed he did not need a search warrant for the blood sample because, according to the officer, my client was unconscious or otherwise incapable of refusing to give a blood sample. The blood sample was analyzed by a crime lab, and the result was .174. My client was charged with high-test OVI ‘per se’.

We obtained my client’s medical records from the hospital. Multiple notations in the medical records refuted the officer’s claim that my client was unconscious or otherwise medically unable to consent or refuse the blood test. The officer should have either asked my client to consent to the test or obtained a search warrant. In addition, the crime lab failed to provide some requested documentation regarding the blood test. As a result, the prosecution reduced the charge from a high-test OVI to a Reckless Operation.

DUI/OVI With Accident Resolved Favorably. My client was involved in a two-car accident. Before the police arrived, the other driver punched my client in the face. My client also sustained a head/neck injury in the accident. Officers reported to the scene and noticed the moderate odor of alcohol when speaking with my client. The officers administered field sobriety tests and arrested my client. My client took a breath test, and the result was .132. The officers charged my client with OVI ‘per se’ (breath) and OVI ‘impaired’.

The evidence showed my client was clearly injured in the accident, so the validity of the field sobriety tests was questionable. Outside of the field sobriety tests, my client’s balance was good, and he appeared to be coherent. After several court appearances and much preparation, one OVI charge was dismissed, and the other OVI charge was amended to a non-moving, no points offense.

NOVEMBER, 2015

Theft Charge Dismissed In Shoplifting Case. My client was charged with shoplifting at a department store. My client did not have a criminal record and met all the other criteria for the court’s theft diversion program. My client completed the requirements of the diversion program, and the case was completely dismissed at the arraignment stage. My client is immediately eligible to apply for the case records to be sealed.

First Offense DUI/OVI Amended In Diabetic’s Case. An officer was stationary when he observed my client drive by. The officer observed my client’s bright lights were on, and my client signaled left but made a wide right turn. The officer stopped my client and noticed the odor of alcohol and, bloodshot/glassy eyes, and slurred speech. The officer administered field sobriety tests, and my client performed poorly on the tests, so the officer arrested my client. My client attempted a breath test, but the result was an ‘invalid sample’. My client was offered a urine test but was unable to urinate, so the officer considered it a refusal. My client was charged with OVI and Marked Lanes.

In speaking with my client, I learned he was diabetic. The symptoms of altered blood sugar levels can mimic the symptoms of alcohol intoxication. Diabetes may also explain why the breath test resulted in an ‘invalid sample’ (ketones in the breath), and a recent appellate case concluded inability to urinate is not a refusal. With these issues, the charge of OVI was amended to a charge of Physical Control: a non-moving violation.

OCTOBER, 2015

Third DUI/OVI Ends With Good Outcome For Client. My client was stopped for speeding on a highway. The officer observed my client’s speech to be slurred during one sentence and also observed my client’s eyes to be glassy and bloodshot. The officer did not observe the odor of alcohol but nevertheless got my client out of the vehicle for field sobriety tests. The officer arrested my client, and my client refused a breath test. My client had two prior convictions in the last 20 years, so he was charged with Test Refusal With Prior Conviction, in addition to OVI and Speed.

The cruiser video was generally favorable to my client. Although the officer observed technical ‘clues’ on the field sobriety tests, my client’s balance and coordination overall was good. While my client had a good case for trial, he chose to accept a plea bargain in which the charges of Test Refusal With Prior Conviction and Speed were dismissed. By doing so, he avoided jail time despite this being a third lifetime OVI and also avoided the mandatory requirement of yellow license plates associated with the Refusal charge.

Physician’s DUI/OVI Charge Reduced. My client, an ER physician, was stopped for a Marked Lanes violation. The officer observed the odor of alcohol coming from the vehicle and also observed my client’s eyes were bloodshot and glassy. The officer administered field sobriety tests and a portable breath test. The officer arrested my client, and an evidential breath test result was .127. My client was charged with OVI ‘per se’, OVI ‘impaired’, and Marked Lanes. My client was concerned about the secondary consequences of an OVI conviction, specifically discipline from the state medical board.

When we obtained the evidence from the prosecutor, two things stood out. First, it was questionable whether the traffic stop was justified. Second, it was questionable whether the officer had justification to prolong the traffic stop to conduct an OVI investigation. We filed a motion to suppress evidence based on those issues, but the motion was not litigated. Instead, my client pled guilty to one reduced charge of Reckless Operation with a 90-day license suspension.

Favorable Plea Agreement In Breath Test DUI/OVI. My client was pulled over for a rolling stop at a red light. The officer noticed the odor of alcohol and bloodshot/glassy eyes, so the officer asked my client to get out of the car. When my client asked about the need to get out of the car, the officer said my client was not going anywhere and ordered my client out. My client got out of the car, and the officer administered field sobriety tests and implied my client was under arrest before administering the tests. My client performed pretty well on the tests and looked pretty sober during the interaction with the officer. On the breath test, however, my client’s result was .099. My client was charged with OVI ‘per se’ (breath), OVI ‘impaired’, and Red Light.

Comparing the facts of my client’s situation to cases decided by appellate courts revealed a legitimate issue regarding when my client was arrested and whether the arrest was justified. Rather than litigating the issue, the prosecutor dismissed two of the charges and amended the remaining charge to Physical Control, a no-points traffic violation.

DUI/OVI Drugs Charge Dismissed. A witness called the police and said my client stumbled through a grocery store parking lot, got in his vehicle, and began drinking a beer. An officer caught up to my client as he parked in his driveway. There was an open container of beer in the vehicle. My client performed poorly on field sobriety tests and was arrested. At the police station, an officer administered a Drug Recognition Evaluation and concluded my client was under the influence of a CNS depressant. The officer charged my client with OVI, Open Container, and Consuming Alcohol in a Motor Vehicle.

We pled not guilty and obtained the evidence from the prosecuting attorney. We also obtained my client’s medical records. The records revealed my client has blood pressure problems, and the report from the Drug Recognition Evaluation confirmed my client had relatively low blood pressure at the time of the evaluation. The effects of low blood pressure could be mistaken for the effects of alcohol intoxication. Ultimately, the laboratory report from my client’s urine test showed a low level of alcohol and no drugs of abuse. The charges of OVI and Open Container were dismissed, and my client pled guilty to the charge of Consuming Alcohol in a Motor Vehicle.

SEPTEMBER, 2015

DUI/OVI Case With Breath Test Reduced. Officers were dispatched to my client’s vehicle and found my client slumped over the steering wheel with the car parked in the middle of the lane. The officers got my client out of the car and found two mostly-empty bottles of vodka in the vehicle. The officers administered field sobriety tests, and my client performed poorly. The officers gave my client a breath test, and the result was .272. The officers charged my client with high-test OVI, so my client was facing the mandatory six days in jail and yellow license plates.

We obtained the evidence for the case and found the prosecutor had an evidentiary problem. To prove the charge of OVI, the prosecution needed to prove my client was over the limit or under the influence at the time of operating the vehicle. The prosecution did not have contact information for any witness who observed my client operate the vehicle. The prosecution could prove my client was under the influence but could not prove it was at the time of operating the vehicle. As a result, the charge of OVI was amended to the no-points charge of Physical Control Under The Influence with no jail time and no yellow plates.

AUGUST, 2015

High Test DUI/OVI Charge Dismissed In Accident Case. My client was involved in a one-car accident in downtown Columbus, Ohio. When medics and officers arrived, my client was incoherent and did not know he had been involved in an accident. Officers attempted to administer field sobriety tests but stopped the tests for my client’s safety. My client took a breath test, and the result was .317. My client was placed in jail until he posted bond. As the breath test was over .169, my client was facing a minimum of six days in jail and mandatory yellow license plates.

We pled not guilty and reviewed the evidence for the case. With the accident and the incredibly high breath test result, the case was very challenging. We filed a motion to suppress the breath test and found a possible problem with the prosecutor’s ability to get the breath test admitted as evidence. Based on that breath test problem, the prosecutor reluctantly dismissed the high-test charge, so my client avoided additional jail time and also avoided yellow license plates.

DUI/OVI-Marijuana Reduced. My client was pulled over for failing to use a turn signal. The officer observed the odor of burned marijuana and bloodshot/glassy eyes. My client admitted smoking marijuana. The officer administered the three standardized field sobriety tests, as well as some tests from the Drug Recognition Evaluation protocol. My client was arrested and submitted a urine sample. The urine test was literally off the scale for marijuana metabolite: the test showed over 5,000 nanograms of marijuana, and the ‘legal limit’ is 35 nanograms.

We entered a plea of Not Guilty and demanded discovery from the prosecuting attorney. In discovery, the lab report for the urine test was provided, but we requested additional documentation regarding the gas chromatograph used to conduct the urine test. After a long wait, the requested documentation had not been provided. The prosecutor may have become concerned about failing to provide discovery, and although my client’s test result was very high, he did not appear to be under the influence on the cruiser video. Ultimately, the OVI ‘impaired’ charge was dismissed, and the charge of OVI ‘per se’ based on the urine test was reduced to a charge of Reckless Operation.

Improper Handling Of Firearm Case Resolved Favorably. My client was pulled over and charged with OVI. My client had a CCW license and had his firearm with him when he was charged with OVI. The OVI charge was reduced to Reckless Operation, but a few months later my client was charged with Improper Handling Of a Firearm based on the allegation he possessed the gun while under the influence.

The difficulty in handling these cases is there is a natural tendency for people to paint an image of a gun-toting drunk thug. I prepared a detailed letter outlining my client’s background, including his military service and employment as a corrections officer. I also provided some information regarding why it may be difficult to prove he was under the influence. Ultimately, the felony charge was reduced to a misdemeanor, and my client’s sentence was a $100 fine.

Marijuana Charge Dismissed In Plea Agreement. Officers approached my client in a restaurant parking lot and began asking my client questions. The officers told my client to produce identification, and my client retrieved his driver’s license from his car. The officer then claimed he observed the odor of marijuana coming from the car. The officer searched the car and found multiple packages of marijuana, as well as a handgun. My client had a CCW license but failed to notify the officer of the handgun in the car. As a result, my client was charged with Marijuana Possession and CCW-Failure To Inform.

Case law from the court of appeals led to two helpful conclusions. First, it was likely the officer seized my client when he requested my client’s license, and it was questionable whether the officer had justification to do so. Second, because the officer was actually aware of my client’s CCW license before stopping my client, the charge should have been a minor misdemeanor rather than a first degree misdemeanor. After discussing these conclusions with the prosecutor, the charge of Marijuana Possession was dismissed, the CCW charge was reduced to a charge of Disorderly Conduct, and the total sentence was a $150 fine.

JULY, 2015

Charge Amended In OVI-Drugs Case. A motorist contacted the police and reported my client struck a guardrail and drove off the road. An officer found my client unconscious, broke out a window, and removed my client from the car. My client admitted using heroin, and drug paraphernalia was found in the car. My client consented to have blood drawn. My client was then charged with Failure To Control and OVI in the Franklin County Municipal Court.

We filed a Demand For Discovery requesting, among other things, documents related to the blood test. We received a laboratory test result indicating there was no alcohol in my client’s blood, but we did not receive the laboratory test pertaining to drugs of abuse. After a few months, we filed a motion asking the judge to exclude the blood test for drugs of abuse. On the day we were to start the hearing on that motion, the blood test appeared and showed a high level in my client’s morphine. It was probable the judge was going to exclude the blood test, so the prosecutor dismissed the charge of Failure To Control and amended the charge of OVI to a charge of Physical Control.

OVI / DUI With Breath Test Dismissed. My client was pulled over for driving 69 mph in a 55 mph zone. The officer observed the strong odor of alcohol coming from my client’s breath and also observed my client had bloodshot eyes. The officer administered field sobriety tests, and my client performed them pretty well. The officer arrested my client, and the breath test result was .089. My client was charged with OVI ‘per se’, OVI ‘impaired’, and Speed.

The discovery materials showed a problem with the breath test. My client’s first attempt resulted in an ‘invalid sample’ and had a test time of exactly midnight. The time stamp on the cruiser video suggested the breath test could not have been at midnight. Although the second test was administered only 20 minutes later, the evidence ticket from the breath-testing machine showed the second test was exactly one hour after the first test. The clock for the breath-testing machine was obviously not working properly. There is a requirement that the machine be in proper working order, and the prosecutor acknowledged that requirement was not met, so the breath test was going to be excluded from evidence, and the ‘per se’ charge would be dismissed. The evidence on the ‘impaired’ charge was weak, so the prosecutor dismissed that charge, and my client plead guilty to the charge of Speed.