2016-Recent Case Results (July-December)
Felony Assault Arising From OVI Case Reduced. My client was sleeping in his vehicle in the parking lot of a fast food restaurant, and someone from the restaurant called 911. Medics responded and tried to wake my client. When my client didn’t wake up, the medic opened my client’s door and reached in the car to get the keys. Just then, my client woke up and reportedly punched the medic. As the victim of the assault was a medic, my client was charged with Assault as a felony carrying up to 18 months in prison. He was also charged with OVI.
During the court process, we showed my client did not intentionally assault the medic. He was awakened to some stranger in his car taking his keys, and he reacted without thought. Also during the court process, my client completed an alcohol counseling program. The charge of Assault was reduced to a misdemeanor, and the sentence was three days in jail with three days credited for time served.
DUI / OVI With Conflicting Breath Test Results. My client was stopped for Marked Lanes violations. The officer administered field sobriety tests and a portable breath test (PBT). The result of the PBT was .084. The officer arrested my client and administered a second breath test at the police station. The result of the second breath test was .076. As the second breath test result was ‘under the limit’, the officer could not charge my client with OVI ‘per se’ but still charged my client with OVI ‘impaired’.
This case illustrates an officer can still charge a person with OVI even if the breath test is ‘under the limit’. The prosecution then needs to prove that person’s ability to operate the vehicle was impaired by alcohol. The evidence in this case was mostly favorable to my client. If the case went to trial, it was likely but not certain a jury would find my client Not Guilty of OVI. Rather than take the risks involved in a trial, the parties reached an agreement: my client pled guilty to the reduced charge of Reckless Operation with no license suspension.
Fourth DUI / OVI Reduced. My client was pulled over for multiple Marked Lanes violations. My client didn’t pull over right away, so the officer had to use the cruiser siren. The officer then observed the odor of alcohol, slurred speech and glassy/bloodshot eyes. My client declined to perform field sobriety tests and refused a breath test. My client told the officer this was bad because he had too much to drink. It was also bad because my client had three prior OVI convictions, and one of them was within six years. My client was charged with OVI and Test Refusal With Prior Conviction.
We contested the case. While there was evidence my client was under the influence, there was also evidence inconsistent with intoxication. While the case was pending, my client engaged in intensive outpatient alcohol counseling, as well as psychological counseling. The charge of Test Refusal With Prior Conviction was dismissed, and the charge of OVI was treated as a first offense.
We pled Not Guilty and reviewed the evidence. The evidence we received was consistent with the allegations. There was, however, evidence we didn’t receive. The police station video was not preserved. Sometimes, the failure to preserve and provide evidence can lead to dismissal of a case. This case was in a gray area where the outcome of our motion to dismiss was uncertain. My client accepted a plea agreement in which the high-test OVI ‘per se’ was dismissed, my client pled guilty to the OVI ‘impaired’, and the prosecution did not oppose the minimum sentence required by law.
OVI Amended In Second Lifetime Offense. My client was charged with OVI and had a prior conviction. The prior conviction was more than six years before the new charge, so it did not enhance the minimum mandatory sentence. A prior conviction, however, is something a judge can always consider in determining what sentence to impose. There is a wide range of possible sentences, even for a first offense within six years. A prior conviction is also considered by the prosecution in determining how to handle the case.
The prosecution’s case was pretty strong. The stop was justified, the arrest was justified, and the cruiser video was more favorable to the prosecution than the defense. On the other hand, the arresting officer had some complications with availability for court. Rather than make it all-or-nothing based on the officer’s availability for court, the parties compromised. The charge of OVI was amended to a non-moving violation, and the prosecution agreed there would be no license suspension in exchange for my client completing a Driver Intervention Program. My client was in a position to benefit from the circumstances because he followed a defense system rather than pleading guilty like most people charged with OVI.
Two Clients Get Diversion In Shoplifting Cases. One client was charged with theft for shoplifting in Columbus, Ohio. The other client was charged with theft for shoplifting in Dublin, Ohio. One client was a college student; the other, a CEO. Both were permitted to participate in shoplifting diversion programs, so both will ultimately have their cases dismissed and their records sealed. These cases illustrate mistakes are made by people from different walks of life and people at different stages of life. I’m glad they are each given a second chance.
Mysterious Accident OVI Reduced. My client was involved in a multiple-car accident on the freeway. My client was determined to be at-fault in the accident and was investigated for drunk driving. My client performed poorly on field sobriety tests, and my client’s breath test result was .114. My client was charged with OVI ‘per se’ and OVI ‘impaired’, as well as Slow Speed.
The accident investigation was sub-par. There were no statements from any of the drivers or any of the witnesses, and the accident report by the investigating officer was inconsistent and incomplete. They weren’t really sure what happened. In addition, the breath test result was questionable because my client had undergone gastric bypass surgery. Ultimately, the prosecutor dismissed the charge of Slow Speed, dismissed one charge of OVI, and amended the other charge of OVI to a charge of Reckless Operation.
OVI Reduced In Marginal Breath Test Case. My client was pulled over for a Marked Lanes violation, and the officer noticed the usual signs of intoxication. The officer performed the usual field sobriety tests and arrested my client. My client took a breath test, and the result was unusual: exactly .080. My client was charged with OVI ‘per se’, OVI ‘impaired’ and Marked Lanes.
With the breath test result being exactly .080, it was clear the prosecutor would have difficulty proving my client was ‘over the limit’. The remaining evidence resulted in a mediocre case for the prosecution. The prosecutor dismissed the OVI ‘per se’ and the Marked Lanes and amended the OVI ‘impaired’ to Reckless Operation. The sentence was a small fine only.
OVI Reduced, License Suspension Terminated. My client was pulled over for speeding: 56 mph in a 45 mph zone. The officer noticed the odor of alcohol and bloodshot/glassy eyes. The officer administered field sobriety tests and a portable breath test (PBT), and the PBT result was .121. The officer arrested my client, and my client refused the breath test at the police station. My client was charged with OVI and subjected to a one-year Administrative License Suspension for refusing the breath test.
The evidence obtained from the prosecutor was favorable to my client. Although the officer observed ‘clues’ on the field sobriety tests, my client’s overall balance and coordination during the tests was good. My client did not appear to be under the influence. If we took the case to trial and got a Not Guilty verdict, my client would still have a one-year Administrative License Suspension because that A.L.S. is not affected by a Not Guilty verdict. Instead, we reached an agreement by which the A.LS. was terminated, and my client pled guilty to Reckless Operation
High Breath Test OVI Reduced In Disconnect Case. My client was stopped for failing to signal a lane change and driving into oncoming lanes. The officer observed the odor of alcohol and glassy eyes, so the officer had my client perform field sobriety tests. The officer arrested my client, and my client blew .218 on a breath test. My client was charged with high-test OVI ‘per se’, as well as OVI ‘impaired’ and Marked Lanes.
We pled Not Guilty and obtained the discovery materials from the prosecutor, including the cruiser video. The cruiser video showed a disconnect between my client’s general appearance and the breath test result. My client did not exhibit the symptoms of intoxication we would expect to see from someone at a .218 BAC. The charges of high-test OVI and Marked Lanes were dismissed, and my client pled guilty to the charge of OVI ‘impaired’.
Questionable Detention Leads To Reduction In Breath Test OVI Case. My client was pulled over for speeding. When the officer encountered my client, the office observed my client’s speech was slow. My client performed poorly on field sobriety tests and also had balance problems outside those tests. My client was arrested, and my client’s breath test result was .165. My client was charged with O.V.I. ‘per se’ (breath), O.V.I. ‘impaired’ and Speed.
We pled Not Guilty and filed a motion to suppress evidence based on a violation of my client’s Fourth Amendment rights. Although the initial detention for speeding was justified, the continued detention of my client for an OVI investigation was questionable. The officer decided to further detain my client based on the speeding violation and slow speech. The officer also detected the odor of alcohol, but it was unclear whether that occurred before or after the continued detention. If our motion to suppress were granted, all evidence obtained after the continued detention would be suppressed. Rather than litigate that issue, the prosecution dismissed one OVI charge, dismissed the Speed charge, and amended the remaining OVI charge to a charge of Reckless Operation.
Second-Offense OVI With Refusal Reduced. My client was stopped for making a wide right turn and multiple Marked Lanes violations. The officer observed typical signs of alcohol consumption: odor of alcohol, glassy/bloodshot eyes, and slurred speech. The officer observed ‘clues’ on field sobriety tests and arrested my client. My client refused a breath test. My client had a prior conviction for OVI, so my client was charged with a second-offense OVI and a separate charge of Test Refusal With Prior Conviction. The mandatory sentence included at least 20 days in jail, vehicle immobilization, and a license suspension for one year to five years.
We entered a plea of Not Guilty and obtained the prosecution’s evidence. The evidence did show signs of intoxication, but the cruiser video also contained some evidence inconsistent with intoxication. We filed motions to suppress evidence, including a motion to suppress the Horizontal Gaze Nystagmus test. As we were about to begin the hearing on our motions to suppress, we reached a plea agreement. The charge of Test Refusal With Prior Conviction was dismissed, and the charge of OVI was stipulated to be a first offense. My client was sentenced to six days in jail and a six-month license suspension: not an ideal outcome but much better than the mandatory sentence which would have been imposed if my client pled guilty to the original charges.
Incorrect OVI Charges Results In Favorable Outcome. Officers and medics were dispatched to a restaurant parking lot on the report that my client was passed-out in his car. They observed my client in his car with open containers of alcohol. A medic reached in the car and grabbed the keys, which led to a scuffle. My client was arrested and charged with OVI. My client refused the breath test. My client had a prior conviction within six years, so my client was also charged with the separate offense of Test Refusal With Prior Conviction. My client was facing a minimum of 20 days in jail and immobilization of the vehicle, as well as mandatory yellow license plates and ignition interlock.
We obtained discovery from the prosecution and confirmed there was a problem with the way my client was charged. Although the prosecution may be able to prove my client was under the influence of alcohol, the prosecution could not prove my client operated the vehicle while under the influence. The correct charge should have been Physical Control. With the charge of Physical Control, the sentence is not enhanced based on prior convictions. Statutory research confirmed the charge of Test Refusal With Prior Conviction cannot be based on a Physical Control charge; only an OVI charge. As a result, my client pled guilty to Physical Control. My client avoided jail, vehicle immobilization, yellow plates and ignition interlock.
OVI Charge Amended In Refusal Case. My client was pulled over for speeding on the freeway. The officer observed bloodshot/glassy eyes and the odor of alcohol, so the officer had my client get out of the vehicle. The officer administered field sobriety tests and observed ‘clues’ on the tests which suggested my client would test over the limit. The officer arrested my client, and my client refused the breath test. My client was charged with OVI (and speeding) and subjected to a one-year Administrative License Suspension.
Although my client was eligible for limited driving privileges 30 days after refusing the test, the court in which my client’s case was held routinely refuses to grant driving privileges for people who refuse the breath/blood/urine test. When we obtained the evidence, it appeared the prosecution’s case was weak, and a trial would likely result in a Not Guilty verdict. However, the trial would not be held for a few months. At the pretrial hearing, the prosecutor amended the OVI to the non-moving offense of Physical Control and dismissed the speed. My client pled guilty to the charge of Physical Control, and the one-year license suspension was replaced with a six-month suspension with immediate driving privileges.
Not Guilty Verdict-Second OVI With Refusal: My client was pulled over for speeding. The officer noticed the odor of alcohol, slightly slurred speech, and glassy/bloodshot eyes. The officer also noted my client handed the officer several expired insurance cards. The officer had my client get out of his car and sit in the cruiser. In the cruiser, the officer learned my client had a prior OVI conviction from two years before. The officer administered field sobriety tests and arrested my client. My client refused the breath test. The officer charged my client with OVI ‘impaired’ and Test Refusal With Prior Conviction. My client was facing a minimum of 20 days in jail.
We entered a plea of Not Guilty and obtained the evidence from the prosecutor. Overall, the cruiser video was favorable to my client. We offered to plead guilty to a reduced charge, but the prosecutor would not reduce the charge. Instead, we had a jury trial.
The jury trial went well. The officer testified he observed several ‘clues’ my client was under the influence. My cross examination included several views of cruiser video highlights and multiple references to the manual which taught the officer how to investigate OVIs. The officer essentially admitted he did not observe much evidence my client was under the influence, and only a person with his training and experience would have observed the ‘clues’ he observed. The cruiser video showed some of the clues were actually not present. The jury deliberated for a short time and returned verdicts of Not Guilty on both the OVI ‘impaired’ and the Test Refusal With Prior Conviction.
Questionable Stop Results In High-Test OVI Reduction. My client was stopped for a Marked Lanes violation. During their personal contact, the officer observed evidence my client was under the influence. My client performed poorly on the field sobriety tests, and my client’s breath test result was .209. My client was charged with OVI ‘per se’ (high test) and OVI ‘impaired’. The mandatory sentence would include at least six days in jail and yellow license plates. We pled not guilty.
Based on my review of the evidence, I concluded the case was pretty solid, with one exception. On the cruiser video, it was questionable whether there was a Marked Lanes violation. We scheduled a hearing to suppress the evidence, claiming the officer did not have justification to stop my client. Both the prosecution and defense had something at risk in the hearing: the result would be all-or-nothing. Rather than go through with the hearing, we reached an agreement with the prosecution. The prosecution dismissed the Marked Lanes charge and one charge of OVI, and the prosecution amended the other charge of OVI to a charge of Physical Control. My client pled guilty to Physical Control, a no-points violation, served no jail time, and avoided yellow license plates.
Medical Defense Leads To Reduction Of OVI Charge. After leaving the Memorial Tournament in Dublin, Ohio, my client was pulled over for speeding and a marked lanes violation. The officer observed common signs of intoxication, such as the odor of alcohol, slurred speech, confusion, and difficulty with coordination and balance. The officer arrested my client, and my client refused to take a breath test. My client was charged with OVI and Speed. As a result of the refusal, my client’s driver license was suspended for one year.
We pled not guilty and presented a medical defense. My client had been treated for Type I diabetes for several years and had a medical restriction on his license for that reason. My client was wearing an insulin pump at the time of his arrest. We explained to the prosecution my client was not adequately treating his diabetes, so his blood sugar was low at the time of the incident. We presented reports from my client’s insulin pump and glucometer, as well as medical records and a statement from an expert explaining the symptoms of hypoglycemia are essentially identical to the symptoms of alcohol intoxication.
The prosecution’s response was my client admitted drinking alcohol at the Memorial Tournament, and he should have known alcohol combined with hypoglycemia would impair his driving ability. Driving under those circumstances was reckless, but the prosecution could likely not prove my client was under the influence of alcohol. Accordingly, the prosecution dismissed the speeding offense and reduced the charge of OVI to a charge of Reckless Operation. As part of the plea agreement, the one-year Administrative License Suspension was terminated.
Discovery Issue Yields Good Result In OVI Case. My client was pulled over for speeding (75 mph in a 55 mph zone). According to the arresting officer, my client displayed moderate symptoms of intoxication. The officer arrested my client and took my client to a county jail. There, my client took a breath test, and the result was .130. My client was charged with Speed, OVI ‘per se’, and OVI ‘impaired’.