2017-Recent Case Results (January-June)
Second DUI/OVI Reduced. My client was pulled over for speeding, and the officer noticed the odor of alcohol on my client’s breath. The officer also noticed red sauce spilled on my client’s clothing. The officer got my client out of the car and administered field sobriety tests. The officer also administered a portable breath test, and the result was .198. The officer arrested my client, and my client refused the breath test. My client had a prior conviction for OVI.
We contested the case and obtained discovery. The cruiser video revealed the measurement of my client’s speed was questionable. The video also showed the field sobriety tests were scored incorrectly. In court, the speed charge was dismissed, and the OVI charge was reduced to Reckless Operation.
DUI/OVI Reduced In Case With Accident And Breath Test. Callers reported to police my client was involved in an accident, and his truck was disabled on a freeway exit ramp. Officers encountered my client and observed signs of intoxication. The officers administered field sobriety tests and arrested my client. My client submitted to a breath test, and the result was .169. My client was charged with O.V.I. ‘per se’, O.V.I. ‘impaired’ and Failure To Control.
We pled Not Guilty and obtained discovery from the prosecutor’s office. The discovery materials revealed the prosecution could not prove the breath test was conducted within the time limit established by Ohio law. The circumstances surrounding the field sobriety tests resulted in the tests having little value. With those problems of proof, the prosecution dismissed the charges of Failure To Control and O.V.I. ‘per se’ and amended the charge of O.V.I. ‘impaired’ to a no-points charge of Physical Control.
Underage Alcohol Consumption Case Dismissed. My client was a college student. He was on the campus of the Ohio State University and obviously intoxicated when he encountered police officers. The officers determined my client was under 21 and charged him with Underage Alcohol Consumption (also known in Ohio as ‘Prohibition’ and ‘Offenses Concerning Underage Persons’). We requested diversion, and my client met the criteria. My client completed the program, and the case was dismissed. My client will soon have the case records sealed (expunged).
Misdemeanor Theft Offense Dismissed. My client was apprehended for shoplifting at a department store. My client completed the shoplifting diversion program, and the case was completely dismissed. My client is now eligible for an expungement (record sealing), so it will be almost as though the incident never occurred.
Charges Amended For Client Multiple DUI / OVI Offenses. Before this incident my client had multiple prior convictions: two DUI/OVI convictions and two additional alcohol-related traffic offenses. This incident involved my client being pulled over for a speeding offense and having the odor of alcohol on his breath. The officer also claimed my client’s speech was slurred. The officer administered field sobriety tests and arrested my client. My client consented to a breath test, and the result was .109. My client was charged with OVI ‘per se’ (breath), OVI ‘impaired’, and Speeding.
We obtained discovery from the prosecution, and it was generally favorable to my client. Although there were technical ‘clues’ on the field sobriety tests, my client did not look obviously intoxicated on the cruiser video. Given the timing of the breath test, it was possible my client was over .080 at the time he took the test but under .080 at the time he actually operated the vehicle. Despite his multiple convictions, the prosecution dismissed the Speeding charge, dismissed one OVI charge, and amended the other OVI charge to a charge of Physical Control of a Vehicle Under the Influence.
Favorable Plea Bargain In DUI / OVI With 'Invalid Sample' Breath Test. My client was visiting central Ohio from another state when stopped for minor traffic violations. After the stop, the officers observed common signs of alcohol use. My client performed field sobriety tests and did pretty well on the tests. My client took a breath test, and the result was .108. My client was charged with OVI ‘per se’ (breath) an OVI ‘impaired’.
We pled Not Guilty and investigated the case. It turned out there were actually two breath tests. The first test resulted in an ‘invalid sample’, and the officer did not wait long enough before administering the second test. That means the result of the second test may have been falsely elevated by alcohol from my client’s mouth (he had dentures) being added to the alcohol from my client’s lungs. The case could have resulted in a Not Guilty verdict if taken to trial, but my client was from out-of-state and chose to limit the inconvenience of the process by resolving the case with a satisfactory plea bargain.
Reduction In DUI / OVI With Double-The-Limit Breath Test. An officer observed my client drive erratically and make an abrupt turn without a turn signal. The officer stopped my client and observed signs of alcohol intoxication. The officer administered field sobriety tests, and my client performed them well in high heels. The officer arrested my client, and my client submitted to a breath test. The breath test result was .163: twice the ‘legal limit’. The officer charged my client with OVI ‘per se’ (breath) and OVI ‘impaired’.
We contested the charge and found a disconnect between the breath test result and what we saw on the cruiser video. With a breath test of .163, we would expect to see certain evidence of intoxication. Most of the expected clues were not present. My client’s balance and coordination was good, my client’s speech was not slurred, and my client’s mental processing was not impaired. The erratic driving an sudden turn without signaling were explained my client being from out-of-town and following voice instructions from a GPS system. Ultimately, one charge of OVI was dismissed, and the other charge of OVI was amended to a charge of Reckless Operation.
Charge Amended In Unusual DUI / OVI Case. Officers received about a suspicious person in a parking lot. Officers ultimately located my client in another parking lot, outside his vehicle. He and his vehicle matched the description in the earlier dispatch. The officer observed signs of intoxication and talked with my client about field sobriety tests. They talked extensively, but my client didn’t ever consent or refuse to perform the tests. The officers grabbed my client and placed him under arrest. My client refused a breath test. My client was charged with OVI. It was his first offense within six years, but he had a prior OVI conviction older than six years (the lookback period is now ten years).
We contested the OVI charge. The evidence showed it was debatable whether the officers had justification to arrest my client. It was also questionable whether the evidence would prove my client’s guilt beyond a reasonable doubt. The charge of OVI was amended to a non-moving no-points offense with no jail term, and the one-year driver license suspension was replaced with a six-month suspension.
Third DUI / OVI Charge Reduced. My client had multiple OVI convictions. He had one conviction within the last six years and one conviction outside the (then) six-year lookback period. He was also driving with a suspended license when he was pulled over. He was pulled over for making a wide turn onto Polaris Parkway (near the border of in the city of Columbus but still in Delaware County). The officer observed the strong odor of alcohol coming from my client and asked my client to perform field sobriety tests. My client declined those tests and also declined a breath test. He was charged with OVI and Test Refusal With Prior Conviction. He was facing a minimum of 20 days in jail and other mandatory penalties for a second OVI offense in six years.
We entered a plea of Not Guilty and obtained discovery from the prosecuting attorney. The discovery included the cruiser video, which was generally favorable to my client. Although he refused the tests, the video showed he did so politely. His speech did not sound slurred, and he seemed totally coherent. Faced with the reality a jury may find my client not guilty, the case was resolved with a guilty plea to Reckless Operation and a sentence which included probation but no jail time and no license suspension.
Shoplifting Case Dismissed. My client was charged with Theft as a result of a shoplifting incident at a local department store. We requested a diversion screening, and my client met the criteria. The case was dismissed, and the records for the case will soon be sealed (expunged).
Client With Prior DUI / OVI Conviction Gets Charge Reduced. My client was pulled over for speeding on the freeway, and the officer observed signs of intoxication. The officer administered the Horizontal Gaze Nystagmus test but did not administer the other standardized field sobriety tests because my client had problems with his knees and ankles. The officer arrested my client and charged him with OVI. My client had a prior DUI/OVI conviction outside of six years.
We contested the case and obtained the evidence. The cruiser video was more favorable to my client than the prosecution. Although there were some signs of intoxication, the totality of the circumstances left doubt about whether my client was under the influence. Despite my client’s prior DUI/OVI conviction, the prosecution reduced the OVI to Reckless Operation to avoid a trial. Avoiding a trial was also on my client’s mind. Although my client felt good about the case, he concluded trial outcomes are not guaranteed, and he chose the guaranteed outcome of a Reckless Operation rather than an OVI.
Not Guilty Verdict In DUI / OVI Trial With Breath AND Urine Tests. My client was pulled over because one of his headlights was not working. The officer administered field sobriety tests and arrested my client. The officer administered a breath test, and the result was .069. The officer suspected my client had smoked marijuana, so the officer had my client submit a urine sample. The urine test showed no marijuana metabolite but also showed a urine alcohol level of .138. My client was charged with two counts of OVI ‘per se’: one count based on the breath test, and one count based on the urine test.
At the trial, the prosecution went forward only on the charge based on the urine test. The prosecutor essentially told the jurors to ignore the result of the breath test and convict my client of OVI because the urine test was over the limit. The prosecutor’s ‘expert’ witness, however, undermined the prosecution’s case. The ‘expert’ testified that a urine test may show a higher alcohol level than simultaneous blood and breath tests if the subject has not urinated recently. My client had not urinated recently. Therefore, it seemed likely the breath test was a more accurate measurement of my client’s alcohol level at the time he operated the vehicle. The jurors understood this and found my client Not Guilty.
*More details about this case are available in this blog post.
Questionable Stop Leads To Reduction In Repeat DUI / OVI Offense. A motorist called 911 and reported my client was driving all over road on I-71. An officer followed my client and made a traffic stop. The officer observed the usual signs of alcohol consumption: odor of alcohol, glass/bloodshot eyes, and slurred speech. My client performed field sobriety tests and blew .159 on a breath test. My client was charged with OVI and already had two prior OVI convictions: one within six years and one older than six years.
We pled not guilty and obtained discovery from the prosecuting attorney. The cruiser video revealed the officer did not observe any traffic violations before making the traffic stop. The written materials revealed the identity of the 911 caller was unknown. We filed a motion to suppress all evidence obtained after the traffic stop on the basis the traffic stop was not justified. Without the testimony of the anonymous 911 caller, it was likely the judge would grant our motion. Rather than having a hearing on the motion, the prosecutor reduced the OVI to Reckless Operation, despite my client’s prior convictions.
Charge Reduced In DUI / OVI With Accident. My client backed into another car in the parking lot of a bar. Officers came to the scene and talked with the other driver first, who said my client was under the influence. An officer administered field sobriety tests and arrested my client. My client refused the breath test. My client was charged with OVI and Backing Without Safety.
We entered a plea of Not Guilty and filed motions to suppress evidence. The judge held a hearing on our motions and ruled against us on every issue. The ruling gave us a couple good issues for appeal. Rather than going through an appeal, the parties reached an agreement. The charge of Backing Without Safety was dismissed, and the charge of OVI was amended to a non-moving / no-points offense.
Diversion Granted In Marijuana Possession Case. My client was stopped because his headlights were not on. During the stop, the officer saw marijuana paraphernalia in plain view, and my client admitted having both paraphernalia and a small amount of marijuana. My client was charged with both offenses in a mayor’s court. Although most courts have some type of diversion program for these types of case, this particular mayor’s court did not. When the court personnel realized we were going to exercise my client’s right to appeal the case to the municipal court, the case was transferred without us having to appeal. In the municipal court, my client was granted diversion. After he completes the requirements of the diversion program (substance abuse education, etc.), the case will be dismissed, and my client will be eligible to have the case records sealed.