Defenses For Serious Vehicular Crimes In Ohio

People charged with Vehicular Homicide and Vehicular Assault in Columbus Ohio and the central Ohio area may wonder what are the defenses to those charges. The defense for each case must be tailored to the unique facts, but there are common strategies for these cases. Those common strategies can be divided into three main categories: defenses to the allegation your driving caused the accident; defenses to the allegation you were ‘under the influence; and defenses to the allegation you were ‘over the limit’.

For charges of Vehicular Homicide and Vehicular Assault, the prosecution must prove your operation of a motor vehicle caused serious physical harm or death. Therefore, the prosecution must prove your driving caused the collision. For that proof, the prosecution relies primarily on accident investigation and reconstruction. The purpose of the defenses is to show the conclusions of the accident investigation and reconstruction were incorrect because the investigation and reconstruction were flawed. Below are the top 40 defenses to the allegation your driving caused the accident:

1. Not all evidence collected and/or photographed
2. Measurements inaccurate or incorrect
3. Diagrams of accident scene inaccurate
4. Failure to investigate signage near accident site
5. Evidence contaminated by moving vehicles, debris or objects
6. Investigation conducted by officer without proper training and experience
7. Biased accident investigation
8. Eyewitness statements inaccurate due to flawed perception or memory
9. Client statement reported inaccurately or taken out of context
10. No accident reconstruction conducted
11. Reconstructionist lacked training and credentials
12. Reconstructionist had vested interest in conclusion: non-scientific conclusions
13. Misinterpreted exterior vehicle conditions
14. Misinterpreted interior vehicle conditions
15. No investigation of relevant vehicle recalls
16. Vehicle’s mechanical defect or failure caused the accident
17. Other driver’s intoxication caused the accident
18. Other driver’s recklessness or negligence caused the accident
19. Other driver’s medical condition caused the accident or death/serious harm
20. Client’s medical condition caused the accident
21. Reconstruction failed to properly account for sight lines and visibility
22. Reconstruction based on inaccurate witness’ or operators’ perspectives
23. Inaccurate determination of points of perception
24. Failure to properly evaluate human factors which may have played a role in the crash
25. Misinterpreted skid marks, yaw marks, gouges, and scrapes
26. Use of yaw marks invalid due to braking or acceleration when mark was created
27. Drag sled or accelerometer not used to determine road surface’s drag factor
28. ‘Rules of thumb’ used; not scientific analysis and mathematical calculations
29. Calculations based on inaccurate interpretation of debris scattering
30. Formulas generated results which defy laws of physics
31. Equations excessively sensitive to minor evidence/input data inaccuracies
32. Equations incorrectly applied: guessing and/or adjustments made to equation
33. Computer-assisted formulas yielded inaccurate results due to incorrect data
34. Results of equations inconsistent with witness observations
35. Computer-generated accident simulation was one presumed scenario
36. Incorrect interpretation of data in reports from Crash Data Retrieval (CDR) systems
37. Speed in CDR Report invalid due to weather conditions.
38. Reconstruction ignored lack of operation evidence
39. Errors in medical examination led to incorrect conclusion about injury
40. Inaccurate analysis of debris spread and body resting place in pedestrian strike

For charges of Aggravated Vehicular Homicide and Aggravated Vehicular Assault based on the charge of OVI ‘Impaired’, the prosecution must prove you operated a vehicle ‘under the influence’ of alcohol and/or drugs. To prove you were ‘under the influence’, the prosecution introduces testimony of witnesses; primarily police officers. The purpose of the defenses is to show the witness observations do not prove impairment. Below are the top 40 defenses to the allegation you were ‘under the influence’:

1. Driving: lack proof you were the operator of the vehicle
2. Alcohol or drugs consumed after the accident
3. Interaction with officer: no odor of alcohol
4. Interaction with officer: no slurred speech
5. Interaction with officer: no glassy/bloodshot eyes
6. Interaction with officer: no admission of consuming alcohol or drugs
7. Interaction with officer: no problem with mental faculties
8. Interaction with officer: no problem with physical coordination
9. Interaction with officer: no problem with divided attention
10. No evidence of alcohol or drugs/drug paraphernalia in vehicle
11. Field sobriety tests: not admissible due to lack of compliance with training manual
12. Field sobriety tests: not reliable due to faulty administration
13. Field sobriety tests: good performance from common sense perspective despite observation of technical ‘clues’
14. Field sobriety tests: unrelated to impaired driving ability
15. Field sobriety tests: medical condition affected ability to perform tests
16. Field sobriety tests: non-standardized tests have no correlation with intoxication
17. Field sobriety tests: non-standardized tests inadmissible under rules of evidence
18. Drug recognition evaluations: 12-steps not properly implemented
19. Drug recognition evaluations: failure to comply with certification requirement
20. Drug recognition evaluations: components unrelated to driving impairment
21. No problems with balance
22. No problems with coordination
23. No problems following instructions
24. Arrest unlawful: officer did not have probable cause to believe driver was under the influence
25. Arrest unlawful: officer outside jurisdiction
26. Statements made to officer inadmissible due to lack of Miranda warnings
27. Statements made to officer inaccurately reported or taken out of context
28. Fatigue has symptoms which can be mistaken for intoxication
29. Medical conditions may have symptoms which can be mistaken for intoxication
30. Ambien use negates the actus reus requirement; the act of driving is involuntary
31. Confirmation bias: officer jumped to conclusion and looked for evidence to confirm conclusion
32. Officer discounted evidence inconsistent with intoxication
33. Officer under pressure to make arrest
34. Refusal of chemical test: no advice or improper advice given regarding consequences of refusing test
35. Refusal of chemical test: no notification of right to appeal or independent chemical test
36. Refusal of chemical test: officer’s claim of refusal inaccurate
37. Refusal of chemical test: inability to take test is not a refusal
38. Refusal of chemical test: enhancement of penalty improper because prior OVI convictions 'invalid'
39. Evidence destroyed after requested by defense
40. Speedy trial rights violated

For charges of Aggravated Vehicular Homicide and Aggravated Vehicular Assault based on the charge of OVI ‘Per Se’, the prosecution must prove you operated a vehicle with a prohibited concentration of alcohol and/or drugs in your blood, urine, or breath. To prove your alcohol and/or drug level was ‘over the limit’, the prosecution introduces results of blood, urine, or breath tests. The purpose of the defenses is to exclude the tests from evidence or show why the test results were inaccurate. Below are the top 40 defenses to the allegation you were ‘over the limit’:

1. No search warrant and no exception to search warrant requirement
2. procedures used by laboratory not scientifically valid or not followed
3. Instrument(s) used for testing were not calibrated daily or failed calibration
4. Laboratory records not maintained for prescribed period
5. Sample not refrigerated when not in transit
6. Sample not sealed and labeled as required by Ohio Department of Health
7. Chain of custody for sample not properly documented and retained
8. Sample not retained for additional testing
9. Laboratory did not successfully complete national proficiency testing program
10. Analyst did not have a valid laboratory technician or director permit
11. Medical condition or medication affected result of test
12. Analyst error in testing sequence
13. Instrument used for testing has internal contamination
14. Balance instruments not calibrated
15. Internal standards, standards, and controls invalid
16. Uncertainty in measurement not calculated
17. Mass spectrometer spectral library used for confirmation invalid
18. Blood draw not conducted in accordance with Ohio regulations
19. Urine sample not collected in accordance with Ohio regulations
20. Urine alcohol level at time of operating vehicle was below the ‘legal limit’ due to pooling of alcohol in urine

1. BAC was not ‘over the limit’ at the time of operating the vehicle due to rising BAC
2. Breath temperature was not measured, and breath temperature affected test result
3. Driver’s breathing pattern affected test result
4. Cell phone in area of breath test caused radio frequency interference
5. Breath-testing machine plugged into outlet with other electrical devices
6. Driver had foreign substance in mouth at time of breath test
7. Medical condition affected accuracy of test
8. Ambient air contained alcohol which inflated test result
9. Breath-testing machine not properly maintained
10. Officer did not conduct 20-minute observation period before test
11. Records for breath-testing machine not maintained for prescribed period
12. Instrument check not performed every seven days
13. Instrument check did not yield valid result
14. Radio frequency interference check not performed every seven days
15. Instrument check solution used beyond expiration date
16. Instrument check solution not refrigerated when not in use
17. Instrument check solution container not retained for prescribed period
18. Breath test operator did not have valid permit
19. Breath-testing machine senior operator for maintenance did not have valid permit
20. Breath-testing machine not in proper working order

Many lawyers in Columbus and central Ohio represent clients for serious vehicular crimes. Not all of those lawyers are familiar with these defenses. The lawyers at the Dominy Law Firm are. We have proactively developed expertise in defending clients charged with Vehicular Homicide and Vehicular Assault. Our lawyers authored and edited the Ohio Vehicular Assault Guide (Rivers Edge Publishing) and the Ohio Vehicular Homicide Guide (Rivers Edge Publishing). If you are charged with Vehicular Homicide or Vehicular Assault in Columbus or central Ohio, we can help. To schedule a free phone consultation to discuss representation, please call 614-717-1177 or complete a CONTACT FORM.