Judges & OVIs

Usually when you hear reports about judges and OVIs it is in the context of an unusual sentence or sentencing in a particularly egregious OVI. This week was anything but normal when the media covered judges and OVIs.

On Thursday - Valentines Day - in Fairfield County Municipal Court a Franklin County Domestic Relations judge was set for arraignment in her OVI arrest. It is a case I previously commented on because of the media coverage and nuances of OVIs and in particular the administration of Standardized Field Sobriety Tests to a person with an obvious head injury. I speculated and her attorney later confirmed that the judge did suffer from a concussion prior to her arrest. But this case had some other additional factors - a warrant for a blood test and a reported struggle with the judge to obtain the blood at the hospital, despite the issuance of the warrant.

The judge appeared with her attorney and of course the media was in court. But instead of entering a not guilty plea she entered a guilty plea to the OVI (the State dismissed the other charges include the obstruction of official business charge it had just filed as a result of the reported issues obtaining blood at the hospital). She received the minimum sentence required by law, was put on probation and granted driving privileges. The full video of her plea hearing is here: https://www.facebook.com/WSYXABC6/videos/775484582809567/.

But what about the concussion? Just because she entered a plea does not mean she did not suffer a concussion prior to the arrest. So why plea if she had a concussion? My best guess is that when the blood test results come back they would indicate an alcohol level above the prohibited concentration. I do not have any specific particularized knowledge of the case but based on what is publicly available I would likely made the same recommendation to a client in similar position - especially if I think the blood test results might indicate a "high test" or a concentration at least double the legal limit. In the end, she was convicted of OVI, was punished by the court similar to other first offense OVI offenders but she has the additional burden of the publicity because of her position.

But that was not the only judge in the Ohio news this week with OVI problems.

Shortly before the judge appeared in court, the news broke a story about a Portage County Common Pleas judge that had been arrested for OVI. Of course there was video. And the video is not good for the judge! Check it out four yourself: https://fox8.com/2019/02/13/video-northeast-ohio-judge-accused-of-drinking-and-driving/.

The Portage County judge refused Standardized Field Sobriety Tests and a breath test. Unlike the Franklin County judge she was not subjected to a blood draw authorized by warrant. But just like the Franklin County judge, she went into court at her arraignment and entered a plea of guilty.

Two important items these cases teach us and that we should remember: (1) judges are human too; and (2) everyone is better than their worst mistake.

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The Nicodemus Law Office, LPA
Phone: 740-422-9280
Website: www.nicodemuslaw.com
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Media Coverage of OVI Impairs Impartiality

There has been a lot of reporting recently about a specific OVI in Fairfield County involving a Franklin County Domestic Relations judge where the news media is developing a narrative that she was highly intoxicated. But the case also highlights the nuances of OVI cases in that at this time we simply do not know whether or not she was impaired.

What about the police report and especially the video that shows her unable to keep her balance? Those are just a few of the nuances. Quick disclaimer - I am not the Brad representing the judge and I have no particularized knowledge of this case other than the media reporting and if I were the one representing her I would not be commenting, except to highlight how the media’s selected video segments, reports, and how their reporting is creating a condition in which it may be hard to seat a fair and impartial jury. Here’s what we know:

• Her vehicle was reported by others and then observed weaving, hitting brakes, and generally driving erratically;
• The officer notes an odor of alcohol;
• There is a visible head injury;
• She cannot identify where she was coming from and seems to be disoriented as to where she is at;
• There is vomit on her clothes and the floor of the vehicle;
• When attempting standardized field sobriety tests she loses her balance and officers have to catcher her to keep her from falling;
• A warrant was obtained for a blood draw and it has been reported she needed to be restrained to obtain the blood sample;

So what’s the problem - seems clearly like someone impaired, right? Not quite.

Confusion, disorientation, poor balance, and vomiting are symptoms of a concussion. She had a visible head injury and medics were called. She reportedly refused medical attention but she still should have been evaluated because those with head injuries (remember, they are confused) do not always appreciate their condition.

And the odor of alcohol? There was reportedly vomit on the floor of the car which, any person with a child knows, vomit often has a distinct odor of acid mixed with the last substances consumed. And if the stomach contained alcohol it was not yet digested and therefore not yet metabolized into the blood causing potential impairment but would give an odor of alcohol.

The video shows her losing her balance during the standardized field sobriety tests but other factors can cause a loss of balance - such as a concussion. The questioning leading up to the administration of standardized field sobriety tests are supposed to account for some of these other factors. One of the first questions that is supposed to be asked is “do you have a head injury” and if the answer is yes, standardized field sobriety tests should not be performed because a head injury can effect the subjects ability to perform the tests. And in this case there was a visible head injury that the officer was concerned enough about to summons medics to the scene.

Many questions remain about the blood draw and warrant. In my experience, unless there is an accident, a warrant is not usually sought when someone refuses to provide a breath, urine, or blood sample. Was a warrant sought because she is a judge and thus she was treated differently than others stopped for suspected OVI? What actually occurred during the blood draw? Was the blood draw obtained pursuant to the prescribed requirements?

These are just a few of the issues with this case and a few of the questions that remain and those with all the facts will have many more issues and questions. At the end of the case the blood test may be valid and it may indicate a prohibited level of alcohol in the blood but as of today, as of right now, there is no absolutely reliable evidence indicating impairment. The judge deserves the presumption of innocence - as everyone charged with a crime does - and the continued media attention showing only segments of potential evidence and provided without context or explanation of the nuances of OVI cases erodes that presumption.

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The Nicodemus Law Office, LPA
Phone: 740-422-9280
Website: www.nicodemuslaw.com
Facebook: https://www.facebook.com/NicodemusLaw/
Twitter: https://twitter.com/Nicodemus_Law

OVI Overview

While Annie's Law may have changed some the sentencing requirements upon conviction of OVI, those changes still require a conviction. But how does an officer work towards obtaining evidence for a conviction?

From the moment an officer suspects you are driving impaired he is attempting to collect evidence against you. An officer may believe you to be impaired when he first notices your vehicle based on your driving (weaving, fluctuations in speed, etc) or during a traffic stop for other purposes (you're driving at 1AM on a Saturday with a license plate light out).

Your driving, your speech, the odor of your breath and clothes, and your ability to provide your driver’s license are all factors the officer will consider when determining whether or to ask you to submit to Standardized Field Sobriety Tests (FSTs).  After determining you are impaired based upon the FSTs, the officer will place you under arrest and transport you to a police station. At the station the officer will ask you to submit to another test – usually a breath test.

To blow or not to blow? Put simply, without a scientific test to prove your impairment the State has a harder time convicting you (though a jury can still find a person guilty based upon the FSTs). But there can be additional consequences if you don't blow - increases in driver's license suspension times and there may be professional ramifications for those with professional licenses, CDLs, etc. Additionally, some courts do not generally grant limited driving privileges during the pre-trial phase of the case if there is a refusal on a breath or other chemical test.

But just because the officer says you failed the FSTs or that you have a test result that indicates you over the legal limit, it does not mean you were impaired and guilty. Minor deviations in the FSTs can effect the results the officer observes and breath-testing machines and the officers that operate them have stringent guidelines that must be followed.

What surprises most people that take standardized field sobriety tests and a breath test (or other chemical test like urine or blood) is that they are charged with two OVI offenses. 

Ohio’s OVI laws are extremely specific and technical and it takes trained OVI attorneys to protect your rights. If you, or someone you know, has been charged with an OVI, you must obtain counsel to protect your rights. The Nicodemus Law Office will fully investigate your OVI charge and will protect your rights if you have been charged with an OVI. Call 740-422-9280 or complete the CONTACT FORM to schedule your consultation. 

OVI - Equestrian Style

According to a Huffington Post report, police in Polk County, Florida, recently arrested a woman, Donna Byrne, for driving under the influence and animal cruelty for riding a horse while being intoxicated at twice the legal limit. (https://www.huffingtonpost.com/entry/dui-horse-woman-florida-donna-byrne_us_59fda7d6e4b0baea2631f45b?section=us_crime) What would happen if this occurred in Ohio?

Ohio Revised Code 4511.19 prohibits the operation of "any vehicle, streetcar, or trackless trolley" if the person is under the influence of alcohol, a drug of abuse, or a combination of them. The question here is, what constitutes a vehicle? The Ohio Revised Code defines "vehicle" as:

every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that "vehicle" does not include any motorized wheelchair, any electric personal assistive mobility device, any personal delivery device as defined in section 4511.513 of the Revised Code, any device that is moved by power collected from overhead electric trolley wires or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power. 

There is no argument that an operational car qualifies as a vehicle. But what else qualifies as a vehicle? In State v. Prater, 2008-Ohio-966, the court upheld an OVI conviction of operating a bicycle while intoxicated. In 2009, a Licking County man pleaded guilty to OVI for operating a motorized bar stool (http://www.cnn.com/2009/CRIME/03/31/barstool.dui/index.html). But what about a horse like the case in Florida?

The Portsmouth Municipal Court had the opportunity to determine whether a horse constitutes a vehicle. In 1996 Brian Euton was charged with OVI for riding his horse on the roadway and Mr. Euton was allegedly impaired. Mr. Euton, while on his horse, and another vehicle were involved in an accident. Mr. Euton's attorney filed a Motion to Dismiss challenging whether or not a horse constitutes a vehicle. The court determined that "an individual riding a horse while under the influence of alcohol does not violate R.C. 4511.19" and ordered the case dismissed. State v. Euton, 77 Ohio Misc.2d 19, 665 N.E.2d 775, 776 (M.C.1996).

But be careful - while riding a horse while intoxicated may not violate Ohio's OVI statute, if the horse is pulling a buggy, the buggy is classified as a vehicle and an impaired driver of the horse and buggy could be charged with OVI.

If you or someone you know has been charged with OVI, call The Nicodemus Law Office at 740-422-9280 to protect your rights.

.05 Limit?!

Most people know the .08 limit for OVI thanks to effective public service announcements. But in Utah, that limit has been lowered to .05. Will a lower limit lead to reduced OVI accidents and fatalities or just an increase in arrests? Will other states move to adopt a lower limit? We'll have to wait and see.

For now, in Ohio, the limit remains at .08. However, you can still be arrested for OVI for impaired driving without a breath test. Most people don't realize that until it's too late. No matter the legal limit, if an officer believes you are driving impaired, you will be arrested for OVI.

If you or someone you know has been arrested for OVI, call The Nicodemus Law Office, LPA, at 740-422-9280 or complete the CONTACT FORM to protect your rights.

Utah Adopts Nation’s Strictest Drunk Driving Law

OVI Chemical Test Limits

In Ohio a person can be charged with different counts of OVI - one for an "impaired" driving arrest and at least one for an "over-the-limit" violation. Many people know the .08 limit for alcohol but few know that other controlled substances also have limits which, if detected in urine or blood, can lead to an OVI arrest. The "Over The Limit, Under Arrest" campaign limit refers to the chemical test charges and can include any of the substances identified in Ohio law that could impair driving abilities.

The current Ohio limits for substances in a person's breath, urine, or blood, are listed below. If you have taken, or refused, a breath or other chemical test to determine if you are legally impaired to drive, call the Nicodemus Law Office, LPA, at 740-422-9280 or complete the CONTACT FORM to schedule your consultation.

ALCOHOL
Test Level	Breath	Urine	Whole Blood	Blood Serum/Plasma
Low Test	≥ .08% to < .17%	≥ .11% to < .238%	≥ .08% to < .17%	≥ .096% to < .204%
High Test	≥ .17%	≥ .238%	≥ .17%	≥ .204%

CONTROLLED SUBSTANCES
Substance	Urine	Whole Blood, Blood Serum, Plasma
Amphetamine	≥ 500ng	≥ 100ng
Cocaine	≥ 150ng	≥ 50ng
Cocaine Metabolite	≥ 150 ng	≥ 50ng
Heroin	≥ 2000ng	≥ 50ng
Heroin Metabolite	≥ 10ng	≥ 10ng
LSD	≥ 25ng	≥ 10ng
Marihuana	≥ 10ng	≥ 2ng
Marihuana & Under Influence	≥ 15ng	≥ 5ng
Marihuana Metabolite	≥ 35ng	≥ 50ng
Methamphetamine	≥ 500ng	≥ 100ng
Phencyclidine	≥ 25ng	≥ 10ng
Salvia	Pending	Pending