How an Ohio Lawyer Fights an Ohio DUI Charge

As an attorney licensed to practice law in Ohio, I often assist clients in fighting DUI (now called OVI) charges. My goal is to get as much of the evidence against my client suppressed as I can. If I leave the prosecutor with too little evidence, he may be unsure whether or not he can get a DUI conviction. If that is the case, he will offer a plea bargain that my client can live with.

Here is how I go about defending a DUI case:

The very first thing I analyze when looking at a DUI or OVI case is whether or not the police officer used a proper traffic ticket (an Ohio Uniform Traffic Ticket as required by the Traffic Rules) and whether or not the police wrote the charges properly on the ticket. Very rarely, the police make a mistake here, not often, but often enough to check.

The second thing I analyze when looking at the facts of a DUI case is whether or not there was reasonable suspicion that my client violated any law. Usually the client is pulled over for a minor traffic violation like failing to use a turn signal or speeding. Any violation of the traffic laws, no matter how de minimis, even expired tags, is sufficient to allow the police officer to pull the driver over. But not all police officers have a firm grasp of what the traffic laws entail. Without reasonable suspicion that my client violated the law, the police officer’s act of pulling my client over in the first place is a violation of his Constitutional rights, the remedy for which, is suppression of the evidence.

The third thing that I look for in a DUI case is whether or not the police officer had probable cause to arrest my client and perform a search of his body to determine his blood alcohol content. Without a warrant, the police need probable cause to believe that my client was drinking and driving. Courts have ruled that simply appearing drunk is not enough. There also has to be erratic driving and/or an admission of having consumed alcohol. If there is no probable cause to arrest my client and search his blood for alcohol, then any evidence gathered in violation of his rights must be suppressed.

If my client took the breath test back at the station, the fourth thing I will check for in a DUI case is whether the officer tested my client properly. In order to be admissible in evidence, the officer must have a current senior operator’s license and has to have observed my client for 20 minutes prior to the test to make sure that no foreign material was put in his mouth which could skew the test results. The test must also have been administered within three hours of my client’s operation of the vehicle.

The fifth thing I look at in a DUI case is whether or not the machine used to test my client has been properly and regularly calibrated by a qualified individual (a currently licensed senior operator). For instance, the Ohio Director of Health has mandated that the BAC Datamaster (the most commonly used breath testing device) must be tested by a senior operator once every seven days. The machine is tested by taking out a bottle containing a mixture of air and ethyl alcohol at measured levels (a sticker on the side of the bottle might say “.085”).

The senior operator then pumps that air through the machine and looks at the reading. If the machine reads within .005 of what the sticker on the side of the bottle says, then the machine passes the test. But if the machine is off by more than .005, then the officer must pull out a new test bottle. If on the second test, the machine is within .005 then the machine passes. But if the machine is off by .005 or more again, then the machine must be taken offline and serviced. Testing bottles must be discarded within three months of their first use, and must not be used more than a year after their manufacture. If the tests are not properly performed, or if the paperwork (which must go back three years and be kept in the same room as the machine) does not show that the tests were properly performed, then the results of my client’s test must be suppressed.

If I can get the DUI test results suppressed, or if my client refused to take the DUI test, then I will want to take a close look at the evidence against my client, such as the police reports and the video of the stop (I will want to have looked at this stuff anyway to determine if there was reasonable suspicion and probable cause). I will always file a Motion to Preserve Evidence the moment I sign up with a client. That puts the police and the prosecutor on notice that I don’t want evidence destroyed. If evidence is destroyed after I filed my motion (perhaps the police officer pulled the wrong tape out of the cabinet and my client’s stop got taped over), then there is case law supporting the proposition that the case must be dismissed unless the prosecutor can convince the judge that the destroyed evidence would not have helped my client.

If the video is pretty bad, with my client slurring his words and staggering around, then I am going to advise my client to plead guilty to the DUI charges and take the best deal that the prosecutor will offer. You don’t want to put the court to the trouble of a jury trial when it is obvious that your client is guilty. Most first time OVI/DUI clients get the minimum sentence of three days in an alcohol intervention program held at a local hotel. But if the court thinks that my client was gumming up the system when he should have taken a plea bargain, the court has the discretion to sentence him to up to 180 days in jail. The courts aren’t supposed to think this way, but they do sometimes. They even have a name for it in the business. It is called courtroom rent.

There is one other issue I am looking at as well, and that is getting any administrative license suspension imposed upon my client either dismissed or made as short as possible.

My client will be entitled to a hearing on whether or not the arresting officer completed a sworn statement (”BMV Form 2255″) indicating: (1) that he had reasonable grounds to believe, before the arrest, that appellant was driving under the influence of alcohol or drugs; (2) that appellant was arrested and charged with DUI; (3) that the officer asked appellant to take a chemical test, advised him of the consequences of taking it or refusing it, and gave him a statutorily required form explaining these consequences; (4) that my client appellant submitted to the test and tested above the legal limit and (5) that the officer served a notice of suspension on appellant.

There are situations where the police have not arrested my client when they ask them to take the test. In situations where my client was injured and taken to the hospital, the police often show up at the hospital bed and simply read the form to my client. But if they never told him that he was under arrest, then the refusal to test will not support an ALS. If my client was not operating his vehicle on a public road or on private property open for public purposes (like a supermarket parking lot) then there is no duty to take the test.

Lastly, if my client is convicted and is facing days in jail (a second offense carries a mandatory 10 days in jail), then I am going to think a little about the facility in which my client is going to be serving his time. Small rural jails are the best ones to be in because the client will often be alone (and so won’t be bothered by other inmates). In urban centers, with lots of people in an over crowded facility, jail can be a traumatic experience. But some judges in such places will be amenable to a motion for your client to serve his or her time in a rural jail. I always try to get my people into the jail up in Mt. Gilead. The client will have to pay a fee for the time spent, but the clients are rarely hassled by anyone and the jail staff up there is highly professional. Not all judges will agree to this though, but it is worth a try.

Fight your DUI charge

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