Refuting Police Officer’s Claim that You Refused to Take DUI Test
November 5, 2008
In some cases, an issue arises as to whether or not a person actually refused to test. This would seem a straightforward question, but not always. Take the following example:
You are driving home from watching a football game at a friends house and a deer jumps out in front of your car. You swerve to avoid it and your car goes off the road. It rolls a few times, and during the process you hit your head on something pretty hard.
The next thing your remember, you are waking up in the hospital a day later. You learn that the police have charged you with drunk driving, and for refusing to consent to alcohol testing. In the police report, it says that the officer came in and asked you to take the test and that you said no. They marked you down as refusing and now your license is under suspension for a full year.
You can remember none of this.
You will want to challenge your suspension at an ALS hearing and argue that when you “refused” the test, you had no capacity to make such a decision given the way that your head injury affected you. It will be a question of fact for the court to decide, but if you can provide medical records as well that show that you had a concussion, your attorney may be able to get the refusal thrown out and your license reinstated.
How an Ohio Lawyer Fights an Ohio DUI Charge
January 20, 2008
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.
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