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JEFFREY C. MEADOWS, Attorney At Law: (513) 309-5333 Tel.
OVI - DUI Law

Do I Really Need to Hire An Attorney For My OVI Charge?

Do I really need to hire an attorney if I have been charged with OVI?  The short answer is "maybe."  The first thing you do need to do however, is to meet with an attorney who is knowledgeable about:  the current OVI laws, the court that you will be going to and who isn't just another greedy lawyer looking to make a quick buck.

There are many websites for attorneys that can provide you with some fundamental information about Ohio's OVI laws.  However, every court is different so it is important to know what to expect from the prosecutor that will be prosecuting your case, the judge who will be ruling on certain issues and possibly sentencing you if you are convicted, and finally, any probation department that you may have to deal with if convicted.  Most of this information will only come from talking to an attorney who regularly practices in the court you will be going to.

An aggressive (and honest) OVI attorney will be able to assess the facts of your case and indicate whether they think the case is worth fighting.  Fighting an OVI can be a lengthy and very costly adventure if you have the right attorney.  But as the credit card commercial says, something are "pricesless," such as hearing a jury say "Not Guilty."

If it is your first lifetime OVI offense, many judges will give the minimum mandatory sentence upon a plea of guilty or no contests, but again, you will want to talk to a local attorney to get an understanding of how your judge normally sentences first offenders.  Also, if you have a breath test of 0.17 or higher, there are additional sanctions such as extra jail and the "special license plates" (aka, scarlet letter, or party plates).

There have  been many clients that I have met with and told what to expect if they plead guilty and have also told these same potential clients that if they aren't interested in fighting the charge, then as a first offender they very well may not need an attorney.  This is a determination that I make on a case by case basis and is NOT applicable to every situation.

For those who are facing a second offense OVI, no matter if it's a second within 6 years or a 2nd withing 20 years, I will always recommend that you have counsel present at ALL phases of the case.

Tough Economy Calls For Aggressive Defense

You're sitting in court with the attorney that you hired when you had a job.  The prosecutor is wanting to convict you for the OVI that you don't believe you should have been charged with in the first place, and your attorney is telling you that there are lots of legal issues to raise with regard to the actual traffic stop and/or the admissibility of the breath test.  And now, you are faced with the decision of whether you spend more money for the fight even though the economy has caused you to lose your job.  What do you do?

This is the scenario for many of todays OVI defendant's.  And unfortunately, attorneys don't have crystal balls to foresee the actual outcome of fighting the case.  Is it cheaper to just take the conviction?  Not necessarily! 

Ohio law allows judges to grant driving privileges to those convicted of OVI for very limited purposes, such as getting to and from work.  However, if you aren't working, many judges won't grant privileges at all.  Some will allow driving to/from interviews during set hours/days each week.

But once you get an interview, what happens when the prospective employer finds out you have a conviction for OVI on your record.  Are they going to see you as a potential "problem" employee, as someone who may have substance abuse/dependency issues.  If you are on probation is that going to interfer with your work schedule? Are you in sales or some other line of work that requires drving a company vehicle or being insured by the employer?  If so, most employers will hire someone else who doesn't have the OVI conviction.

Clearly, paying the mortgage and feeding the family comes first, but you must weigh all of the potential considerations and consequences of being convicted.  If there are legitimate issues to raise in your OVI defense, spending those limited resources will be money well spent.

What If I Can't Afford To Hire A Lawyer

    It is no secret that our economy is in the crapper!  Many people have already been laid off or have legitimate concerns about losing their job when they suddenly find themselves charged with OVI/DUI.  With no job, or the possibility of losing their source of income, should they dip into savings or borrow the money to hire a lawyer?  Absolutely!
    If you are presently unemployed and are looking for a job, how are you going to get to job interviews if you don't have driving privileges?  What will a prospective employer think about an OVI/DUI conviction?  If there are 2 potential candidates for 1 job opening and both candidates have the same qualifications, except one has an OVI conviction, who do you think will get the job?
    Hiring an attorney doesn't guarantee that you won't be convicted, and depending on the court, it doesn't even guarantee you will get driving privileges.  However, it does help move the odds in your favor as to both issues, especially if you have hired an attorney who is capable and willing to fight your OVI!
    

Things to Look For When Hiring an Ohio OVI Lawyer

Charged with an Ohio OVI?  Trying to figure out which attorney to hire?  There are a number of factors to consider when hiring an attorney to handle your OVI charge in Ohio. 

First and foremost, does the OVI lawyer know the current Ohio OVI law?  Don't be afraid to ask an attorney you are interviewing when Ohio's OVI laws were last changed, modified or revised.  At the time of this Comment, the most recent change was 09/30/08.  Has the attorney actually read the revised statute from begining to end (Ohio Revised Code section 4511.19).  Ask if they have attended any recent seminars that included a review of the current version of the law. And finally, ask what are the mandatory sentencing provisions that would apply to you, if convicted.

Next, ask the potential attorney how many OVI cases they handle a year( both overall and how many in the court you will be in).  While a large volume is not necessarily indicative of their ability, it certainly lends itself to familiarity with the law, the Court and the prosecutor that you may be dealing with.

Another good fact to know is how many OVI trials has the attorney done.  When was the last time they tried a OVI to a JURY???  It's easy for attorneys to say "I handle OVI's," but the fact is, the number of attorneys who actually fight them, especially all the way through trial, is VERY small.  When was the last time the attorney you are considering "put on the armour and went to batlle"?

If your case invovles a breath test, is the attorney you are considering telling you right away that he/she will work on getting you the minimum mandatory sentence?  Or is the attorney asking questions about your drinking history on the night you were charged, your food consumption, do you have G.E.R.D., how many times did you have to blow into the breathylizer?  There are many approaches to actually fighting a breath test and the attorney you choose should be familiar with the breathylizer you blew into, how it works and the various possible defenses you may raise. 

If on the other hand, you drove up onto the sidewalk, puked on the officers shoes and asked him to hold your beer as you climbed out of the car, how will the attorney mitigate these facts?

There are many things to consider when interviewing or hiring an attorney to handle an Ohio OVI charge.  The attorney who drafted your will or handles your business contracts is very likely NOT the person you need or want to handle your Ohio OVI / Ohio DUI charge.  With the Ohio OVI laws / DUI laws constantly changing and increasing in complexity, it is critical to your best interest that you have a qualified and competent OVI lawyer to represent you!

More Changes to the Ohio OVI Laws - Ohio DUI laws undergo changes!

As of September 30, 2008 Ohio Senate Bill 17 went into effect instituting many changes to Ohio's already tough OVI/DUI law!  While the changes for a first time offender experienced little change, persons charged with an OVI who have had a prior conviction for OVI within 6 years face tougher penalties.

Specifically, if convicted of a 2nd offense within 6 years, the court may require a continuous alcohol monitoring device ("CAM," a device worn around the ankle that will notify probation if you ingest alcohol), in addition to mandatory incarceration (JAIL), the court is required to order an alcohol/drug assessment and any recommended treatment will be mandatory.  Finally, if the court grants driving privileges during the mandatory 1-5 year suspension, privileges are not available for the first 45 days and once granted, the restricted license plates (aka "scarlet letter" or "party plates") AND an ignition interlock device (breathylizer) are mandatory.

Sentencing for 3rd offenders within 6 years also was stiffened as well as some of the other alcohol related offenses.

If you have found yourself charged with an Ohio OVI / Ohio DUI charge, it is extremely important that you seek the advice of a competent OVI lawyer.  Your DUI lawyer should be not only be familiar with the current law as it applies to sentencing, your Ohio DUI attorney should also be able to thoroughly and properly assess your case to know what your available defenses are.

Not everyone charged with an OHIO OVI / Ohio DUI has to be convicted.  As a matter of fact, many of the Ohio DUI / OVI charges are very defendable if you have a qualified Attorney.  

Will the new Rules of Professional Conduct help Ohio OVI/DUI Defendants?

   At the begining of February, 2007,  the Ohio Supreme Court adopted new Rules of Professional Conduct.  While we attorneys have always had rules to govern our conduct, the "new rules" are much more specific and some go as far as spelling out "imperatives" for us to follow.
   
   It is this attorney's belief that new rule 3.1, which governs "Meritorious Claims and Contentions" places a duty on prosecutors not to assert an issue that doesn't have a basis in "fact."  How does this help OVI/DUI defendants? Quite simply put, if an investigation and arrest was preserved on video and the video clearly shows that the officer did not give the proper instructions or use the standardized procedures for the Standardized Field Sobriety Tests (i.e., the HGN/eye test, the Walk & Turn, and the One-leg Stand), then the prosecutor, under Rule 3.1, may have a duty to agree that the test was not administered in "substantial compliance" with the National Highway Traffic Safety Administration's standardized procedures.

   So what happens if the prosecutor still tries to use the field tests against you?  Well, the "Scope" of the new Rules of Professional Conduct suggest that they may be subjecting themselves to sanctions.  But again, these rules are new and only time will tell if they truly have any implications to OVI/DUI cases or not.  
   
   And as previously stated, the position in this article is the opinion of the author and may not be shared by other attornesy (especially prosecutors)!  It is strongly encouraged that these issues be discussed with your OVI/DUI attorney to see if the Rules of Professional Conduct may have an impact on your Ohio DUI/Ohio OVI case.


2007 Advanced DUI Seminar

Thursday, March 8, 2007 and Friday, March 9, 2007 will be the dates for the Ohio Association of Criminal Defense Lawyers annual DUI/OVI seminar.  The seminar is held in Columbus, Ohio and features speakers frrom across the country as well as some of Ohio's finest DUI lawyers /OVI lawyers.

Attendance at this seminar is a "must" for any attorney/lawyer who is truly interested in learning cutting edge techniques to fight a DUI/OVI.  Be sure to ask your DUI lawyer/ OVI lawyer if he/she will be attending (or has attended) this seminar. 

IS IT IMPORTANT TO HAVE AN ATTORNEY WHOSE OFFICE IS IN THE SAME TOWN AS THE COURT?

 

            Local counsel can be beneficial, but is not essential!  The biggest benefit to local counsel is that they will know all of the little habits or pet peeves of the judge and prosecutor.  Examples: does the judge give jail days if you had an accident while drinking and driving or does the prosecutor have a “no deals” policy on breath test refusals, or does the judge deny occupational driving on refusals until the defendant pleads guilty.  These examples are generally known to local counsel or at least the attorneys who practice regularly in the court.  However, the most important qualification for your OVI / DUI attorney is that they not only know the court, but that they have all the knowledge and tools to properly assess and defend your OVI!

SINCE I TOOK THE BREATH TEST, IS IT POSSIBLE TO FIGHT MY OVI / DUI?

 

            Absolutely!  However, not every attorney that is listed in the phone book under the DUI / OVI listing is competent to fight these cases.  As a matter of fact, many of the attorneys that list DUI / OVI cases in their Yellow Pages advertisement have never done a DUI / OVI / Drunk Driving trial.  Do you want someone representing you who has never had a trial? Do you want someone representing you who only knows how to say “GUILTY” or “No Contest?”

            Breath test cases are not easy to fight and they generally require the attorney to have a knowledge of the instrument that you blew into, familiarity with the Ohio Department of Health regulations that regulate the maintenance and use of the breath testing instrument, human anatomy and physiology and general trial skills.  Additionally, fighting an OVI / DUI with a blood, breath or urine result over 0.08 can be very time consuming and expensive.

            When choosing your OVI / DUI lawyer, make sure you ask them if they have ever done a DUI / OVI trial with a blood, breath or urine test admitted into evidence.

 

 

 

WHY WAS I CHARGED WITH OVI / DUI WHEN I PASSED THE FIELD SOBRIETY TESTS?

            Many people think they actually passed the field sobriety tests before they were arrested!  The problem is, most people who are taking the field sobriety tests are inexperienced in taking the tests and accordingly, have no idea what the officer is looking for.

            If the officer checks your eyes, simply being able to follow the pen (or their finger) doesn’t mean you passed the test.  What the officer is looking for is an involuntary twitch of the eyeball called nystagmus – specifically, Horizontal Gaze Nystagmus (HGN).

           

            Nystagmus is a condition that is checked for everyday in thousands of individuals and the HGN is usually administered by someone with much more schooling than a police officer – their called doctors!  Specifically, neurologists use this test on a daily basis to check patients for various neurological conditions such as multiple sclerosis and Parkinson’s disease.  There are numerous substances that we ingest that can also cause nystagmus including nicotine, caffeine and of course, alcohol.  Specifically, the National Highway Traffic Safety Administration (NHTSA) has told us that if a police officer gives this test using the specified procedures, it is a tool that can assist the officer in determining the likelihood of the test subject having a blood-alcohol level greater than 0.10 – specifically, there is a 77% chance that the person will test 0.10 or higher on a breath test machine (or blood or urine test). 

 

            The Walk & Turn test that was administered is another exercise used to assist the officer in knowing the likelihood of a subject testing 0.10.  Specifically, the officer should be trained to administer very specific instructions and then look for the following things:

                  1.      Suspect Cannot Keep His Balance While Listening To The Instructions

                           i.       Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart)

                           ii.       Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position

                  2.      Suspect Starts Before Instructions Are Finished

                  3.      Suspect Stop While Walking

                           i.       Record this clue if suspect pauses for several seconds

                           ii.       Do not record this clue if the suspect is merely walking slowly

                  4.      Suspect Does Not Touch Heel-to-Toe – gap between heel and toe must be more than ½ inch

                  5.      Suspect Steps Off The Line – at least one foot of the suspect must be entirely off the line

                  6.      Suspect Uses Arms To Balance – arm(s) must be raised more than 6 inches from sides for this clue

                  7.      Suspect Makes Improper Turn

                           i.       Suspect removes front foot from the line while turning

                           ii.       Suspect does not follow directions as demonstrated (i.e., spins or pivots around)

                  8.      Suspect Uses Incorrect Number of Steps – either more or fewer steps in either direction

 

            Again, NHTSA has indicated that if an officer observes two (2) or more of the preceding eight (8) indicators, there is a 68% chance the subject will test 0.10 or higher.

 

            The One-legged stand (OLS) is the 3rd test endorsed by NHTSA as a tool to be used to help officers determine the likelihood a subject will test 0.10.  The NHTSA guidelines instruct the officer to watch for the following:

 

                  1.      Suspect Sways While Balancing – side-to-side or back-and-forth motion while in one-leg stand position

                  2.      Suspect Uses Arms To Balance – arms must be raised more than 6 inches from sides to count this clue

                  3.      Suspect Hopping (to maintain balance) –resorts to hopping in order to maintain balance

                  4.      Suspect Puts Foot Down – not able to maintain one-leg position, but puts foot down one or more times during 30 second count

 

            As you may suspect, NHTSA tells us that if the proper instructions are administered, if an officer sees 2 of the preceding 4 indicators, there is a 65% likelihood the subject will test 0.10 or higher. 

 

            Your OVI / DUI attorney should be familiar with the NHTSA standardized procedures and criteria and know how to effectively challenge these tests in court.  Even if the judge says these tests are admissible at trial, a competent OVI attorney / DUI attorney should know how to deal with these tests in front of a jury (so long as the client was literally “falling down drunk”).

 

 

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