2019-Recent Case Results (July-December)

DECEMBER, 2019

Speedy Trial Issue Leads To Reduction of Third-Offense OVI. Speedy trial is typically not an issue in OVI cases. We almost always file motions to suppress evidence, and doing so tolls time: the speedy trial clock stops running until the judge rules on the motions. This case, however, was unusual.

Our client was charged with a felony OVI in the Common Pleas Court, based on having three prior OVI convictions. We filed motions to suppress. The prosecution eventually realized our client only had two prior convictions, so the case was dismissed and re-filed in the Municipal Court. The question was how the motions to suppress in the Common Pleas Court affected speedy trial in the Municipal Court. Both sides briefed the issue. Just before the judge was to announce his decision, we reached an agreement.

For a third offense in ten years, our client was facing a minimum of 60 days in jail, forfeiture of the vehicle, and a license suspension up to 12 years. Instead, our client pled guilty to a stipulated first offense with no jail term (just a driver intervention program) and a two-year license suspension.

Client with multiple OVI convictions avoids jail. Before this incident, our client had three OVI convictions. One of those convictions was in the last ten years. On this occasion, our client was stopped for failing to use his turn signal. The officer noticed typical signs of intoxication and arrested our client. Our client refused a breath test, so he was facing a minimum of 20 days in jail. He wasn’t a good candidate for the minimum sentence due to his other two convictions. Those don’t increase the mandatory minimum sentence, but they are something a judge will consider when determining the sentence.

We pled not guilty at the arraignment and obtained discovery from the prosecutor’s office. The discovery showed the strength of the evidence was a gray area. Both sides recognized a jury trial could go either way. Rather than have a trial, the prosecutor stipulated the OVI was a first offense, and our client pled guilty to the stipulated first offense. The judge ordered our client to complete a Driver Intervention Program in lieu of jail.

NOVEMBER, 2020

Horrible .493 OVI Reduced Because Officer’s Testimony Was Even Worse. Our client had two prior OVI convictions in the last ten years when she ran into another car on the freeway. An officer responded and observed our client passed-out in her car. The officer reported our client was incoherent, belligerent and emotional. The officer administered field sobriety tests and arrested our client. The officer also administered a urine test, and the result showed an alcohol level of .493. Our client was charged with OVI ‘impaired’ and high test OVI ‘per se’, so she was facing at least 60 days in jail and forfeiture of her vehicle, among other penalties.

We entered a plea of Not Guilty and looked into the case. The cruiser video showed the officer’s investigation was sub-par. We filed a motion to suppress the field sobriety tests and the urine test, and the judge held a hearing on our motions. Before we finished the officer’s testimony, the prosecutor realized the officer’s testimony was horrible: the officer could not even explain how field sobriety tests are supposed to be performed. As a result, the prosecutor dismissed the high-test OVI ‘per se’ and amended the OVI ‘impaired’ to a charge of Physical Control Under the Influence. Our client did serve ten days in jail (but not 60) and a term of probation, but her vehicle was not forfeited.

Complete Dismissal Of DUI / OVI. A newer police officer stopped our client for a headlight violation. The officer noticed the odor of alcohol coming from the vehicle, as well as bloodshot/glassy eyes. Our client acknowledged he drank alcohol. The officer administered field sobriety tests and placed our client under arrest. The officer took our client to a police station, and our client declined a breath test.

We contested the case and obtained the evidence. The evidence showed the odor of alcohol may have been coming from the passenger in the vehicle, and our client explained the alcohol he drank was hours before. The evidence also showed our client’s appearance was more consistent with sobriety than intoxication. We were prepared to take the case to trial, but we didn’t have to. The prosecutor dismissed the OVI charge, and our client pled guilty to the headlight violation.

OVI / DUI Conviction Averted. Our client was pulled over for a turn signal violation. The officer observed common signs of intoxication and arrested our client. Our client refused a breath test. Our client desired strongly to not have an OVI on his permanent record.

We investigated the case. As it sounds from the description, it was a ‘standard’ OVI to those who deal with them regularly. Our client didn’t deal with them regularly and didn’t want one. We concluded that, if there were a jury trial, the verdict could go either way. The prosecutor seemed to agree, so the OVI charge was amended to a non-moving violation on the condition that our client complete a driver intervention program.

High-Test Charge Dismissed In First-Offense DUI / OVI. An officer observed our client weaving and changing his speed erratically. The officer stopped our client and observed the odor of alcohol, bloodshot/glassy eyes, and slurred speech. The officer also saw an opened case of beer in the car, and our client acknowledged drinking three or four of the beers. The officer arrested our client, and our client’s breath test produced ‘invalid samples’, so our client submitted a urine sample. The urine test showed an alcohol concentration of .263, so our client was a facing a high-test OVI. That charge carries a mandatory minimum of six days in jail, yellow license plates, and an ignition interlock device.

We obtained discovery and determined there was an issue regarding whether the officer was justified in detaining our client for an OVI investigation. We filed a motion to suppress evidence based on that issue. On the day the motion was scheduled for a hearing, the prosecution agreed our client could plead guilty to an OVI ‘impaired’, so our client avoided three days in jail, the yellow license plates, and the ignition interlock.

OCTOBER, 2019

Records Sealed For Felony Drug Case. Our client was originally charged with two felony drug charges. We helped the client obtain intervention in lieu of conviction. After our client successfully completed that program, we filed a motion to seal all the records for the case. The judge granted the motion, and the records were sealed. This was a case in which it was really good to see our client overcome obstacles, change lifestyles, and not have the stigma of a felony case.

First-Offense DUI / OVI Reduced. Our client was driving in a rural area when he was pulled over by a state trooper for a burned-out license plate light. The trooper observed the odor of alcohol and bloodshot/glassy eyes, so the trooper administered field sobriety tests. According to the trooper’s scoring of the tests, our client performed poorly. The trooper also found an open Budweiser in the car. The trooper arrested our client for OVI and took him to a police station. At the station, our client took a breath test, and the result was .058 (under the limit). Nevertheless, the trooper charged our client with OVI.

We contested the charge and reviewed the evidence. Although there were technically “clues” on the field sobriety tests, our client did not look intoxicated overall on the cruiser video. In addition, the reason for the stop was an equipment violation, and our client’s breath test was under .08. The prosecution reduced the OVI charge to Reckless Operation, and no license suspension was imposed, so our client accepted the offer. A trial probably would have resulted in a Not Guilty verdict, but our client was satisfied with the agreed resolution and the certainty which came with it.

Case Dismissed-Underage Alcohol Possession & Fake Identification. Our client was on the campus of The Ohio State University. He or she was drinking a Whiteclaw (we are not disclosing our client’s gender!) when approached by a liquor control agent. Our client gave a fake identification to the agent. After the agent determined our client’s true age, which was under 21, the agent charged our client with Underage Alcohol Possession (“Offenses Concerning Underage Persons”) and the fake i.d. (“Certain Acts Prohibited”).

We took a two-part approach to the case. We sought diversion and, at the same time, requested discovery from the prosecutor in case diversion was not granted. Diversion often is not granted in cases involving fake identification. In this case however, our client was accepted into diversion. After completing the requirements of the program, the case was entirely dismissed. After a one-year waiting period, our client will be eligible to have the case records sealed.

Jail Avoided In Second DUI/OVI With Refusal. Our client drove the wrong way on a one-way street just as a police officer was driving by. That officer made a traffic stop and noticed the odor of alcohol coming from our client’s breath. The officer also noticed the client’s eyes were glassy. Based on those observations, the officer had another officer administer field sobriety tests and arrested our client. Our client reportedly refused a breath test, and our client had a prior OVI conviction within ten years. As a result, our client was charged with OVI ‘impaired’ and OVI 'Test Refusal With Prior Conviction’. Our client was facing a minimum of 20 days in jail.

We pled Not Guilty and reviewed the evidence. The body camera video showed the officer running our client’s driving record on the cruiser laptop. When the officer read that our client had a prior conviction for OVI, the officer reacted verbally. The officer then decided to call-in the second officer, who was more experienced with OVI investigations. The body camera video also showed discrepancies with the officer’s report regarding the field sobriety tests. In addition, the “refusal” was likely not really a refusal. Given those shortcomings with the case, the prosecution dismissed the charge of OVI ‘Test Refusal With Prior Conviction’ and stipulated the charge of OVI ‘Impaired’ was a first offense, and our client received the minimum mandatory sentence for that offense (no jail time).

Felony Firearms Charge Reduced. Our client was pulled over for weaving and failing to use a turn signal. The officer ran our client’s license plate and learned our client had a concealed carry license. When the officer approached our client, the client did not tell the officer about the handgun. The officer obtained the handgun and investigated our client for an OVI. Our client was charged with misdemeanor OVI and felony Improperly Handling Firearms.

We appeared at the client’s arraignment and entered a plea of Not Guilty. We obtained discovery from the prosecutor’s office and found some problems of proof. After negotiations with the prosecutor, the felony firearms charge was reduced to a misdemeanor.

SEPTEMBER, 2019

DUI/OVI ‘Test Refusal’ Charge Dismissed, Felony Avoided. Our client drove through the grass on a freeway onramp and was stopped by a police officer. The officer noticed the odor of alcohol and signs of intoxication. The officer also noticed our client had marijuana in his mouth. Our client acknowledged he had been drinking and was texting while driving. The officer administered field sobriety tests and arrested our client. Our client refused the breath test and had a prior OVI conviction within 20 years, so he was charged with OVI ‘Test Refusal’, as well as OVI ‘impaired’, Marked Lanes, Distracted Driving, and Safety Belt. He was also facing a felony charge of Tampering With Evidence.

We contested the case and reviewed the evidence. The evidence showed there was a serious question about the prosecution’s ability to prove our client was under the influence. The evidence also showed the officer did a poor job of administering the field sobriety tests. The prosecution dismissed all of the charges except for OVI ‘impaired’, and the prosecution agreed to not charge our client for the felony of Tampering With Evidence.

Charge Dismissed In ‘High Test’ Plea Agreement. A police officer stopped our client for a Stop Sign violation. After approaching our client, the officer noticed the odor of alcohol, bloodshot/glassy eyes, and slurred speech. The officer had our client perform field sobriety tests, and our client reportedly performed poorly. The officer administered a breath test, and the result was .199. Our client was charged with the Stop Sign violation, OVI ‘impaired’, and OVI ‘per se’-‘high test’. The ‘high test’ charge subjected our client to extra penalties, including an ignition interlock device, yellow pates, and three extra days in jail.

We entered a plea of Not Guilty and investigated the case. The evidence was generally favorable to the prosecution, but there was some evidence favorable to our client. After a few court appearances, the prosecution ultimately dismissed the Stop Sign violation and the OVI ‘high test’. Our client did plead guilty to OVI ‘impaired’ but avoided the ignition interlock device, yellow plates, and jail term.

DUI/OVI ‘High Test’ Case Reduced. Our client was pulled over for speeding, and the officer observed evidence which led the officer to conclude our client was intoxicated. Our client acknowledged he had been drinking, and the officer had our client get out of the vehicle. The officer administered standardized field sobriety tests and observed many ‘clues’ on the tests. Our client was arrested and took a breath test. The result was .234, so our client was charged with OVI ‘per se’-‘high test’, as well as OVI ‘impaired’ and Speed.

Our client had concerns about his military future, so we helped him contest the case. In doing so, we discovered two of the three standardized field sobriety tests were invalid. We filed motions to suppress evidence and scheduled a hearing on those motions. On the day of the hearing, the prosecution dismissed the charge of Speed, dismissed the charge of OVI ‘high test’, and amended the charge of OVI ‘impaired’ to a charge of Physical Control.


AUGUST, 2019

DUI/OVI With Breath Test Amended. An officer stopped our client for a turn signal violation. During their interaction, the officer observed clues that our client was under the influence of alcohol. The officer had our client perform field sobriety tests and arrested our client. The officer administered a breath test, and the result was .128. The officer charged our client with the turn signal violation, OVI ‘impaired’, and OVI ‘per se’.

We entered a plea of Not Guilty. When we reviewed the evidence, we determined there were technical clues of intoxication according to the officer’s training, but our client did not appear to be obviously intoxicated. We filed a motion to suppress the breath test. On the day of the motion hearing, the prosecution was unable to prove the breath test was done in substantial compliance with Ohio regulations for breath testing. The prosecution dismissed the turn signal violation and one charge of OVI. The prosecution amended the other charge of OVI to a non-moving violation.

High-Test DUI/OVI Dismissed In Plea Bargain. Our client was stopped for running a red light, and our client admitted running it. The officer observed the odor of alcohol, slurred speech, and glassy/bloodshot eyes. Our client performed field sobriety tests and was arrested. Our client took a breath test, and the result was .172. Our client was charged with a stop light violation, OVI ‘impaired’ and OVI ‘per se’ (high test). Due to the high test, our client was facing increased mandatory penalties: a minimum of six days in jail, yellow license plates, and use of an ignition interlock device.

We contested the case and obtained discovery from the prosecutor. It became clear the prosecution would likely not be able to prove our client’s breath alcohol concentration was over .170. The prosecution dismissed the high-test OVI ‘per se’, as well as the red light violation. Accordingly, our client served no jail time and avoided the yellow license plates and ignition interlock device.

DUI/OVI Amended, License Suspension Reduced. A police officer stopped our client for speeding and a Marked Lanes violation. The officer observed signs indicating our client was under the influence. The officer had our client perform field sobriety tests and arrested our client. Our client attempted the breath test multiple times, but the breath-testing machine did not produce a valid result. Our client was charged with Speed, Marked Lanes and OVI and was also given a one-year Administrative License Suspension for ‘refusing’ the breath test.

We investigated the case and determined the prosecution may have some difficulty proving our client’s guilt. The prosecution dismissed the charges of Speed and Marked Lanes, and the OVI was amended to a no-points offense. The one-year license suspension was reduced to a six-month suspension.

DUI/OVI With PBT Reduced. Our client was stopped for speeding and weaving on the freeway. The officer smelled alcohol and observed our client’s eyes were glassy. Our client reportedly fumbled with paperwork and performed poorly on field sobriety tests. The officer administered a PBT (portable breath test), and the result was .124. The officer arrested our client, and our client refused the evidentiary breath test. Our client was charged with OVI, Speed and Marked Lanes.

We obtained the prosecutor’s file and identified weaknesses in the prosecutor’s case. The portable breath test would not be admissible, and the cruiser video showed much evidence inconsistent with intoxication. The prosecution dismissed the charges of Speed and Marked Lanes, and the prosecution reduced the charge of OVI to a charge of Reckless Operation with no license suspension.