2013-Recent Case Results (January – June)

JUNE, 2013

Hearing On Motions To Suppress Leads To Reduction In O.V.I. Case. My client was pulled over for running a red light, failing to signal at the light, and speeding. The officer noticed the odor of alcohol and also notice my client had glassy eyes. The officer got my client out of the car and administered field sobriety tests. The officer arrested my client and took him to a police station. There, my client took a breath test on a Datamaster breath-testing machine, and the result was .114. My client was charged with O.V.I. (impaired) and O.V.I. (per se) in Columbus, Ohio. He was also subjected to a 90-day Administrative License Suspension (A.L.S.) from the Ohio B.M.V. based on the breath test result. At the first court appearance, we plead Not Guilty, appealed the A.L.S., and got my client’s license returned while the case was pending. We obtained and reviewed the police reports, the cruiser video, the police station video, and the records for the breath-testing machine. The evidence was what I would consider medium strength: there were no obvious problems with the case, but my client also did not look obviously drunk. We filed a motion to suppress the field sobriety tests and another motion to suppress the breath test. We could not persuade the prosecutor to reduce the charge, so we started a hearing on our motions to suppress. During cross-examination of the arresting officer, we discovered that the officer administered two of the field sobriety tests incorrectly, and the prosecution’s case generally sounded weaker than it appeared on paper. Before we concluded the hearing, a new plea offer was made: my client ultimately plead guilty to the charge of Reckless Operation.

Felony Drug Charges Resolved With Intervention In Lieu Of Conviction. My client was indicted for (charged with) two counts of felony Drug Possession and one count of Permitting Drug Abuse in a central Ohio court. We pursued the two-part approach of exploring intervention in lieu of conviction while simultaneously evaluating the evidence. After reviewing the evidence, I concluded it was very likely the prosecution could prove my client’s guilt. During the same time period, my client was assessed, and the assessment recommended intervention in lieu of conviction. We filed a motion requesting intervention in lieu of conviction, and the judge granted our motion. That means my client will complete a treatment plan, and the case will be dismissed. After the case is dismissed, my client will be eligible to have all records for the case sealed (expunged), so my client will not have a conviction, or even a charge, on his record.

O.V.I. With Breath Test In Westerville Reduced. My client was pulled over because one of his headlights was out. The officer observed bloodshot eyes, slurred speech, and the odor of cologne. The officer ordered my client out of the car and administered field sobriety tests. My client’s performance on the tests was mediocre; he didn’t pass with flying colors, but he was clearly not fall-down drunk. The officer arrested my client and took him to a police station. There, my client took a breath test on an Intoxilyzer 5000, and the result was .104. My client was charged with O.V.I. (D.U.I.) in the Westerville Mayor’s Court.

When we reviewed the evidence, the issue that stood out was whether the officer was justified in detaining my client to perform a D.U.I./O.V.I. investigation. The officer did not observe any problems with my client’s driving (the stop was for a headlight violation) and did not observe any evidence that my client was under the influence while he operated the vehicle. The evidence the officer observed when he interacted with my client was the following: bloodshot eyes and slurred speech (and the odor of cologne?!). It is questionable whether those observations gave the officer justification to detain my client for testing instead of just giving him a ticket for the headlight violation. We put that argument in a motion to suppress, but we did not litigate the motion because the O.V.I. was amended to Reckless Operation, and my client plead guilty to the Reckless Operation charge.

Third O.V.I. Offense Reduced To Reckless Operation. My client was pulled over by a police officer for a stop sign violation: she came to a complete stop, but the front of her car was past the stop bar on the road, so the officer was justified in stopping her car. The officer asked her where she lived, and my client pointed to her house (she was parked in front of it). The officer ordered my client out of the car. It appeared that my client may walk away, so the officer told her not to walk away because she was not free to leave. The officer administered field sobriety tests and arrested my client (he also had her car towed, even though she was parked legally on the street in front of her house). The officer took my client to a police department for a breath test, but the breath-testing machine did not work, so the officer obtained a warrant to take my client’s blood against her will. The blood test showed an alcohol concentration of .163. My client was charged with OVI (impaired) and OVI (per se, blood) in the Franklin County Municipal Court, and my client already had two prior DUI/OVI convictions.

We plead not guilty and obtained the evidence from the prosecutor. The evidence regarding the blood test showed that my client’s blood was drawn more than three hours after she operated the vehicle, so it was clear the blood test would be excluded. The cruiser video verified that the officer told my client she was not free to leave, so there was an issue whether she was ‘arrested’ and whether an arrest would have been justified at that point. Despite my client’s two prior DUI/OVI convictions, the OVI per se was dismissed, and the OVI-impaired was reduced to a Reckless Operation.

MAY, 2013

Theft Charge Dismissed In Shoplifting Case. My client was caught shoplifting at a department store in Columbus, Ohio. My client had no prior criminal convictions, not even a traffic ticket, and had never shoplifted before in her life. Nevertheless, she was charged with misdemeanor theft in the Franklin County Municipal Court. My client was completely embarrassed and ashamed. My client did not have a financial need to shoplift and could not really explain why she did it, although a combination of stressful circumstances seemed to play a role. Like most shoplifting cases, our approach was to simultaneously (1) seek a theft diversion program and (2) evaluate the evidence and possible defenses.

My client was initially rejected for the theft diversion program, but further negotiation with the prosecutor’s office and the court liaison from the department store resulted in my client being accepted. My client completed an anti-theft program, paid court costs, and agreed to stay out of that store for a period of time. The case was dismissed, and we immediately filed to have the records for the case sealed (expunged).

Bus Driver’s O.V.I. Case With D.R.E. Dismissed. One snowy night in December, a member of the DUI Task Force was on a ‘DUI saturation patrol’. As he sat in a high school parking lot, he observed a car’s headlights moving in a pattern that led him to believe the car was doing donuts. As he moved to where he could actually see the car, the car was not doing donuts but did make a couple quick movements to the left and right, sliding in the snow. The officer turned on his cruiser lights and stopped my client’s car. The officer observed the following about my client: eyes were bloodshot and watery, voice was low and raspy, and movements were slow. My client had a cold. The officer did not observe the odor of alcohol, the odor of marijuana, or any evidence of alcohol or drug use. The officer got my client out of the car, administered field sobriety tests on the snowy ground, and arrested my client. The officer took my client to a police station and performed a Drug Recognition Evaluation (D.R.E.), putting to use the officer’s training as a “Drug Recognition Expert” (D.R.E.). The evaluation lasted for over 30 minutes, and the expert concluded my client was under the influence of a narcotic analgesic, after my client’s breath test was 0.00 and my client told the officer she took a narcotic analgesic. My client consented to a urine test, and the test result showed a high level of oxycodone (a narcotic analgesic). My client was charged with O.V.I. (impaired) and Reckless Operation in a central Ohio court. My client was a bus driver with a commercial driver’s license (CDL), so a conviction for either of those charges would be detrimental to my client’s license and career.

We filed a motion to suppress evidence and had a hearing on that motion. I was looking forward to litigating the D.R.E. issues in the case, but we never got to that stage. The judge concluded that the officer’s initial stop of my client was an illegal seizure, and all evidence obtained after the stop was dismissed. Based on the insufficiency of the remaining evidence, the charges of O.V.I. and Reckless Operation were dismissed.

APRIL, 2013

O.V.I. Per Se (Breath Test) Amended. My client was pulled over for speeding and weaving. The officer noticed the odor of alcohol and had my client get out of the car. The officer then noticed my client’s eyes were bloodshot and glassy, and my client acknowledged that he had a couple drinks earlier. The officer administered field sobriety tests, arrested my client, and took my client to a police station. My client took a breath test, and the result was .159. The officer charged my client with Speed, O.V.I. (per se, breath), and O.V.I. (impaired) in Columbus, Ohio.

We plead Not Guilty and obtained the officer’s report and cruiser video. From those discovery materials, it appeared there was an issue regarding whether the officer was justified in detaining my client to administer field sobriety tests. Although the officer observed the speeding violation and the odor of alcohol, the officer had not observed much evidence of intoxication at the time he decided to detain my client for field sobriety tests. Based on that issue, we filed a motion to suppress all evidence obtained after the detention. When it was time for the hearing on our motion, the charges of Speed and O.V.I. (impaired) were dismissed, and the charge of O.V.I. (per se, breath) was amended to a charge of Physical Control.

O.V.I. High Test Amended To No-Points Offense. My client was pulled over for speeding, and the officer noticed the odor of alcohol and glassy, bloodshot eyes. The officer administered field sobriety tests, and my client reportedly performed poorly. The officer arrested my client and gave him a breath test. The result of the breath test was .171, so my client was charged with Speed, O.V.I. (impaired), and O.V.I. (high test) in the Franklin County Municipal Court.

We obtained the cruiser video, and it showed that my client really did not do so poorly on the field sobriety tests, and my client did not appear to be intoxicated overall. We filed a motion to suppress the field sobriety tests and a motion to suppress evidence (including the breath test) on the basis that the officer was not justified in arresting my client. Just before we were to start the hearing on our motions to suppress, the prosecutor made an offer for a plea agreement that my client accepted. As part of the plea agreement, the charges of Speed and O.V.I. (high test) were dismissed, and the charge of O.V.I. (impaired) was amended to Physical Control, a non-points offense.

Repeat O.V.I. Reduced. My client was involved in a one-car accident on the freeway. Police officers went to the scene and encountered my client. The officers reported that my client swayed, spoke with slurred speech, smelled of alcohol, and had eyes wondering all over the place. The officers asked my client to submit to field sobriety tests, but my client said he did not want to take any tests without his lawyer present. My client had a prior O.V.I. conviction within the last six years. The officers arrested my client, and my client declined to submit to a breath test. The officers charged my client with Failure To Control, Test Refusal With Prior Conviction, and O.V.I. in Columbus, Ohio.

We went to court, entered a Not Guilty plea, and obtained discovery from the prosecutor’s office. We also obtained my client’s medical records. The medical records showed the impact from the crash was forceful enough to cause a chest contusion, so it’s not surprising he was disoriented from the crash. The medical records also showed my client has a lazy eye, which explained why his eyes were wondering. Ultimately, the charges of Test Refusal With Prior Conviction and Failure To Control were dismissed, and the charge of O.V.I. was stipulated to be a first offense within six years. That meant my client avoided a jail sentence, yellow plates, and vehicle immobilization.

MARCH, 2013

High-Test Urine Charge Dismissed In Plea Agreement. My client was involved in a single-car accident. Medics and police officers responded to the scene and put my client in an ambulance. The officers did not administer any field sobriety tests but concluded my client was under the influence. My client was taken to a hospital for treatment. There, my client consented to a urine alcohol test. The result of the urine test showed a concentration of alcohol exceeding .500. My client was charged with high-test O.V.I., O.V.I. (impaired), and Failure To Control, as the threshold for a high-test with urine is .238. The urine test, however, was conducted with a specimen from a first urine void, so the results were questionable.

We plead not guilty. On the cruiser video, my client did not look like a person with a urine alcohol concentration exceeding .500, so there was a disconnect between the urine test result and the video evidence. There was also a significant issue regarding whether my client was arrested and whether there was probable cause to justify the arrest. Ultimately, the charges of high-test O.V.I. and Failure To Control were dismissed, and my client pled guilty to the O.V.I. (impaired), despite the urine test result.

Charge Reduced In O.V.I. Second Offense Case. An officer observed my client drive over the lane line as he drove up an entrance ramp onto the freeway. My client had a prior O.V.I. conviction. The officer made a traffic stop, and my client explained that the car must have drifted because he was messing with his ipod. The officer said he observed the odor of alcohol and had my client get out of the car for field sobriety tests. My client, however, told the officer he had been through this process before and was declining the tests. The officer arrested my client and asked him to submit to a breath test, but my client declined to do the breath test also. The officer charged my client with O.V.I. as a second offense within six years, as well as Breath Test Refusal With Prior Conviction in the Franklin County Municipal Court.

At the first court appearance, we pled not guilty and got my client’s car released because the officer did not complete the immobilization paperwork properly. The cruiser video showed that the Marked Lanes violation was very minor, and my client’s driving was otherwise perfect. His speech was not slurred, and his conversation with the officer was coherent. With that evidence, and without field sobriety tests or breath tests, the case against my client was not the strongest. On the other hand, he was facing a minimum of 20 days in jail and a license suspension for up to five years, so he had a lot at risk if he were found guilty. We found middle ground with the prosecutor, so my client pled guilty to a charge of O.V.I. as a first offense and received the minimum sentence for a first offense O.V.I. (driver intervention program and six month license suspension).

FEBRUARY, 2013

Test Refusal Charge Dismissed And O.V.I. Amended. My client was pulled over as he parked in his condominium complex. He had been drinking, and he already had a prior O.V.I. conviction within the last six years (I suspect the officer was aware of the prior conviction at the time of the stop). The officer administered field sobriety tests, and my client reportedly did poorly on the tests. Following the field sobriety tests, the officer arrested my client and took him to a police station for a breath test. My client refused the test. Due to his prior conviction, he was charge with Test Refusal With Prior Conviction and O.V.I. in the Franklin County Municipal Court. Because his prior conviction was within the last six years, he was facing a mandatory minimum of 20 days in jail, a license suspension of one year to five years, mandatory yellow plates, and vehicle immobilization.

We obtained the cruiser video, and the field sobriety tests did not look like the picture painted by the officer’s report. Although the technical grading of the tests led the officer to conclude my client was likely over the limit, from the perspective of overall balance and coordination, my client did pretty well. In addition, the video showed my client’s speech was not slurred, and he seemed overall pretty coherent. The charge of Test Refusal With Prior Conviction was dismissed, and the charge of O.V.I. was amended to a charge of Physical Control. My client’s sentence included a driver intervention program, but no jail time, and a six-month license suspension rather than one year to five years.

High-Test O.V.I. Reduced To Non-Moving Violation. Officers observed my client stopped at a light. When the light turned green, he squealed his tires, accelerated hard from the light, and drove quickly in and out of traffic without signaling. The officers made a traffic stop and explained to my client the observations they made. As they spoke, the officers observed glassy, bloodshot eyes and slurred speech (but not the odor of alcohol). The officers got my client out of the car and administered field sobriety tests. My client reportedly performed poorly on the tests, and the officers called for a mobile breath-testing unit. The breath-testing truck came to the scene, my client took a breath test, and the result was .196. My client was charged with high-test O.V.I. in Columbus, Ohio.

We reviewed the prosecutor’s file and records for the breath testing machine. We also obtained my client’s medical records documenting his chronic spinal condition, fused vertebrae and fairly recent stroke. The admissibility of the breath test was questionable, and the field sobriety tests did not seem like strong evidence of intoxication given my client’s medical condition. The charge of high-test O.V.I. was amended to a charge of Physical Control that carries no points, no mandatory jail sentence, no mandatory yellow plates, and no mandatory license suspension.

JANUARY, 2013

First Offense O.V.I. Reduced To Reckless Operation. As my client left the bar, someone called the police and reported that he was stumbling and obviously intoxicated as he walked to his car. The caller followed my client as he drove and relayed to the police dispatcher that my client nearly struck another vehicle. An officer observed my client weaving in his lane of travel and made a traffic stop. The officer administered field sobriety tests and reported that my client performed poorly on the tests. The officer arrested my client, and my client refused the breath test, resulting in a one-year Administrative License Suspension.

As the case was pending, I obtained medical records showing that my client had a terrible knee condition, just as he told the officer the night of the incident. In fact, his doctor had been recommending a total knee replacement for some time. It’s no wonder he looked like he was stumbling in the parking lot and had difficulty standing on one leg. The charge of O.V.I. in the Westerville Mayor’s Court was amended to a charge of Reckless Operation, and the license suspension was changed from one year to six months.

Shoplifting Case Dismissed. My client was caught shoplifting in a department store and charged with misdemeanor Theft in the Franklin County Municipal Court. The shoplifting was really a symptom of underlying mental health issues. Between the first court appearance and the second court appearance, my client completed a theft offender program. My client also participated in ongoing counseling to address the underlying issues. In court, we showed that the theft offender program was completed, and the case was dismissed.

High-Test O.V.I. Reduced. An officer observed my client drive off the side of the road and back onto the road. The officer stopped my client, and my client explained she was reaching for her cell phone. The asked my client how much she had to drink, and she told the officer she had a couple drinks. The officer administered field sobriety tests and reported that my client performed poorly on the tests. The officer’s cruiser video system, however, did not work properly at the time of the stop. The officer arrested my client and took her to a police station. She took the breath test, and the result was .188, so she was charged with O.V.I. (high test), O.V.I. (impaired), and Marked Lanes.

After the first court appearance, the prosecutor’s offer was for my client to plead guilty to the high-test O.V.I., serve three days in jail in addition to the three-day program, and have yellow license plates for the duration of the license suspension. We rejected that offer. Before returning to court, we requested public records from the law enforcement agency, and we learned the circumstances surrounding the cruiser video system were questionable. Rather than litigate that issue, the prosecutor dismissed the high-test O.V.I. and the charge of Marked Lanes. My client did plead guilty to the other charge of O.V.I., but she avoided three days in jail and yellow license plates on her car for six months.