Ohio DUI law, DUI Attorneys, DUI Information - Ohio OVI Law

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.

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Get Your Motion to Preserve Evidence Filed Early

In Ohio, if the police destroy evidence that may be exculpatory (tending to prove the defendant’s innocence), this may be the basis for a dismissal of the case. In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the United States Supreme Court addressed the issue of whether a criminal defendant is denied due process of law by a state’s failure to preserve evidence. The court stated the following:

“The Due Process Clause of the Fourteenth Amendment, as interpreted in [Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”

But what is “material exculpatory evidence” and how do you prove it if the evidence was destroyed before your attorney got to see it?
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Sobriety Check Points

The Fourth Amendment to the Constitution of the United States protects individuals from unreasonable searches and seizures, and states that no such searches and seizures may take place except upon probable cause. Article I, Section 14 of the Ohio Constitution contains nearly identical language to the Fourth Amendment. The purpose of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution is to protect us from arbitrary searches upon which the police simply stop us at random without any reasonable suspicion or probable cause.

But today, we have a court system which is bent upon tearing up our Fourth Amendment and Article I, Section 14 rights in the quest to put drunk drivers behind bars. One of the most flagrant violations of the Fourth Amendment and Article I, Section 14 rights which the courts have approved comes in the area of sobriety check points. These are roadblocks which the police erect in certain areas and stop all cars, or every nth (fill in the blank) car at random to check to see if the driver is drunk.
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Refusal to take a BAC test as evidence of guilt

While it may be a good idea to refuse to take the test back at the station if you think that you are going to flunk it, or if you think you might test over the .170 standard which will necessitate a mandatory three days in jail, the prosecutor is going to introduce your refusal to test into evidence against you in a DUI case. Many defendants in this situation have argued that they have a Fifth Amendment right not to have such a refusal used against them. But these arguments have fallen on deaf ears in Ohio.

The refusal to submit to a breath test is relevant, admissible, and may be used against a defendant at trial. South Dakota v. Neville (1983), 4559 U.S. 553; Maumee v. Anistik (1994), 69 Ohio St.3d 339. As the Ohio Supreme Court explained in Anistik:

“Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated. Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant’s fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.” Anistick at 343 citing Westerville v. Cunningham (1968), 15 Ohio St.2d 121 at 122.

The reason that this does not violate the Fifth Amendment right against self-incrimination is that the Fifth Amendment only applies to testimonial evidence against the person. It does not apply to physical evidence such as fingerprints or measurements of blood alcohol.

Fight your DUI charge

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