Innocent Until Proven Guilty; Does it apply in Ohio DUI Prosecutions?

Best Dayton OVI attorney
February 8, 2012
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Charles Rowland Dayton Ohio OVI & DUI Attorney profile (1)

Charles M. Rowland II

Charles is a frequent speaker and a prolific writer on all matters related to OVI / DUI defense.

Ei incumbit probatio qui dicit, non qui negat

In America you are presumed innocent until proven guilty beyond a reasonable doubt.  “Presumption of innocence” serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof.  This presumption is ancient, dating back to the Old Testament.  In Genesis 18:23-32, it states, “Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? What if ten are found there? The Lord said, “I will not destroy it for the ten’s sake.”  Latin legal principle provided that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).  Relying on this tradition Maimonides, a twelfth-century legal theorist looked to Exodus 23:7, “the innocent and righteous slay thou not” and argued against the use of presumptive evidence, concluding, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”  In the De Laudibus Legum Angliae, c. 1470, Sir John Fortescue argues that “one would much rather that twenty guilty person should escape the punishment of death, than that one innocent person should be condemned and suffer capitally.”  In 1678, Lord Hale says that , “In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.” He further observes: “And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris.”  The principle and the concomitant prosecutor’s duty was referred to in the English Common Law and the “golden thread” by Lord Sankey, who wrote in Woomington v. DPP [1935]  AC 462, “throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject to any statutory exception…”

The principle of presumed innocence was accepted in America even before we were a county.  On Ocotber 3, 1692, Increase Mather relied upon Fortescue to decry the Salem Witch Trials writing, “It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned.” Benjamin Franklin, writing in a letter of 1785 stated it as, “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. The words “Innocent Until Proven Guilty” do not appear in the United States Constitution but many provisions rely upon the proposition.  The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury and the 14th Amendment.  The presumption of innocence principle supports the practice of releasing criminal defendants from jail prior to trial. Based upon this premise, the Eighth Amendment to the U.S. Constitution states that excessive bail shall not be required, but it is widely accepted that governments have the right to detain through trial a defendant of a serious crime who is a flight risk or poses a danger to the public. In such cases the presumption of innocence is largely theoretical but deserving of, and receiving, special constitutional protection.

In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, to Deuteronomy.  The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution’s burden of proof–that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt–but also must instruct on the presumption of innocence–by informing the jury that a defendant is presumed innocent. The Court stated, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”  Much later in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), the United States Supreme Court described the presumption of the innocence of a criminal defendant as an assumption of innocence that is indulged in the absence of contrary evidence. It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence.  The Supreme Court has required, under some circumstances, a court should issue jury instructions on the presumption of innocence in addition to instructions on the requirement of proof beyond a reasonable doubt. Id.  A presumption of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case.

The rights associated with the presumption of innocence have become a staple of modern democratic ideals and have been included in several important international legal codes and constitutions, including:

  • In the South African Constitution, section 35(3)(h) of the Bill of Rights states: “Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings.”
  • In the 1988 Brazilian constitution, article 5, section LVII states that “no one shall be considered guilty before the issuing of a final and unappealable penal sentence”.
  • The Constitution of Russia, in article 49, states that “Everyone charged with a crime shall be considered not guilty until his or her guilt has been proven in conformity with the federal law and has been established by the valid sentence of a court of law”. It also states that “The defendant shall not be obliged to prove his or her innocence” and “Any reasonable doubt shall be interpreted in favor of the defendant”.
  • The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence. (from Wikipedia, original link HERE).
In short, the principle of “innocent until proven guilty beyond a reasonable doubt” is a fundamental right recognized as one of the great gifts bestowed by democratic government on its citizens.  BUT INNOCENT UNTIL PROVEN GUILTY DOES NOT EXIST FOR DUI DEFENDANTS! 
THE DUI EXCEPTION TO THE CONSTITUTION
If you are stopped by law enforcement and the officer believes he has probable cause to arrest you for operating a vehicle impaired you most likely going to lose your license.  You are not innocent until proven guilty, but presumed to have broken the law.  According to Ohio Revised Code4511.191, if you are arrested on suspicion that you are operating a vehicle while impaired (commonly called a DUI) and you take a chemical test which produces a result which is over the per se limit as set by the Ohio Department of Health, your license will be suspended immediately. Depending on previous offenses or refusals, you can have your license suspended for a period of 1 year to 5 years.  The presumption of innocence is so destroyed (in the DUI context) that even a NOT GUILTY finding by a jury cannot restore it.  Verdial Lewis was found not guilty of OVI in a trial in the Hamilton County Municipal Court.  Upon finding the defendant not guilty, the court terminated the (ALS)  administrative license suspension that was imposed for the driver’s refusal to submit to achemical test.  Upon appeal, the 1st District Court of Appeals held that a not guilty verdict on a charge of OVI did not permit termination of the (ALS) automatic license suspension of a motorist’s driver’s license for having refused to submit to a chemical test.  Even though the OVI charge was not a sufficient charge under Ohio law, the harshest provisions of the OVI suspension will remain in effect.  This ruling effectively prevents a not guilty trial verdict from protecting a defendant’s driver’s license when they refuse to take the test. State v. Lewis, 187 Ohio App.3d701, 2010-Ohio-2872.  If you have a commercial driver’s license an Ohio DUI charge can have devastating effects on your career.  Often clients who hold a commercial driver’s license fail to understand that Ohio’s OVI laws can affect your livelihood even if you receive a drunk driving charge while you are not operating a commercial vehicle.  If you plead guilty, or are found guilty, of an OVI (drunk driving) offense your commercial driver’s license will be taken away for one year.  If you are a second-time OVI offender, an Ohio OVI will result in an indefinite revocation of your CDL.  What is more, a court cannot give you privileges to operate a commercial vehicle while the case is pending and that a CDL suspension is in addition to any suspension that the court may impose.  If you drive for a living these penalties can be devastating for you and your family.
In Ohio, any person who operates a vehicle within the state of Ohio is said to have given his or her consent to a chemical test of their blood, breath, or urine to determine alcohol content if arrested for OVI (drunk driving).  Pursuant to recent changes in Ohio OVI law, an OVI suspect has 3 hours to comply with the request to submit to a test, and failure to do so within the 3 hour limit will be considered a “refusal.”  Recent changes allow the police to use “whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.”  In State v. Allen, 2010-Ohio-1257, 13-09-25(OHCA3), the defendant  was stopped and arrested for OVI and subsequently tested over 0.08. She was given an unsworn copy of the 2255 and then the officer submitted an unsworn copy of the 2255 to the Court and the BMV. The Tiffin Municipal Court upheld the suspension. The 3rd District Court of Appeals held that the suspension was valid IMMEDIATELY upon testing over and it has nothing to do with the 2255 being sworn or not.  The Court held,
[T]o interpret the effectiveness of the ALS to be dependent on the Registrar receiving a sworn report is not only contrary to the express statutory language but would also serve to make the suspension process inefficient and impractical. If the ALS does not take effect immediately upon refusal to submit to the chemical test or upon the chemical test indicating a prohibited concentration of alcohol, then presumably a person’s driver’s license would remain effective until the Registrar processed the form.
If you ever question why an attorney would fight so hard for the accused drunk driver look no further than the decision (recently affirmed at Middleburg Hts. v. Henniger, 2006-Ohio-3715) setting forth the US Supreme Court DUI exception to the Fifth Amendment.  The United States Supreme Court has held that the admission of evidence at trial of a defendant’s refusal to take a chemical test does not violate the defendant’s Fifth Amendment privilege against self-incrimination or the Fourteenth Amendment right to due process. South Dakota v. Neville (1983), 459 U.S. 553, 564-566. Following Neville, the Supreme Court of Ohio has held that the trier of fact may consider a defendant’s refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik (1994), 69 Ohio St.3d 339, syllabus; see, also, State v. Spurlock (Dec. 15, 1995), Portage App. No. 95-P-0067.  The following language was taken from the recently decided Middleburg v. Henniger, cited above:

Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in R.C. 4511.191. The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state ofOhio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, “no impermissible coercion is involved when the suspect refuses to submit to take the test.” Neville, 459 U.S. at 562.

In Birkemer vs. McCarty, the UnitedStates Supreme Court concluded that there was a DUI exception to the constitution. And that, “Well, we really can’t tell you when you’re supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations.” So, U.S. Supreme Court has told us we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later.  In 1989 the United States Supreme Court in Blanton vs. North Las Vegas, a DUI case, said, “There is no constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail.”  Furthermore, Ohio has interpreted its DUI law (at the insistence of advocacy groups such as MADD) that any test within three hours that results in a blood-alcohol reading, it shall be presumed that it was the same at the time of driving.  Even though we know absolutely, as a matter of science, fact, that that is not true.  
When you hear a DUI/OVI attorney decrying “junk science” that is used in court, they are most likely referring to the fact that the air blown into the breath test machine for purposes of testing cannot be the same air that is exchanged with the deep lung alveolar sacs. It is impossible to limit the breath test to limit itself to deep lung alveolar air. The theory breaks down because: IF THE MAJORITY OF AIR BEING MEASURED HAS NOTHING TO DO WITH THE BLOOD EXCHANGE THEN THE TEST IS NOT MEASURING THE AMOUNT OF ALCOHOL IN THE BLOOD.  The machine does not and cannot discriminate in its air sample.   It will measure and analyze the 1.5 liters of breath that it is given. The problems with the theory is that the breath machine has to assume a similar lung volume amongst the population. Common sense dictates that a 21 year old, 6 foot male in perfect health blowing 7 liters of air IS DIFFERENT than an 65 year old, 5 foot 2 inch woman who may only blow 1.5 liters.  The major injustice in DUI/OVI law in Ohio is that attorneys are prevented from attacking the “junk science” of breath tests machines due to the decision in State v. Vega. As amazing as it seems, Ohio has decided that if the government says the science is good enough, then attorneys cannot challenge it. Imagine if the same philosophy were used in other areas of criminal law. What if the Ohio legislature decided that eye-witnesses were inherently reliable and an attorney could not challenge them at trial. What is to stop them from saying that police officers are inherently reliable and they too are free from cross examination.  Does this sound consistent with the principle that you are innocent until proven guilty?  Does this sound like a principle that is consistent with any other aspect of American jurisprudence?  Does this sound fundamentally fair?  A man I greatly admire, DUI defense attorney Lawrence Taylor of California, has described DUI as a political crime which is fought by extremists who have used every tactic at their disposal to overcome the fairness inherent in the American constitution.  What is worse, is that the extreme advocacy has a deleterious effect not only on our system of justice, but also on our character.  
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton and throughout the Miami Valley.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter@DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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