It is my argument and my position that they do not. I believe that it is unconstitutional to take your drivers license…
But Ohio has passed a system (or a scheme) called the administrative license suspension system wherein if you refuse to take a chemical test upon request from an officer and/or if you test over after having a chemical test, that immediatly your license is seized. The way they’re able to get around the presumption of innocence is by saying that this is a civil penalty. The civil penalty is that you have a privilege to drive, not a right to drive.
I think that one of the best arguments that we as defense attorneys can make is the 1st amendments right to assemble includes the right to drive in modern America. We do not live in Ohio in cities that are served by public transportation so the only way we can get anywhere (like work) is to drive. And I think that if I had my one constitutional case that I could take before the supreme court, it would be on how the automatic license suspension is a denial of the fundamental right, that is the right to assemble under the 1st amendment.
Often the main focus of our defense will be protecting the person prior to the arrest decision. What we do is attack the field test, we deconstruct the case from the moment the officer came in contact with the person. We deconstruct the officers decision making in order to remove you from the car. We deconstruct the officers decision making in asking you to perform the field sobriety test and then, in fact, we deconstruct the field sobriety test step by step by step. We challenge each phase of the investigation and we arrive at a decision where we think we’ve got a good enough of an argument to make sure that you don’t get found guilty of the OVI.
If we go into court, there are a number of ways that we can challenge the breath test. The breath test may not apply to you personally, there may be defects in the machine, you may have had any number of the interference.
This is where the rubber meets the road with DUI attorneys – do they know their stuff when it comes to the breath test machine. There are a number of attorneys out there who practice who have never tried a breath test case. There are a number of attorneys out there who do not know what the machine is capable of and what it’s not capable of.
One of the things that really drives me is trying to know as much as I can about that machine. We have the manuals, we have the technical stuff. Don’t think that just because you tested on the machine, that that means it’s a valid test – often thats not the case.
MADD has been pushing these no refusal weekends where the police will set up a roadblock. They will stop you without probable cause and force you out of the car. If you refuse to take the test a judge is standing by where he can issue a warrant to take blood – to force blood out of your body – or to force you to comply to take the breath test. If you’re involved in a serious accident or if you’re unconscious, they can take the blood without your consent.
And here’s where it gets ugly. The law that’s been passed says that they can force blood on a second offense by any means necessary. That’s written into Ohio law!
By any means necessary.
And that’s one of the reasons I get up every morning. Because thats the level that they’re coming after people. The level of passion that they’re coming at people is the level of passion we need to defend them.
With some disagreement in the community, the answer is yes. You don’t have to take the field sobriety test. There is a theory out there, I’ve never seen it in any case law, that if you fail to take the test then you’ve failed to comply with the lawful order of a police officer. A very smart man has put that theory forward but I’ve never seen it in force.
So we always say don’t give the officer any evidence against you, don’t take the field sobriety test and tell the officer that you don’t feel you’d perform well on it. Not because you’re impaired by alcohol, just because you simply feel you wouldn’t perform well on the test.
One of the big things that we do is help people get their life back. We try to get them to the point where they’re able to drive. Where they’re able to look at this, not from the emotional standpoint of shame and guilt that they feel when they’re arrested, but look at it from the standpoint of what can I do? What are my options? And what risks do I have to take?
That is the most important thing we do as attorneys is we help people get back to normal and we look at this as a manageable situation and not as the end of the world – which is exactly how you feel when you have to call someone up and say “I’ve just been arrested for a DUI”.
I’ve been lucky enough to go through the same training as law enforcement officers have gone through. There are a series of three tests:
The first is a test of your eyes called The Horizontal Gaze Nystagmus Test. What it looks for is whether or not your eyes bounce, whether they track evenly, whether they demonstrate indicators of alcohol use. The officer will typically take a pen, hold it twelve to fifteen inches from your face, and you’ll have to do a series of eye tests.
Following that they may ask you to do the second in the test battery which is the walk and turn. You have to walk nine steps down and nine steps back. You have to listen to the officer because the test is just as much about listening as it is about performing.
And the last test that they typically perform is called the one leg stand test where you stand on one leg for thirty seconds. Again, you have to listen to the officer and follow the instructions.
The tests have various limitations, there are various ways that a person that is completely sober and completely not impaired by alcohol could perform poorly on those tests. If you are over 65, if you’re overweight, if you have any kind of inner ear infection then the tests are presumptively invalid. And it goes towards common sense to believe theres not a continuum of coordination.
How I’ve heard this explained is, when you go to the courthouse you go through a metal detector, that metal detector sometimes goes off. It’s there to protect everybody if you’ve got a gun, but every time that metal detector goes off it doesn’t mean you have a gun. And every time someone fails the field sobriety test, it doesn’t mean they’re impaired by alcohol.
