Ohio DUI Defense: The Top 10 DUI Defenses
1. Hire The Best DUI Attorney: The most important decision that you can make in defending your case is hiring the right Ohio DUI defense attorney. Ohio DUI defense involves understanding Ohio’s DUI law, the Ohio Administrative Code, the breath test device, standardized field sobriety testing (administration and interpretation) and all manners of science which may affect your case. Ohio DUI defense begins with an attorney who has the experience to fight your case, the scientific knowledge to attack in the right places, and the skill to negotiate with the prosecuting attorney to secure the best outcome. We have written “How To Hire An Ohio OVI Attorney” to help you understand some issues you may not consider.
2. Illegal Police Stop: If the officer lacked proper cause to initiate a traffic stop, your case may be dismissed. The Fourth Amendment requires an officer have a reasonable suspicion that a crime is being committed or about to be committed before making a traffic stop. Reasonable suspicion may consist of any minor traffic offense, such as speeding, weaving, an accident, expired plates, or a failure to activate headlights. Upon being stopped the officer must establish an articulable reason to continue your detention to do an alcohol/drunk driving investigation.
3. Improper Administration of Standardized Field Sobriety Tests: If an officer improperly administers the field tests, gives faulty instructions, misunderstands how to administer the tests or holds the accused to impossible standards, then the botched tests amount to nothing more than “Stupid Human Tricks.” Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine the level of intoxication of a driver without chemical testing. When an OVI suspect refuses a chemical test, the tests can be substantial evidence of intoxication. The NHTSA has guidelines as to how the standardized field sobriety tests must be given. If the arresting officer fails to substantially comply with the guidelines established by the NHTSA, then the results of the tests are not admissible as evidence against the defendant. Your Ohio DUI defense attorney will be familiar with the standardized tests, the NHTSA manual and have experience cross-examining an arresting officer.
4. Faulty Interpretation of the Standardized Field Sobriety Tests: The officer may say all of the right things to get a valid field sobriety test, and still improperly interpret what he or she is seeing. Your Ohio DUI defense attorney will review any video of the stop to make sure that your fields tests were fairly administered and properly scored. Arresting officers can (and do) misinterpret the performance of the SFST’s, and determine the performance to be a failure. The dashboard video and aggressive cross examination of the arresting officers will determine whether a DUI defendant actually failed the SFST’s, or if the officer made a mistake. If the defendant did not fail the SFST’s, the results will serve as evidence that the defendant was not intoxicated.
5. Unlawful Arrest Not Supported By Probable Cause: Assuming the officer has made a valid traffic stop, he or she must continue the investigation until probable cause exists for an OVI arrest. Often, an officer intending to determine whether probable cause exists for an OVI arrest will make the arrest before this determination is made. When this happens, the officer has made an unlawful arrest, and all evidence obtained after the arrest may be deemed inadmissible in court. Placing a suspect in a patrol car or ordering a suspect to follow directions before determining a suspect’s sobriety may constitute an unlawful arrest. If so, any evidence obtained regarding intoxication may be deemed inadmissible in court.
6. Officer Error Prior To Chemical Testing: If any statements are made after the accused is in custody, they may excluded unless a proper Miranda warning was given. The officer must also satisfy a 20 minute observation period prior to administering an evidential breath test. The breath test must be given within three hours of operation. The officer must make sure that the testing conditions are free from radio frequency interference and that the testing location is not otherwise compromised. Prior to requesting a suspect to submit to a chemical test, the arresting officer is required inform the driver of the consequences of submitting to the test, the driver’s right to refuse to submit to the test and the consequences for so refusing. If the driver submits to the test, he may be providing the State with evidence of intoxication. Failure of the arresting officer to advise the suspect of the above may render the results of the test, or the refusal inadmissible, and may fail to justify a license suspension. Your Ohio DUI defense attorney should have a firm understanding of the Ohio Administrative Code and its requirements for a proper chemical test.
7. Bad Breath: A Flawed Breath Machine: Above we discussed defenses that arise prior to the administration of the chemical test. There are also potential defenses present in the administration of the test. You Ohio DUI defense attorney will be familiar with the Ohio Administrative Code requirements regarding calibration and officer performance. You should ask your Ohio DUI defense attorney to show you the “guts” of the tests that are available at the Ohio Department of Health website. What is more, you should only hire an attorney who has become certified on the breath test machine or attended sufficient specialized training so that he or she can spot any issues with the results. Machines, despite what some may say, are far from perfect and often a keen eye will result in a “Not Guilty.”
8. Discovery, Discovery, Discovery: Your Ohio DUI defense attorney cannot defend you against an issue he or she does not know exists. An experienced DUI defense attorney will get proper discovery to explore every possible defense. Filing motions for discovery, motions to preserve evidence and expeditiously obtaining the evidence is a good start. In every DUI case, I submit a comprehensive discovery request for every type of evidence possible. I contact the law enforcement agency directly to place it on notice to preserve evidence, such as dashboard videos and booking videos. These videos must be requested before they are destroyed. These videos can be indispensable in establishing exactly how a field test was administered, how a driver performed, and can also establish whether a driver’s speech was slurred. Often, these videos contradict an officer’s allegations and exonerate the driver.
9. Credibility Is King: The coin of the realm in all plea negotiations is the credibility, experience and knowledge. Credibility comes from presenting your case in a way that makes the prosecutor understand your arguments. Experience is knowing when and where to be persuasive. Most prosecutors distain whiners, bullies and bullshit artists, so don’t do it. I always strive to earn the respect of every prosecutor I come into contact with. Knowledge about Ohio DUI defense comes from being dedicated to learning as much as you can. We once had a slogan that said, “Is your attorney thinking of DUI defense right now? If not call DaytonDUI.” I have practiced DUI defense since 1995 and have practice DUI defense exclusively for many of those years. I continue to try to establish myself as one of the best DUI attorneys in Ohio.
10. Noting Matters If You Won’t Fight: You can have the best defenses in the world, but they won’t matter unless you pursue them. A good attorney will not only pursue the best possible plea, but will prepare for trial. Your attorney should provide context and give you enough information to make a good decision. Your attorney has an obligation to give you information and abide by your decision. If you think you have a good chance of winning, make sure you hire an attorney who can execute and try your case. In our office we say “good things happen at trial.”
OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI defense.”
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