Potter Law Blog

Changes to Ohio’s OVI Penalties - 8/30/2017

Some changes to Ohio’s OVI laws effective April 6, 2017.  These changes primarily involve a change in the look-back period from 6 years to 10 years as well as a push to increase the use of interlock systems.  While there are some concerns regarding the clarity of the law and certain nuances of its application, the following summarizes the more important implications.

Look-Back Period

OVI penalties increase depending on the number of prior OVI convictions.  Currently, mandatory minimums increase depending upon the number of OVI convictions within the past 6 years.  Effective April 6, 2017, the look-back period will increase to 10 years.  

License Suspensions

The second significant change has to do with license suspensions.  The maximum license suspensions were increased, but more importantly, the minimum license suspension for a first-time OVI was doubled: increased from 6 months to 1 year.

Interlock Systems

Interlock systems are devices that must be installed on a vehicle that will test the driver’s breath for alcohol before allowing the vehicle to start.  For first-time convictions, courts are given discretion to order unlimited driving privileges with the use of an interlock.  There are several implications, most of which can be found in the new Interlock Revised Code Section 4510.022:

  • The minimum suspension is cut in half from 1 year to 6 months.
  • The court “shall suspend any jail term imposed for the OVI offense.”

With the good comes the bad, however.  First, it should be noted that this does not apply to pre-conviction suspension (i.e., Administrative License Suspensions).  Second, interlock systems are susceptible to false-positives. In addition to simple equipment malfunctions, false positives may be caused by mouthwash, energy drinks, chewing tobacco, menthol cigarettes, sweets, spicy foods, yeasty foods, etc… 

Interlock Violations:

If the interlock detects a violation, there are consequences:

  • Imposition of the suspended jail sentence
  • Increasing the length of the license suspension
  • Requiring the use of a SCRAM (CRAM) – ankle bracelet to monitor alcohol use

Notice of violations will be sent to the defendant who can then appeal the violation within 14 days.  However, the code that governs violations (R.C. 4510.46) limits the grounds for appeals to whether the “offender committed an ignition interlock device violation.”

Pertinent Interlock Implications:

Additionally, the new statute requires those with the interlock to get an interlock driver’s license, which will list the interlock restriction.  Driving without the license is a first-degree misdemeanor with a mandatory minimum three-day jail sentence.  All interlocks will also be required to have cameras by 2020.

Finally, there is a cost factor for interlock systems, although some funds are to be available to assist indigent defendants.

Conclusions

Ohio’s OVI laws continue to become harsher.  With HB 388, the look-back period was increased and the length of license suspensions was increased.  And while the concept of unlimited driving privileges with an interlock seem reasonable, the details make it a risky and potentially expensive proposition.  Finally, interlock system is discretionary for the courts and they may choose to simply ignore them.  However, it is an option that may for the right people be the right decision and therefore requires full knowledge of the implications to evaluate.

SOURCE: https://brianjsmithesq.com/blog/2017/3/15/changes-to-ohios-ovi-penalties-effective-april-6-2017-hb-388-annies-law

Fleeing and Eluding in Ohio - 7/28/2017

Fleeing and Eluding

When alleged offenders are charged with failure to comply with the order or signal of a police officer in addition to operating a vehicle under the influence of alcohol or drugs (OVI) in Ohio, the alleged eluding or fleeing of law enforcement can potentially result in even more serious penalties than just the driving under the influence (DUI) offense.

While failure to comply may be a misdemeanor offense in most cases, certain aggravating factors can make the alleged crime a felony.

Under Ohio Revised Code § 2921.331, it is a first-degree misdemeanor if an alleged offender fails to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic or operates a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person’s motor vehicle to a stop.

Failure to comply becomes a fourth-degree felony if, in committing the offense, the alleged offender was fleeing immediately after the commission of a felony. The crime becomes a third-degree felony if:

  • The operation of the motor vehicle by the alleged offender was a proximate cause of serious physical harm to persons or property; or
  • The operation of the motor vehicle by the alleged offender caused a substantial risk of serious physical harm to persons or property.

Prosecutors will attempt to use alleged fleeing and eluding as evidence that alleged offenders panicked because they knew they were intoxicated. Oftentimes, there can be much more understandable explanations for a motorist’s failure to immediate stop. In some cases, the person will flee because of a suspended license or an outstanding warrant.

In some cases, drivers may have had justifiable personal safety concerns that prevented them from stopping as soon as possible. Occasionally, failure to stop can be based on reasonable doubts about authenticity because the vehicle was not marked or the officer was not in traditional uniform. Weather can also be to blame and sometimes people just simply did not see or hear any signals to stop.

Were you charged with failure to comply when you were arrested for OVI in Ohio? Don’t hesitate, contact Skip Potter now. He is here to assist you with your legal needs.

Updates to Ohio Concealed Carry Laws - 7/12/2017

(COLUMBUS, Ohio)—Ohio Attorney General Mike DeWine announced on March 23, 2017 that an update of his office’s Concealed Carry Laws Manual has been released reflecting recent changes enacted by Senate Bill 199. The updated manual is currently available online, and printed copies of the guide will be available from county sheriffs.
 
“Our Concealed Carry Laws Manual is great resource for Ohioans interested in concealed handgun laws or interested in obtaining a CCW permit, and it is available at no cost to citizens online,” said Attorney General DeWine.

Senate Bill 199, which became effective on March 21, 2017, included the following notable changes in law:

  • Active duty members of the armed forces may carry a concealed handgun without obtaining a license if they possess military identification and proof of training with handguns.
  • Concealed handgun licensees may carry concealed handguns in daycare centers unless otherwise posted.
  • Concealed handgun licensees may carry concealed handguns in airports as long as they do not pass screening checkpoints or enter restricted areas.
  • Ohio colleges and universities may permit concealed carry on campus.
  • Businesses and employers cannot prohibit concealed handgun licensees from keeping handguns in their privately owned vehicle as long as it is legally parked.
  • Concealed handgun licensees may have handguns in vehicles in school safety zones as long as they are locked in the vehicle.  

The Concealed Carry Laws Manual and other concealed carry information can be accessed online at www.OhioAttorneyGeneral.gov/ConcealedCarry.

SOURCE: http://www.ohioattorneygeneral.gov/Media/News-Releases/March-2017/Updated-Concealed-Carry-Laws-Manual-Available

Review Highlight - 6/28/2017

We would like to take the time to highlight a review that we received recently on Google.

We are so happy to hear the positive feedback! Once again, thank you!

-Potter Law Office

Bipartisan Effort Launched to Update Ohio Crime Laws - 6/2/2017

Below is an article that we would like to highlight in this week’s blogs, from US News.com written by ANDREW WELSH-HUGGINS, Associated Press. 

COLUMBUS, Ohio (AP) — Offenders on parole who commit technical violations like missing mandatory meetings wouldn’t automatically be returned to prison under a bipartisan effort announced on the 22nd of February, 2017, as a way of reducing Ohio’s prison population.

The bipartisan state Senate legislation also would allow more offenders to petition to have their records sealed and give judges more discretion when sentencing inmates to parole. In addition, it would put more emphasis on rehabilitation in an effort to keep more nonviolent offenders in their communities.

The proposal is one of a series of efforts during the past few years seeking to reduce the state’s bulging prison population by changing how Ohio punishes offenders.

The goal is a fair and equitable criminal justice system, said state Sen. Charleta Tavares, a Columbus Democrat.

“Not every violation of the law necessitates a stay in prison,” Tavares said. “We are trying to do right by the citizens of Ohio by creating a justice system that rehabilitates and reforms those who have offended, not just places them behind bars.”

If offenders are doing their best to rehabilitate themselves, it doesn’t make any sense to send them back to prison for minor violations of their parole, said state Sen. John Eklund, a Republican from Geauga County in northeastern Ohio.

Ohio houses about 50,200 inmates — 130 percent over its capacity. That’s about 300 fewer inmates than this time a year ago, according to the Department of Rehabilitation and Correction. The record high was 1,273 in November 2008.

Nationally, about 14 percent of offenders in state prisons are there for drug offenses, compared with 28 percent in Ohio, said prisons Director Gary Mohr. He said that makes him confident there’s a lot the state can do to reduce its population by focusing on nonviolent offenders.

A key is the emphasis on rehabilitation contained in the proposal, particularly when it comes to people fighting addiction, Mohr said.

He said judges should be able to look at individuals with felony charges long in the past, examine their overall record, and decide that sealing those convictions is the right thing to do.

“It’s in the best interest of not just that person or family, it’s in the best interest of the neighborhoods to seal that record and allow someone to fully become employed and have a sense of pride and dignity,” Mohr said.

 SOURCE: https://www.usnews.com/news/ohio/articles/2017-02-22/bipartisan-effort-launched-to-update-ohio-crime-laws

Physical Control v. Reckless Operation - 5/12/2017

Prosecutors sometimes will present a client a plea offer involving a reduced charge called “physical control.” Physical control is being in control of a car while you are impaired. It is a zero point violation under Ohio law and does not require a mandatory driver’s license suspension. Physical control is often presented in conjunction with reckless operation. Read the following article to determine which is more advantageous.

“Physical control” involves being in physical control of a vehicle while under the influence of alcohol or drugs. A close reading of this definition will reveal that you do not have to be driving or operating the vehicle to be charged with physical control. An example can be found in the case of Cincinnati v. Kelley, where the court found that a person who is in the driver’s position of the front seat of a vehicle with possession of the vehicle’s keys is in “physical control” of the vehicle.

The definition of “vehicle” can be found in ORC 4511.01(A), which states that a vehicle is defined as “every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that “’vehicle”’ does not include any motorized wheelchair, any electronic personal assistive mobility device, and device that is moved by power collected from overhead electric trolley wires, or that is used exclusive upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.”

Thus, a person can be convicted of physical control of a bicycle, but not a unicycle or tricycle. This same logic applies to Ohio’s DUI/OVI (drunk driving) statue, ORC 4511.19.

“Operate” is defined in ORC 4511.01(HHH) as “to cause or have caused movement.” However, State v. Adams held that slumping over the wheel of a vehicle while the vehicle is running is operating a vehicle. A case that offers an excellent discussion of how to define “operation” is State v. Mackie, where the defendant’s vehicle was stuck in the snow and incapable of movement. The defendant’s conviction was reversed due to insufficient evidence demonstrating intoxication while the vehicle was operable.

Now that we have discussed the statutory definition of physical control, what are the penalties for a physical control conviction in Ohio. Physical control is a 1st degree misdemeanor in Ohio, which carries a maximum 6 months in jail, $1000 fine, and a driver’s license suspension of up to 1 year. Unlike a reckless operation charge, physical control carries zero points on your Ohio driver’s license. In addition to these penalties, the court may require that you attend a 3-day driver’s intervention program. Another benefit of physical control (and reckless operation) is that a prior DUI/OVI conviction will trigger enhanced minimum penalties for future DUI/OVI conviction, but a prior physical control conviction will not trigger the enhanced penalties for future DUI/OVI convictions.

Reckless operation in Ohio can be charged as one of several types of offenses when dealing with the operation of a vehicle with willful or wanton disregard to persons or property. Reckless operation is often charged under ORC 4511.20, but it can be charged under ORC 4511.201 (reckless operation while off-road) and ORC 1547.07 (while on a watercraft).

The statutory definition of ORC 4511.20 is as follows:

  1. No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.
  2. Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

If you have been arrested for DUI/OVI near Bowling Green, Ohio, contact Potter Law Office to discuss your case. Attorney Skip Potter is an experienced DUI/OVI attorney who will speak with you about the facts of your case and vigorously defend you and your ability to drive. Don’t face the serious consequences and repercussions of a DUI/OVI charge alone. Contact us now.

 

SOURCE: https://www.linkedin.com/pulse/physical-control-v-reckless-operation-ohio-david-johnson

“Annie’s Law”, Changes to Ohio’s OVI Statute - 4/28/2017

This week we are featuring an article written by Curt Kissinger, a guest columnist with http://www.cincinnati.com. 

Beginning in April, significant changes to Ohio’s operating a vehicle under the influence of alcohol (“OVI”) laws are set to be implemented.

Ohio House Bill 388, known as Annie’s Law, is named for Chillicothe attorney Annie Rooney, who was killed by a multiple prior OVI offender in an automobile accident on US 50.

Ohio law prohibits drivers from operating a motor vehicle if their ability to operate a vehicle is appreciably or noticeably impaired by alcohol or drugs. The statute creates a separate offense for driving a vehicle with a prohibited blood-alcohol level. An OVI conviction requires the court to impose mandatory penalties related to jail time, fines, license suspension, and vehicle immobilization and forfeiture.

Under Annie’s Law, the mandatory minimum suspension of a driver’s license, for a first-time offender, increases to a minimum one-year suspension from the previous six-month suspension. The maximum length of the suspension remains three years. For individuals with prior OVI convictions, the new law increases the length of the suspension.

To address concerns regarding individuals with multiple OVI convictions, Ohio law provides an array of increased mandatory penalties for offenders who have prior OVI convictions within the past six years. Annie’s Law increases this “look back” period from six to 10 years. By way of example, if a driver is convicted of a new OVI charge, and had a prior OVI conviction eight years ago, the mandatory penalty for the new OVI would be no greater than the mandatory sentence for a first-time offender. Under the new law, that prior conviction would now fall within the 10-year look back period and subject the defendant to increased penalties.

The most significant change created by Annie’s Law involves first-offenders and the use of the ignition-interlock device (“IID”). The IID is installed in the ignition of a vehicle requiring the driver to submit a breath test before the vehicle will start. If alcohol is detected, the vehicle will not start and notice of the failed start, and the breath test result, is recorded.

For the first offender, the mandatory minimum license suspension increases to one-year. However, Annie’s Law will now permit a defendant to request the court to allow unlimited driving privileges with the installation of the IID. The theory being that the IID provides the greatest assurance that an individual is not driving under the influence of alcohol. If a person requests the IID, the new law will allow the court to reduce the mandatory minimum suspension from one-year to six-months. If a driver has a positive alcohol reading or tries to tamper with or circumvent the IID, the length of the suspension may be doubled.

Hopefully, future legislative changes aren’t necessitated as a result of the tragic loss of life on Ohio’s highways.

Judge Curt Kissinger is a judge on the Hamilton County Municipal Court and is chair of the Court’s Criminal and Traffic Law Committee. He is elected from the 4th judicial district which includes Anderson Township, Mount Washington, Newtown, Mariemont, Fairfax, Hyde Park, Mount Lookout and Oakley.

SOURCE: http://www.cincinnati.com/story/news/local/community-news/2017/03/01/column-annies-law-changes-ohios-ovi-statute/98201896/

Underage DUI/DWI Laws & Penalties - 3/31/2017

While the legal drinking age in the United States is 21, studies consistently show that most young people begin drinking alcohol before their 21st birthday and that underage drinking can lead to dangerous behaviors such as binge drinking and drinking and driving. In an effort to combat underage drinking and driving, the federal government passed a law requiring each state, under the threat of losing federal highway money, to suspend the license of any minor driving with a blood alcohol content (BAC) of .02% or higher.

To comply with this federal law, states have passed “Zero Tolerance Laws” that make it illegal for a minor to operate a car after drinking even a very small amount of alcohol, even when there is no evidence that the minor’s ability to drive was impaired. In addition to losing their licenses, minors who violate their state’s Zero Tolerance Law may also suffer other consequences.

Operating a vehicle

States define driving or operating a vehicle in different ways. In some states, operating a vehicle is broadly defined to include being in control of the car, even if it is not moving. For example, sitting in the driver’s seat with the keys in the ignition may be considered operating a vehicle.

Blood alcohol content

Depending on the state, the BAC limit for minors may be .00%, .01%, or .02%. In states with a .00% limit, it is a crime for a minor to drive after drinking any amount of alcohol. Even in states with slightly higher BAC limits, a minor who has one drink or even one-half of a drink could be convicted of a DUI.

Punishment

Under each state’s Zero Tolerance Law, minors who drive with BAC over the legal limit will lose their licenses and may also face other penalties.

Driver’s license suspension

Minors can lose their licenses if they:

  • have a BAC over state’s Zero Tolerance limit, or
  • refuse to take a BAC test (such as a blood test or a Breathalyzer).

Often, the police officer that makes the traffic stop or responds to the accident can take and suspend the minor’s driver’s license then and there. While the length of the suspension can vary based on the state, the minor’s age, and the minor’s BAC, suspensions of one to two years are not uncommon.

Other penalties

Additional punishments for underage DUI convictions vary depending on the facts of the offense and the state’s laws. A DUI that results in an accident that causes injury or death will be dealt with much more harshly than a DUI that results in a mere traffic law violation.

Possible consequences include:

  • jail time or time in a juvenile facility
  • participation in an alcohol treatment program
  • restitution (repayment) for any damages caused to property or medical expenses
  • driving safety classes
  • installation of an ignition lock that only permits the driver to start their car after blowing into a Breathalyzer
  • community service, and
  • fines.

Punishment for multiple DUIs

While first-time offenders face stiff penalties, many states have imposed harsher punishments for second (or subsequent) DUI convictions. Depending on the state, second DUIs may be treated as felonies, or may require mandatory jail time (or time in a juvenile facility) in addition to the other penalties listed above. In many states, a conviction or license suspension for an underage DUI can qualify as a first offense if the defendant is later convicted of DUI as a minor or as an adult.

Representation

Don’t let a DUI ruin your record. Contact our office to obtain legal representation for your case. Skip Potter has been practicing defense law for over 30 years. Let him, help you. Contact the office now to schedule a confidential consultation.

Source: http://www.criminaldefenselawyer.com/crime-penalties/juvenile/underage-dui.htm

Drunk and Disorderly - 3/24/2017

Drunk and Disorderly

In Ohio, people commit the crime of disorderly conduct by:

  • while intoxicated, engaging in conduct that risks harm to themselves, others, or other’s property, or
  • while intoxicated in a public place (or in the presence of two or more people), engaging in conduct that is likely to offend, inconvenience, scare, or annoy others.

(Ohio Rev. Code § 2917.11.)

For example, a diner in a restaurant who becomes belligerent and starts yelling obscenities at people after drinking too much could be convicted of disorderly conduct, as could a group of drunken college students who are caught swimming in a dangerous quarry at night.

In contrast, a couple who get drunk and pass out in their own home are not guilty of any crime so long as their behavior does not pose a risk to themselves or anyone else.

Similarly, people cannot be convicted of disorderly conduct for merely sleeping or sitting in a parked car while intoxicated. Of course, people who operate a motor vehicle while intoxicated can be convicted for driving under the influence (DUI).

Aggravated disorderly conduct

Disorderly conduct is punished more severely if:

  • the defendant continues the conduct after being asked or warned to stop
  • the conduct occurs at or near a school
  • the conduct occurs in the presence of law enforcement officer, firefighter, medical personnel, or any person responding to an emergency.

(Ohio Rev. Code § 2917.11.)

Protective Custody and Treatment

A person who appears to be intoxicated or an alcoholic and who would benefit from alcohol treatment may be taken into protective custody under certain circumstances.

Instead of making an arrest, a police officer may take a person who is drunk and disorderly to an alcohol and drug treatment program for up to 48 hours. The person must be released if he or she wants to leave.

A judge can place a person charged with any misdemeanor in an inpatient treatment program for up to five days. If the person is charged with disorderly conduct, the judge can dismiss the charge contingent on the defendant successfully completing treatment.

A judge can also order a person convicted of being drunk and disorderly, driving under the influence, misdemeanor domestic violence, or violating a protective order into alcohol treatment as part of the defendant’s sentence. The ordered treatment cannot last longer than the defendant’s maximum possible term in jail or prison.

(Ohio Rev. Code § 2935.33.)

Punishment

Disorderly conduct is a minor misdemeanor, punishable by a fine of up to $150. Aggravated disorderly conduct is a misdemeanor in the fourth degree, punishable by up to 30 days in jail and a fine of up to $250.

(Ohio Rev. Code §2929.24, §2929.28.)

Obtaining Legal Assistance

If you are charged with disorderly conduct, you should contact an Ohio criminal defense attorney. An attorney can tell you how your case is likely to fare in court, based on the facts and the assigned judge and prosecutor. With an attorney’s help, you can hopefully achieve the best possible outcome in your case.

If you do find yourself in a situation like this, please do not hesitate to contact our office at (419) 353-SKIP to schedule a confidential consultation. We are available 24/7 and are happy to assist you with your legal needs.

SOURCE: http://www.criminaldefenselawyer.com/resources/ohio-public-intoxication-laws.htm#

 

What is an OVI? - 3/17/2017

WHAT IS AN OVI?

OVI is the abbreviation for Operating a vehicle impaired. Ohio’s General Assembly amended our drunk driving/DUI statute to broaden the offense from driving under the influence to operating a vehicle impaired. The big difference is that operation does not require that the vehicle actually be moving. As a matter of fact, the vehicle doesn’t even have to be running so long as you are in the driver’s seat and the keys are within reach. Example: the vehicle is pulled off to the side of the roadway with the driver in the driver’s seat asleep (passed out) and the keys in the driver’s hand.

If the police officer can’t prove that you actually drove the vehicle while impaired, you can be charged with Physical Control (Ohio Revised Code Section 4511.194), however, so long as it can be reasonably inferred (either through direct or circumstantial evidence) that you drove while impaired, you can be charged with OVI.

WHAT DOES “PHYSICAL CONTROL” MEAN?

What does “Physical Control” mean?  Ohio’s Physical Control Statute, O.R.C. 4511.194, became effective on 1/1/05. Physical Control is similar to an Ohio OVI/Ohio DUI charge in that it deals with being in a vehicle while under the influence of alcohol or drugs of abuse with one exception, Physical Control does not require that the vehicle have ever been driven or even started.

The best example of a Physical Control violation is the person who staggers out of the tavern and decides to “sleep it off” in their vehicle. Often times what happens is the person starts the car, either to run the air conditioner or the heater, so the vehicle is actually running, then goes to sleep. However, one need not have the car running or even have the keys in the ignition in order to be in violation of O.R.C. 4511.194 – Physical Control. Under the statute, having the keys within reach will satisfy the definition of having “physical control.” The physical control statute was essentially designed to “reward” or rather, not punish as severely, the person who drinks too much (or uses drugs of abuse) and then gets into their car, but decides not to actually drive.

CAN MY OHIO OVI/OHIO DUI CHARGE BE REDUCED TO A RECKLESS OPERATION CHARGE?

There is an overwhelming opinion amongst the general public (or maybe just the drinking public) that a first offense Ohio OVI/DUI should be reduced to a reckless operation charge. Can this really happen? Well, it depends in large part on a number of things, including, but not limited to:

1.) The prosecutor’s attitude toward OVI/DUI charges;

2.) The Court (or Judge’s) attitude toward OVI/DUI charges;

3.) The actual facts of your case, including such facts as:
a. Was there a breath test performed and if so, how high (or low) was the  result;
b. Was there an accident or bad driving; and
c. Where you polite and cooperative to the arresting officer.

These are but a few of the many considerations that will be considered when the prosecutor and your attorney sits down to discuss the possible out come at a pre-trial conference. This is not to say that if you had a low breath test and you were polite and cooperative that it guarantees a reduction of your charge, in fact, many courts (or prosecutors) take a “no reduction” or “zero tolerance” approach with OVI/DUI charges. This is why it is so important to find an attorney who is familiar with the court and prosecutor that you will be facing in your OVI/DUI case.

If you do find yourself in a situation like this, please do not hesitate to contact our office at (419) 353-SKIP or contact us to schedule a confidential consultation. We are available 24/7 and are happy to assist you with your legal needs.

Source: http://ovilaw.com/ohio_ovi_faq.asp