Potter Law Blog

What to do if you’re arrested for OVI - 2/4/2018

What used to be known as DUI charges in the state of Ohio is now referred to as an OVI, or operating a vehicle impaired. What many people do not know about OVI/DUI charges is that the law is not limited to individuals driving a traditional vehicle, like a car or truck. An officer can charge you with drunk driving if you are driving a golf cart, ATV, lawnmower or even riding a bicycle.

If you think you can avoid an OVI/DUI arrest by sleeping it off in the car before heading home, you would be wrong. An officer can pursue OVI/DUI charges against any individual who is “in control” of the vehicle. Under Ohio law, if you are in the driver’s seat and have the keys in your position, you are in control of that vehicle and can face an OVI/ DUI arrest.   

Be polite, but don’t incriminate yourself

Whether you were pulled over for speeding or weaving out of your lane, a police officer is trained to identify evidence of intoxication from the moment they approach your vehicle. After finding a safe place to pull over, remain in your car with your hands on the steering wheel. Be polite and do not lie to the officer, however, you can decline to answer incriminating questions.

Any observation that an officer makes, slurred speech, alcohol or drugs that are visible in the vehicle, lack of coordination, etc., will be used as probable cause to justify the officer making an arrest for operating a vehicle impaired. Don’t add to that evidence by answering “how much have you had to drink” with a response of “5 beers and 3 shots of tequila.” You have the right not to answer, and your OVI/DUI attorney will thank you.  

After an arrest, it is your attorney’s job to review any evidence the officer collected to determine if the officer was justified in administering a field sobriety test and/or arresting you. Charges can be thrown out if this evidence does not hold up, but not if you incriminate yourself with your responses.

 Breathalyzers and chemical tests

When you are detained for suspicion of drunk driving, the officer may ask you to submit to a breathalyzer or request a urine or blood test to determine if you are under the influence of drugs or alcohol.  You do have right to refuse, however you will face an OVI/DUI arrest and will automatically loose your license for a minimum of one year. This is outlined in Ohio’s implied consent law. Nevertheless, it is advantageous if you refuse to blow, which will make it harder for the officer to compile evidence against you.

Your rights after an arrest

Ohio law finds a driver to be “under the influence” if there is a blood alcohol level of .08 or higher. An OVI charge is not limited to alcohol, however. The use of drugs, legal or otherwise, that impair your ability to operate a vehicle can lead to an OVI charge.

Your OVI/DUI defense begins as soon as you are pulled over. When you are arrested, you have the right to request an OVI/DUI lawyer who can advise you of your options. In situations like this, you want an OVI/DUI lawyer who is not only experienced in dealing with Ohio laws, but is also available 24/7. The Law Office of Skip Potter has been representing individuals in northwest Ohio for 30 years. If you want a lawyer you can trust to help you make the best legal decisions in a difficult situation, you want Skip Potter on your side.

What is PROBABLE CAUSE? - 1/20/2018

What is Probable Cause

Probable cause is loosely defined as a reasonable belief that an individual has, is, or will commit a crime. In order to prove probable cause, a police officer must have factual knowledge and evidence for a judge to sign off on a warrant for arrest as well as the search and/or seizure of property.

Establishing Probable Cause

Although factual evidence must be provided to prove probable cause, police are not expected to prove guilt beyond a reasonable doubt at this stage. They simply need to provide sufficient knowledge of objective facts that support their belief that a person may have committed a crime.

Sources of probable cause can come from any of the following categories:

  • Observation – This can include information an officer collects through sight, smell or sound. For example, the smell or visual evidence of drugs give an officer probable cause for an arrest, search and seizure of evidence.
  • Circumstantial evidence – This is evidence that indirectly indicates that a crime has been committed (for example, a broken window). Although this evidence does not prove guilt, it does provide probable cause in an investigation.
  • Expertise – Police officers are trained to identify movements, gestures and tools that indicate criminal activity. Their expertise in this area can provide sufficient evidence for a judge to sign off on probable cause.
  • Information – This includes statements taken from witnesses, victims and informants.
  • Consent – When a defendant voluntarily agrees to a search, probable cause is automatically established.
  • Traffic Violations – To justify a traffic stop, an officer must personally observe a violation. This could include running a stoplight, weaving across lanes or failing to signal, just to name a few.

 Who determines if Probable Cause Exists

Although the police officer must provide the evidence to establish probable cause, a judge will give the final determination. There is no set amount of information required to prove probable cause, so the judge must balance the rights of the police to conduct an investigation with the rights of the individual, which are protected by the Fourth Amendment of the U.S. Constitution.

In some situations, police will establish probable cause in the moment and make an arrest. In these cases, a judge may later determine that the evidence the officers acted on was not sufficient, making any evidence collected inadmissible in court.

For this reason, obtaining an experienced criminal defense attorney is essential. Skip Potter offers tough, aggressive legal advice and representation that will help you make sound decisions when handling your legal issues. Don’t wait, call today for a free, confidential consultation at 419.353.7547.

 

NEED TO KNOW: Search Warrants - 1/16/2018

Search Warrants

If you have watched any crime drama on television or in the movie theater, you likely know that the police are usually required to present a warrant before conducting any search or seizure of person or property. In order to obtain a search warrant, officers must prove to a judge there is probable cause to suspect you of a crime.

Within the warrant, a judge will define a particular area that can be searched as well as specific items that can be seized. Police are not authorized to search any area outside of what is defined in the warrant unless they are acting to protect themselves or the public, or they are preventing the destruction of evidence.

Can police conduct a search without a search warrant?

There are situations where the police are able to conduct a search or seize evidence without first obtaining a search warrant.

  • Consent – If an individual voluntarily agrees to the search of his or her property, a warrant is not required. You do have the right to refuse a search when there is no warrant, although it is wise to consult a defense attorney before making this decision.
  • Plain View – If evidence is clearly visible, or police witness an illegal act, they do not need a warrant to conduct a search or seize evidence. For example, if you are pulled over and you have drugs on the seat next to you, the officer can legally search your vehicle.
  • Exigent Circumstances – If the police believe that public safety is in jeopardy or evidence is being destroyed, they are not expected to wait for a warrant before acting. This includes the pursuit of a suspect who is trying to escape.

Know your rights

Whether you are innocent or guilty, Skip Potter is committed to serving all of his clients as the best defense attorney in Northwest Ohio. He will fight effectively, compassionately and aggressively for your rights. This includes obtaining dismissals for false accusations and minimizing the charges that you may be facing. In all situations, Skip Potter will help you get the best outcome in your case.

OVI: Do you have to provide a blood test? - 1/6/2018

Do you have to provide a blood test when asked?

 If you are arrested for Operating a Vehicle while Intoxicated (OVI) in the state of Ohio, you are lawfully required to submit to a blood, breath or urine test. This is because of Ohio’s “implied consent law,” which basically states that by driving on Ohio’s roadways you automatically consent to taking a chemical test of the officer’s choosing within two hours of being arrested.

What may not be commonly known is that, even if you are sitting in a parked car, you can still be charged with OVI. The law state that if you are “in control” of the vehicle, meaning that you are in the driver’s seat and you have the keys in your possession, you are subject to the same charges as if you were driving the car down the road.

 

If you refuse to take the test…

 It does not help you to refuse to take a blood test when you are arrested for an OVI in the state of Ohio. As a matter of fact, under the implied consent law, refusal can be used as evidence that you were intoxicated and guilty of the OVI.

Regardless of your guilt or innocence, if you refuse to submit to a blood test after an OVI arrest, you will automatically lose your license for an entire year. If you are arrested for OVI and it is your second refusal, that suspension is increased to two years, and for three years for your third refusal. Any prior OVI convictions will count against you and increase the time of your suspension.

If you have two or more OVI convictions within the past six years, the arresting officer has the legal right to use reasonable force to obtain a blood test to measure your blood alcohol level. Reasonable force can include the officer physically restraining your arm so a nurse can draw your blood without your consent.

If you are facing an OVI/DUI arrest, the law office of Skip Potter is available 24/7, day or night. For a free DUI/OVI defense consultation to discuss your OVI arrest, contact Skip Potter at 419-353-SKIP.

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