Potter Law Blog

Drug Trafficking: Serious Consequences - 10/7/2015

Drug Trafficking Laws Invoke Serious Consequences

INDIVIDUALS CHARGED WITH DRUG TRAFFICKING IN OHIO FACE SEVERE PENALTIES IF THEY ARE CONVICTED. THE PENALTIES MAY INCLUDE FINES, FORFEITURE OF PROPERTY, PRISON SENTENCES, AND LICENSE SUSPENSIONS.

 

Q: What, exactly, is drug trafficking?
A: Drug trafficking is knowingly selling or offering to sell a controlled substance. A person also commits the offense of drug trafficking by shipping, transporting, delivering, or preparing a controlled substance for shipment/transportation/delivery when the person has reason to believe the recipient intends to sell the controlled substance.

Q: What if the seller does not receive money for the drug?
A: The seller can still be convicted of drug trafficking even if no money changes hands. The definition of “sale” includes barter, exchange, transfer and gift.

Q: What is a controlled substance?
A: A controlled substance is a drug, compound, mixture or substance included in schedule I, II, III, IV, or V of the Ohio Revised Code and the United States Attorney General’s Office.

Q: What if the drug involved is a prescription medication?
A: Many prescription medications are included in the schedules of controlled substances. Therefore, if a person knowingly sells or offers to sell a prescription medication that is in one of those schedules, that person may be convicted of drug trafficking.

Q: What are the potential prison sentences for a person convicted of drug trafficking?
A: The potential sentences for drug trafficking depend on the type of drug and the amount of the drug. For example, trafficking a small amount of marijuana is a fifth degree felony, punishable by six months to 12 months in prison, whereas trafficking 25 grams or more of crack cocaine is a first degree felony punishable by three to ten years in prison. ​In some instances, a prison sentence is mandatory.

Q: What are the potential financial sanctions for drug trafficking?
A: The court may impose a fine, and the amount of the fine depends on the level of the offense. For example, a fifth degree felony carries a fine of up to $2,500, and a first degree felony carries a fine of up to $20,000. The court may also order the defendant to pay court costs, costs associated with any jail time, and costs associated with the investigation into the trafficking offense.

Q: Can a court order forfeiture of property associated with drug trafficking?
A: Yes. In addition to fines and court costs, the court may order the convicted trafficker to forfeit the proceeds from the drug trafficking. The court may also order the forfeiture of property used in committing the drug trafficking offense.

Q: Is there really a mandatory driver’s license suspension imposed for drug trafficking?
A: Yes. If a person is convicted of drug trafficking, the court must suspend that person’s driver’s license for at least six months and up to five years.

Q: Can a professional license be affected?
A: Yes. If someone is convicted of drug trafficking, the court must transmit a certified copy of the conviction to the licensing board or agency that has the authority to suspend or revoke the professional license (such as a license to practice medicine or law).
​

This article was provided by the Ohio State Bar Association. It was prepared by Columbus-area attorney Shawn Dominy.

ARTICLES APPEARING IN THIS BLOG ARE INTENDED TO PROVIDE BROAD, GENERAL INFORMATION ABOUT THE LAW. BEFORE APPLYING THIS INFORMATION TO A SPECIFIC LEGAL PROBLEM, READERS ARE URGED TO SEEK ADVICE FROM AN ATTORNEY. IF YOU ARE IN NEED OF AN ATTORNEY, PLEASE CONTACT OUR OFFICE.

Have You Been Accused of a Crime? - 9/10/2015

Although the criminal process is similar throughout the country, some slight differences exist in each state. Here’s a general look at what happens if you’re charged with a crime in Ohio.

The Arrest

People can be arrested if there’s good reason – probable cause – for a law enforcement officer to believe they’ve committed a crime. Sometimes the arrest is on the spot because the officer witnessed the crime. More often, arrest occurs after investigators gather evidence. Sometimes officers will ask judges for arrest warrants, but that doesn’t happen often.

Before officers can begin questioning a suspect after an arrest, they must inform him or her about important rights. Judges can throw cases out if suspects aren’t advised of their constitutional rights to remain silent and to have an attorney.

After the arrest, the accused is booked at a police station. The suspect is photographed and fingerprinted, and personal items such as rings, watches and wallets are taken. The accused will have bail set and will either be released or sent to jail.

First Appearance and Arraignment

Within three days after the arrest, a suspect will be arraigned. At this hearing, the judge tells the accused about the charges leveled against him and reviews bail. The accused has an opportunity to enter a plea: either guilty, not guilty or no contest. A guilty plea is rare at this stage.

Preliminaries

Ohio defendants have the right to ask for a preliminary hearing if they’re charged with a felony. The hearing must be held within 10 days of the initial court appearance. At the hearing, the prosecutor must convince the judge that there’s enough reason to believe the defendant committed the crime. If the judge agrees, the case is set for trial. If he doesn’t, the case is dismissed.

Making A Deal

Most criminal cases are resolved when the defendant agrees to plead guilty or no contest to reduced charges or in exchange for a lighter sentence. Ohio judges usually abide by plea agreements, although they don’t have to.

Preliminary and Grand Juries

Preliminary hearings are rare in Ohio. Cases usually stem from either a complaint, a warrant and summons, or a grand jury indictment. An indictment occurs when a majority of 12 grand jurors agrees that the prosecutor has enough evidence to indicate a crime has been committed.

The Trial

Citizens can be tried by jury or before a judge if both sides agree to this. Most felony trials are held before juries, and in Ohio, they must take place within 275 days of the arrest. Both sides present their evidence and arguments, then the jury decides if the prosecution has proven the defendant’s guilt beyond a reasonable doubt. If all jurors can’t agree, a mistrial is declared and the case can be tried again before new jurors. Although Ohio has broad sentencing guidelines, judges are the ultimate authority in deciding about prison or jail time, probation, community service or restitution.

Consult a Lawyer

This article provides an overview of Ohio’s criminal law system. If you’re accused of a crime, contact Skip Potter as quickly as possible so you can get legal advice geared toward your specific case.

SOURCE: http://research.lawyers.com/ohio/criminal-process-in-ohio.html

OVI Field Sobriety Tests - 8/19/2015

If the driver seems impaired due to any of the below reasons, the officer will ask the driver to exit the vehicle. As the driver exits, the officer will gather evidence of impairment from a driver who:

  • Shows angry or unusual reactions
  • Cannot follow instructions
  • Cannot open the door
  • Leaves the vehicle in gear
  • “Climbs” out of vehicle
  • Leans against vehicle
  • Keeps hands on vehicle for balance

Pre-Arrest Screening

The officer is now going to have you do some balancing exercises, which are basically gymnastics that do not gauge your ability to operate a vehicle. Nor is there any scientific evidence to show that these gymnastics measure impairment.

Horizontal Gaze Nystagmus

The officer is going to do a check of your eyes, to see if they bounce at certain times. But, this officer is not an ophthalmologist, does not have medical training, and does not know how your eyes look normally.

Each eye is checked for three different things, which they call “clues.” The maximum number of clues in one eye is 3 and the maximum number in both is six. According to the NHTSA manual of 2006, if 4 or more clues are evident, then there is a 77% chance the person’s blood alcohol concentration is above .080%. But, what the NHTSA manual fails to train the officers on is that with 4 clues, the person’s blood alcohol level could be as low as .040%

Walk and Turn Exercise

Officers look for the motorist to exhibit only 2 out of 8 possible clues to fail this test. This test is set up for failure. The clues the officer is looking for include:

  • Can’t balance during instructions
  • Starts too soon
  • Stops while walking
  • Doesn’t touch heel to toe
  • Steps off the line
  • Uses arms to balance
  • Loses balance on turn or turns incorrectly and
  • Takes the wrong number of steps

One Leg Stand Exercise

The officer will require the motorist to stand on one leg and count for 30 seconds. The officer is trained to carefully observe the motorist’s performance and look for 4 specific clues:

  • Sways while balancing
  • Uses arms to balance
  • Hops
  • Puts foot down

Many people say they couldn’t pass those roadside gymnastics even if they didn’t have a drink! They are right. Repeatedly, clients will come into this office who are overweight, have numerous extensive medical problems, and they can’t pass the balancing or walking tests.

Performing the roadside gymnastics IS NOT REQUIRED in Ohio. Police Officers in Ohio CANNOT arrest you merely because you refuse to perform the roadside gymnastics. Will they? Most likely—but that will give you evidence in your defense. The less subjective information you give the police officers, the less likely that your Constitutional Rights will be violated by an unlawful arrest.

If you do find yourself being arrested for operating a vehicle while under the influence (OVI/DWI/DUI), please do not hesitate to seek representation. Skip Potter will do whatever he can to get your charge reduced or dismissed. Contact us now!

Source: http://www.publicsafety.ohio.gov/links/DPS0011.pdf

What signs of insobriety do police look for after stopping a citizen on the roadside? - 8/12/2015

1.) What signs of insobriety do police look for after stopping a citizen on the roadside?

As the officer approaches a motorist’s vehicle they are instructed to immediately start gathering evidence to accuse you of impaired driving. The officer is using face to face observation and will be looking for:

    • Alcohol containers
    • Drugs or drug paraphernalia
    • Flushed face
    • Red, watery, glassy or bloodshot eyes
    • Odor of alcohol on breath
    • Cover-up breath sprays
    • Slurred Speech
    • Admission of drinking
    • Fumbling with wallet while trying to get license
    • Failure to comprehend officer’s questions
    • Inconsistent responses
    • Abusive language
    • Unsteady of feet while exiting vehicle
    • Swaying while standing
    • Leaning on car for support
    • Being combative, argumentative or jovial while talking with officer
    • Disheveled clothing
    • Soiled clothing
    • Lack of awareness in regards to time and place
    • Unable to follow police instructions.
    • Unusual actions

2.) What do police officers look for when trying to find drunk drivers on the roadway?

The following list of clues indicate what police look for when trying to establish whether the driver being observed is impaired. The higher the clue is on the list, the higher the probability of impairment. The list is based on research by the National Highway Traffic Administration:

    • Turning with a wide radius
    • Straddling center of lane marker
    • “Appearing to be drunk”
    • Almost striking object or vehicle
    • Weaving
    • Driving on other than designated highway
    • Swerving
    • Speed more than 10 mph below limit
    • Stopping without reason in traffic lane
    • Following too closely
    • Drifting
    • Tires on center or lane marker
    • Braking erratically
    • Driving into opposing or crossing traffic
    • Signaling inconsistent with driving actions
    • Slow response to traffic signals
    • Stopping inappropriately
    • Turning abruptly or illegally
    • Accelerating or decelerating rapidly
    • Driving with headlights off

· You will notice that many of the reasons police officers stop people at night—to accuse them of impaired driving—are not on the above list, like: (1) Speeding, (2) No License Plate Light, (3) Tinted Windows, (4) No Tail Lights, (5) One Headlight Out.

· Many impaired driving stops are “pre-textual,” meaning the police officer has already determined that he will arrest the driver for impaired driving. Thus, the only thing a motorist can do when stopped by such an officer is not to give him any evidence to help his case.

Surprisingly, speeding is not a clue of insobriety. This is because studies show that a person who speeds often exhibits signs of heightened awareness in the form of quicker judgment and reflexes.

3.) If I’m stopped by the police, should I answer any questions regarding drinking?

Citizens are not required to answer questions that are designed to be incriminating. In a police encounter, a simple request to speak to your attorney before answering questions, would be an appropriate response. However, informing the officer that you had one or two beers should not be harmful since it usually would not cause a person to be impaired. This response may explain away the odor of alcohol on a driver’s breath.

4.) The officer will ask you multiple questions at once to attempt to distract and confuse you. He may ask you to produce two things simultaneously, such as your license and registration, and is hoping that the driver will:

    • Forget to produce both documents upon request
    • Produce documents other that the ones requested
    • Fail to see the license, registration, or both while searching through wallet, or purse, etc
    • Fumble or drop his wallet, her purse, license or registration
    • Be unable to retrieve documents with finger tips

5.) What should I do if the police ask me to take field sobriety tests?

Understand that the police want you to help them make their case against you stronger. By performing field tests, you are simply helping the police manufacture evidence against you. Be aware that they fully intend on using this evidence against you in court. Therefore, taking an eye test, balancing test, or any other evaluation on the street is usually not a good idea. Most experts agree that police officers are not well trained enough to accurately interpret the symptoms observed while administering these street evaluations. This doesn’t mean that you need to be rude or nasty to an officer if he asks you to do a field sobriety test. Instead, its a good idea to ” respectfully decline” all tests on the roadside. Therefore, calling a DUI lawyer immediately after your arrest is important!

If you do find yourself being arrested for operating a vehicle while under the influence (OVI/DWI/DUI), please do not hesitate to seek representation. Skip Potter will do whatever he can to get your charge reduced or dismissed. Contact us now!

Source: http://www.publicsafety.ohio.gov/links/DPS0011.pdf

 

Do’s and Don’ts During Arrests and Custody - 6/17/2015

Do not argue with the police. You cannot talk your way out of being investigated, arrested or prosecuted. Any explanation you give the police may give them more information than they already have, so it’s often wise to save your explanation and defenses for court.

If you have been arrested, the police believe you committed a crime. Their job is to investigate and gather evidence. Telling the police your side without a lawyer present is usually a bad idea, even if you believe you have done nothing wrong.

Always pay close attention to what happens when you first encounter the police and afterward. Try to memorize who was there to see and hear what happened. Sometimes the court needs to look into what happened to you while you were in custody. It will help you if you can later fully inform your counsel about these events.

Do not tell your family and friends all about it or ask non-lawyers for legal advice. It is possible that they may be ordered to appear at trial to repeat what you said. Do not talk to another inmate or a corrections officer about your case. A conviction may result from a “jailhouse confession.”

Rely on your lawyer to advise and defend you no matter what you did or did not do. Legal ethics rules keep your attorney from disclosing without your permission any information you give him or her during the attorney-client relationship. However, your attorney may disclose your intention to commit a crime and the information necessary to prevent the crime. Also, your attorney has an ethical duty to keep you from offering testimony that he or she knows is not true.

What are my rights in court? 

Within 72 hours after your arrest, the judge must:
1. Tell you the crime of which you are accused and explain it to you if you do not understand it.
2. Give you a copy of the written complaint against you if you do not have one already.
3. Give you a continuance (more time) to get an attorney, or appoint one for you if there is a possibility you could go to jail if convicted and you can’t afford to pay an attorney to help you.
4. Tell you the nature and effect of the pleas you may enter. You may enter a plea of not guilty, no contest or guilty.
  • Not guilty means you do not give up any of your rights, including the right to a trial. If you are in doubt, plead not guilty.
  • No contest means you admit the facts in the complaint are true, but you deny guilt. The judge may find you guilty or not guilty. (A no contest plea cannot later be used against you in a civil lawsuit for money damages. Anyone who later sues you over the incident must prove you were at fault and violated the law.) Most no contest pleas result in a guilty finding unless the arresting officer has cited you under the wrong statute or ordinance, or if the arresting officer’s written statement of facts fails to sufficiently support the charge.
  • Guilty means you admit the crime(s) of which you are accused and waive (give up) your right to a trial, where the prosecution would have to prove you guilty beyond a reasonable doubt. You also give up your right to remain silent. The judge may sentence you immediately or at a later hearing. A guilty plea can later be used to prove you were at fault in a civil lawsuit. A guilty plea can also lay the basis for a harsher punishment if you are later convicted of another offense.
You are entitled to have a record made by a court reporter or tape recorder of what has happened in the courtroom. Then, if a question later arises, you have evidence of what happened when you were in court.

Source: https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-21.aspx

Your Rights if Questioned, Stopped or Arrested by the Police: Part 3 - 6/10/2015

What are my rights if I am arrested?

 
1. An officer who wants to ask you questions other than your name and address must advise you that you have a right not to answer the questions.

2. You have the right to be told why you are being arrested and the nature of the charges against you (the crime for which you are being arrested). If you are arrested on a warrant, you have the right to see the warrant within a reasonable time after your arrest, to read it and make certain your name appears on it, and to see the charge against you.

3. You have the right to be told your constitutional rights (“Miranda” rights) before being questioned following your arrest. These Miranda rights are:

  • ​The right to remain silent and not answer any questions;
  • The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in court;
  • The right to stop answering questions at any time and talk with an attorney, even if you have begun to answer questions; and
  • The right to speak privately with an attorney before answering any questions or signing anything.
  • If you cannot afford an attorney and if the crime that prompted your arrest has jail time as a possible penalty, you also have a right to have an attorney appointed to represent you at no cost to you before being questioned, and to have that attorney with you during any questioning to which you may later agree to submit.

You CANNOT be penalized for refusing to answer an officer’s questions. If you try to cooperate by answering questions while you are being held in police custody, you may create difficulties for your lawyer in defending you. ALWAYS ASK TO SPEAK TO A LAWYER.

4. You also have the right to:

    • Contact, by telephone or otherwise, a responsible person, to tell him or her you have been arrested and what the charges are. You are not limited to one telephone call if more calls are needed to contact someone. 
    • Refuse any physical or chemical test (such as a polygraph “lie detector,” breathalyzer, intoxilizer, field sobriety tests or physical performance tests such as walking a straight line or making other movements, the look-at-the-pen test, or mental ability tests like reciting the alphabet or doing math), until you can talk to your lawyer. 
    • Have your attorney present at any line-up or other identification procedure in which you are viewed by possible eyewitnesses to a crime. 
    • Reasonable bail or bond to secure your release from jail unless you are charged with a capital crime. Usually a judge sets the bail or conditions of your release. If you are charged with a misdemeanor, and if no judge is available, the police may, at police headquarters, accept bail in accordance with rules established by the judge. 
    • Be brought before a court as soon as is reasonably practicable after your arrest, so that you can request a preliminary hearing to test the basis of your arrest and/or trial to determine your guilt or innocence. 

If I am arrested, what will the police do?

The police will search you for weapons, handcuff you, transport you to jail, and photograph and fingerprint you for identification.

If you are not under arrest or if police do not have a search warrant (a court order allowing them to search), the police may ask you to let them search your car, your home and/or other possessions. You can refuse to consent to these searches.

You have a right to be free from unreasonable searches and seizures. Most of the searches for which an officer might ask your consent would require the officer to first get a warrant from a judge, unless you consent and give up this right. 

Only a judge can decide whether the search is proper before that search is conducted. There is no penalty for exercising your right to have the judge decide whether to allow the search. Your refusal to consent to a search cannot be used against you.

If you are unsure how to respond to an officer’s request, assert your right to counsel and discuss the request with your attorney before doing or saying anything.

Since July 1, 2011, Ohio law has required that a law enforcement agency must collect and forward a DNA specimen to the Bureau of Criminal Identification and Investigation when the agency arrests a person 18 years or older for a felony.

If you or someone you know has been arrested and needs representation, contact Skip Potter to help assist you with your case.

Source: https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-21.aspx

 

Your Rights if Questioned, Stopped or Arrested by the Police: Part 2 - 6/3/2015

If I am arrested? 

An arrest is different from a stop. A stop involves brief questioning in the place where you were detained. If the officer wants to hold you longer, or decides to take you elsewhere, such as to the police station, he or she is no longer just stopping you, but is arresting you. An arrest deprives you of your freedom of movement for an even longer period of time than a stop, so the law limits the instances when arrests can be made.

When can I be arrested? 

You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. Police arrest powers vary depending on the seriousness of the offense. The important thing is that the officer sees the violation.

 1. If the charge is a minor misdemeanor for which only a fine is the possible penalty (not time in jail), the officer may not arrest you and take you into custody unless you fail to give your name, refuse to sign the citation, or have previously failed to appear in court or pay a fine on a similar offense.

 2. An officer can generally only arrest you for a misdemeanor committed in his or her presence, EXCEPT if: a.) you have an outstanding warrant or long history of failure to appear in court; b.) your medical or mental state might cause you to harm yourself or others; c.) the offense is domestic violence or the officer is concerned you may harm another person; d.) you fail to identify yourself with your name and date of birth. If you refuse to identify yourself, the officer can take you into custody to determine your identity.

3. You may be arrested for a felony (a crime for which jail is a possible penalty), even if the police officer did not personally see you commit the felony, IF the officer had probable cause to believe you committed the crime. Later, the court system (not the police) will determine if the officer’s belief was reasonable and if you are guilty or innocent.

4. You may be arrested when there is a warrant for your arrest, whether or not you are aware of the warrant. The police cannot cancel an existing warrant. They must serve it and arrest the person named on the warrant.

An arrest warrant is a legal document, issued by a judge or a clerk of the courts, directing the police or the sheriff to arrest you and take you into custody. This document does not have to be on any particular form. The arresting officer is not required to have the warrant in hand when you are arrested. The officer must show you the warrant within a reasonable time after you are arrested and give you a copy. If the officer fails to do so, tell your attorney later.

Even if you believe the officer has no grounds to arrest you, do not argue with or resist the police. You have no right to argue about why you are being arrested or about your guilt or innocence at the time of the arrest. Arguing or resisting will not help you. It will mean the police can bring additional criminal charges against you, and may make it harder for you to get out of jail on bail if you are charged.

  • ​Again, do not argue with the police.
  • Never resist your arrest. Do not run away.
  • Never resist the arrest of another person.
*Check back next week for Part 3 of Your Rights if Questioned, Stopped or Arrested by the Police
Source: https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-21.aspx

 

Your Rights if Questioned, Stopped or Arrested by the Police: Part 1 - 5/27/2015

What are my rights and responsibilities …

 If the police approach me and ask me questions? 

Suppose you are outside your home or in a public place when the police arrive and begin asking questions. Law enforcement officers have a duty to protect the community they serve, its citizens and their property. The law gives police certain powers to help them perform that duty.Police have the power to approach persons and ask them questions. Simply because you are approached and questioned by the police does not mean you are suspected of having committed a crime. All citizens are encouraged to cooperate with the police so those who break the law can be brought to justice, but, with one exception, discussed below, you have no legal duty to answer any question, and you may refuse to answer. This is called the right of silence. You should never lie to a law enforcement officer, however.  If you do, you can get into trouble for “obstructing official business.”

​​If the police “stop” me and ask me questions? 

Suppose you are walking down a street when a police officer confronts you and says: “Stop. I need to ask you some questions.” A person is “stopped,” or “detained,” when an officer uses enough force, or a show of authority, to make a reasonable person feel he or she is not free to leave. If, in addition to calling out for you to stop and using his or her authority to make you stop, the officer also pulls out a weapon or uses a threatening tone of voice, it would be even clearer that you have been “stopped.” If the officer interferes with your liberty to move about, he or she should first have a reasonable suspicion that you have been involved in a crime. The officer would need to support this suspicion later (should the matter should wind up in court) by referring to specific facts that prompted the suspicion.The police do not have to tell you that you are a suspect or that they intend to arrest you, but if they use force or a show of authority to keep you from leaving, they probably consider you a suspect, even if you were the person who called the police. If they read or recite your Miranda rights, they suspect you have committed a crime.You have the right, if you are stopped, to refuse to answer any questions for any reason or no reason. You can invoke your right to silence by saying, “I refuse to answer any questions” or “I want to speak to a lawyer” or “I wish to remain silent.” If you do not clearly invoke your right to silence with such a statement, you may subject yourself to continued questioning by police.

There is one exception to your right to silence: According to Ohio law since April 2006, if you are in a public place and under certain circumstances, you must give your name, address and date of birth to an officer. If you fail to provide this information under such circumstances, you will be committing a fourth-degree misdemeanor and may be arrested.

Also, if you are only being stopped, you can refuse to give your consent for an officer to search your person, vehicle or home. Your refusal will force the police officer to legally justify any search made without your consent. Be aware, however, that Ohio law does permit some limited searches (such as patdowns) in “stop” situations in order to search for weapons.

Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won’t incriminate them, but it can provide a link in a chain of information that could incriminate them.

Even if you believe the officer has no grounds to stop and question you, do not argue with or resist the police. Arguing or resisting  will not help you, and may make it more likely that the police will arrest you and bring criminal charges against you. It may also give them grounds to bring even more criminal charges against you, which can make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should say you are free to go before asking to search you or your car.

*Check back next week for Part 2 of Your Rights if Questioned, Stopped or Arrested by the Police
Source: https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-21.aspx

Challenging the Blood Test in a DUI Case - 5/20/2015

Learn about challenging the results of a blood test —

and subsequently your BAC — in a DUI case.

Most DUI investigations involve either blood being drawn or a breath test being taken.  This article addresses some of the issues that arise regarding blood testing.  Most people (and unfortunately many “DUI” Lawyers) generally believe that if you take a blood test in a DUI investigation the results of an analysis of the blood are highly accurate and not subject to contest.  Nothing could be further from the truth.  This perception is not reality and simply stems from a lack of knowledge.

Condition of the Blood Sample Being Analyzed

The theory of blood testing is that the blood that is being analyzed is in the same condition as the blood that is in the person’s vein at the time it is drawn.  However this is rarely the case.  The law requires that the integrity of the blood sample be maintained from collection to analysis to reporting.  Science recognizes that the integrity of the blood specimen can be adversely affected from the point of collection through reporting of the result.

Collection of Blood

The manner in which the blood is collected, or drawn can affect the integrity of the blood specimen.  Studies have shown errors associated with the blood draw can lead to false positive analysis as high as 50%.  The drawing of blood is a sensitive medical procedure.  While there are exceptions, most persons typically performing the blood draws have limited background or training in the medical field.  Despite a lab coat or laminated ID card most of these individuals have completed a program consisting of no more than a 40-hour training course and 40 hours on the job training without any real understanding of the significant medical aspects of drawing blood.  As a result of this minimal training the integrity of the specimen is often compromised.

Storage of the Sample

The manner in which the blood is stored and maintained prior to being analyzed is a further source of error leading to false positive results.  Studies have shown error rates well over 100% can result from delays and improper storage of blood specimens.  All the conditions necessary for fermentation are present within the blood vial.  This includes amongst others the presence of yeast, bacteria and sugar that are normal substances in your body.  Even short delays or changes in temperature can exacerbate the conditions leading to fermentation.  Fermentation is the process by which alcohol is formed.   As a result of fermentation the amount of alcohol in the blood vial where the specimen is held will increase so that the total amount of alcohol in the blood specimen is a false high representation of what was contained in the person’s veins.

Testing of the Blood

Most forensic labs involved in analyzing blood specimens for alcohol on behalf of law enforcement use a procedure involving a machine known as a Gas Chromatograph.  Often times the manner in which this equipment is employed results in a presumptive determination of alcohol as opposed to a confirmatory method specific to alcohol.  This method can cause compounds which may respond to the method of detection in a manner similar to alcohol to be falsely measured as alcohol.  Additionally, this method cannot determine whether the alcohol being measured was originally present in the person’s vein or whether the alcohol being measured is that formed during the delay before analysis has occurred.

Lack of Error Reporting by Forensic Labs

Finally, most forensic labs are reporting the results of their analysis without having scientifically determined the actual rate of errors involved with their process.  Failure to ascertain the total uncertainty or range of error associated with the lab’s method is not a scientifically sound or valid procedure.  Most lab accreditation organizations are now requiring labs to ascertain and report the range of uncertainty associated with their method.  This is a complex process that requires the lab to continually ascertain, update and maintain that determination.  Law Enforcement Forensic Labs are often either not competent or not concerned with adhering to sound scientific procedures.  As a result forensic labs often report an arbitrary and scientifically invalid blood alcohol concentration level.

It’s Best to Have Professional Representation After a DUI

This article is not meant to be a technical discussion but rather to help the reader understand that when a person gets pulled over and arrested for Driving Under the Influence – DUI – and takes a blood test; the results from the analysis are not always valid.  If you or someone you know has been arrested for a DUI you can fight the allegations being made against you that often times might be based on false evidence.

If you or someone you know needs representation fighting an OVI/DUI charge, you should contact Skip Potter to help assist you with your case.

Source: http://dui.drivinglaws.org/resources/dui-and-dwi/dui-defense/challenging-blood-test-dui-case.htm

Ohio OVI/DUI: Refusal to Take a Blood, Breath, or Urine Test: Part 2 - 5/13/2015

In Ohio, if you get pulled over for an OVI (operating a vehicle under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?. . .

. . . Continued from last week, we discussed implied consent regarding an OVI, this week we will discuss refusing the test.

Refusing to Take the Test

1st Offense 2nd offense 3rd Offense
Refusal to take test 1 year suspension of license 2 year suspension of license 3 year suspension of license

Once you are arrested, you can’t refuse a test without facing the consequences of refusal. The officer does not need to tell you the following penalties for refusing a test. You will lose your license for one year if this is your first refusal, for two years for your second refusal within six years, and for three years for your third refusal within six years. For any subsequent refusal, you will lose your license for five years. If you have had any prior OVI convictions, then the state will count those against you by increasing the time of your suspension. Also, you have to pay a $475 fine to get your license back after you finish your term.

If you have been convicted of an OVI two or more times within six years of your last offense, the officer can use any reasonable means to make you take any chemical test and should tell you this before asking you to take one. Whether the means are reasonable will depend on the particular situation, but an officer holding a person’s arms down by the wrists so a nurse could draw blood is a good example of acceptable restraint. You can find this example in the case State v. Slates, 2011 Ohio 295 (2011). Once you submit to the blood test, then you have the right to have a medical professional of your choice take an additional test, and the officer should tell this, too.

Should You Refuse to Take a Mandatory OVI Test in Ohio?

It does not help you to refuse to take a blood, breath, or urine test when you are arrested in Ohio because an officer can use reasonable force to make you take one. Although the penalty for a first OVI in Ohio is high – you face up to three days in jail, a fine of at least $375, and your license will be suspended for any time between six months and three years – you may not be able to avoid these consequences by refusing a test. Even in the unlikely event that no test was possible, so the state does not have proof that your BAC was over .08%, you still could be found guilty of an OVI. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of OVI. However, by refusing the test, there is less evidence that could potentially convict you of an OVI.

Get Help With Your OVI

If you have been arrested on an OVI charge in Ohio or any other state, get help from an experienced OVI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for an OVI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent OVI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court. If you are looking for representation, contact Skip Potter so that he can assist you with your case.

Source: http://dui.drivinglaws.org/resources/dui-refusal-blood-breath-urine-test/ohio.htm