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Dayton DUI Attorney Podcast: Charles M Rowland II Explains Essential Information on Ohio OVI Defense 26 Aug 11:10 AM (last month)

Charles M Rowland II recently appeared as a guest on the “Ask a Lawyer” podcast with Steve Sleeper.

Looking for real insight into DUI defense in Ohio? In this Dayton DUI attorney podcast, lawyer Charles M. Rowland II shares his 30 years of experience defending OVI cases across the state. From the impact of marijuana law changes to the complexities of first-time DUI penalties in Ohio, Rowland explains why no case is ever “simple” and what drivers need to know if they are stopped, arrested, or facing trial. Whether you’re concerned about breathalyzer tests, license suspension, or immigration consequences, this interview offers practical advice and proven strategies from one of Ohio’s most trusted DUI attorneys.

Ask a Lawyer with Steve Sleeper · DUI Defense Attorney Charles Rowland in Dayton Ohio

Key Takeaways: Dayton DUI Attorney Podcast Episode

Topics

Meet Charles M. Rowland II, Ohio DUI Lawyer

Choosing a DUI Lawyer

Key Legal Insights Shared in the Podcast

DUI Cases in Court: Plea Deals vs. Trial

Protecting Your Rights During a DUI Stop

Breathalyzer and Blood Tests

First-Time DUI Penalties in Ohio Explained

Discovery in DUI Cases

Immigration Status and DUI

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The Consequences of Ohio’s Open Container Law 7 Feb 11:01 AM (8 months ago)

Ohio’s Open Container Law, R.C.4301.62

It is illegal to possess in public an open container of an alcoholic beverage. Conviction of this offense carries a maximum penalty of a $150 fine. Consumption of alcohol in a motor vehicle is a fourth-degree misdemeanor with maximum penalties of 30 days imprisonment or a $250 fine or both.

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Ohio law prohibits carrying an open container of alcohol in most public places, including streets, highways, and motor vehicles. However, there are some exceptions. On-premises consumption: You can hold an open container of alcohol if it was legally purchased for on-premises consumption. Tastings and samplings: Open containers of alcohol are permissible during tastings and samplings. DORAs: You can possess or consume an opened container of alcohol purchased from a DORA designated permit holder within the DORA 

If you are facing an OVI (drunk driving) charge, an open container or any other alcohol-related charge, please contact Charles M. Rowland II at (937) 318-1384.

Below is the full text of Ohio’s Open Container Law. Learn how to hire a DUI Defense attorney.

OPEN CONTAINER LAW

4301.62 Opened container of beer or intoxicating liquor prohibited at certain premises.

Effective Date: 04-07-2004; 09-21-2006

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Winning Your Ohio OVI Case 4 Feb 9:16 AM (8 months ago)

Are you the best OVI Attorney?

best dayton OVI attorney

Often a prospective client will ask, “Are you the best OVI attorney?”  I always answer this question by saying that I am a damn good OVI attorney, but you should investigate me to determine if I am the best OVI attorney for you.  The most important decision you will make in your case is determining who will represent you.  Here are some things to help you find the best OVI attorney – FOR YOU!

How Much Of Your Practice Is Dedicated To OVI Defense?  

OVI defense is a complex area of law involving forensic science, specialized knowledge and litigation techniques specific to OVI.  Successful practitioners will have access to information, arguments, experts and materials that come from being exposed to multiple OVI cases.  OVI attorneys will have blogs, websites, materials, scientific studies, and books specific to the field.  Ask your potential attorney what OVI-specific organizations he belongs to, what legal education conferences he has spoken at or attended.

Ask your potential attorney to hand you his or her copy of the NHTSA Student Manual that he will use in court.  Does the attorney have one?  Is it up to date?  Thanks to the internet you can find out all you need to know by looking at other sites that the attorney is featured on.  On www.AVVO.com, attorney profiles have a breakdown of the lawyer’s practice areas that are self-reported by the attorney.  Your search for the best DUI attorney should start with a determination if the attorney does, in fact, practice in the area for which you are seeking representation.

I limit my practice to OVI defense.  100% of my time and energy is devoted to representing the accused drunk driver. 

What Are Your OVI Credentials?

Your search for the best OVI attorney should include a discussion of the attorney’s credentials. Credentials are earned through hard work and dedication to the cause of drunk driving defense.  Often, OVI attorneys receive specialized training and certification on the breath testing machines in their jurisdictions.  These certifications are invaluable in understanding how a machine could malfunction or give a falsely high reading.  Dedicated OVI counsel can also receive specialized training in the Standardized Field Sobriety Testing by becoming certified to administer and evaluate the field tests.

Having worked both sides of the DUI issue can also be an important credential.  Has the attorney ever worked as a prosecuting attorney?  Did the attorney prosecuted a OVI case?  Has the attorney ever lectured or written on OVI topics for journals, newspapers or bar associations?  The truth is that the internet has many directories or referral services where an attorney can be listed as a “OVI” attorney with little or no OVI experience whatsoever.  Yellow page advertisements, which often have OVI listed among many other practice areas, can also be misleading as to OVI credentials.  It is up to you to dig deeper and demand that the attorney demonstrate a depth of knowledge in OVI defense.

I am very proud of my credentials.  I believe myself to be amongst the most qualified and credentialed OVI attorneys in the country.  What is more, I am constantly trying to learn and improve.  You deserve nothing less.

Are You Experienced? Have You Ever Been Experience? Well, I Have

There is no substitute for experience. You should be confident in the knowledge that you have hired someone who has real experience defending OVI cases.  Ask the following and, if you don’t get straight answers, get up and leave: Have you ever tried a DUI case to a jury?  Has your attorney ever tried a felony OVI case?  Ever tried a “test” case (a case where the person blew into a breath machine)?

What about a “refusal” case (a case where the person refused to blow into a breath test machine)? Has the attorney ever tried a OVI case in federal court?   Have you ever argued cases involving dentures?  Has the attorney ever argued a case involving AMBIEN sleep medication?  Have you ever represented Doctors? Dentists? Pilots? Paramedics? Athletes? Cops? Other Lawyers? Military Personnel?  How many OVI Motions to Suppress have you done?  Have you ever done a motion or trial in the court where I will appear?

I can answer “YES” to each of these questions.  In addition to my lectures and writings on OVI topics I have testified as an expert witness on evidential breath testing for the United States government.  I am also proud to be the OVI defense attorney brought in to cross-exam police cadets at the Greene County Police Academy mock trial.

Will You Be Representing Me?

If you meet with a highly qualified, experienced and credentialed OVI attorney, make sure that he or she will be the attorney representing you at each stage of the case.  If the attorney says that his firm uses a “team approach” this may  be a way of saying that you will be shuffled off to an associate once you have paid.  Another evasion is for the attorney to say, “all of our attorneys are involved in your case.”  If you hire Michael Jordan make sure you don’t get someone who attended the Michael Jordan basketball camp.  Your case is the most important case in the world to you! You are not a commodity to be managed, but a client to receive the best the attorney has to offer.  When you decide that found the best DUI attorney, make sure that he or she will be the one doing the work.

At Babb & Rowland, I am the only attorney who handles drunk driving cases.  Barring an emergency I will be at every court appearance and I will be the person providing you information at every stage of your case.

What Do Other People Think Of You?

The legal profession requires a high degree of collaboration and cooperation with others in the legal community.  Often, successful attorneys will be an active member of their local or state bar associations.  Like jury trials, serving on boards, taking on leadership positions and having valuable “real-life” experiences demonstrate that the attorney has the ability to represent your interest.

You can also see your attorney’s rankings and endorsements on www.AVVO.com.  Use this information to inform your opinion.  Also, be sure to meet with the attorney face to face.  There is nothing like sitting down and having a conversation with someone to learn about that person.  Trust your instincts!  If something about the attorney seems off-putting in his office, imagine how nervous you will be when that attorney goes into a room to talk about your life without you there.  The OVI experience is traumatic and you are very vulnerable, so consider bringing someone you trust to interview the attorney with you.

At DaytonDUI we have developed a vibrant online community at www.Facebook.com/daytondui.  Join me to get an idea about my personality and my passion for my clients.  You can also refer to the About Me section of this blog to see that I have a long history of serving the bar, serving in leadership positions and volunteering my time to help others. 

Who Do You Work With?

An OVI attorney often relies on expert witnesses in defending cases, so being the best OVI attorney will mean using the best experts. Experts can prove vital to raising defenses to chemical tests and challenging the officer’s interpretations at the scene.  Experts can include optometrists, accident reconstruction experts, psychologists, private investigators, forensic toxicologists, doctors and forensic scientists.  Experienced OVI counsel will have worked with top-of-the-line experts in court and will know how to use them to your advantage.

Another benefit of hiring experienced counsel rests in knowing when not to rely upon an expert.  Ask for names, and case references and don’t be afraid to demand an interview with the expert prior to hiring them.  Remember the attorney works for you – you don’t work for the attorney.  In my career I have been fortunate enough to work with some truly great experts.  Most often I have relied on experts in the field of forensic toxicology to challenge the evidential chemical tests and I have relied upon former law enforcement officers to challenge the officer’s observations and administration of the standardized field sobriety tests.

I regularly attend the Mastering Science in OVI Seminar through the National College for DUI Defense.  At these seminars I am able to stay on the cutting edge of OVI defense and meet the best expert witnesses in the world. 

How Do You Get Paid And What Do You Cost?

My father always said, “If you know how somebody gets paid you’ll never get ripped off.”  Here are some common-sense questions to determine what you will be charged for? Will you be charged:

If the attorney won’t give straight answers to these questions be prepared to leave without hiring that attorney.  If you are shopping based on price alone, you probably won’t hire someone like me.  I am not “cheap” and I don’t want to be.  In my opinion, hiring an attorney based solely on price is as senseless as representing yourself.  Do not expect answers to fee questions over the telephone.  I cannot give you a realistic price unless I know all the information about you and your case.  It is inconceivable to me that a dedicated and ethical attorney could, or would, quote a fee without a thorough investigation of your case.  Asking for a quote over the phone is like asking the question, “what will I pay for a used car?”

So, Are You The Best OVI Attorney? 

This entire post has been giving you ways to determine who is the best OVI attorney for you.  I hope that I have been successful in putting you in a position to decide.  Here are some more common sense points to consider. Do not hire an attorney that promises outcomes or implies that they are the only lawyer who could handle your case.  You know better!  Never hire an attorney who puts down judges, prosecutors or other attorneys.

Confidence is an essential commodity in an attorney, but all that ethical counsel can promise is their best effort at defending you.  Some lawyers, through hard work, may be in a better position to recognize issues in your OVI case.   No lawyer will win all their cases, but you can’t win issues you don’t know exist.  Hire the person who is best situated to be your guide. As the old cowboys used to say, “he’ll do to ride the river with.”  Like all relationships, you will know when it is right. Rely on your judgment and experience and trust your instincts.  You will know whether or not you have found the best OVI attorney.

OHIO OVI DEFENSE

Ohio OVI defense

When people need an Ohio OVI defense attorney, the biggest challenge is knowing whether or not an attorney truly has the skills, knowledge, training, tools, resources, and strategies that are needed to successfully resolve and win drunk driving cases. Countless attorneys handle impaired driving cases. However,  only a small percentage have the skills that are needed to successfully resolve and win cases. Unfortunately for the public, even attorneys who have been practicing law for many years and devote a significant portion of their practice to OVI law, often don’t have the resources, and strategies that are needed to successfully resolve and win OVI cases. Make sure your attorney is  familiar with these “TOP 10” defenses to an Ohio OVI.

HIRE THE BEST OHIO OVI DEFENSE ATTORNEY

The most important decision that you can make in defending your case is hiring the right Ohio OVI defense attorney.  OVI defense involves understanding Ohio’s complex impaired driving  laws. Your attorney should be familiar with the Ohio Administrative Code, the breath test device and field sobriety testing. It is vital that they stay current on all manners of science which may affect your case. Defense begins with an attorney who has the experience to fight your case. And, possesses the scientific knowledge to attack in the right places. In addition, your attorney should credibly negotiate with the prosecuting attorney to secure the best outcome.  We have written “How To Hire An Ohio OVI defense Attorney” to help you understand some issues you may not consider.

ILLEGAL POLICE STOP

If the officer lacked proper cause to initiate a traffic stop, your case may be dismissed.  The Fourth Amendment requires an officer have a reasonable suspicion that a crime is being committed or about to be committed before making a traffic stop. Reasonable suspicion may consist of any minor traffic offense. Examples include speeding, weaving, an accident, expired plates, or a failure to activate headlights.  Upon being stopped the officer must establish an articulable reason to continue your detention to do an alcohol/drunk driving investigation.

IMPROPER ADMINISTRATION OF STANDARDIZED FIELD SOBRIETY TESTS

If an officer improperly administers the field tests the results are compromised. The officer often gives faulty instructions or misunderstands how to administer the tests. We see officers hold the accused to impossible standards. Improperly administered tests amount to nothing more than “Stupid Human Tricks.”  Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine the level of intoxication of a driver without chemical testing.

When an OVI suspect refuses a chemical test, the tests can be substantial evidence of intoxication. NHTSA has guidelines as to how the standardized field sobriety tests must be given. If the arresting officer fails to substantially comply with the guidelines established by the NHTSA, then the results of the tests are not admissible as evidence against the defendant. Your Ohio OVI defense attorney will be familiar with the standardized tests, the NHTSA manual and have experience cross-examining an arresting officer.

FAULTY INTERPRETATION OF THE STANDARDIZED FIELD SOBRIETY TESTS

The officer may say all of the right things to get a valid field sobriety test, and still improperly interpret what he or she is seeing.  Your Ohio OVI defense attorney will review any video of the stop to make sure that your fields tests were fairly administered and properly scored.  Arresting officers can (and do) misinterpret the performance of the SFST’s, and determine the performance to be a failure. The dashboard video and aggressive cross examination of the arresting officers will determine whether a DUI defendant actually failed the SFST’s, or if the officer made a mistake. If the defendant did not fail the SFST’s, the results will serve as evidence that the defendant was not intoxicated.

UNLAWFUL ARREST NOT SUPPORTED BY PROBABLE CAUSE

Assuming the officer has made a valid traffic stop, he or she must continue the investigation until probable cause exists for an OVI arrest.  Often, an officer intending to determine whether probable cause exists for an OVI arrest will make the arrest before this determination is made. When this happens, the officer has made an unlawful arrest, and all evidence obtained after the arrest may be deemed inadmissible in court.  Placing a suspect in a patrol car or ordering a suspect to follow directions before determining a suspect’s sobriety may constitute an unlawful arrest. If so, any evidence obtained regarding intoxication may be deemed inadmissible in court.

OFFICER ERROR PRIOR TO CHEMICAL TESTING

If any statements are made after the accused is in custody, they may excluded unless a proper Miranda warning was given.  The officer must also satisfy a 20 minute observation period prior to administering an evidential breath test.  The breath test must be given within three hours of operation.  The officer must make sure that the testing conditions are free from radio frequency interference and that the testing location is not otherwise compromised.

Prior to requesting a suspect to submit to a chemical test, the arresting officer is required inform the driver of the consequences of submitting to the test, the driver’s right to refuse to submit to the test and the consequences for so refusing. If the driver submits to the test, he may be providing the State with evidence of intoxication. Failure of the arresting officer to advise the suspect of the above may render the results of the test, or the refusal inadmissible, and may fail to justify a license suspension.  Your Ohio OVI defense attorney should have a firm understanding of the Ohio Administrative Code and its requirements for a proper chemical test.

BAD BREATH: A FLAWED BREATH MACHINE

Above we discussed defenses that arise prior to the administration of the chemical test.  There are also potential defenses present in the administration of the test. You Ohio DUI defense attorney will be familiar with the Ohio Administrative Code requirements regarding calibration and officer performance.  You should ask your Ohio OVI defense attorney to show you the “guts” of the tests that are available at the Ohio Department of Health website.  What is more, you should only hire an attorney who has become certified on the breath test machine or attended sufficient specialized training so that he or she can spot any issues with the results.  Machines, despite what some may say, are far from perfect and often a keen eye will result in a “Not Guilty.”

DISCOVERY, DISCOVERY, DISCOVERY

Your Ohio OVI defense attorney cannot defend you against an issue he or she does not know exists.  An experienced DUI defense attorney will get proper discovery to explore every possible defense.  Filing motions for discovery, motions to preserve evidence and expeditiously obtaining the evidence is a good start.  In every DUI case, I submit a comprehensive discovery request for every type of evidence possible.   I contact the law enforcement agency directly to place it on notice to preserve evidence. This evidence includes dashboard videos and booking videos. These videos must be requested before they are destroyed. These videos can be indispensable in establishing exactly how a field test was administered. They show how a driver performed. Importantly, they can also establish whether a driver’s speech was slurred. Often, these videos contradict an officer’s allegations and exonerate the driver.

CREDIBILITY IS KING

The coin of the realm in all plea negotiations is the credibility, experience and knowledge.  Credibility comes from presenting your case in a way that makes the prosecutor understand your arguments.  Experience is knowing when and where to be persuasive.  Most prosecutors distain whiners, bullies and bullshit artists, so don’t do it.  I always strive to earn the respect of every prosecutor I come into contact with.  Knowledge about Ohio DUI defense comes from being dedicated to learning as much as you can.  We once had a slogan that said, “Is your attorney thinking of DUI defense right now? If not, call DaytonDUI.”  I have practiced DUI defense since 1995. Most of those years include practicing DUI defense exclusively.  I continue to try to establish myself as one of the best DUI attorneys in Ohio.

NOTING MATTERS IF YOU WON’T FIGHT

You can have the best defenses in the world, but they won’t matter unless you pursue them.  A good attorney will not only pursue the best possible plea, but will prepare for trial.  Your attorney should provide context and give you enough information to make a good decision.  Your attorney has an obligation to give you information and abide by your decision.  If you think you have a good chance of winning, make sure you hire the best attorney.  In our office we say “good things happen at trial.” My motto is, “All I do is OVI defense.”

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Standardized Field Sobriety Tests 2 Jan 10:23 AM (9 months ago)

In this section, we will discuss Ohio’s infamous “Standardized Field Sobriety Tests,” which we also know as roadside tests, or stupid human tricks. These tests are used by an investigating police officer to determine whether or not probable cause exists to believe that a driver is impaired by drugs and/or alcohol. Police officers learn the standardized field sobriety tests as they are set forth by the National Highway Traffic Safety Administration in their various manuals.

Police officers learn the Standardized Field Sobriety protocol at the academy or by completing a “Participant” class after they are sworn in. They learn three of the most common standardized field sobriety tests, which are: (1) horizontal gaze nystagmus (HGN), (2) walk-and-turn (WAT), and (3) one-leg-stand (OLS). Officers can receive additional training at the Advanced Roadside Impaired Driving Enforcement (ARIDE) class. ARIDE officers learn the Lack of Convergence (LOC) and Modified Romberg Balance (MRB) standardized field sobriety tests. Officers use their ARIDE training in cases where impairment by drugs (cannabis, narcotics, stimulants, etc.) is suspected. Law enforcement training in OVI cases includes administering and interpreting these standardized field sobriety tests. For each test, the officer looks for and records “clues” in the subject’s performance which they are told equates to an increased likelihood of impairment.

Horizontal Gaze Nystagmus Test

The horizontal gaze nystagmus test is an eye test approved by the National Highway Traffic Safety Administration(hereinafter NHTSA) as a tool to detect clues of impairment in drivers.  The HGN test is one of three psychomotor tests approved as part of the standardized field sobriety testing protocol employed by law enforcement officers throughout the United States and used here in Ohio.

HGN: What is the Science?

Horizontal gaze nystagmus

Nystagmus is defined as the oscillation of the eyeball that occurs when there is a disturbance of the vestibular system or the oculomotor control of the eye.  During the test, a law enforcement officer is looking for is an involuntary motion.  A person is usually unaware of the presence of a nystagmus and cannot control it. Forkiotis, C.J. Optometric Exercise: The Scientific Basis for Alcohol Gaze Nystagmus. 59 Curriculum II, No. 7 at 9 (April 1987); Good, Gregory W.  & Augsburger, Arol R. Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing. 63 Am. J. of Optometry & Physiological Optics 467, 469 (1986); Stapleton, June M. et al. Effects of Alcohol and Other Psychotropic Drugs on Eye Movements: Relevance to Traffic Safety. 47 Q.J. Stud. on Alcohol 426, 430 (1986).

The officer is looking for a type of nystagmus wherein the eye moves slowly in one direction and then returns rapidly, sometimes referred to as a jerk or jerking nystagmus. Adams, Raymond D. & Victor, Maurice. Disorders of Ocular Movement and Pupillary Function.  Principles of Neurology.  Ch.13, 117 (4th ed. 1991).

Alcohol is a central nervous system depressant affecting many of the higher as well as lower motor control systems of the body. This results in poor motor coordination, sluggish reflexes, and emotional instability. The part of the nervous system that fine-tunes and controls hand movements and body posture also controls eye movements.

When intoxicated, a person’s nervous system will display a breakdown in the smooth and accurate control of eye movements. This breakdown in the smooth control of eye movement may result in the inability to hold the eyes steady, resulting in a number of observable changes of impaired oculomotor functioning. See, Jack E. Richman & John Jakobowski, The Competency and Accuracy of Police Academy Recruits in the Use of the Horizontal Gaze Nystagmus Test for Detecting Alcohol Impairment, 47 New Eng. J. Optometry 5, 6 (Winter 1994). [Ed. Note, The citations and quotes in this DaytonDUI blog article were taken from HERE, HORIZONTAL GAZE NYSTAGMUS: THE SCIENCE & THE LAW, A Resource Guide for Judges, Prosecutors and Law Enforcement (no authorship or suggested citation given).

Nystagmus Terms at a Glance

“Nystagmus” is a term used to describe a “bouncing” eye motion that is displayed in two ways: (1) pendular nystagmus, where the eye oscillates equally in two directions, and (2) jerk nystagmus, where the eye moves slowly away from a fixation point and then is rapidly corrected through a “saccadic” or fast movement. Raymond D. Adams & Maurice Victor, Principles of Neurology, ch.13, “Disorders of Ocular Movement and Pupillary Function,” 117 (4th ed. 1991).  HGN is a type of jerk nystagmus with the saccadic movement toward the direction of the gaze.

An eye normally moves smoothly like a marble rolling over a glass plane, whereas an eye with jerk nystagmus moves like a marble rolling across sandpaper. Most types of nystagmus, including HGN, are involuntary motions, meaning the person exhibiting the nystagmus cannot control it. C.J. Forkiotis, Optometric Exercise: The Scientific Basis for Alcohol Gaze Nystagmus, 59 Curriculum II, No. 7 at 9 (April 1987); Gregory W. Good & Arol R. Augsburger, Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing, 63 Am. J. of Optometry & Physiological Optics 467, 469 (1986).  In fact, the subject exhibiting the nystagmus is unaware that it is happening because the bouncing of the eye does not affect the subject’s vision.

There Are Several Know Types & Causes of Horizontal Gaze Nystagmus

A major weakness in relying on the horizontal gaze nystagmus test in the criminal justice arena is that there are multiple causes of nystagmus that have been observed.  Syndromes such as influenza, vertigo, epilepsy, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, streptococcus infections, and other psychogenic disorders all have been shown to produce nystagmus. Additionally, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. Pangman. Horizontal Gaze Nystagmus: Voodoo Science. 2 DWI J. 1, 3-4 (1987).

Caffeine, nicotine and aspirin (alone or in combination with alcohol) can also lead to a nystagmus which mimics a nystagmus attributable to alcohol consumption. Id. at 3-4.  Scientific literature also points to a person’s circadian rhythms or biorhythms as having an affect on nystagmus readings as the body reacts differently to alcohol at different times in the day and even fatigue nystagmus can be found in an individual, and the list, according to critics, goes on.   Id. at 3-4; Booker, J.L.  End-position nystagmus as an indicator of ethanol intoxication. Sci Justice.  41(2):113-116. (April – June, 2001).

47 Types of Nystagmus

  1. Acquired
  2. Anticipatory(Induced)
  3. Arthrokinetic(Induced,Somatosensory)
  4. Associated(Induced,Stransky’s
  5. AudioKinetic(Induced)
  6. Bartel’s(Induced)
  7. Brun’s
  8. Centripetal
  9. Cervical(NeckTorsion,Vestibular-0basilarArteryInsufficiency
  10. Crcular/Elliptic/Oblique (Alternataing Windmill, Circumduction, Diagonal, Elliptic, Gyratory, Oblique, Radiary)
  11. Congenital (Fixation, Hereditary)
  12. Convergence
  13. Convergence Invocked
  14. Disaccociated, Disjunctive
  15. Downbeat
  16. Drug Induced (Barbiturate, Bow Tie, Induced)
  17. Epileptic (Ictal
  18. Flash Induced
  19. Gaze-Evoked (Deviational, Gaze-Paretic, Neurasthenic, Seducible, Setting-In)
  20. Horizontal
  21. Induced (Provoked)
  22. Intermittent Vertical
  23. Jerk
  24. Latent/Manifest Latent (Monocular Fixation, Unimacular)
  25. Lateral Medullary
  26. Lid
  27. Miner’s (Occupational)
  28. Muscle Paretic (Myasthenic)
  29. Optokinetic (Induced, Optomotor, Panoramic, Railway, Sigma)
  30. Optokinetic After-Induced (Post-Optokinetic, Reverse Post-Optokinetic)
  31. Pendular (Talantropia)
  32. Periodic/Aperiodic Alternating
  33. Physiologic (End-Point, Fatigue)
  34. Pursuit After Induced
  35. Pursuit Defect
  36. Pseudo Spontaneous
  37. Rebound
  38. Reflex (Baer’s)
  39. See-Saw
  40. Somatosensory
  41. Spontaneous
  42. Stepping Around
  43. Torsional
  44. Uniocular
  45. Upbeat
  46. Vertical
  47. Vestibular (Agotropic, Geotro-Pic, Bechterew’s, Caloric, Compensatory,Electrical/Faradic/Gal Vanic, Labyrinthine, Pneumatic/Compression, Positional/Alcohol, Pseudo Caloric)

Obtained from Dr. L. F. Dell’Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Opthamology 147 (1989).  There are also 38 verified causes for a horizontal gaze nystagmus other than alcohol impairment.

38 Causes of Horizontal Gaze Nystagmus

  1. ProblemsWithTheInnerEarLabyrinth
  2. Irrigating The Ears With Warm Or Cold Water Under Peculiar Weather Conditions
  3. Influenza
  4. StreptococcusInfection
  5. Vertigo
  6. Measles
  7. Syphilis
  8. Arteriosclerosis
  9. MuscularDystrophy
  10. Multiple Sclerosis
  11. Korchaff’s Syndrome
  12. Brain Hemorrhage
  13. Epilepsy
  14. Hypertension
  15. Motion Sickness
  16. Sunstroke
  17. Eyestrain
  18. Eye Muscle Fatigue
  19. Glaucoma
  20. Changes In Atmospheric Pressure
  21. Consumption Of Excessive Amounts Of Caffeine
  22. Excessive Exposure To Nicotine
  23. Aspirin
  24. Circadian Rhythms
  25. Acute Trauma To The Head
  26. Chronic Trauma To The Head
  27. Some Prescription Drugs, Tranquilizers, Pain Medications, Anti-Convulsants
  28. Barbiturates
  29. Disorders Of The Vestibular Apparatus And Brain Stem
  30. Cerebellum Dysfunction
  31. Heredity
  32. Diet
  33. Toxins
  34. Exposure To Solvents, PCB’s, Dry-Cleaning Fumes, Carbon Monoxide
  35. Extreme Chilling
  36. Lesions
  37. Continuous Movement Of The Visual Field Past The Eyes
  38. Antihistamine Use

See Shultz v. State, 664 A.2d 60, 77 (Md. App. 1995) citing State v. Witte; State v. ClarkState v. Superior Court, and Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney’s Textbook of Medicine § § 84.63 and 84.64 (1990).

Alcohol and the Horizontal Gaze Nystagmus

Alcohol causes two types: alcohol gaze nystagmus, which includes HGN, and positional alcohol nystagmus. Although alcohol causes both, alcohol gaze nystagmus and positional alcohol nystagmus are very different and easily distinguishable. Testing for positional alcohol nystagmus is not a part of the standardized field sobriety test battery. Defendants sometimes claim or attempt to confuse matters by arguing that the nystagmus the officer saw was actually positional alcohol nystagmus and not alcohol gaze nystagmus.

Standards For Admissibility

Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests in substantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  

If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual. In 2004, the Ohio Supreme Court held that, for the results of field sobriety tests to be admissible at trial, the tests must be administered in compliance with standardized testing procedures. State v. Schmitt.

In my practice we have seen a trend to manipulating the “substantial compliance” standard into a de facto prejudice standard.  The burden is being subtly shifted to the defendant to demonstrate that he or she was somehow prejudiced by the officer’s failure to comply with the NHTSA standards.  For example; if the officer does not articulate that he advised the suspect not to raise his or her arms, the Court says that he substantially complied by merely mentioning that he was trained in NHTSA protocols.  If, however, the defense points out that the officer did not give the proper instruction and still scored the test in a way negative to the defendant, the court may consider excluding some portion or all of the test.  Case law can be helpful on this point.

In State v. Clay, 34 Ohio St. 2d 250, 298 N.E.2d 137 (1973) the court ruled, “[h]owever, if by cross examination or otherwise, the defense places such compliance at issue, it then is incumbent upon the State, in order to maintain its burden of proof, to offer the methods and regulations into evidence and prove compliance.”  Some courts may try to take Judicial Notice of the manual (See Evid. R 201) when no manual was introduced.  In State v. Wells 2005-Ohio-5008 (Ohio Ct. App. 2d Dist., Montgomery County) held that the court cannot assume judicial notice when the record does not demonstrate a request for judicial notice or a reference to the manual by the trial court.

The 9th District Court of Appeals issued a great decision on the issue of substantial compliance.  Specifically, the issue involved giving the HGN test while the Defendant sat in the car.  The Court found that this was not substantial compliance. (State v. Haneberg 5/29/2007, 2007-Ohio-2561, 9th District Court of Appeals).

Validity Is Dependent On Standardization

The validity of Standardized Field Sobriety Tests results is dependent upon law enforcement practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manual states that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.

According to their own manual, the HGN, Horizontal Gaze Nystagmus test is the most reliable of the three standardized field sobriety tests.  In addition, the police are trained that the HGN achieves 77% accurate at detecting subjects at or above a .10% blood alcohol concentration.  But that is not the whole story.

Officers are not told that everyone (EVERYONE) has nystagmus. The presence of alcohol merely enhances or magnifies this natural effect. In addition, they are instructed that there are 40 different kinds of nystagmus. Yes, everyone – but that is somehow not important to their training. The fact that everyone has it and there are numerous non-impairing causes of nystagmus is deemed irrelevant in the decision to arrest someone.  Worse yet, the police officers are given no (NO!) guidance in how to distinguish between the different kinds of nystagmus.  And they get no training about what questions to ask that would help them distinguish between an impairment or a natural event.  They simply don’t care! If they see it, they will use it against you. Furthermore, courts accept this in probable cause determinations.

Drugged Driving And The Horizontal Gaze Nystagmus

Drugged Driving defense attorneys are going to have to learn about the ARIDE program.  The National Highway Traffic Safety Administration’s ARIDE course is described as a bridge between the Standardized Field Sobriety Test (SFST) and Drug Recognition Expert (DRE) courses.  ARIDE, which stands for Advanced Roadside Impaired Driving Enforcement, is a 16-hour course that claims to teach officers how to look for signs of drug impairment (drugged driving) during traffic stops.  The SFST program trains officers to identify and assess drivers suspected of being under the influence of alcohol, while the DEC/DRE program provides more advanced training to evaluate suspected drug impairment. The SFST assessment is typically employed at roadside, while an officer trained as a Drug Recognition Expert (DRE) through the DEC program conducts a 12-step evaluation in a more controlled environment such as a jail or a detention facility.

The drugged driving course begins with a review of the three SFSTs followed by a practice session and then a proficiency exam. The student has two opportunities to properly demonstrate the three tests per NHTSA standards. The student is graded by a qualified NHTSA instructor and a failure to show proficiency within two attempts (if necessary) prohibits the student from continuing on in the ARIDE course.

Once proficiency is shown, the student is introduced to the general concept of “Drugs in the Human Body” and learns about typical ingestion, effects of drugs, observable signs and symptoms of impairment, and then begins the process of learning the seven major drug categories. During this overview the student is briefly introduced to some medical conditions (see session IV, page 8-9). One (1) page of materials out of 98 pages, and about 10 minutes of class time out of 16 hours, is dedicated to the discussion of medical conditions that mimic drug impairment.

DRE, HGN and Marijuana

Drugged driving is all in the eyes according to NHTSA’s ARIDE training.  The HGN (horizontal gaze nystagmus) test confirms the possibility of the presence or absence of certain categories “on board,” as will the subjects pupil size. Lack Of Convergence (LOC) of the eyes reaches a similar conclusion. LOC is simply the inability to cross one’s eyes. However, while hailed as a valid and reliable indicator, 40% of the population lack convergence (cross their eyeballs) naturally.  These eye “conditions” or “observations” alone or in combination and their presence or absence are the primary method of identifying any single or multiple drug categories.

More and more, we are seeing law enforcement officers arrest drivers on suspicion of operating a vehicle under the influence of marijuana.  Often, an officer will request a urine test for marijuana after a defendant has blown substantially under the per se alcohol limit on a breath test machine.  This raises questions about the proper determination of probable cause.  If, for example, no alcohol was suspected how did the officer arrive deduce enough evidence to make an arrest? Were the standardized field sobriety tests administered to detect alcohol or something else?  Can the standardized field sobriety tests use in Ohio demonstrate impairment by any other drug than alcohol?

The horizontal gaze nystagmus test is not present in marijuana impairment cases. In State v. Dixon, 2007-Ohio-5189 (Ohio Ct. App. 12th Dist. Clermont County 2007), the court addressed the issue of standardized field sobriety tests and marijuana impairment.  Relying upon the NHTSA standards, the court concluded that observations as to performance on the walk & turn test and the one-leg stand test were indicative of impairment, thus allowing those to be used against a suspected marijuana user.  The HGN test, however, is not indicative of marijuana impairment.  According to NHTSA nystagmus would not be present due to marijuana and, as such, it was plain error to admit evidence of the horizontal gaze nystagmus test against the defendant accused of marijuana impairment.

The Walk and Turn Test: The Trooper gave me a “walk the line” test.  What was he looking for?

The Walk & Turn test is a divided attention test that is used as part of the three-test battery of field sobriety tests.  The officer will observe your performance on this test, looking for eight (8) clues of impairment.  You will be deemed to have failed the test if you present just two (2) of the eight (8) clues.  According to NHTSA, the Walk & Turn test is 68% accurate in determining alcohol intoxication above 0.10% BAC (when two or more clues are present).  See generally 2006 NHTSA Student Manual, VII-4, VIII 10, et al.

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The law enforcement officer will begin the test by asking you to stand with your right foot in front of your left, touching heel to toe.  He or she will then begin to give you a series of instructions and demonstrate how the test is to be conducted.  This part of the test is commonly referred to as the Instruction Stage. There are two clues that are scored during this preliminary phase:

Clue #1: Cannot Maintain Balance During Instructions

Clue #2: Starts the Test Too Early

The obvious tip here is to listen as best you can to the officer’s instructions.  Ask him or her to repeat any instruction that you did not understand as many times as is necessary to be fully informed of what is expected of you.  DO NOT BEGIN UNTIL TOLD TO DO SO.  This is fundamental and should be one of the easiest parts of the test to comply with.

NOTE: I have seen a number of cases where the subject is taken outside of the range of the cruiser camera to conduct the tests.  Take advantage of the recording by talking your way through the test. One client said, “Oh, I stepped off the line because of that passing truck.”  Another client demanded explanations when they came to the “turn” portion of the test.  Yet another client described the conditions (i.e. cracks in the road, poor shoes, cold, shivering).  GIANT CAVEAT: Don’t say things that will hurt your case.  Unfortunately, more than one client has met the challenges of the Walk & Turn test by saying, “I can’t do that sober.”  Admissions against interest will be used against you.

NOTE: You are being judged on your ability to maintain position.  Raising your arms prior to the test will not and cannot be used as a clue. NHTSA specifically instructs that this clue must not be recorded “simply because the subject raises arms or wobbles slightly.” 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-49; 2000 NHTSA Instructor Manual, VIII-42.

The remain clues of the Walk & Turn Test are:

Clue #3: Stops While Walking.  In the early versions of the NHTSA Student Manual (1995 NHTSA Student Manual, VIII-20 later omitted) instructed the officer to only record this clue if the subject stopped to steady himself or herself.  The officer should also not record a clue if the subject is merely walking slowly or carefully.

Clue #4: Heel to Toe.  Would it surprise you to learn that the subject is not required to actually touch heel to toe?  According the NHTSA standards, the officer is only to count this clue if a gap of more than one-half inch is present.

Clue #5: Stepping Off the Line:  Originally, the officer was required to use an actual designated straight line. 1992 NHTSA Student Manual, VIII-19; 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36, but the “straight line must be clearly visible,” 1992 NHTSA Student Manual, VIII-18. Later versions of the NHTSA Student Manual removed the requirement of an actual designated line and allowed the officer to use an imaginary line.  Which raises the following question… “How thick was your imaginary line officer because ours was pretty wide.”

Clue #6: Using Arms for Balance.  If you put most human beings on a balance beam and ask them to walk across, the vast majority will instinctively raise their arms to maintain their balance.  During the walk and turn test we ask people to turn off this instinct and walk with their arms at their sides.  If a subject raises their arms more than six inches, it is used against them.  It is vital that the officer be heard giving this instruction as it is so fundamentally awkward.   If your client was never told to keep his arms at his or her side, then make sure that they are not “clued” on this portion of the test.

Clue #7: Improper Turn.  No other portion of the test is as unfair to a novice subject than the turn.  It must be done with precision.  More emphasis is placed on how it looks than how it is accomplished.  If done with deft balance but improper technique it will be counted against the subject.  Make sure the officer instructs the subject properly and make sure the officer demonstrates the turn properly.  My experience tells me that defense counsel can use the inherent unfairness of this test to great effect for the defendant.

Clue #8: Improper Number of Steps.  It may sound odd, but extreme stress caused by the intimidating presence of an intimidating law enforcement officer can cause people to do strange and amazing things.  Some people have a fight or flight response kick in and they run.  Other people shut down or pass out or cry.  Having viewed numerous videos of good people in this stressful environment, I have seen many people “forget” how to count to nine, mess up the alphabet and say horribly stupid things.  The overriding question to ask is whether nerves or intoxication contribute to your client’s missteps.  Jurors, in my experience, are willing to give your client great latitude if given a proper context.

Related articles

Non-Standardized Field Sobriety Tests

Ohio has adopted the three-test field sobriety protocol as set forth in the National Highway Traffic Safety Administration (NHTSA) manual for training law enforcement officers.  The three tests adopted by NHTSA all survived scientific scrutiny as being indicative of impairment.  The tests are: (1) horizontal gaze nystagmus, a test of the subject’s eyes; (2)  walk & turn; (3) one-leg-stand.  The officer is trained to administer the tests in a standardized fashion and record “clues” of impairment as evidenced by the subject’s performance on the tests.

Often, you will encounter a circumstance where the officer employs an non-standardized field sobriety test.  These tests may include nonscientific “techniques”, some of which are described in the NHTSA manual, and can include a finger dexterity test, an alphabet test, a counting test or some other form of confusing coordination test.  Some jurisdictions still employ a thoroughly discredited test which requires the subject to tilt their head back and touch the tip of his finger to the tip of his nose.

The first step in challenging the officers decision to employ non-standardized tests is to determine why the officer is employing the tests.  Ohio has set forth eleven (11) factors that courts consider in determining whether or not the officer has established reasonable and articulable suspicion of drunk driving sufficient to request that the suspect step from the car.  See State v. Evanscitation omitted.  It is appropriate pursuant to the NHTSA manual to employ the above-described “techniques” at this phase of the officer’s investigation.  Your DUI attorney will know how to use cross examination to establish that there were omissions in the officers investigation, or that the officer lacked the legal standard necessary to ask you to step from the car.

If, however, the officer is using the tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O’Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

The Finger Dexterity Test, “Damn, Your Drunk Tests Are Hard.”

finger dexterity test

In the movie, The Man With Two Brains, Steve Martin’s character is subject to ridiculous roadside sobriety tests. Some of the tests to which Ohio drivers are subjected are also suspect.  One such test is the Finger Dexterity test. While not part of the three-test Standardized Field Sobriety Test battery, the Finger Dexterity test is prescribed by officer training as a tool to be used to determine if the officer is justified in continuing the detention of the driver.  

If reasonable articulable suspicion of impairment is shown, the officer is justified in asking the driver to exit the car to take standardized tests. The test is not scientifically validated to demonstrate impairment, but Ohio police officers use it anyway.  The non-standardized tests are allowed into evidence despite their lack of correlation to impairment. Finger Dexterity test is not a Standard Field Sobriety Test. It has not been recognized by the National Highway Traffic Safety Administration. It is arbitrary and of little value. However, this test is a favorite amongst Ohio law enforcement officers.  Try the test yourself. I have administered this test on countless individuals that have consumed zero intoxicants and most fail.

This is how the Finger Dexterity test is conducted:

  1. The suspect must select which hand they will use for the test;
  2. Then, the suspect is instructed to touch the thumb of the selected hand and touch each finger tip starting with the index finger and moving toward the pinky finger;
  3. Next, the suspect must count out loud each time their thumb touches a finger (i.e. “1, 2, 3, 4”);
  4. As soon as the suspect touches the pinky and counts out loud the number 4 the suspect must immediately execute the test in reverse;
  5. The suspect’s thumb must touch the pinky finger tip a second time and work backward to the index finger;
  6. Then, the suspect must count backward, “4, 3, 2, 1”;
  7. The suspect must perform this routine 3 times.

That Sounds Easy, Right?

The police officer wants to see if you do the following:

  1. Cannot count in sequential order properly;
  2. The suspect does not strike the thumb tip with to the tip of the target finger.

The contact area of the thumb tip and the finger tip is subjective. Furthermore, the officer is not on camera when conducting this test. No one can question his or her observations. When you couple that with the problem of confirmation bias (the officer is looking for evidence of intoxication), your chance of “passing” this test in the eyes of a police officer investigating you for DUI and samll.

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Marijuana DUI 19 Dec 2024 10:57 AM (10 months ago)

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This summer (2024), marijuana became legal in Ohio. However, the use of marijuana still subjects drivers to a DUI if officer’s can prove use. Note: I said use not impairment. Ohio allows prosecutors to use not only active THC, but a metabolite of THC which can stay in the body well beyond the time it is active on the psycho-nervous systems of the body. Some experts say the metabolite tested for can be in your body for over thirty (30) days. That’s right, you are not be high, but Ohio will still be say you are high under Ohio’s marijuana DUI statute.

Further, Ohio has been training officers in the A.R.I.D.E. class which provides them tools for making more marijuana DUI arrests. Officers use two “new” roadside tests called the Modified Rhomberg Test and the Lack of Convergence Test. In preparation for an onslaught of marijuana DUI arrests, I attended and was certified in the A.R.I.D.E. protocol. I have all of the tools to help you defend your marijuana DUI case.

What has been lacking, until now, is a roadside chemical test to aid officers in making a marijuana DUI probable cause determination. That is changing. Here are parts of the article from FOX 19. Law enforcement agencies are now working on programs to detect THC more quickly in drivers. The test involves swabbing of the mouth on-site instead of sending a suspect to a hospital for a urine or blood test. “Officers typically will know within 24 hours of not only what kind of drug is in your system, but the actual parent drug,” explained Cincinnati Police FOP president Ken Kober.

Kober says saliva testing is better for the officer and better for the suspect. “It’s a lot less intrusive,” according to Kober. “You know trying to, taking somebody to the hospital to give blood or taking them back to a station and asking them for urine. It’s pretty intrusive. Something like this is just a simple swab and they rub it in your mouth, and they’ve got the results back within 24 hours.” Kober says the saliva tests are currently being used in 24 states and are making their way through the state legislature in Columbus.

State Representative Cecil Thomas voted in favor of the bill to legalize the use of saliva kits, but still has some reservations. “The saliva kit itself cannot just be the determining factor as to whether you’re impaired,” Thomas says. “It may show that there’s marijuana in your system. Now we all know that marijuana stays in your system a lot longer, up to like 30 days for that matter.” Rep. Thomas says the bill to allow for saliva testing is still working its way through the Senate committee.

If you have any questions about marijuana DUI, call me at (937) 318-1384.

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Ohio DUI Urine Testing for Drugs and Alcohol 18 Dec 2024 7:24 AM (10 months ago)

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In Ohio, you will be over the “legal limit” if the alcohol concentration in your urine is . A urine test result of 0.11–0.238% is considered a DUI/OVI “per se”, and a result of 0.238% or higher is a DUI/OVI “per se, high test”. (See the DUI Penalties Article at DaytonDUI.com). While Ohio still considers this a valid way to determine alcohol content, many states have done away with urine testing because handling and testing procedures have produced errors.

Ohio also has legal limits for the concentration of certain drugs in urine, including: 

If you are charged with a DUI in Ohio, you may face jail time, fines, and a suspended driving license, therefore, it is vital that you contact a DUI lawyer to handle your case. I have over 30 years of experience handling complex DUI cases involving urine tests. These cases have included tests for drugs of abuse as well as alcohol impairment. Reach out to me at (937) 318-1384.

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Are You The Best Dayton OVI Attorney? 16 Dec 2024 12:00 AM (10 months ago)

Are you the best Dayton OVI Attorney?

best dayton OVI attorneyOften a prospective client will ask, “Are you the best Dayton OVI attorney?”  I always answer this question by saying that I am a damn good OVI attorney, but you should investigate me to determine if I am the best Dayton OVI attorney for you.  The most important decision you will make in your case is determining who will represent you.  Here are some things to help you find the best Dayton OVI attorney – FOR YOU!

How Much Of Your Practice Is Dedicated To OVI Defense?  

OVI defense is a complex area of law involving forensic science, specialized knowledge and litigation techniques specific to OVI.  Successful practitioners will have access to information, arguments, experts and materials that come from being exposed to multiple OVI cases.  OVI attorneys will have blogs, websites, materials, scientific studies, and books specific to the field.  Ask your potential attorney what OVI-specific organizations he belongs to, what legal education conferences he has spoken at or attended.

Ask your potential attorney to hand you his or her copy of the NHTSA Student Manual that he will use in court.  Does the attorney have one?  Is it up to date?  Thanks to the internet you can find out all you need to know by looking at other sites that the attorney is featured on.  On www.AVVO.com, attorney profiles have a breakdown of the lawyer’s practice areas that are self-reported by the attorney.  Your search for the best Dayton DUI attorney should start with a determination if the attorney does, in fact, practice in the area for which you are seeking representation.

I limit my practice to OVI defense.  100% of my time and energy is devoted to representing the accused drunk driver. 

What Are Your OVI Credentials?

Your search for the best Dayton OVI attorney should include a discussion of the attorney’s credentials. Credentials are earned through hard work and dedication to the cause of drunk driving defense.  Often, OVI attorneys receive specialized training and certification on the breath testing machines in their jurisdictions.  These certifications are invaluable in understanding how a machine could malfunction or give a falsely high reading.  Dedicated OVI counsel can also receive specialized training in the Standardized Field Sobriety Testing by becoming certified to administer and evaluate the field tests.

Having worked both sides of the DUI issue can also be an important credential.  Has the attorney ever worked as a prosecuting attorney?  Did the attorney prosecuted a OVI case?  Has the attorney ever lectured or written on OVI topics for journals, newspapers or bar associations?  The truth is that the internet has many directories or referral services where an attorney can be listed as a “OVI” attorney with little or no OVI experience whatsoever.  Yellow page advertisements, which often have OVI listed among many other practice areas, can also be misleading as to OVI credentials.  It is up to you to dig deeper and demand that the attorney demonstrate a depth of knowledge in OVI defense.

I am very proud of my credentials.  I believe myself to be amongst the most qualified and credentialed DUI attorneys in the country.  What is more, I am constantly trying to learn and improve.  You deserve nothing less.

Are You Experienced? Have You Ever Been Experience? Well, I Have

There is no substitute for experience. You should be confident in the knowledge that you have hired someone who has real experience defending DUI cases.  Ask the following and, if you don’t get straight answers, get up and leave: Have you ever tried a DUI case to a jury?  Has your attorney ever tried a felony DUI case?  Ever tried a “test” case (a case where the person blew into a breath machine)?

What about a “refusal” case (a case where the person refused to blow into a breath test machine)? Has the attorney ever tried a OVI case in federal court?   Have you ever argued cases involving dentures?  Has the attorney ever argued a case involving AMBIEN sleep medication?  Have you ever represented Doctors? Dentists? Pilots? Paramedics? Athletes? Cops? Other Lawyers? Military Personnel?  How many DUI Motions to Suppress have you done?  Have you ever done a motion or trial in the court where I will appear?

I can answer “YES” to each of these questions.  In addition to my lectures and writings on DUI topics I have testified as an expert witness on evidential breath testing for the United States government.  I am also proud to be the DUI defense attorney brought in to cross-exam police cadets at the Greene County Police Academy mock trial.

Will You Be Representing Me?

If you meet with a highly qualified, experienced and credentialed DUI attorney, make sure that he or she will be the attorney representing you at each stage of the case.  If the attorney says that his firm uses a “team approach” this may  be a way of saying that you will be shuffled off to an associate once you have paid.  Another evasion is for the attorney to say, “all of our attorneys are involved in your case.”  If you hire Michael Jordan make sure you don’t get someone who attended the Michael Jordan basketball camp.  Your case is the most important case in the world to you! You are not a commodity to be managed, but a client to receive the best the attorney has to offer.  When you decide that found the best DUI attorney, make sure that he or she will be the one doing the work.

At Babb & Rowland, I am the only attorney who handles drunk driving cases.  Barring an emergency I will be at every court appearance and I will be the person providing you information at every stage of your case.

What Do Other People Think Of You?

The legal profession requires a high degree of collaboration and cooperation with others in the legal community.  Often, successful attorneys will be an active member of their local or state bar associations.  Like jury trials, serving on boards, taking on leadership positions and having valuable “real-life” experiences demonstrate that the attorney has the ability to represent your interest.

You can also see your attorney’s rankings and endorsements on www.AVVO.com.  Use this information to inform your opinion.  Also, be sure to meet with the attorney face to face.  There is nothing like sitting down and having a conversation with someone to learn about that person.  Trust your instincts!  If something about the attorney seems off-putting in his office, imagine how nervous you will be when that attorney goes into a room to talk about your life without you there.  The DUI experience is traumatic and you are very vulnerable, so consider bringing someone you trust to interview the attorney with you.

At DaytonDUI we have developed a vibrant online community at www.Facebook.com/daytondui.  Join me to get an idea about my personality and my passion for my clients.  You can also refer to the About Me section of this blog to see that I have a long history of serving the bar, serving in leadership positions and volunteering my time to help others. 

Who Do You Work With?

DUI attorneys often rely on expert witnesses in defending cases, so being the best DUI attorney will mean using the best experts. Experts can prove vital to raising defenses to chemical tests and challenging the officer’s interpretations at the scene.  Experts can include optometrists, accident reconstruction experts, psychologists, private investigators, forensic toxicologists, doctors and forensic scientists.  Experienced DUI counsel will have worked with top-of-the-line experts in court and will know how to use them to your advantage.

Another benefit of hiring experienced counsel rests in knowing when not to rely upon an expert.  Ask for names, and case references and don’t be afraid to demand an interview with the expert prior to hiring them.  Remember the attorney works for you – you don’t work for the attorney.  In my career I have been fortunate enough to work with some truly great experts.  Most often I have relied on experts in the field of forensic toxicology to challenge the evidential chemical tests and I have relied upon former law enforcement officers to challenge the officer’s observations and administration of the standardized field sobriety tests.

I regularly attend the Mastering Science in DUI Seminar through the National College for DUI Defense.  At these seminars I am able to stay on the cutting edge of DUI defense and meet the best expert witnesses in the world. 

How Do You Get Paid And What Do You Cost?

My father always said, “If you know how somebody gets paid you’ll never get ripped off.”  Here are some common-sense questions to determine what you will be charged for? Will you be charged:

If the attorney won’t give straight answers to these questions be prepared to leave without hiring that attorney.  If you are shopping based on price alone, you probably won’t hire someone like me.  I am not “cheap” and I don’t want to be.  In my opinion, hiring an attorney based solely on price is as senseless as representing yourself.  Do not expect answers to fee questions over the telephone.  I cannot give you a realistic price unless I know all the information about you and your case.  It is inconceivable to me that a dedicated and ethical attorney could, or would, quote a fee without a thorough investigation of your case.  Asking for a quote over the phone is like asking the question, “what will I pay for a used car?”

So, Are You The Best Dayton OVI Attorney? 

This entire post has been giving you ways to determine who is the best Dayton OVI attorney for you.  I hope that I have been successful in putting you in a position to decide.  Here are some more common sense points to consider. Do not hire an attorney that promises outcomes or implies that they are the only lawyer who could handle your case.  You know better!  Never hire an attorney who puts down judges, prosecutors or other attorneys.

Confidence is an essential commodity in an attorney, but all that ethical counsel can promise is their best effort at defending you.  Some lawyers, through hard work, may be in a better position to recognize issues in your OVI case.   No lawyer will win all their cases, but you can’t win issues you don’t know exist.  Hire the person who is best situated to be your guide. As the old cowboys used to say, “he’ll do to ride the river with.”  Like all relationships, you will know when it is right. Rely on your judgment and experience and trust your instincts.  You will know whether or not you have found the best Dayton OVI attorney.

 

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Ohio DUI Penalties 13 Dec 2024 7:36 AM (10 months ago)

Below are the typical punishments associated with Ohio DUI law. Please contact Charlie at (937)318-1384 to discuss your case. Every case is different and you should not make any decisions about your case without consulting with a competent and credentialed Ohio DUI lawyer.

Offense LevelJail TimeFinesLicense SuspensionAdditional Penalties
First Offense (First-Degree Misdemeanor)Between 3 days and 6 monthsBetween $375 and $1,0751 to 3 yearsDriver’s intervention program, treatment/education program.
Second Offense Within 10 Years of the Previous (First-Degree Misdemeanor)Between 10 days to 6 months (BAC between .08 and .16)Between 20 days and 6 months (BAC of .17 or higher)Between $525 and $1,6251 to 7 yearsVehicle immobilization for 90 days, house arrest with electronic monitoring, continuous alcohol monitoring, and addiction assessment.
Third Offense Within 10 Years of the Previous (Misdemeanor)Between 30 days and 1 year (BAC between .08 and .16)Between 60 days and 1 year (BAC of .17 or higher)Between $850 and $2,7502 to 12 yearsVehicle forfeiture, house arrest with electronic monitoring, continuous alcohol monitoring, and addiction services.
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DUI Lawyer Ohio DUI Penalties 12

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Ohio Commercial Driver’s License Defense 12 Dec 2024 7:26 AM (10 months ago)

If you have an Ohio commercial driver’s license (CDL), and you face an OVI (operating a vehicle while impaired, a.k.a. drunk driving or DUI) you face severe and lasting punishments. Protecting you Ohio Commercial Driver’s License involves hearings in both the charging jurisdiction (the Court) and hearings at the Ohio BMV.

First things first… If you have a CDL and you are charged with an OVI, you will receive a disqualification letter from the Ohio Bureau of Motor Vehicles. I WILL NOT know about this disqualification unless you tell me. The Ohio BMV does not copy your attorney on this filing. Upon receipt, contact me and let me know so that I can start defending your case. Here is what will happen.

1. Request a hearing: The first step is the file a request for a hearing with the BMV. This hearing will take place in Columbus and your presence will be required.

2. Attend the hearing: The BMV will schedule a hearing with an attorney hearing examiner. You can bring a CDL defense attorney to represent you.

3. Receive a report: The hearing examiner will issue a report and recommendation.

4. File objections: You have 10 days to file objections to the report.

5. Receive a final order: The BMV will issue a final order on the disqualification of your Ohio Commercial Driver’s License.

6. Appeal to the Court of Common Pleas: If you disagree with the final order, you can appeal to the Court of Common Pleas in the county where you live.

The hearings before the Ohio BMV are independent of any court hearings. Call DaytonDUI.com at (937) 318-1384 if you have questions about an OVI charge. I am committed to protecting your rights because my father had a CDL (he hauled coal) and I would not be an attorney without his hard work. My family is also involved in the industry. I want to be your OVI attorney.

Ohio Commercial Driver License Manual

We have been asked to provide an overview of Ohio laws as it applies to the licensing of commerical drivers. Follow this LINK to download the Ohio Commercial Driver License Manual. This information is provided by Ohio and covers issues beyond driving while impaired, DUI, OVI, or CDL disqualification.

If you need to speak to an Ohio CDL attorney, please give me a call. While I limit my practice to representing the accused drunk driver, we can steer you in the right direction when it comes to protecting your Ohio CDL.

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Premier DUI Attorney – Advanced Level Training on New NHTSA Manuals 24 Jul 2023 2:02 PM (2 years ago)

We are excited to share that Charles M. Rowland II has received advanced level training from the American Association of Premier DUI Attorneys. This training focuses on utilizing the valuable information found in the new NHTSA Manuals to effectively win DUI cases for the defense.

When facing a DUI charge, it is crucial to hire an attorney who not only understands the information contained in an officer’s police DUI training manuals but also knows how to use that information to challenge the prosecution’s case. The updated NHTSA manuals provide a wealth of information that can be used by the defense to their advantage. For example, video and audio evidence should align with other evidence, legally admissible chemical test results can only be obtained after the arrest, chemical test evidence is presumptive rather than conclusive, and it is possible to be acquitted of DUI even with a Blood Alcohol Concentration above the legal limit. This invaluable training was provided by Dave Cox, the Founder and President of the American Association of Premier DUI Attorneys.

The American Association of Premier DUI Attorneys is a trusted organization that has gathered insights from Judges, Traffic Safety Resource Prosecutors, DUI Prosecutors, current and former Law Enforcement Officers, and DUI Defense Attorneys. Their goal is to determine the exact skills, knowledge, training, tools, resources, and strategies that lead to successful outcomes in DUI cases, both at trial and prior to trial.

One of the biggest challenges individuals face when searching for a DUI Attorney is determining whether they possess the necessary skills, knowledge, training, tools, resources, and strategies to effectively resolve and win DUI cases. While many attorneys handle DUI cases, only a small percentage have the expertise required for success.

Members of the American Association of Premier DUI Attorneys have undergone advanced level training specifically focused on the strategies that yield the most favorable outcomes in DUI cases. They also have access to exclusive resources and tools that give them a significant advantage. These resources and tools are only available to a select few DUI attorneys.

Charles M. Rowland II is an experienced attorney with a dedicated DUI/OVI practice. He represents individuals facing drunk driving charges in State and Federal Courts throughout Ohio’s Miami Valley. With over 25 years of experience, Charles Rowland has amassed more credentials than any other attorney in his field. His commitment to defending those accused of DUI is unwavering.

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