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Chuck Strain's Office:
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These are actual questions Chuck has answered for Ohio lawyers.  Check back.  More will be added regularly.



ALS WHEN DUI IS DISMISSED

QUESTION:

The officers failed to appear and the judge dismissed my client's DUI case.  When I raised the issue of the ALS appeal, the judge claimed that he no longer had jurisdiction.  I plan on filing a motion to reconsider.  Any support for my position?

ANSWER:

I've often gotten courts, contrary to law, to terminate a refusal ALS when resolving a DUI case by reduction, dismissal, or acquittal. However, I never achieved that in a refusal case by arguing that such termination was “pursuant to law” under RC 4511.197(D) or any other statute. The common sense definition of “pursuant to law” is a more-or-less automatic process set in motion by the General Assembly, not a favorable ruling by an ignorant or charitable judge, disregarding the clear intent of the General Assembly, even if for laudable, equitable purposes.


Nonetheless, if we were to look only to some of the other literal language of RC 4511.197(D)--ignoring contradictory provisions in other sections discussed below--there's a cogent argument that every ALS is terminated at the close of the DUI case (or at least at the close of the trial): “[T]he suspension shall continue until the complaint alleging the violation for which the person was arrested . . . is adjudicated on the merits . . . .” (Emphasis added.)


Beware that the government can always argue that the final DUI disposition is relevant to the separate civil ALS matter in only a small subset of statutorily-defined scenarios not involving a dismissal. The state's narrow view may be that there are only two legal ways which the General Assembly provided for terminating an ALS: a) by terms spelled out in the statute (such as any ALS when the statutory period for that particular ALS has run, any ALS on a plea of guilty or no contest, or a test-over ALS on an acquittal); and b) by appeal on particularized grounds within 30 days of the initial appearance.


So if you failed on the 30-day ALS appeal or waived it, the point of final disposition of the DUI case is arguably too late to affirmatively reopen the ALS matter. Jon suggested that you might have timely-filed an ALS appeal and then silently hoped that the court would never address the issue when you showed up for subsequent court appearances.  Whether or not that was his original strategy, it seems to have worked in Jon's case, but may be chancy in others.  As the defendant has the burden of production and burden of proof in the civil ALS appeal, unless the court were to affirmatively refuse to hold a hearing demanded by the defendant, I would guess that many courts would find the ALS appeal issues waived (and perhaps eventually moot).


Had the legislature intended to terminate an ALS upon a dismissal, it certainly could have specified that. Getting a judge to do it without legislative authority is more likely where the dismissal has strong equitable roots, such as actual innocence by mistaken identity, rather than where there's a technicality or the officer is unavailable for court.



PRIMER ON WHAT HAPPENS TO THE ALS UPON DUI DISMISSAL


A. If the ALS is grounded on a prohibited-level test result:


1. Do analogize your dismissal to the not guilty situation addressed at RC 4511.197(D):

“If the suspension was imposed under division (C) of section 4511.191 of the Revised Code in relation to an alleged misdemeanor violation of division (A) or (B) of section 4511.19 of the Revised Code or of a municipal OVI ordinance and it is continued under this section, the suspension shall terminate if, for any reason, the person subsequently is found not guilty of the charge that resulted in the person taking the chemical test or tests.”


2. You may also analogize your dismissal to the reduced-to-reckless situation addressed in State v. Spicer, 12th District Court of Appeals No. CA94-08-020, Preble County, April 3, 1995; 1995 WL 141426. Accord: State v. Hays, 2007-Ohio-5517, 5th District Court of Appeals No. 07-CA-38, Licking County, October 1, 2007. But beware State v. Wellman, 2007-Ohio-6107, 5th District Court of Appeals No. 2006 CA 00091, Licking County, November 2, 2007, distinguishing a dismissal from a reduction.

B. If the ALS is grounded on a test refusal:


The only likely way to win here is by persuading with equitable arguments, as legal arguments are likely to fail in one of three ways:


1. Beware of analogizing your dismissal to the not guilty situation addressed in the second sentence of RC 4511.191(D)(1):

“Any subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of this section does not affect the suspension.” (Emphasis added.)


2. Beware analogizing your dismissal to the not guilty situation addressed in RC 4511.197(D):

“If the suspension was imposed under division (B)(1) of section 4511.191 of the Revised Code and it is continued under this section, any subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of section 4511.191 of the Revised Code does not terminate or otherwise affect the suspension.” (Emphasis added.)


3. Analogy to the reduced-to-reckless case law usually doesn’t help either. See:

State v. Anderson, 98-LW-0333 (6th), Court of Appeals No. L-97-1281, 6th District Court of Appeals, Lucas County, January 30, 1998; and State v. Sunafrank, 2000 WL 204558, 00-LW-0683 (10th), No. 99AP-599, 10th District Court of Appeals, Franklin County, February 24, 2000.


C. Proceed Cautiously


You may want to let sleeping dogs lie. The prosecutor may lack the motivation to overcome a dismissal, partially because he can rationalize that the ALS “punishment” remains in place. Later filing a motion to terminate the ALS will at least recall the prosecutor’s attention to the dismissal of the original charges, which could then be refiled. An astute and energetic prosecutor could ask for a continuance to notify the arresting officer to testify in a hearing on your motion, an ideal time for the officer to recite your client.




EFFECT OF A DISMISSAL

QUESTION:

What does a DUI dismissal accomplish for my client if it can be refiled?

ANSWER:

You're correct to imply that in many cases it would ultimately be worse for the client to invite a dismissal, especially if the move may anger the cop enough to arrest the client at an embarrassing time and take him to jail for the night.  Further, on refiling in a multiple-judge court, the new judge assignment could be worse.  The client must always be cautioned of such an outcome before going down this path.

I've had clients who were so desperate to hear the word "dismissed" that they were willing to take those chances even if it likely were to mean only a few days or weeks of "freedom."  Just finishing up a big job, getting through a custody hearing, or earning enough vacation time is sometimes all the client wants in the short run.

Much more often, the threat of dismissal is just enough leverage to get the prosecutor to take a short cut and make a better offer.

It's less likely that a dismissed case will fall by the wayside if it's a multiple offense with exacerbating circumstances, such as an extremely high breath test, an accident with injuries, children in the car, a vocal victim, or a combative client who angered the cop.

Still other times, it makes sense to play the odds.  If the case is a real loser anyway, even a slim chance that a dismissal will stick becomes more appealing.  If you don't like the judge (or prosecutor) you've drawn, the dismissal may deliver you to a better one.  The law enforcement mistake that led to the dismissal may indicate incompetence or lack of caring about the outcome of the case, both factors that would seem to increase the chances that it won't get refiled.

It's sometimes a tough hurdle for law enforcement to re-serve the ticket personally.  Especially in large court systems, overworked, forgetful, or lazy prosecutors may not even contact the cop.  I've had situations where the cop was due to be gone for a long time for military or health reasons, making it much tougher for him to re-serve.  One recent so-far-successfully-dismissed case involved a trooper whose home base is several counties away and a client who moves around a lot.  Another recent success involved a client who lives out of state.  Those clients very intelligently decided to play the odds.

Like a continuance, a dismissal (without prejudice) is as good as a not guilty verdict; it just doesn't last as long!  Or it just might.


BREATH TEST COERCION

QUESTION:

Can an officer in a DUI case try to get my client to take the breath test by misstating the terms of ALS work privileges or by threatening a weekend in jail upon a refusal?

ANSWER:

Improper police coercion to submit to chemical testing can lead to suppression of test results.  If implied consent provisions are not applicable--e.g., the suspect was driving on property not used for vehicular traffic or was never arrested--but the suspect is erroneously advised that refusal of the test will lead to an administrative license suspension, the consent isn't voluntary, and the result should be suppressed.  See State v. Gottfried, 86 Ohio App. 3d 106, 619 N.E.2d 1185 (Ohio Ct. App. 6th Dist., Ottawa County, 1993).

At least one court has held that a suspect is improperly coerced into submitting to a test by the threat of incarceration.  See State v. Ewers, 1992 WL 235721 (Ohio Ct. App. 2nd Dist., Clark County, 1992).


DRUGGED DRIVING LAW

QUESTION:

In the new drugged driving law, doesn't there have to at least be some rational basis to relate those drugs to driving impairment? 

ANSWER:

Simply put, the new law isn't an impairment law.  It's a drug possession law, with possession defined as having the traces or metabolites of particular drugs in the blood or urine.  The place you're not allowed to possess these drugs or metabolites in this fashion is in the driver's seat of a vehicle.

Constitutional arguments pointing out the lack of a rational basis under the state's police power clearly can be made, especially regarding the drugs under this statute that aren't otherwise illegal.


INSURANCE ON ATV

QUESTION:

My client was cited for DUI on an ATV four-wheeler.  No proof of insurance was shown.  Now the BMV has sent a notice of suspension for FRA violation.  The ATV doesn't have an auto policy, but is covered under my client's homeowner policy.  Can the BMV suspend my client's license for operating an ATV without insurance?  Should my client simply send in copy of homeowner policy?

ANSWER:

An ATV (all-terrain vehicle) is probably a vehicle under RC 4509.01(H), i.e., a "device by which a person or property may be transported upon a highway."  It's probably also a motor vehicle under RC 4509.01(I), i.e., a "vehicle propelled by power other than muscular power . . . ."
 
RC 4509.101(A)(1) prohibits the operation of a motor vehicle in this state without proof of financial responsibility.
 
Check with the insurance company.  Does the homeowner policy cover damage to or theft of the ATV?  Does it also cover liability to others for damages caused using the ATV?  If the latter, send proof to the BMV.


PHYSICAL CONTROL AND REFUSAL

QUESTION:

My client told me he was charged with physical control on "private" property this past weekend.  He refused to blow and the cop took is license.  It is my recollection that his driving privileges can't be suspended, as he was not charged with DUI.  And there is a difference between physical control and DUI, in that DUI is proscribed "anywhere in this state," while physical control is not.  In other words, there can be no physical control charge on "private" property.  Any thoughts?

ANSWER:

As you know, RC 4511.19(A) or (B) expressly states that the DUI conduct be "within this state."  Physical control under RC 4511.194(A)(2) has no specified geographical element, but has the implied element that it take place in Ohio.  I believe that both DUI (since 9-23-04) and physical control (since 1-1-04) can properly be charged even if the conduct takes place on purely private property, such as in your client's closed and locked garage.
 
RC 4511.191(A)(2) provides the implied consent trigger for a DUI or physical control ALS:
 
"Any person who operates a vehicle . . . upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle . . . shall be deemed to have given consent to a chemical test . . . ."
 
This text on its face provides that to trigger implied consent, the operating must be on property used for travel or parking, while the physical control isn't so limited.  I'm not aware of any cases or of the legislative intent about this distinction.  Wishful thinking:  This is just sloppy drafting and the intent was for implied consent perils to be limited to "traveled property" for both DUI and physical control.
 
Incidentally, an ALS in the proper physical control situation is appropriate for a refusal, but not for a test-over.


EXPUNGEMENT AND DUI

QUESTION:

My client had a DUI conviction years ago.  A recent domestic violence charge against him was dismissed, but the record of it is preventing him from getting a job.  Does the prior DUI prevent me from getting the dismissed domestic violence charge expunged?

ANSWER:

A.  A DUI conviction can't be expunged.  See RC 2953.36(B).

B.  When applying to expunge a non-DUI conviction, a DUI does count as a prior or subsequent offense, prohibiting the expungement.  See the second paragraph of RC 2953.31(A):  "[A] conviction . . . for a violation of any section in Chapter . . . 4511 . . . is not a previous or subsequent conviction. However, a conviction for a violation of section 4511.19 . . . shall be considered a previous or subsequent conviction."  What the first sentence giveth, the second sentence taketh away.

C.  But when applying to expunge an acquittal or dismissal (possible immediately) or a grand jury no bill (possible after two years), a prior or subsequent DUI conviction may be considered by the court, but isn't a statutory bar.  See RC 2953.52.