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Painesville DUI Lawyers

  1. Greg Gilson:

    1. DUI    DWI   OMVI                      
    2. Driving Under Suspension
    3. Traffic Violations 1. ILLEGAL STOP OF PERSON OR VEHICLE Ð A driver cannot be stopped unless the officer has a reasonable and articulate basis to believe a law has been violated. An individual cannot be arrested unless a violation has occurred. 2. ANONYMOUS REPORT OF DRUNK DRIVING Ð A motor vehicle cannot be stopped because an anonymous citizen reported the driver was intoxicated. 3. WEAVING INSIDE MARKED LANES IS NOT ILLEGAL Ð Weaving without crossing marked lanes does not violate the law. A motor vehicle cannot be stopped for that reason. 4. LACK OF PROBABLE CAUSE TO ARREST Ð A law enforcement official must have specific and articulable facts to support an arrest for DUI/OVI, or the arrest will be reversed and the evidence will be suppressed at trial. 5. PRIVATE PROPERTY Ð A driver who has not operated a motor vehicle on a public highway cannot be arrested for drunk driving on private property. 6. FAILURE TO PROVE DRIVING Ð An individual admitting to driving a motor vehicle, without more evidence, does not prove a charge of driving under the influence. 7. ABSORPTION OF ALCOHOL AFTER DRIVING A MOTOR VEHICLE Ð The prosecutor must prove that the blood or breath alcohol was over the acceptable limit (.08%) at the time the individual was operating a motor vehicle. Any consumption of alcohol after the driving but before the arrest will not sustain a conviction. 8. BAD OR INCLEMENT WEATHER Ð Weather conditions, including high winds, low visibility, rain, ice, etc. are options for a defendant to prove poor or improper driving or balance. 9. INTERFERING SUBSTANCES Ð Many over the counter products (such as cough drops, inhalers used for asthma, paints, finger nail polish, etc.) contain forms of alcohol which can contribute to false blood alcohol results, rendering the results to be invalid. 10. MEDICAL AND HEALTH PROBLEMS Ð Medical conditions with oneÕs arms, legs, back, neck, eyes and other conditions can affect the results of field sobriety tests, leaving the validity of the test results invalid. 11. ILLEGAL SEARCH Ð A law enforcement official is prohibited from searching an individual or the individualÕs motor vehicle for a minor traffic offense without the driverÕs permission or probable cause. All evidence illegally obtained by the officer is not admissible in court. 12. FIELD SOBRIETY TESTS IMPROPERLY ADMINISTERED Ð Field sobriety tests that are improperly administered are not valid evidence of intoxication (per the National Highway and Traffic Safety Administration). 13. NON-STANDARDIZED FIELD SOBRIETY TESTS ARE INVALID Ð Neither the National Highway and Traffic Safety Administration (NHTSA) nor medical science consider counting in reverse, reciting the alphabet, or touching your finger to your nose as valid sobriety tests. 14. STANDARD FIELD SOBRIETY TESTING INACCURATE Ð The one-legged stand is only 65% accurate in healthy individuals. The walk-and-turn test is only 68% accurate in determining if an individual is under the influence. Individuals with injuries, medical conditions, 50 pounds or more overweight, and 65 years of age or older cannot be validly judged by such tests. 15. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED Ð Manufacturers of portable breathalyzer equipment require a minimum of two tests to consider the results of such testing to be evidence. 16. PORTABLE BREATH TEST INADMISSIBLE Ð Ohio law prohibits the use of portable breath testing results as evidence at trial in an DUI/OVI/OVI case. 17. BREATH MACHINE NOT PROPERLY OPERATED Ð Failure to follow the specified protocols of the breath machine manufacturer in conducting breath tests will result in improper readings. 18. BREATHALYZER MACHINE MALFUNCTIONS Ð Malfunction or repair of breath testing equipment within 62 days before or after a suspectÕs breath test may render such testing invalid. 19. BREATH TESTING IS INACCURATE Ð Most experts consider the taking of only one breath test to be unreliable. 20. FAILURE TO RECORD CERTIFICATION TESTS Ð Failure to include the value of the simulator solution used to test breath machines will cause test results to be inadmissible in court. 21. FAILURE TO PRODUCE DISPATCH TAPES Ð Most motor vehicle stops as well as police communications regarding the arrest of an individual are recorded on dispatch tapes. Failure to preserve said tapes and to provide same upon request may cause all evidence to be suppressed. 22. IN-SQUAD VIDEOS Ð Videos of a suspectÕs driving and field testing are almost always recorded by a camera in the officerÕs squad car. These recordings can often times be used to contradict an officerÕs testimony. 23. BOOKING ROOM VIDEOS Ð Videos can and usually are taken at the police station. These tapes may reflect the suspectÕs clear speech or good physical balance, which often times contradicts the officerÕs testimony. 24. INDEPENDENT WITNESSES Ð Witnesses to an accident, bartenders, hospital personnel and others can often times provide evidence of a suspectÕs sobriety. 25. EXPERT WITNESSES Ð Experts may be employed to review and testify regarding the validity of field sobriety tests, breath tests, blood tests, etc. 26. FAILURE TO READ SUSPECT MIRANDA WARNINGS Ð If the law enforcement official has not read Miranda Warnings to a suspect the statements made by the suspect cannot be used as evidence against the individual. 27. OFFICERÕS PRIOR DISCIPLINARY RECORD Ð A law enforcement officerÕs prior disciplinary record can be used to attack the officerÕs credibility. 28. MISLEADING STATEMENTS BY LAW ENFORCEMENT OFFICERS Ð Any misleading statements made by a law enforcement officer regarding the consequences or taking or refusing to take blood, breath or urine test(s) may cause the one year driverÕs license suspension to be reversed and removed from the individualÕs driving record. 29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS Ð Any and all statements made by an officer (verbal, written, or testimony at previous court hearings) may be used to attack the officerÕs credibility. 30. FAILURE TO DISCLOSE EXPERTS Ð If a prosecutor fails to disclose the StateÕs expert(s) those witnesses may be barred from testifying against the defendant. 31. FAILURE TO PROVIDE SPEEDY TRIAL Ð A trial for DUI/OVI must be held within ninety (90) days of the defendantÕs arrest, or the case must be dismissed. 32. HOSPITAL BLOOD TEST INACCURATE Ð In healthy, uninjured individuals hospital blood test overestimate an individualÕs true blood alcohol level by as much as 25%. Such hospital tests are not statistically reliable in severely injured individuals. 33. FORCED BLOOD DRAWS Ð A blood test cannot be taken against a driverÕs consent where there has not been an injury involved or the results from said test(s) will be inadmissible. A new Ohio law coming in September, 2008 is attempting to change this! 34. LACTATE RINGERS Ð If lactate ringers are used by hospital staff in treating a patient, blood serum results will report falsely elevated and would, therefore, be invalid readings. 35. ALCOHOL SWABS Ð If a medical professional uses an alcohol swab when taking a blood sample, the results will be inaccurate. 36. BREATH TEST OPERATOR NOT LICENSED Ð If a breath test operator does not have a valid, unexpired operatorÕs license the breath test result is inadmissible. 37. STATUTE OF LIMITATIONS Ð A misdemeanor charge of DUI/OVI must be filed within eighteen (18) months of the offense. 38. FAILURE TO CONDUCT OBSERVATION PERIOD Ð Ohio law requires that a driver be observed continuously for a minimum of twenty (20) minutes prior to a breath test in order for the results to be admissible in court. 39. BREATH TEST DEVICE NOT APPROVED Ð A breath testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of devices or the results are inadmissible. 40. BREATH TEST OPERATOR LICENSE EXPIRED Ð An Ohio breath test operator must possess an unexpired operatorÕs license, or the breath test results are inadmissible.
  2. Ralph Buss:

    TOO MUCH HOLIDAY CHEER?

    New Drunk Driving Laws May Dampen Your Spirits

    By Ralph Buss

                With the Holiday Season upon us, it's not unusual to be invited to a Thanksgiving family dinner, Christmas party or New Year's Eve office get-together where alcohol will be present, and often even promoted. While I would never advocate driving or riding under the influence of alcohol or drugs, it's a situation most of us have found ourselves in at one time or another. My best advice is to "Just Say NO," or at least drink responsibly -- eat plenty of food to help absorb the alcohol, or pace yourself and avoid letting the alcohol build up in your system.

                 It's a common misconception that it's against the law to drink and drive, but it's actually only illegal if your blood alcohol level (BAC) is above legal limits (DWI - Driving While Intoxicated, or OVI – Operating a Vehicle under the Influence), or if the alcohol in your system interferes with your ability to operate a motor vehicle (DUI - Driving Under the Influence). Having a couple of beers or drinking some wine with dinner, and then driving home, is legal unless you have one too many.

                So, what do you do if you find yourself at a party, feeling tipsy, with no place to go but home and no way to get there except your car or motorcycle? Again, my best advice is to wait, eat, call a cab, ride home with a friend, or otherwise stay out from behind the wheel of your car or off your bike. But reality is much different, and reality is often blurred by that point.

                If you feel that you must operate a motor vehicle, the best way to avoid a DUI or DWI conviction and all the nastiness that comes with it is to avoid being a target for the police. Determine a route home that is not a main thoroughfare or through a known bar area, where police are likely to be watching for drunk drivers. Check your timing, and don't leave at "beer-thirty", just before or after closing time. Before you go out on the town, make sure your car or bike is in perfect working condition; no lights out, no broken tail lights, nothing to draw attention to your vehicle. Know where your license is, as well as your registration and proof of insurance, so that if you're pulled over you won’t have to fumble around for anything.

                Mind all traffic signals; red means stop, green means go. Be aware of your driving and avoid making any sudden movements across lanes, swerving, over-correcting, or going too wide around turns...all tale-tell signs of someone who shouldn't be on the road. Double-check to make sure your lights are on! Signal all your turns. Watch your speed. It's also best to stay in the slow lane. Don't give the police a reason to stop you!

                It would also be advisable to roll down your rear windows a crack and turn up the fans in your vehicle to move the air around and remove that party atmosphere. Chew some gum, take a breath mint, gargle with some mouthwash, or even smoke a cigar or cigarette to eliminate the smell of alcohol on your breath. The number one reason police give for arresting someone for drunk driving is the smell of alcohol in the car or on your breath. A couple of drops of Visine would also help to "Get the Red Out."

                If you do see flashing lights in your rear-view mirror, don't panic and by all means do not try to outrun the police or crash a road block! Signal and pull over smoothly to the side of the road. Stay in your car or on your bike, and keep your hands in plain sight. Be polite at all times, but be sure to assert your rights. If nothing else, it will give your attorney something to work with.

                "Where are you coming from?", will probably be the first question you hear. Think twice before volunteering that you just left the local bar. Working late or having dinner with a friend sounds much less incriminating. If you are stopped while pulling out from a bar, you might consider telling the officer that you were waiting for a friend who didn't show up, or the prices were too high, or it was too crowded and you decided to go home.

                The officer will invariably ask you if you've had anything to drink. It might be best to answer "no, sir" than to admit to it and then face the litany of follow-up questions: “How much, where at, how long ago?”

                At this point it would be advisable to ask the officer if you are under arrest or free to go. If he or she says that you are under arrest or being detained, your conversation should end with the statement that you want your attorney.

                Police officers are trained to get you to admit guilt, and can be very tricky in getting a confession out of you. Therefore you should tell them that under advice from your lawyer you wish to make no further statements.

                If you are placed under arrest:

                * Do not speak with or be interviewed by the police.

                * Do not submit to any roadside sobriety tests, as they are subjective and not required by law (not to be confused with a Breathalyzer test: see below).

                * Do not consent to any searches.

                * Do not waive any of your rights.

                * Do not resist, and be polite at all times.

                * Do request to leave the scene.

                * Do request to contact a lawyer.

                Should you consent to a Breathalyzer or blood test?  While the answer to this may vary depending upon you and your legal situation, you need to know that the law in Ohio changed recently and it is now a separate crime for you to refuse to take a chemical sobriety test if you are placed under arrest for operating a vehicle while intoxicated and you have a prior conviction within the past six years, or two convictions within the past 20 years. It’s no longer just a matter of automatically losing your license if you refuse to take the test, as the new law subjects repeat offenders who refuse to take a blood, breath or urine test to the same penalties as if they had tested a blood alcohol content (BAC) level of .17 or above, and constitutes an additional criminal act with penalties ranging up to a year in jail.

    As evidence of the legislature’s zeal for reducing drunk driving, the law also now allows the prosecution of an attorney who advises a client to not take a chemical sobriety test for complicity or obstruction of official business and may charge them as a codefendant in the case.

    On June 24, 2004, Ohio Governor Bob Taft signed House Bill 163 into law, which also increases the penalties and jail time for repeat offenders who drive while intoxicated. This new law took effect on September 22, 2004, and not only increases the mandatory penalties for persons with prior convictions, but also extends the look-back period from six years to twenty years – meaning that the courts can now look into your past criminal history for up to twenty years to check for prior DUI convictions.

    The new law calls for keeping DUI offenders off the roads for longer periods by adding a mandatory one-to-five-year prison term for persons convicted of five or more prior DUI offenses in the past twenty years, whereas previously mandatory sentencing for repeat offenders could not exceed 120 days.

    If you are charged with a drunken driving offense, it is important that you contact an attorney immediately. Don't wait until the day before you are to appear in court! This is a serious offense that may cost you jail time, loss of license, fines and a dramatic increase or cancellation of your insurance.

    Alcohol-related crashes result in more than 300 deaths and more than 14,000 injuries each year in Ohio, according to the Ohio State Highway Patrol, and there are more than 300,000 repeat drunk driving offenders in Ohio; 28,000 of which have five or more drunk driving convictions.

                Before you have your next drink, ask yourself if it’s really worth it.

                The above is not intended as legal advice, and is certainly not advocating driving drunk.

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