DUI Ignition Interlock Devices Will Result in Jailing Innocent Motorists

 

COLUMBUS—May 2, 2007

A draft bill that would require alcohol Ignition Interlock devices is getting quite a bit of publicity as a sound idea.  However, Columbus DUI lawyer Brad Koffel, has successfully challenged the accuracy and reliability of these devices in Columbus courts.  According to Koffel, “these small machines are not specific for alcohol, are too sensitive to outside temperature changes, are not compatible with new electronics in newer car models, are easily tricked, provide more false positives than true positive results, and that is before you get around to the lack of training for the folks who are installing them for the courts.”  

In 2005, Koffel was hired by a local businessman who was ordered to install one in his new Land Rover after a DU conviction. Over the next 10 months, Koffel’s client dutifully blew into the machine before each attempt to start his SUV.  Eventually, the company that installed the device sent a letter to Judge stating that Koffel’s client “failed” two times suggesting that he drank alcohol before driving.  The man vehemently denied ever drinking alcohol and driving.  He was facing nearly 6 months in jail for violating his probation. 

Koffel investigated on behalf of his client.  What Koffel discovered resulted in the Judge ordering the immediate removal of the ignition interlock device from the vehicle.  The Judge also questioned the science and legitimacy of these devices.  

 Specifically, Koffel reported to the Court that his client’s printouts showed 35 “failures” not two as suggested by the company.  Also, the president of the company admitted that many foods other than alcohol cause false positives.  Koffel presented evidence to the prosecutor’s office of a “failure” on a day and time when the client was actually at Koffel’s office. 

Koffel says, “We are learning that clients are simply leaving their vehicles on with the doors locked instead of turning off the vehicle and running the risk that it will take 15 – 90 minutes for the interlock to permit them to start the vehicle again.  I had one client recently tell me that his interlock device was so unreliable that he leaves his car running while he is at work!”

It is urged by Koffel and many other lawyers with knowledge of these devices that the legislature fully investigate the claims made by the manufacturer’s before innocent people are wrongly jailed on probation violations. 

Posted by Brad Koffel, January 31, 2007

H.B. 461 modifies recent Ohio Supreme Court cases making DUI prosecutions easier.

In a nearly stealth manner, the Ohio General Assembly passed an amendment to Ohio's DUI code permitting a court to allow evidence of alcohol or drug tests from "any health care provider".  However, there are 3 conditions to admissibility of this evidence:

1.  The State must have an expert testify as the lay meaning of this evidence

2. The State must prove that law enforcement obtained the results legally (i.e. follow strict, written procedures or through a search warrant)

3. Each and every Ohio Department of Health regulation must be met. 

Last August, Ohio law expanded the time limit to secure a bodily substance from 2 hours to 3 hours (calculated from time of operation of the vehicle).

Prior to this amendment, only health care providers with Ohio Department of Health Lab Director's permits could produce evidence against an accused impaired motorist.

Posted by Brad Koffel, January 2, 2007

Effective January 15, 2007, the following judges, courtrooms, and prosecutors will be in place.  The prosecutor rotation is scheduled for January 15th. Also, recently departed Judge Froelich's seat will be filled. His courtroom will move from 12C to 15D.  Judge Salerno's courtroom will move to 12C.  Also, we wish Judge Salerno a full recovery from her medical leave.  Judge Teresa Liston will be filling in for Judge Salerno.

The following is the list of Judges, courtrooms, and prosecutor assigned to each.

Judge H. William Pollitt - 12A (Prisley, Trainee 1)

Judge Anne Taylor  - 12B (Allbritain)

Judge Amy Salerno (Liston) - 12C (Johnson)

Judge Scott VanDerKarr - 12D (Livingston & Scranton)

Judge Carrie Glaeden - 13A (Seckeron, Trainee 2)

Judge Paul Herbert - 13B (Thornsberry)

Judge Janet Grubb - 13C (Kielczewski)

Judge Michael Brandt - 13D (Steinberg)

Judge Julia Dorrian - 14A (Overking)

Judge Ted Barrows - 14B (Cox, Trainee 3)

Judge James E. Green - 15D (was 14C until 01/22/07) (Dunbar & Shroy)

Judge Andrea C. Peeples - 14D (Ahroni)

Judge W. Dwayne Maynard - 15A (Wilcox)

Judge Harland Hale - 14C (Spurlock & Dunbar)

Judge Froelich's Replacement - 15D (Robert Tobias, Trainee 4)

Also, Prosecutor Melanie Tobias will be handling the appeals.  Prosecutor Rob Levering will remain in courtroom 4C supervising arraignments. 

_____
tags: Frank Solich Ohio DUI GHB Athens Ohio

Posted by Brad Koffel, December 4, 2006

MADD, the Alliance of Automobile Manufacturers, and the US Department of Transportation are pushing for every state in America to require DUI offenders to install breath test machines in their vehicles.  These machines, known as ignition interlock devices, supposedly test for alcohol on a motorist's breath before the driver can start their vehicle.  Currently, New Mexico is the only state that requires interlock devices on all DUI offenders - including first offenders.  That law became effective June 17, 2005.

In the research pipeline are experimental technologies that test for alcohol through the skin.  One device mentioned would have a passive alcohol monitor configured in the steering which would test for alcohol on the drivers palm. Other ideas include ignition keys and gear shifts that have passive alcohol detecting.

I have litigated the scientific reliability of the current ignition interlock devices used in Central Ohio.  The judge who heard the evidence we presented on behalf of a client not only apologized to our client for ever ordering the machine to begin with, but immediately stopped ordering them to be installed on her cases. 

These devices are easily defeated and have a complete lack of specifity for ethyl that lead to many foods and beverages triggering false positives.  We have had dozens upon dozens of complaints from our clients throughout the years that these things leave them stranded in parking lots and gas stations.

What sounds great in public policy and theory many times doesn't cut it in the real world. Before anymore states require these devices on otherwise law abiding citizens, a significant amount of independent research needs to be conducted.

Posted by Brad Koffel, November 20, 2006

Ohio driver's license laws forbid the issuance of a driver's license to, or the retention of a license by, a person who is "alcoholic, or is addicted to the use of controlled substances to the extent that the use constitutes an impairment to the person's ability to operate a motor vehicle with the required degree of safety" (Ohio R.C. 4507.08(D)(1).

So, who are these people? People convicted of Ohio DUI / Ohio OVI 3 or more times in the preceding 3 years.  Also, and less known by many lawyers, is when a person gets convicted 3 or more times in a 3 year period of any traffic violation that alcohol or controlled substances was a contributing factor.

Once the "Habitual Offender Suspension" is triggered, it is extremely difficult to get lifted.  The Ohio BMV has a team of employees working the "Special Case / Medical Unit" that monitor driving records of Ohio licensees.  This unit is also responsible for ensuring that Habitual Offenders complete a treatment / rehabilitation program after the date of the last Ohio DUI / Ohio OVI. Also, this unit makes sure the following reinstatement steps are met:

1. BMV Form 2326 must be completed by a license physician, licensed psychologist, or a certified alcoholism counselor (CCDCII, CCDC III, or National Certified).

2. This person must vouch for the offender's successful completion of the rehabilitation program and continous sobriety for at least 6 months AFTER completing the program.

3. BMV Form 2326 must be returned to the Ohio BMV within 90 days of it being completed.

4. Once this form is completed and submitted, the Special Case / Medical Unit will review all the information and make a decision about lifting the Habitual Offender Suspension.

5. If, however, within 1 year from the date of restoration th e offender gets convicted of another DUI the suspension will be reinstated.

Posted by Brad Koffel, November 6, 2006

A news article in USA Today features Fresno Police Department's aggressive efforts to curb repeat DUI offenders.  I think they are on to something despite its controversial methods.

Repeat DUI offenders are typically alcohol dependent and require herculean effort to stay sober. Breaking this addictive cycle of drinking and driving, states have responded with lower legal limits, tougher penalties, and even yellow license plates here in Ohio.  However, as a practitioner on the front lines of this battle, alcoholics think more about their next drink than worrying about driving without a license. 

So, Fresno P.D. is helping these folks in their efforts not to drink.  Fresno P.D. may be the toughest city in the United States in DUI enforcement.  This city of 460,000 has more sobriety checkpoints per capita than any other city.  There were 96 just last year! Columbus, Ohio DUI enforcement might allow for 10 checkpoints in any given year. 

Unlike any other city in the United States, Fresno police officers sit in bar parking lots in unmarked cars watching people stumble out of local watering holes.  Marked units are then called in to sweep up the DUI motorist before he can get to the intersection.  Why wait for an accident.  Most DUI lawyers nitpick traffic stops for being unrelated to impairment anyway.  Here is enforcement of impaired people as they enter a vehicle.  Let the DUI lawyers nitpick whether or not the person was impaired as they walked out of a bar. Plus, the deterrent effect is huge!

However, the most aggressive action may be the use of GPS.  Fresno police officers will sneek into the driveways of convicted DUI offenders who are on probation and place a stealth GPS device on the DUI offender's vehicle.  The GPS alerts police or a probation officer when the DUI probationer goes into a bar or tavern.

Professionally, I have no problems with this in light of the fact GPS is reserved for  repeat DUI offenders who have already acknowledged, in court, their alcoholism and desire to get sober. If this technology is a deterrent and/or allows for immediate intervention that the offender already desires, then why not. I am sure other civil libertarians will find my opinion out of step with their philosophy,. When it comes to protecting us from each other, that is where most libertarians and Ayn Rand followers would concede governmental intervention is naturally justified.

Posted by Brad Koffel, November 1, 2006

I have represented dozens of lawyers in Ohio charged with Ohio DUI / Ohio OVI.  In fact, we always seem to have several lawyers as clients at any given time.  Which begs the question -- why would these highly trained, superbly educated professionals in the legal community put their reputations and law licenses at risk? 

Most of our lawyer clients are not chemically dependent nor are they alcohol abusers.  They simply erred in judgment in choosing to drive after drinking (of which they may or may not be guilty of DUI in Ohio).  Naturally, this profession is very stressful, contentious and lawyers work long hours.  Alcohol is a quick elixir that fits comfortably in our social setting and is readily available.  The consequences of drinking then driving may result in a DUI arrest in Ohio.  These lawyers will be treated just like any other client.  Unless a judge or another lawyer suspects the lawyer has a problem with alcohol, a single DUI arrest will not trigger any disciplinary proceedings.

However, if one of my attorney clients charged with Ohio DUI admits to me that he or she believes his/her drinking has crossed over the line, they cannot control their alcohol intake, their relationships at home and work are suffering, tor hey are having a hard time getting to work on time or doing a good job for their clients, then they probably have a chemical dependency problem.

Other questions I ask to screen lawyers and other professionals is whether or not they felt the need to cut down on alcohol use; if they ever feel annoyed when people criticize their use; if they ever felt embarrassed or guilty about their use; or, if they have ever used alcohol first thing in the morning.  If they say "yes" to any one of these questions, then it is definitely time to get this lawyer some help. 

In future postings, I will specifically talk about the steps we take to help these lawyers (as well as other professionals who share the same problem).

Posted by Brad Koffel, October 15, 2006

Ohio DUI lawyers met in Las Vegas for the 12 Annual Advanced DUI Seminar hosted by the National Association of Criminal Defense Lawyers.  Ohio DUI lawyers from Columbus, Cincinnati, Cleveland, Toledo, Dayton, and Youngstown areas were spotted among the 750 attendees.  When I first attended this seminar in 1995, there were only 150 lawyers from the country in attendance.  DUI defense as its own micro-niche area of law was in its infancy. 

Ohio DUI laws have been amended nearly every single year.  It is nearly impossible to keep up with the rapid changes of the Ohio DUI laws unless you truly handle these cases on a daily basis.  It was nice to see a strong showing of Ohio DUI lawyers as our group continues to strengthen in numbers and in focus. 

Posted by Brad Koffel, September 1, 2006

 

Misguided, but otherwise well-intentioned, law enforcement officials are bracing for the trivial amount of DUI arrests they will make at sobriety checkpoints around Ohio this weekend.  Just as Labor Day weekend marks the end of summer holiday travel, various police departments will over-staff high-visibility checkpoints.  This financial ritual is funded by federal dollars. It begs the question -- if sobriety checkpoints are so effective, why do they seem to crop up only around holiday weekends and with federal funding? Why not every weekend with local dollars?

However, a few police departments are figuring out how to truly target DUI -- mobile DUI command stations known as BAT Mobiles - Breath Alcohol Testing mobiles.  Saturation patrols in a high drinking area (like Bethel Road or the Arena District in Columbus) would do more, much more, to deter intoxicated people from getting into their cars.  If you walk out of  the bar in one of these entertainment areas and see cruiser after cruiser, won't you think twice about driving? Now, what if you walked out and these officers were not present but were 5 miles away at a key intersection manning a checkpoint?

What is more important -- deterring DUI or catching DUI? Doesn't a saturation patrol do both whereas sobriety checkpoints barely do either?

by Brad Koffel July 28, 2006

SCRAM in Ohio DUI cases is bad news. . .

I mentioned in an earlier posting that SCRAM ("Secure Continuous Alcohol Monitoring")  may not be as good as it sounds.  My premise is that the physical setup of this device may detrimentally impact a recovering alcoholic's ability to mainintain sobriety.  Quite literally and simplistically, this thing can drive you crazy.  Every hour, this contraption comes alive, quivering on one's ankle for up to 5 minutes while its sensors try to measure one's perspiration from an ankle, waking anyone slumbering within the same room. 

This device is latched and locked to the offender's ankle and shin with a medieval dressing that attempts to protect the skin from painful rash, scratches, and swelling.   Finally, the torment of having this unproven appliance reporting your daily intake of food or other products that the manufacturer admits may provide false positives would push even the emotionally firm to the brink of a stiff drink.  Factor in the offender is on thin ice --emotionally, mentally, and physically -- and you have all the ingredients of an offender backsliding into relapse and eventual recidivism.

Now, a skeptical Michigan judge and an ambitious Michigan Law Student published a very good monograph in the Michigan Bar Journal (June 2006) debunking the garage science that is SCRAM. Here is a sampling of Judge Powers and Daniel Glad's piece.

As of the writing of this piece, Alcohol Monitoring Systems (AMS) has sold 2,200 units to various courts in 23 states. The technology behind this device is the Draeger fuel cell.  SCRAM calculates transdermal alcohol content (TAC) that is supposed to be the equivalent of blood alcohol content (BAC).  SCRAM then reports TAC to the probation officer via a modem.

Messrs. Powers and Glad were unable to unearth any complete studies of diffusion of alcohol through the skin.  The inventor of SCRAM, Jeff Hawthorne, admitted under oath in a Michigan courtroom in December 2004 (52nd District Court, Case Number 04-003877-FY) that SCRAM was not designed for use as a quantitative analytical device.  Also, he admitted that there are simply too many factors that cannot be controlled.  He reported that it is only a screening device.

This begs the question. If it doesn't quantitatively analyze alcohol then why is it giving quantitative readings to probation officers resulting in bond revocations and probation revocations?  Well, it seems that the only "studies" of SCRAM are those paid for by its manufacturer according to Mr. Hawthorne.  More disturbing, the SCRAM device cannot differentiate between different types of common compounds found in the human body that mimic ethyl (the type of alcohol found in alcoholic beverages).  AMS refers to these other compounds as "interferences". 

So, what are these "interferences"?  Acetone (commonly found in diabetics and individuals fasting) and endogenous alcohol.  Endogenous alcohol is produced by the body as a result of the breakdowns of certain types of foods (e.g. chocolate cake, apple walnut bread, raisin bread, english muffins, wheat bread, donuts).  If one were to eat any of these foods while wearing a SCRAM device, they may produce a positive reading that would be reported to their probation officer.

Here is what we do know about SCRAM.  There are no true peer-reviewed studies of SCRAM; the rate of error is uknown, and the only person testifying on behalf of these things is the major stakeholder of SCRAM -- the inventor!  The best information circulating about SCRAM reads more of marketing buzz than juried scientific studies.  And, nobody seems to know when, and if, SCRAM is calibrated on any basis.  Finally, cases that are coming through the pipeline are showing TAC readings that one national expert in alcohol testing calls "biological impossibility". 

AMS has several years of marketing ahead of the defense attorneys who are about to mount massive challenges to the accuracy and reliability of this thing.  This is a common gap between science and the courtrooms.  Either AMS gets these questions answered and wrinkles smoothed or defense attorneys are going to have this purported science dropped on its proverbial head. Until then, unfortunately, judges continue to use SCRAM and alleged offenders continue to go to jail for alleged positive TAC readings. 

by Brad Koffel July 22, 2006

Ohio DUI laws . . .they are about to change yet again (technically referred to as "OVI" or Operating a Vehicle Impaired).  There have been more amendments to Ohio's DUI code than any other criminal code section in the past 25 years by a wide margin.   Ohio's sexual predator laws, domestic violence laws, drug laws and other hot legislative topics over the years do not even come close to the changes to Ohio Revised Code 4511.19 (and the Administrative License Suspension found under R.C. 4511.191).

In perhaps the most confusing amendments in history, the Ohio DUI / OVI code is stretching its reach to include drugs of abuse and over the counter medicine.  I will post the specifics of this law on the day it is enacted in a few weeks.

Generally speaking, Ohio DUI laws are going to specify legal limits for active drugs and inactive metabolites in whole blood, serum, and urine.  Also, Ohio DUI laws are expanding from 2 hours to 3 hours the amount of time in which law enforcement may get a blood, serum, urine, or breath sample from a suspected impaired motorist.  More and more states are finding the 2 hour deadline to be too onerous for law enforcement to meet in serious accident cases.  It is wise to expand this time limit since the most serious accidents involving suspected impaired motorists result in medical personnel securing the individuals at the scene (not law enforcement), transporting the individuals to a hospital, and providing immediate medical assistance.  The time spent by medical personnel attending to a suspected impaired motorist comes out of the 2 hour shot clock that law enforcement has to secure a chemical test.  I agree that sound science and practicality justifies a 3 hour time limit.

However, a major flaw in the new DUID (driving under the influence of drugs) laws permits prosecution, conviction, and sentencing for offenders with trace amounts of inactive metabolites found in urine.  By scientific definition, metabolites are non-impairing.  Metabolites are simply remnants of active drug compounds that were in the body in the past.  Marijuana metabolites, by way of example, can be found in the urine 30 days after use. 

Also, the bladder holds urine and the waste of the human body.  Therefore, urine samples with metabolites are simply harmless byproducts found in a harmless part of the body.  It is illogical to permit prosecutors to allege impairment by way of a metabolite found in urine.  Active THC found in the blood stream leading to the brain and central nervous system is one thing.  But, the metabolites can only prove use in the past.  It will be impossible for a prosecutor prove or a coroner to opine with any degree of scientific certainty that the defendant's brain and central nervous system was impaired on the date and time in question based upon a metabolite level taken from a urine sample.

Sound science is being legislated out of the courtroom again.  This new legislation will produce a flurry of legal challenges in the very near future. 


_____
tags: Frank Solich Ohio DUI GHB Athens Ohio

By Brad Koffel July 19, 2006

Why do some people get plea bargains on their cases but other defendants do not? That question is impossible to answer precisely; however, a very good answer is simple: it depends.

I advise clients of 10 "high risk factors" that increase the odds of a DUI conviction. Conversely, the fewer of these factors, the greater the odds of a pre-trial settlement on favorable terms. In no particular order, the following 10 high risk factors in Central Ohio (the counties in which we primarily practice):

1. Car Accidents
2. Blood Tests
3. Breath Tests
4. Urine Tests
5. Video showing an impaired client
6. 1-800-GRAB-DUI calls about our client
7. Client or passenger statements tantamount to confessions of being DUI
8. Rudeness & belligerence towards police officers
9. The county the DUI arrest occurred
10. Prior Convictions for DUI

Again, there is no fool-proof method to avoid a DUI conviction (including not drinking and driving--more on that topic later). These are simply what I have found time and time again that aided or prevented a favorable disposition for clients. Finally, I do believe the retaining the right person to be your attorney will put you on the one yard line. However, every reputable lawyer in every niche in every state has their fair share of defeats and impossible cases.

By Brad Koffel July 14, 2006

We represent hundreds of accused DUI motorists each year arrested in Columbus, Ohio.  I meet nearly every client and review all of their tickets, police reports, and our investigator's case report.  Over the years, I have reviewed nearly 7,000 DUI arrests from Columbus and the surrounding areas.  So, what have I learned about DUI police officers' tactics?  

Every police officer or trooper has his or her personal method of "drunk hunting" (a police term used by law enforcement).    For example, from the early 1990's to the mid-1990's, the 270 north outerbelt was worked by several aggressive Ohio State Patrol troopers.  These troopers focused on I-270 from Sawmill Road  to S.R. 3.  They would drive their cruisers at high speeds back and forth, jump behind unsuspecting motorists, and monitor their driving for 1/2 mile (about 20-30 seconds).  If that particular driver did not  weave inside his/her lane or weave outside the lane, the trooper would slingshot around them to another vehicle. 

In Reynoldsburg, Ohio it seems as though nearly every DUI arrest occurs around Rosehill and Main St.  If you are familiar with this intersection you will know that several local watering holes are within 1 mile of this intersection.

In Grandview, Ohio we see more speeding violations on Dublin Road as predicate offenses to make traffic stops. 

The Columbus Police Department has a platoon of top DUI enforcement officers that aggressively work 315, 670, the Arena District and downtown.   These officers (Gilbert, Sowards, Wolfangel, Casimir, Buck, Decker, Hogan, Paden, Banks, Waltermeyer, and Coy)  make the overwhelming majority of DUI arrests in Central Ohio. 

Currently, the target enforcement areas in Columbus appear to be 315, 670, and the Arena District.   The other known DUI enforcement area is US 23 / Polaris area.

Each officer has his or her own method of approaching a vehicle, interviewing the driver, separating the driver from the vehicle, administering field sobriety tests, and decision point on whether or not to to arrest. 

Some officers get upset if an arrestee refuses to give a breath sample while others do not seem to care.  Certain police officers will almost always book the arrestee into the county jail while others have a tendency to release the arrestee to a cab or responsible third party. 

However, I can safely say that 95% of the police officers we deal with on a daily basis are quite easy for us to work with and resolve cases.  Only a small fraction take their arrests personally and do not want any type of favorable treatment given to the defendant. 

As I tell our clients, "if you were polite and respectful to the police officers that arrested you, they will probably be willing to make a favorable recommendation to the prosecutor". 

Other issues that are tied directly to who arrested our clients are items such as whether or not there is a cruiser video system, what field sobriety tests were administered, whether the arrest report is typed or handwritten (we prefer handwritten which will be explained in a subsequent blog in the future), and whether or not the officer is good on the witness stand for the prosecutor. 

All in all, most of the arresting officers we encounter in Central Ohio are nice, pretty easy going, and work very hard to remove impaired drivers from the roads.   Despite the inherent adversarial relationship between defense attorney and police officer, we appreciate the fact these officers put themselves in harms way on a nightly basis.  In fact, I expect  to see stepped up DUI patrol in December in memory of Columbus Police Officer Melissa Foster who was killed by a repeat dunk driver on December 6, 2004.   Last December, 3 officers made 75 DUI arrests in  a 3 week period in her memory.

By Brad Koffel, July 9, 2006

DUI in Delaware, Ohio? Most of the DUI arrests in Delaware County, Ohio are Ohio State Patrol and Delaware County Sheriff's Office. Other police agencies we see throughout any given year making DUI arrests in Delaware County, Ohio are Powell P.D., Delaware P.D., Westerville P.D., Genoa Twp. P.D., and the handful of other smaller departments throughout northern Delaware County. 

The OSP Post on US 23 works US 23 and southern Delaware County pretty aggressively during the peak DUI enforcement hours. Currently, 2 troopers are spending a significant amount of time on Powell Rd., Sancus, US 23, and the tributary roads feeding these major roadways. Troopers Young and Jones are certainly not having any difficulty finding vehicles to pull over as this area is populated by many upwardly mobile singles and more affluent families under the age of 40.

Naturally, this 5 square mile area has plenty of restaurants and bars that cater to these folks who tend to be our  typical DUI client (i.e. 21-45, college educated, with a nice job and family).  A large percentage of our practice is spent in the Delaware Municipal Court representing otherwise law abiding citizens with jobs at risk who never imagined finding themselves before a Judge on a DUI.

Fortunately, the OSP cruisers that work this area have cruiser video systems. I have found that the videos are extremely helpful in representing my clients charged with DUI in Delaware, Ohio. A number of my clients in the past few years have displayed no signs or minimal signs of impairment. I do believe that the mindset of 90% of my clients is that they believe they consumed a safe amount of alcohol over a safe period of time so as not to be illegal. Many of the arrest videos corroborate this theory. However, these same clients usually refuse to give a breath test for a variety of reasons. Most of the time it seems as though our clients have "heard not to take a breath test". Thus, they refuse and receive a 1 year license suspension.

The Delaware Municipal Court Judge, David Sunderman, takes a dim view of refusals. He does not feel comfortable granting restricted driving privileges until he "hears" the case (either at a suppression hearing or plea hearing). Also, Judge Sunderman does tend to look at prior DUI cases reduced to reckless operation for sentencing enhancement purposes. Prior DUI convictions are near guarantees of jail time, long license suspensions, and alcohol treatment. The more prior DUI convictions, the longer the jail and license suspensions. Also, Judge Sunderman strictly enforces the "Restricted Plates" (yellow license plates) provision of the DUI code. He frequently orders ignition interlock devices in vehicles as a condition to driving privileges for multiple offenders. And, in the Spring of 2006, he started ordering Continuous Alcohol Monitoring (SCRAM) on repeat DUI offenders.

Judge Sunderman runs a very efficient courtroom and is very much involved in the client's case from the pre-trial forward. For example, the majority of judges of Central Ohio are not involved in pre-trial conferences between the defense attorney and prosecutor. However, Judge Sunderman reviews, to some degree, nearly every case set before him at a pre-trial. Also, from the practitioner's perspective, every attorney litigating a case before Judge Sunderman needs to do their own legal research prior to the hearing or trial. Judge Sunderman is a voracious reader of case law and professional journals. He will know the most recent case on point. He keeps a large flat screen monitor on his bench and will review legal research "on the fly".

Finally, you can expect court dates to run pretty much on time which is one of the pleasures of practicing in his courtroom. The judge : case ratio is very high in The Delaware Municipal Court. In other words, the volume of cases that Judge Sunderman and Magistrate Kevin Pelanda hear on an annual basis is near the top of all Ohio courts. A second seat on the bench is coming soon. Despite the amount of cases and Judge Sunderman's more "hands on approach", the DUI cases move smoothly unlike many other Ohio courtrooms.

By Brad Koffel, July 3, 2006 @ 9:00 p.m.

In the Franklin County Municipal Court (Columbus, Ohio), we have 15 elected judges who have subtle differences on DUI cases that make each of them unique.  It is important to note that each judge, in our opinion, strives to reach the most equitable and proportionate sentence with each case.  With that said, it is incumbent upon each defendant in this court (the 5th busiest in America) to make sure that the person they have representing them fully understands each judge and their sentencing parameters.  It is often said in our office conference room that "we cannot control what a Judge is going to do in your case, but we can accurately predict and prepare accordingly". 

We have a handful of judges that give very wide discretion to the defense attorneys and prosecutors to shape each DUI case for settlement. In other words, these judges will almost always approve a negotiated disposition on a case. 

However, other judges will exert their judicial autonomy and "tweak" the plea bargain. For example, we have a Columbus, Ohio judge who gives nearly every first offense DUI defendant 3 days in jail regardless of what the prosecutor is recommending. In another courtroom, a judge will give a longer than minimum license suspension for first offenders who refuse a breath test. Then, we have a handful of judges that won't grant driving privileges on repeat DUI offenders unless they install ignition interlock devices in their vehicles.

Some of our judges run efficient and punctual courtrooms.  For our clients, that is very important as we tend to represent persons with careers, appointments, and work-travel.  Judges who want 9:00 a.m. pre-trials but won't start their dockets until 10:00 a.m. only make the jobs more difficult for every client, prosecutor, defense attorney, and police officer who comes before them. These judges are known to always be running well behind schedule. 

All in all, the Franklin County Municipal Court is a fantastic place to be a private lawyer representing clients who erred in judgment and were charged with DUI / OVI.  The flexibility that every single judge gives the lawyers who practice in this courthouse on a daily basis is a valuable tool that, quite frankly, helps our clients immensely as well as the keeps the courthouse running smoothly. 

_____
tags: Ohio DUI laws attorneys judges jail restricted privileges SCRAM arraignment Koffel Brad

By Brad Koffel, July 1, 2006 @ 2:00 p.m.

Ohio DUI cases differ from county to county. Many of our clients get confused when the DUI laws seem to be different based upon the county in which they were arrested. Every one of Ohio's 88 counties has jurisdiction over DUI arrests in their respective counties. In other words, where a DUI case is heard is determined by which county the person was arrested. The only exception is juvenile DUI (the county of residence can also have jurisdiction over the juvenile DUI offender).

Each judge in each county has discretion to sentence a DUI offender from the mandatory minimum penalties to the maximum penalties. However, the differences between judges is felt immediately when it comes to such basic topics such as whether or not the DUI offender has to appear at his/her arraignment, whether or not the judge will grant restricted driving privileges, whether or not the judge will "look back" farther than the law requires for "prior DUI convictions", whether or not the judge favors ignition interlock devices, house arrest, work-release, and other "soft" penalties, including continuous alcohol monitoring known as "SCRAM".

From an attorney's perspective, it is vital, even critical, to successful representation of a client, to know all the nuances of a particular judge. Essentially, there are so many micro-issues that will twist and turn an Ohio DUI case's progress that failing to completely understand your judge's proclivities will diminish an attorney's effectiveness. Over the next month, I will highlight each of the jurisdictions in which we routinely practice DUI in Ohio. The subtle differences from a client's perspective and the Ohio DUI attorney's perspective will be featured.

_____
tags: Ohio DUI laws attorneys judges jail restricted privileges SCRAM arraignment Koffel Brad

Brad Koffel, June 28, 2006 @ 3:00 p.m.

News reports hit the wires today across Ohio about "SCRAM".  What is SCRAM? Secure Continuous Remote Alcohol Monitoring.  This device is available to Ohio judges to install on repeat Ohio DUI offenders.  In theory, such a device is fantastic. Clearly, anything that helps an alcoholic stay sober is a welcome tool not only to the judiciary and law enforcement, but the recovering alcoholic and his/her family. 

Unfortunately, this technology may backfire and cause otherwise stalwart sober alcoholics to relapse. How so? I've represented several clients who participated in the SCRAM pilot project in Columbus, Ohio.  One client, "Bob", had 7 months of sobriety heading into his sentencing.  The Judge took one look at his DUI record and offered SCRAM in lieu of 2 months in jail.

The SCRAM device was installed on "Bob's" ankle. Every hour for the next 4 months, this device vibrated while it tested "Bob's" perspiration -- it vibrated as loud as a cell phone vibrating on a wooden table.  By day, it drew the attention of co-workers and bystanders.  After work at his son's baseball games, other parents couldn't help but to look over at "Bob" and wonder what in the world was going on with him. And, at night, it woke him up every hour.  The comfort level was just a shade better than a medieval torture device. Granted, it beats jail, but there is another side to this story.

Over time, "Bob's" mental and emotional strength was being tapped to cope with this Orwellian ankle ligature.  The same strength needed to fight the black spell of alcoholism.  His previous 7 months of sobriety was in danger of relapse. He begged to go to jail for the remainder of time.

Finally, the judge agreed to have the SCRAM removed from his ankle.  "Bob" had been a perfect client while on probation and he earned the next step in his sentencing -- the de-installation of SCRAM.  I am concerned that other multiple offender DUI's with several months of sobriety will be subjected to the same "Chinese Water Torture" that will drive them to relapse.

SCRAM can be tweaked. But, not until judges and probation officers understand the rest of the story.

By Brad Koffel, June 27, 2006 @ 11::45 a.m.

Last weekend, several Ohio counties, including Franklin County,  conducted sobriety DUI checkpoints.  These public relations stunts do more to get veteran officers together for overtime pay and coffee than take drunk drivers off the roads.  For example, 4 alleged DUI drivers were arrested in Shelby and Logan Counties last weekend. That may sound good until you look beneath the numbers.

I would bet that no fewer than a dozen police officers were at each checkpoint. I would further wager that 10 of those 12 officers do not work 3rd shift so they are paid overtime. And, most of those officers are veteran officers who are at the top of the payscale.

Next, those 2 counties detained 531 motorists to find 4 DUI. If you took the 24 officers camped out on a county road and deployed them throughout the county targeting impaired driving, I can assure you each of them would have found one DUI driver. So, 2 checkpoints and 4 arrests. Or no checkpoints and 24 possible arrests.

This doesn't take into account the folks who avoided the checkpoints because of the advance publicity and/or signage warning of the checkpoint ahead.

If Ohio is truly serious about DUI enforcement, get rid of the "coffee parties" and put those officers on patrol in the same numbers.

Posted by Brad Koffel, June 4, 2006 2:00 p.m.

The quiet chortles and chuckles are getting louder.  Yes, it is alleged that Coach Frank Solich was the victim of some sophomoric stunt at one of the nation's better-known party schools.  Before AM Sports Radio Host gets too far down the path of hysteria lane, let me suggest that this is not only likely, but a probable scenario. 
My experience over the years of representing thousands of individuals charged with Ohio DUI is that involuntary impairment by GHB or other "club drugs" is not that uncommon.   You can logically  and safely infer  this theory from the following indisputable facts. First,  GHB and other club drugs are extremely common in college towns and  college bars. Second, college pranks are as old as colleges themselves.  Third, "dropping" or "doping" GHB in a drink is very easy. Fourth, the presence of GHB in a drink is undetectable. Fifth, Frank Solich would be a prime target for such a prank . Finally, the effects of GHB on Frank Solich would produce the exact signs and symptoms of impairment as alleged by law enforcement in Athens, Ohio.

However, and this is a huge however, involuntary impairment is not a defense to Ohio DUI.  In other words, a motorist drugged at the hand of another is just as guilty of Ohio DUI as one drugged by their own hand.  Where Coach Frank Solich and his lawyer are taking this theory, if proven, remains to be seen.  But, before the college football pundits chime in on sports-talk radio, it is wise they understand that this scenario is hardly a far flung theory.

_____
tags: Frank Solich Ohio DUI GHB Athens Ohio

Posted by Brad Koffel, June 2, 2006 3:30 p.m.

In 1982, Ohio's legal limit was reduced from .150% to .100%. Neither alcohol-related traffic deaths nor DUI arrests abated. Nearly 20 years later, in 2003, the legal limit was further reduced to .080%.  In 2004 and 2005, alcohol-related deaths on the nation's roads actually increased nearly 2%.  The federal government is now looking at the DUI battle from the correct perspective -- treat DUI offenders more aggressively with counseling rather than hard court sanctions. 

Modeled after drug courts, DUI courts may become more commonplace in the courthouses across America. In fact, one of the very first DUI courts will be located in Akron with Judge Alison McCarty.  According to today's Akron Beacon Journal, Judge McCarty has been Akron's drug court judge for 11 years and has seen success: "90% of the folks who have finished the program have not been re-arrested the following year".  When dealing with chemical dependency and abuse, that is a fantastic statistic!

According to the Beacon Journal, the DUI court will cost only $200,000 a year.  Ohio currently has one of the only DUI courts in Clermont County, Ohio.  According to Judge McCarty, DUI offenders will meet the Judge once per week for 4 weeks and then once every 6 weeks after that. Alcohol consumption monitoring and GPS will be used as well as breath testers in the offender's home.

It will be interesting to see how many DUI offenders agree to this.  In theory, it sounds good. However, having represented thousands of DUI offenders since 1994, I have come to learn that clients will grow very tired and weary of such "big brother" involvement.  Many, I suspect, will prefer to simply "do the days" in jail and hope not to violate probation. 

Posted by Brad Koffel, June 1, 2006 1:30 p.m.

Based upon past experience, we expect to see significantly increased DUI enforcement in the 5 mile radius surrounding Muirfield Village Golf Club. Clearly, this is one of Central Ohio's largest social gatherings and corporate entertaining.  It is advisable not to consume any alcohol and operate a vehicle while in this area from 05-31-06 to 06-04-06.  Law enforcement will have an extremely low decision point to arrest.